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2014 DIGILAW 386 (ORI)

GOPAL KRISHNA BEHERA v. UNION OF INDIA

2014-07-01

B.R.SARANGI

body2014
JUDGMENT : Dr. B.R. Sarangi, J. - Both the Writ Petitions having involved common question of law & facts, were heard together & are disposed of by this common Judgment. The Petitioner in W.P.(C) No. 7949 of 2014 seeks to challenge the three months' notice of termination from service dated 14.03.2014 under Annexure-7 in accordance with the provisions contained under Rule-7(1) of Life Insurance, Corporation of India, Development Officers (Revision of Certain Terms & Conditions of Service) Rules, 2009 (in short "the Rules, 2009"). Similarly in W.P.(C) No. 8501 of 2014, three months' notice of termination of service has already been issued to the Petitioner on 14.3.2014 under Annexure 10 under Rules, 2009. The Petitioners in both the cases assail the notices on the ground that the same are arbitrary, unreasonable & contrary to the provisions of law & therefore, this Court may set aside the same. 2. Ms. Deepali Mahapatra, Learned Counsel appearing for both the Petitioners strenuously urged that the Petitioners were appointed pursuant to office Order Dated 29.01.2009 under Annexure-1 & they will go for a probation period of 12 months initially & at the discretion of the authorities, the said period could be extended & if necessary their services could be terminated. But after completion of probation period, the Petitioners' services had been confirmed, vide Annexure-2 while they were continuing as Development Officers. The notices of termination of service dated 14.03.2014 had been served giving three months time as per Rule 7(1) of the Rules, 2009. It is stated that such notices are the outcome of non-application of mind & contrary to the provision of law. To substantiate her contention, Ms. Mohapatra has relied upon the Judgments of Allahabad High Court in Vivek Anand Vs. Life Insurance Corporation of India and Others, & Kuldeep Sonkar v. Union of India & Ors. Writ-A No. 18287 of 2013 where the earlier Judgment in Vivek Anand case (Supra) has been referred to. 3. Mr. S.P. Panda, Learned Counsel appearing for Opp. Party Nos. 2 to 4 states that the Development Officers having not satisfied the conditions by giving business to the organization, requested for extension of probation for three months to enable them to achieve the target & such extension of probation might be communicated to them. But subsequently, the Petitioners were confirmed against the posts they were holding. Party Nos. 2 to 4 states that the Development Officers having not satisfied the conditions by giving business to the organization, requested for extension of probation for three months to enable them to achieve the target & such extension of probation might be communicated to them. But subsequently, the Petitioners were confirmed against the posts they were holding. It is stated that the Petitioners having not achieved the minimum target by providing business as per the terms & conditions of the appointment order under Annexure-1 read with Rules, 2009, the impugned notices were given to them under Rule-7(1) of the Rules, 2009 terminating their services after expiry of three months period from the date of notice. Several opportunities were given to the Petitioners to improve their business, but the Petitioners having failed to satisfy the conditions stipulated therein, the impugned notices terminating their services were issued well within the jurisdiction of the authority. Therefore, the action taken having been done in conformity with the provisions of law, the same may not be interfered with by this Court. In addition to the same, it is urged that against the order of termination appeal lies under Rule 7(2) of the Rules, 2009. Therefore, without availing the alternative remedy, the Petitioners should not have approached this Court by filing the present Writ Petitions. To substantiate his contention, he has relied upon the Judgments of Supreme Court in K.S. Rashid and Son Vs. The Income Tax Investigation Commission etc., & Munna Lal v. State of U.P. & 4 Ors., & Allahabad High Court in Writ A No. 23101 of 2014 disposed of on 22.04.2014 wherein Vivek Anand case (Supra) was referred in. 4. After hearing the Learned Counsel for the parties, going through the records & perusing the documents, it appears that the Petitioners were appointed as Development Officers by following due procedure of selection under Annexure-1, which stipulated that in terms of appointment under clause-2, the Petitioners had to go initially for a period of 12 months as probationary officers from the dates of their joining, but the Corporation might, in its sole discretion, extend the probationary period, provided that the probationary period including the extended probationary period would not exceed 24 months counted from the commencement of the probationary appointment. During the probationary period which included extended probationary period, if applicable, the Petitioners would be liable to be discharged from the services of the Corporation without assigning any cause. Clause-5 of the appointment order states about "Duties & Obligations". Clause-7 states about "Advance Deposits" & Clause-9 deals about "Collection of Premiums" which states that unless expressly authorized by the Corporation to do so, the Petitioners shall not collect any premium save & except the amount of deposit towards first installment of premium as in Clause-7. In Clause 10 it is stated that the Petitioners had to provide minimum business as mentioned therein & also stated that if the probation period was extended, the Petitioners would secure during the extended period such business as might be intimated to them. Under clause-11, "Confirmation & Increments" have been provided for. On being satisfactorily completing the period of probation & on observance & compliance with all conditions set out in the letter of appointment, the Petitioners could be confirmed in the service of the Corporation in Class-II with a condition that the confirmation would depend inter alia upon the fulfillment of the minimum business requirements as set out in Clause 10 of the appointment order & upon the record of post sales service to the Corporation's policy holders & other functions performed by the Petitioners in the area allotted to them to the satisfaction of the Competent Authority along with condition of the appointment order. 