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High Court of KeralaWP(C)/2772/2014disposed of

Joseph Kunju Zachariah v. Senior Divisional Manager

2015-10-09Honourable Mr. Justice Anil K.Narendran26 pages

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY, THE 9TH DAY OF OCTOBER 2015/17TH ASWINA, 1937 WP(C).No. 2772 of 2014 (V) --------------------------- PETITIONER:

------------------ JOSEPH KUNJU ZACHARIAH S.R NO.536827 DEVELOPMENT OFFICER (RETD) NADUMTHAKADY HOUSE KURUVAMOOZHY P.O, ERUMELY, KOTTAYAM.

BY ADVS.SRI.N.DHARMADAN (SR.) SMT.D.P.RENU RESPONDENT(S):

----------------------------

1. SENIOR DIVISIONAL MANAGER LIC OF INDIA, DIVISIONAL OFFICE, KOTTAYAM 686 001.

2. ZONAL MANAGER LIC OF INDIA ZONAL OFFICE, ANNA SALAI, CHENNAI 600 002.

3. CHAIRMAN LIC OF INDIA, CENTRAL OFFICE, MUMBAI 400 008. BY ADV. SRI.S.EASWARAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-10-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No. 2772 of 2014 (V) --------------------------- APPENDIX PETITIONER'S EXTS:

----------------------------- EXT. P1. COPY OF REPRESENTATION DT. 14.10.13 BY PETITIONER. EXT. P2. COPY OF ORDER DATED 17.3.04 BY 3RD RESPONDENT. EXT. P3. COPY OF LEGAL OPINION DT. 15.11.02 ISSUED TO PETITIONER. EXT. P4. COPY OF REVIEW PETITION DT. 27.6.05 FILED BY PETITIONER. RESPONDENTS' EXTS:

-------------------------------- EXT.R1(A):

COPY OF ORDER DT.24.11.93 ISSUED BY THE RESPONDENT. EXT.R1(B):

COPY OF ORDER No.P&IR/PO (33)/2002-2003 DT.25.7.02. EXT.R1(C):

COPY OF ORDER DT.16.12.2002 OF THE APPELLATE AUTHORITY. EXT.R1(D):

COPY OF MEMORIAL SUBMITTED BY THE PETITIONER BEFORE THE CHAIRMAN OF THE LIC.

EXT.R1(E):

COPY OF ORDER DT.17.3.2004 ISSUED BY THE CHAIRMAN. EXT.R1(F):

COPY OF CALCULATION SHEET FOR THE PURPOSE OF PENSION PAYMENT.

EXT.R1(G):

COPY OF LETTER DT.7.6.2014 SUBMITTED BY THE PETITIONER TO THE CHAIRMAN, LIC OF INDIA, MUMBAI.

EXT.R1(H):

COPY OF LETTER DT.22.6.04 BY THE SENIOR DIVISIONAL MANAGER TO THE ZONAL MANAGER, ZONAL OFFICE, CHENNAI ENCLOSING EXT.R1 (G) EXT.R1(I):

COPY OF LETTER DT.12.7.2004 CONTAINING THE ACKNOWLEDGEMENT OF THE PETITIONER.

TRUE COPY P.S. TO JUDGE dsn

ANIL K.NARENDRAN, J.

------------------------------------ W.P.(C)No.2772 of 2014 ---------------------------------------- Dated this the 9th day of October, 2015

JUDGMENT

The petitioner, who retired from service of the Life Insurance Corporation of India (hereinafter referred to as 'the Corporation'), has filed this Writ Petition seeking a declaration that he is entitled to get full pension and other service benefits treating the period from 16.11.1993 to 26.7.2002, the period during which he was placed under suspension, as regular service. The petitioner has also sought for a writ of mandamus commanding the respondents to consider Ext.P4 review petition dated 27.6.2005 in the light of the decisions of the Apex Court and pass appropriate orders thereon, and a writ of mandamus commanding the 1st respondent to disburse him all arrears, taking into account his total service without any break due to suspension from 16.11.1993 to 26.7.2002, together with interest at the rate of 18%.

