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2017 DIGILAW 928 (KAR)

K. Mahesh @ K. Mageshwaran v. Union Government, R/By the Secretary, New Delhi

2017-06-13

P.S.DINESH KUMAR, SUBHRO KAMAL MUKHERJEE

body2017
JUDGMENT : 1. These two appeals are filed by a former employee of Life Insurance Corporation of India ('LIC' for short) and the management respectively, challenging the order dated June 26, 2015 passed by the Hon'ble Single Judge in Writ Petition No.41849/2011. 2. We have heard Shri K. Mahesh, former employee- party in person and Shri Rajesh Shetty, learned advocate for the management. 3. Writ petitioner - appellant is an ex-service man. He was initially appointed as a Typist with the LIC in the year 1990 and subsequently as a Development Officer in the year 1997. Terms of service of a Development Officer are governed by the Life Insurance Corporation of India Development Officers (Revision of Certain Terms and Conditions of Service) Rules, 1989 ('1989 Rules' for short). Appraisal of his performance for the period 1.8.2005 to 31.7.2006 disclosed that the cost ratio worked out to 32.99% against the limit of 22%. Further, for the subsequent periods, the cost ratio was progressively increasing. For the period 1.8.2006 to 31.7.2007, it was 41.96%; for the period 1.8.2007 to 31.7.2008, 54.21%; for the period 1.8.2008 to 31.7.2009, 91.58%; and finally for the period 1.8.2009 to 31.7.2010 it was 166.93% as against the limit of 25%. Accordingly, the management issued a show-cause notice on March 28, 2011. It appears, the employee sought extension of time prescribed in the notice to enable him to show cause, which was granted on June 15, 2011. Finally, by a communication dated July 25, 2011, petitioner's services were terminated with a three months' notice. 4. Petitioner challenged the said order in the writ petition and made several prayers and to be precise, 45 in all. The Hon'ble Single Judge allowed the writ petition in part and set aside the order of dismissal and held that the petitioner was entitled to be reinstated with all monetary benefits. So far as other prayers are concerned, liberty was reserved to the petitioner to challenge and seek redressal at the appropriate time. 5. Petitioner has filed his appeal praying for grant of all prayers made in the writ petition. Management has challenged the impugned order directing reinstatement and payment of consequential monetary benefits. 6. So far as other prayers are concerned, liberty was reserved to the petitioner to challenge and seek redressal at the appropriate time. 5. Petitioner has filed his appeal praying for grant of all prayers made in the writ petition. Management has challenged the impugned order directing reinstatement and payment of consequential monetary benefits. 6. It is the common case of both employee and management that the findings recorded by the Hon'ble Single Judge in paragraphs No.28 and 29 of the order that an enquiry officer was appointed and charges were proved are factually incorrect. Both the employee - party in person and Shri Shetty, learned advocate for the management submitted that no enquiry officer was appointed nor any enquiry conducted. 7. The employee-party in person submitted that all prayers sought by him have not been granted and accordingly prayed for allowing his appeal. 8. Shri Shetty on the other hand submitted that the appraisal of petitioner's performances clearly indicated that the cost ratio was far in excess and worked out to an average of 80.97% as against the maximum prescribed expense limit of 23% to 25%. Since petitioner's performance was unsatisfactory, the management issued a show-cause notice as mandated in the Rules. Petitioner failed to show proper cause leading to the order of termination and the same is an appealable order. Without exhausting the statutory remedy, petitioner has directly approached this Court. He also made several submissions with regard to the merits of the case and prayed for allowing management's appeal. 9. Admittedly, the petitioner-employee was working as a Development Officer with the LIC. His service conditions are governed by the Rules. Rule-8 thereof reads as follows: "8. Termination of service in certain cases: (1) Where a Development Officer has failed to conform to the expense limit and where no opportunity to conform to such limit could be given under the provisions of rule 7, 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 the proposed termination of his services. (2) An appeal against an order passed under sub-rule (1) shall lie to the Managing Director and the provision of rule 41, 42, 43, 44 and 45 of the staff rules shall, so far as may be, apply to any such appeal. (2) An appeal against an order passed under sub-rule (1) shall lie to the Managing Director and the provision of rule 41, 42, 43, 44 and 45 of the staff rules shall, so far as may be, apply to any such appeal. (3) In the case of an appeal under sub-rule (2) the Managing Director shall consider the records of the case and pass orders on merits having regard to the circumstances of the case." 10. The above rule clearly shows that a Development Officer can be terminated from the service, if he fails to conform to the expense limit. The Management after following the procedure contemplated in Rule 8 has terminated services of the petitioner. Petitioner has admittedly not availed the statutory remedy of appeal. 11. It is fairly well settled that when statute provides a statutory remedy by way of appeal, it shall not be appropriate for a Constitutional Court to exercise its power under Article 226 of the Constitution. (See CIT v. Chhabil Dass Agarwal, (2014) 1 SCC 603 ). 12. Though the petitioner has sought for a declaration to the effect that the 1989 Rules are illegal, the Hon'ble Single Judge, though, having dealt with them in paragraph No.28 of the impugned order has not granted the prayer. LIC is a statutory Corporation having an All India presence. The Rules are uniformly made applicable to all it's employees. The allowable percentage of expense and the cost ratio is a policy matter of an Insurance Company and it would be inappropriate for the Court to substitute it's opinion. 13. In the circumstances, we see considerable force in the arguments advanced on behalf of the management and management's appeal merits consideration. 14. In the result, we make the following order: i. Writ appeal No.3484 of 2015 filed by the management is allowed; ii. Order dated June 26, 2015, passed in Writ Petition No.41849 of 2011 is set aside and the writ petition is dismissed; and iii. Writ appeal No.2272 of 2015 filed by the employee-party in person is dismissed. 15. In view of disposal of the writ appeals, all the pending interlocutory applications do not survive for consideration and they are accordingly disposed of. 16. We make no order as to costs.