5. In order to regulate the service conditions of the Development Officers in exercise of power conferred by sub-section (1) read with Clause (cc) of sub-section (2), of Section 48 of the Life Insurance Corporation Act, 1956, the Central Government makes the Rules regulating certain terms & conditions of service relating to business performance of Development Officers of the Life Insurance Corporation called "the Life Insurance Corporation of India Development Officers (Revision of Certain Terms & Conditions of Service) Rules, 2009". Rule-7 deals termination of service in certain cases. Rule-7 deals termination of service in certain cases. Sub-rule-1 of Rule-7 states as follows:- "Where a Development Officer has failed to conform to the expense limit & where no opportunity to conform to such limit could be given under the provisions of rule 6 the Zonal Manager may terminate his services after giving him three months notice or salary in lieu thereof; Provided that the Development Officer shall be given an opportunity to show cause against such proposed termination of his service." 6. On perusal of sub-rule-(2) of Rule-6, if appears that if the Development Officer unable to fulfill the conform expense limit, his basic pay arrived at fails below the minimum of the grade applicable to the Development Officer, his basic pay shall be fixed as such minimum as applicable to Development Officer provided that fixation of basic pay at minimum under the sub-rule shall not be allowed more than once during the entire service period & if, on a second occasion, the basic pay so arrived at falls below such minimum his service shall be liable to be terminated in accordance with Rule-7. As per sub-rule 4 of Rule 6 the appointing authority shall be the competent authority for implementing the provision of sub-rules (1), (2) & (3) & shall determine the matters specified in the paid sub-rules, as soon as may be, after the expiry of the relevant appraisal year. The "appraisal date" means, the date of appointment, i.e. year & month in which a Development Officer completes 12 months of service. The Petitioners were served with notice of show cause on 10.5.2013 in which they were called upon to should performance of appraisal year pursuant to which they submitted show cause replied. But it is urged that without considering the same, the impugned licences of termination have been issued by the authority. But the consistent case of Opp. Party Nos. 2 to 4 is that the Petitioners did not fulfill the conditions stipulated in the appointment order under Annexure-1 with regard to achieving the target of providing business to the organization read with Rules, 2009. Therefore, no illegality has been committed in issuing such impugned, three months' notices of termination. Even such termination order is also appealable under sub-rule 2 of Rule 7 of Rules 2009 which is as follows. Therefore, no illegality has been committed in issuing such impugned, three months' notices of termination. Even such termination order is also appealable under sub-rule 2 of Rule 7 of Rules 2009 which is as follows. "An appeal against an order passed under sub-rule (1) shall lie to the Managing Director & the provisions of Rules 41, 42, 43, 44 & 45 of the staff rules shall, so far as may be, apply to any such appeal." 7. In view of the above provision, it appears that there is availability of alternative remedy under the law & alternative remedy may be statutory, non-statutory or constitutional where a right is created by a statute. The statute itself may provide a remedy for violation of such rights. Where a statute creates a right or liability & also prescribes a remedy or procedure for enforcement of that right or liability, resort must be had to that remedy before invoking the extraordinary & prerogative writ jurisdiction of, the High Court under Article 226. Hence, where statutory remedy is available, petition under Article 226 is not generally entertained since Article 226 is not intended to circumvent statutory procedures. This provision of law has been settled by the Apex Court in Danda Rajeshwari Vs. Bodavula Hanumayamma and others, & Shivgonda Anna Patil and Others Vs. State of Maharashtra and Others, 8. In view of the aforesaid law laid down by the Apex Court mentioned supra where the party had a statutory remedy available under the relevant statute, he cannot bypass the said remedy & file a Writ Petition under Article 226. It was held that if such a procedure is allowed, it may enable the litigant to defeat the provisions of the statute. The normal rule is that a Writ Petition should not be entertained when statutory remedy is available under the concerned legislation unless exceptional cases are made out in view of the ratio decided by the Apex Court in The Premier Automobiles Ltd. Vs. Kamlekar Shantaram Wadke of Bombay and Others Rajasthan State Road Transport Corporation and Another Vs. Krishna Kant and Others Scooters India and Others Vs. Vijai E.V. Eldred Chandrakant Tukaram Nikam and Others Vs. Municipal Corporation of Ahmedabad and Another Seth Chand Ratan Vs. Pandit Durga Prasad (D) by Lrs. and Others, U.P. State Bridge Corporation Ltd. and Others Vs. U.P. Rajya Setu Nigam S. Karamchari Sangh U.P. State Spinning Co. Krishna Kant and Others Scooters India and Others Vs. Vijai E.V. Eldred Chandrakant Tukaram Nikam and Others Vs. Municipal Corporation of Ahmedabad and Another Seth Chand Ratan Vs. Pandit Durga Prasad (D) by Lrs. and Others, U.P. State Bridge Corporation Ltd. and Others Vs. U.P. Rajya Setu Nigam S. Karamchari Sangh U.P. State Spinning Co. Ltd. Vs. R.S. Pandey and Another, & Uttaranchal Forest Development Corpn. and Another Vs. Jabar Singh and Others, . 9. As per the Rules, 2009 since appeal provision is made available & no exceptional cases are made out by the Petitioners to bypass the Appellate forum, this Court is of the view that without availing the alternative remedy prescribed under the statute, the Writ Petitions cannot be entertained. In the aforesaid facts & circumstances of the case & in view of the law discussed above, the Writ Petitions are disposed of observing that the Petitioners may ventilate their grievance by approaching the Appellate forum as per sub-rule (2) of Rule 7 of the Rules, 2009. Final Result : Disposed Off