2.

Going by the averments in the Writ Petition, the petitioner retired from service while working as Development Officer

-2in the Corporation. He joined service on 21.10.1986. While in service, he was arrayed as an accused in a criminal case alleging commission of offence punishable under Section 120B read with Section 302 of IPC, based on which he was placed under suspension with effect from 16.11.1993. Later, the order of suspension was revoked with effect from 26.7.2002, when he was acquitted by the Sessions Court. The petitioner represented before the Corporation to regularise his period of suspension from 16.11.1993 to 26.7.2002, which request was turned down by the Chairman of the Corporation, the 3rd respondent herein, by Ext.P2 proceedings dated 17.3.2004. According to the petitioner, against Ext.P2 proceedings he filed Ext.P4 review petition addressed to the 3rd respondent and the same is pending consideration from 27.6.2005.

During the pendency of the said review petition the petitioner retired from service on 31.5.2013. After retirement from service, the petitioner submitted Ext.P1 representation dated 14.10.

-316.11.1993 to 26.7.2002 as on duty. Thereafter, the petitioner has approached this Court in this Writ Petition seeking various reliefs.

3.

A counter affidavit has been filed on behalf of respondents 1 and 2 contending that the petitioner is not legally entitled for any of the reliefs prayed for. The respondents would contend that, the acquittal by the Sessions Court is not an honourable acquittal and as such the petitioner is not entitled for regularisation of the period of suspension as on duty. Relying on Ext.R1(a) order dated 24.11.1993, the respondents would contend that during the period of suspension the petitioner was paid 50% of the salary as subsistence allowance in terms of Regulation 37 of the Life Insurance Corporation of India (Staff) Regulations, 1960 (hereinafter referred to as 'the Staff Regulations') and 75% of the salary was paid as subsistence allowance beyond 180 days. On 25.7.2002, the order of suspension was revoked by Ext.R1(b) order, in which it was specifically mentioned that the period of suspension will be treated as 'period not spent on duty' and his basic pay was fixed

-4at 6,900/-. Against the said order, the petitioner filed an appeal ₹ before the Zonal Manager, the 2nd respondent herein, which was dismissed by Ext.R1(c) order dated 16.12.2002. Against the said order, the petitioner filed Ext.R1(d) Memorial dated 4.7.2003 before the 3rd respondent. The said Memorial was taken up for consideration by the Chairman in terms of Regulation 49 and the same was rejected by Ext.R1(e) order dated 17.3.2004, on the ground that since the acquittal from criminal court is not an honourable acquittal, the petitioner is not entitled to claim that his period of suspension should be treated as period spent on duty for all purposes.

The respondents would also submit that, after reinstatement in service the petitioner's basic pay was fixed at 6,900/-, salary was disbursed on the basis of the basic pay so ₹ fixed and annual increments were also sanctioned till his retirement, i.e., till 31.5.2013. On retirement, the terminal benefits were calculated and his last pay was disbursed on 31.5.2013. In order to substantiate the said facts, the respondents would rely on Ext.R1(f) calculation sheet. 4.

The respondents would contend further that, till

-5retirement, the petitioner was not having any grievance regarding regularisation of the period of suspension. He accepted his pension and other pensionary benefits without any objection. Long after retirement, the petitioner filed the present Writ Petition contending that Ext.P4 review filed before the 3rd respondent is still pending consideration. Therefore, according to the respondents, the Writ Petition is highly belated and as such the petitioner is not entitled for any of the reliefs prayed for. They have also contended that, Ext.P4 review filed by the petitioner before the 3rd respondent is not maintainable as per the Staff Regulations.

5.

The petitioner has filed a reply affidavit, stating that his acquittal from criminal case is an honourable acquittal, which is evident from the operative portion of the judgment of the Sessions Court, which is quoted in paragraph 3 of the reply affidavit. The petitioner would also contend that, after Ext.R1(e) order dated 17.3.2004, he filed Ext.P4 review before the 3rd respondent, to which he has not received any positive response. The petitioner was under the bona fide belief that the request

-6made therein would be considered by the Corporation at the time of his retirement, while calculating his pensionary benefits. But, only from Ext.R1(f), the petitioner came to know that the Corporation has not considered favourably his request for regularisation of the period of suspension. The petitioner would contend that, had he challenged Ext.P2 order immediately after his reinstatement in service, the Corporation would not have allowed him to continue in service up to superannuation. So he thought it wise to wait till his retirement to raise the above claim, in case the Corporation fails to pass orders on the review or grant him the benefits suo moto. The petitioner has also stated reasons in the reply affidavit, explaining the the delay occurred in filing the Writ Petition, after his retirement.

6.

Respondents 1 and 2 have filed an additional counter affidavit producing therewith certain additional documents. Relying on Ext.R1(g) letter dated 7.6.2004, the respondents would contend that, the Memorial submitted by the petitioner dated 4.7.2003 was rejected by the competent authority on 17.3.2004. On 7.6.2004, the petitioner submitted Ext.R1(g)

-7letter for re-consideration of the Memorial in a broader perspective. On receipt of Ext.R1(g), the same was forwarded for consideration vide Ext.R1(h) letter dated 22.6.2004 of the 1st respondent. However, the same was returned vide Ext.R1(i) letter dated 30.6.2004, pointing out that there is no provision under the Staff Regulations for resubmitting a Memorial, which was communicated to the petitioner vide Ext.R1(j) letter dated 12.7.2004. Ext.R1(j) letter contains an acknowledgment made by the petitioner. However, the petitioner has suppressed the aforesaid fact in the Writ Petition.

7.

The petitioner has filed an additional reply affidavit, admitting the filing of Ext.R1(g) Memorial dated 7.6.2004. The petitioner would contend that, he was informed by the Union officials that, they will take up the matter with the Corporation and as such he was waiting for quite long. Relying on the judgments of the Apex Court, the petitioner would contend that, the Corporation should act as a model employer and any technical view or pedantic approach by the Corporation would defeat the ends of justice.

-88.

I heard the arguments of the learned Senior Counsel for the petitioner and also the learned Standing Counsel for the Corporation.

9.

The issue that arises for consideration in this Writ Petition is as to whether the petitioner is entitled to seek a writ of mandamus commanding the Corporation to consider and pass orders on Ext.P4 review petition, which is pending consideration from the year 2005 onwards.

10.

The service conditions of the employees of the Corporation are governed by the Life Insurance Corporation of India (Staff) Regulations, 1960, framed in exercise of the powers vested in the Corporation under clauses (b) and (bb) of subsection (2) of Section 49 of the Life Insurance Corporation Act, 1956, with the previous approval of the Central Government. Clause (d) of Regulation 3 defines 'Corporation' to mean the Life Insurance Corporation of India. Chapter II of the Regulations deals with appointments, probation and termination of service. Regulation 5 deals with classification of staff and the post of Development Officer held by the petitioner falls under Class II.

-911.

Regulation 38 deals with treatment of the period of suspension. Going by Regulation 38, when the suspension of an employee is held to be unjustified or not wholly justified, or when an employee who has been dismissed, removed or suspended is reinstated, the disciplinary, appellate, or reviewing authority, as the case may be, whose decision shall be final, may grant him for the period of his absence as duty;

(a) if he is honourably acquitted, the full pay and allowances which he would have been entitled to if he had not been dismissed, removed or suspended, less the subsistence allowance;

(b) if otherwise, such proportion of pay and allowance as the disciplinary, appellate or reviewing authority may prescribe.

Regulation 38 provides further that, in a case falling under clause (a), the period of absence from duty will be treated as period spent on duty. In a case falling under clause (b), the period of absence shall not be treated as period spent on duty, but the disciplinary, appellate or the reviewing authority may, at its discretion, grant leave for the period to the extent admissible to the employee under the rules; any period of absence which has

-10not been treated as period spent on duty or on leave shall not count as service for any purpose under the Regulations but will not constitute break in service. It is also provided that, no order passed under Regulation 38 shall have the effect of compelling any employee to refund the subsistence allowance payable under Regulation 37.

12.

Regulation 40 provides for a right of appeal. Going by Regulation 40, every employee shall have a right of appeal to the appellate authority specified in Schedule I, against an order imposing upon him any of the penalties specified under Regulation 39. Going by Schedule I, in the case of Class II staff, the appointing authority as well as disciplinary authority is the Divisional Manager. The learned Standing Counsel for the Corporation would point out that, presently the Senior Divisional Manager is the appointing authority as well as disciplinary authority in the case of Class II staff. The appellate authority in the case of Class II staff is the Zonal Manager. Regulation 41 prescribes the period of limitation for appeals and Regulation 42 deals with form and contents of appeal. Regulation 43 deals with

-11submission of appeals and Regulations 44 and 45 deal with withholding of appeals and transmission of appeals. 13.

Regulation 48 provides for review. Going by subregulation (1) of Regulation 48, notwithstanding anything contained in the Regulations, the Corporation may, on its own motion or otherwise, after calling for the records of the case, review any order which is made or appealable under the regulations, and (a) confirm, modify or set aside the order;

(b) impose any penalty or set aside, reduce, confirm or enhance the penalty imposed by the order;

(c) remit the case to the authority which made the order or to any other authority directing such further action or inquiry as it considers proper in the circumstances of the case; or (d) pass such other orders as it deems fit.

14.

Going by the proviso to sub-regulation (1) of Regulation 48, an order imposing or enhancing a penalty shall not be passed unless the person concerned has been given an opportunity of making any representation, which he may wish to make against such enhanced penalty. Sub-regulation (2) provides further that, the authority to which an appeal against an order

-12imposing any of the penalties specified in Regulation 39 lies may, of its own motion or otherwise, call for the records of the case in a disciplinary proceeding, review any order passed in such case and pass such orders as it deems fit, as if the employee had preferred an appeal against such order. The 1st proviso to subregulation (2) provides that, an order imposing or enhancing a penalty shall not be passed unless the person concerned has been given an opportunity of making any representation which he may wish to make against such enhanced penalty. The 2nd proviso provides further that, no action under sub-regulation (2) shall be initiated more than six months after the date of the order to be reviewed.

-13in the circumstances of the case with regard to further proceedings in the case.

15.

Regulation 49 deals with Memorial, as per which an employee whose appeal under the Regulations has been rejected by the appellate authority subordinate to the Chairman, or in whose case such appellate authority has enhanced the penalty either on appeal under Regulation 40 or on review under subregulation (2) of Regulation 48, may address a Memorial to the Chairman in respect of that matter, within a period of 6 months from the date the appellant received a copy of the order of such appellate authority.

16.

The aforesaid provisions under the Staff Regulations provide for appeal and review by the delinquent employee and also a right to submit Memorial, when the appeal has been rejected by the appellate authority subordinate to the Chairman. Though the Regulations prescribe the period of limitation for an appeal, the manner in which the appeal has to be submitted, the procedure by which and the circumstances in which the appeal can be withheld, transmission of the appeal and it consideration,

-14similar provisions are not there in the case of a review filed under Regulation 48, or a Memorial filed under Regulation 49. 17.

In the case on hand, the request made by the petitioner for regularisation of his period of suspension was turned down in Ext.P2 order dated 17.3.2004. A reading of Ext.P4 review petition filed by the petitioner dated 27.6.2005 would show that, it is one filed invoking the provisions under Regulation 48, challenging Ext.P2 order. The fact that, the petitioner has submitted Ext.P4 review petition in June 2005 is not in dispute. It is also not in dispute that, till date no orders are passed on Ext.P4 review. However, the respondents would contend that, once the Chairman has issued Ext.P2 appellate order, in exercise of his powers under Regulation 40, the petitioner has to file a review petition under Regulation 48 before the Corporation and not before the Chairman of the Corporation. 18.

When the power of review under Regulation 48 is conferred on the 'Corporation', Ext.P4 review addressed to the 'Chairman' of the Corporation, who is the appellate authority under Regulation 40, cannot be treated as a review filed before

-15the competent authority. However, as I have already noticed, though specific provisions are there in the Staff Regulations prescribing the form and contents of the appeal, procedure for submission of appeal, transmission of appeal, etc., no such provisions are there in the case of a review contemplated under Regulation 48. Similarly, Regulation 41 prescribes the period of limitation of appeal as three months from the date on which the delinquent employee receives copy of the order appealed against. The proviso to Regulation 41 empowers the appellate authority to entertain the appeal after the aforesaid period of three months, if it is satisfied that the appellant had sufficient cause for not submitting the appeal in time.

On the other hand, in the case of a review filed under under Regulation 48, no time limit is prescribed for filing such review. Further, the power of review under Regulation 48 can be exercised by the 'Corporation' either on its own motion or otherwise, after calling for the records of the case.

-16concerned has been given an opportunity to make any representation which he may wish to make against such enhanced penalty. Therefore, on receipt of Ext.P4 review petition through proper channel, the 3rd respondent, who is the appellate authority, ought to have transmitted it to the authority competent to entertain such a review filed under Regulation 48, or returned it to the disciplinary authority for onward transmission to such competent authority. Instead, Ext.P4 review, a statutory review filed under the Staff Regulations was kept pending for more than a decade.

19.

In Life Insurance Corporation of India v. D.J. Bahadur and others (1981 (1) SCC 315) a Three-Judge Bench of the Apex Court held that, the Life Insurance Corporation is a State within the meaning of Article 12 of the Constitution of India and the Corporation has to conform to the provisions of Articles 14 and 16 of the Constitution of India in discharge of its functions. The principle laid down in the aforesaid judgment was followed by a Division Bench of this Court in Financial Service Executives Welfare Association, Kottayam v. Life

-17Insurance Corporation of India, Mumbai and others (2015 KHC 261).

20.

In Som Prakash Rekhi v. Union of India (1981

(1) SCC 449) a Three-Judge Bench of the Apex Court held that, social justice is the conscience of our Constitution, the State is the promoter of economic justice, the founding faith which sustains the Constitution and the country is Indian humanity. The Apex Court held further that, the public sector is a model employer with a social conscience not an artificial person without soul to be damned or body to be burnt. Later, in Gurmail Singh and others v. State of Punjab and others, (1991 (1) SCC

189) the Apex Court held that, the State as a model employer is expected to show fairness in action. Still later, in Balram Gupta v. Union of India and another (1987 (Supp) SCC 228) the Apex Court held that, as a model employer the Government must conduct itself with high probity and candour with its employees. In Union of India and another v. Hemraj Singh Chauhan and others (2010 (4) SCC 290) the Apex Court reiterated that, both the Central Government and the State Government are

-18to act as model employers, which is consistent with their role in a Welfare State.

21.

If the present factual matrix is tested in the light of the principle laid down in the aforesaid decisions, there can be no trace of doubt that the Corporation, which is a State within the meaning of Article 12 of the Constitution of India, which has to conform to the provisions of Articles 14 and 16 of the Constitution of India in discharge of its functions, have conveniently ostracized the concept of a 'model employer'. By keeping pending Ext.P4 statutory review filed by the petitioner for more than a decade, the Corporation has acted in a most unfair and arbitrary manner. The aforesaid action of the Corporation, which is bound to act fairly and give a fair deal to its employees, consistent with the requirements of Articles 14 and 16 of the Constitution of India, warrants an interference of this Court under Article 226 of the Constitution of India, in order to ensure rule of law and to see that the Corporation acts within the four corners of Articles 14 and 16 of the Constitution of India. 22.

The learned Standing Counsel for the Corporation,

-19relying on various judgments of the Apex Court, would contend that, the petitioner is liable to be non-suited on account of delay and laches. In order to buttress this contention he would rely on the judgments of the Apex Court in State of M.P. v. Bhailal Bhai (AIR 1964 SC 1006); Dehri Rohtas Light Railway Company Limited v. District Board, Bhojpur (1992 (2) SCC 598); Karnataka Power Corporation Ltd. v. K.Thangappan (2006 (4) SCC 322); and S.S.Balu v. State of Kerala (2009

(2) SCC 479).

23.

In Bhailal Bhai's case (supra), the Apex Court held that, if there has been unreasonable delay, the Court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus. In Dehri Rohtas Light Railway Company's case (supra) it was held that, the rule which says that the Court may not enquire into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. However, the Apex Court observed that, the principle on which the relief to the party on the grounds of laches or delay is denied is that the rights which have accrued to others by reason of the

-20delay in filing the petition should not be allowed to be disturbed unless there is reasonable explanation for the delay. The real test to determine delay in such cases is that the petitioner should come to the writ Court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence. The test is not to physical running of time. Where the circumstances justifying the conduct exists, the illegality which is manifest cannot be sustained on the sole ground of laches. 24.

In Karnataka Power Corporation's case (supra) the Apex Court held that, delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. The Apex Court observed that, when writ jurisdiction is invoked, unexplained delay coupled with the creation of third party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction. In S.S.Balu's case (supra) the Apex Court held that, where the writ petitioner approaches the High Court after a long delay, reliefs prayed for may be denied to them on the ground of

-21delay and laches irrespective of the fact that they are similarly situated to the other candidates who obtain the benefit of the judgment.

25.

In Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai (2012 (5) SCC 157) the Apex Court held that, when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. The Apex Court observed that, there is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

26.

In the case on hand, the request made by the petitioner for regularisation of his period of suspension was turned down in Ext.P2 order dated 17.3.2004. Against the said

-22order, the petitioner filed Ext.P4 review petition dated 27.6.2005, under Regulation 48 of the Staff Regulations. As I have already noticed, the fact that the petitioner has submitted Ext.P4 review petition in June 2005 is not in dispute. It is also not in dispute that, till date no orders are passed on Ext.P4 review. Therefore, admittedly, the Corporation kept pending Ext.P4 statutory review filed by the petitioner for more than a decade. By the aforesaid act, the Corporation, which has to conform to the provisions of Articles 14 and 16 of the Constitution of India in discharge of its functions, acted in a most unfair and arbitrary manner. Having failed to discharge the statutory duty to consider Ext.P4 review filed by the petitioner, the Corporation cannot be heard to contend that the petitioner is liable to be non-suited on account of delay and laches, especially when granting of any relief to the petitioner would not adversely affect the accrued rights of any other employee in the Corporation.

27.

Regulation 38 of the Staff Regulations provides that, when the suspension of an employee is held to be unjustified or not wholly justified, or when an employee who has been

-23dismissed, removed or suspended is reinstated, the disciplinary, appellate, or reviewing authority, as the case may be, may grant him for the period of his absence as duty, the full pay and allowances which he would have been entitled to if he had not been dismissed, removed or suspended, less the subsistence allowance, if he is honourably acquitted. Relying on the operative portion of the judgment of the Sessions Court, extracted in Para.3 of the reply affidavit, the learned Senior Counsel for the petitioner would contend that, the acquittal of the petitioner from criminal case is an honourable acquittal falling under clause (a) of Regulation 38.

Per contra, the learned Standing Counsel for the Corporation would contend that, since it is not an honourable acquittal, the petitioner is not entitled for any regularisation of the period of suspension as on duty with consequential reliefs. Since the entitlement of the petitioner for regularisation of the period of suspension is the subject matter in Ext.P4 statutory review, I am not expressing anything on the merit of the rival contentions. Therefore, the contentions raised by both sides are left open.

-2428.

In the result, this Writ Petition is disposed of directing respondents 1 and 2 to transmit Ext.P4 review petition before the competent authority in terms of Regulation 48 of the Life Insurance Corporation of India (Staff) Regulations, 1960, so as to enable the said authority to take an appropriate decision on the said review petition, strictly in accordance with law. Necessary orders in this regard shall be passed, as expeditiously as possible, at any rate within a period of three months from the date of receipt of a certified copy of this judgment. The competent authority shall pass a reasoned order dealing with all the contentions raised by the petitioner.

No order as to costs.

Sd/- ANIL K.NARENDRAN, JUDGE skj/dsn True copy P.S.to Judge