Deepa v. Union of India, Life Insurance Corporation of India & Senior Divisional Manager, LIC of India, Divisional Office, Jeevan Prakash

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY, THE 3RD DAY OF APRIL 2018 / 13TH CHAITHRA, 1940** **WP(C).No. 11238 of 2017** **-----------------------** ## **PETITIONER** **----------** **DEEPA,** **DEVELOPMENT OFFICER (SR.NO.579452, CODE 0337077) LIC OF INDIA NORTH PARUR BRANCH, ERNAKULAM.** **BY ADVS.SRI.N.DHARMADAN (SR.) SMT.D.P.RENU** ## **RESPONDENT(S):** **--------------** **1. UNION OF INDIA, REP.BY THE ADDITIONAL SECRETARY TO GOVT.OF INDIA, FINANCE DEPARTMENT, NEW DELHI - 300 001.** **2. LIFE INSURANCE CORPORATION OF INDIA, REP.BY THE ZONAL MANAGER, LIC SOUTH ZONAL OFFICE, P.B.NO.2450, 153 ANNA SALAI, CHENNAI-600 002.** ## **3. SENIOR DIVISIONAL MANAGER** **LIC OF INDIA, DIVISIONAL OFFICE, JEEVAN PRAKASH, MG.ROAD, ERNAKULAM - 682031.** **R1 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL SRI.S.BIJU, CGC R2-R3 BY ADVS. SRI.T.V.AJAYAKUMAR** **KUM.P.H.RIMJU** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-03-2018, THE COURT ON 03.04.2018, DELIVERED THE FOLLOWING:** **K.V.** **WP(C).No. 11238 of 2017 (D) --------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **----------------------EXHIBIT-P1: TRUE COPY OF ORDER DT.15.3.2017 ISSUED BY LIC. EXHIBIT-P2: TRUE COPY OF THE JUDGMENT IN W.P.(C) 28220 OF 2014 DT.26.10.2015 OF THIS HON'BLE COURT. EXHIBIT-P3: TRUE COPY OF SERVICE RULES 2009 OF THE DEVELOPMENT OFFICERS. EXHIBIT-P3(A): TRUE COPY OF AMENDMENT RULES (NOTIFICATION) DT.22.1.2016. EXHIBIT-P4: TRUE COPY OF ORDER DT.14.1.2016 ISSUED BY LIC. EXHIBIT-P5: TRUE COPY OF OBJECTION DT.NIL.BY PETITIONER. EXHIBIT-P6: TRUE COPY OF JUDGMENT IN W.A.8/2015 DT.3.8.2015 OF THIS HON'BLE COURT. EXHIBIT-P7 TRUE COPY OF ORDER DT 24.7.2014 ISSUED BY THE LIC. EXHIBIT-P8 TRUE COPY OF THE LETTER DT 22.10.2016 ALONG WITH SALARY BILLS. RESPONDENTS EXHIBITS: NIL --------------------/TRUE COPY/** **K.V. P.S.TO JUDGE 5.04.2018** ## _**P.V.ASHA, J.**_ -------------------------W.P(C) No.11238 of 2017-D ------------------------------------------- _Dated this the 3[rd] day of April, 2018_ ## _**JUDGMENT**_ The petitioner, who is a Development Officer in the Life Insurance Corporation of India (`LIC' for short), has filed this writ petition challenging Ext.P1 show cause notice proposing termination of her services and calling for her explanation on the same within a period of 15 days. It was stated that her performance for the appriasal year ended on 31.8.2016 was assessed and it was observed that the 2 appraisal years immediately preceding the relevant appraisal year exceeded 50% of the aggregate of the eligible premium in the 3 appraisal years and therefore her services were liable to be terminated under Rule 6(8) r/w Rule 7 of the Life Insurance Corporation of India (Revision of Certain Terms and Conditions of Service) Rules, 2009 as amended in 2016. It was stated that she was being given an opportunity to confirm through representation in writing the discrepancies, if any, in the figures relating to her performance as mentioned therein or the eligible 2 W.P(C) No.11238 of 2017-D premium with all supporting documents within 15 days' of the receipt of that letter. She was directed to ensure that full particulars were furnished for taking necessary action. According to the petitioner, this show cause notice was issued without taking into consideration the judgment of this Court in Ext.P2. It is her further case that the appellate authority had already condoned the defects in the appraisal years for the period upto 2014-15 as per Ext.P4 order issued on 14.8.2016 and thereafter it is arbitrary to take action against her again on the basis of her performance in those appraisal years. 2. The petitioner had earlier filed W.P(C).No.28220 of 2014 when a show cause notice was issued in similar circumstances on 5.12.2012, which was followed by termination. Ext.P1 notice was issued subsequent to the judgment therein and after that judgment was affirmed by the Division Bench. Therefore, it is also stated that Rule 6(8) and the proceedings for termination of her services are liable to be struck down. 3. The cost ratio for the appraisal period from 1.9.2010 to 31.8.2010 was 17.92%; whereas for the years 2010-11 and 2011-12 it was 39.04% and 39.05% respectively. In the light of the judgment of this Court, the respondents allowed the petitioner to continue in service. It is her case 3 W.P(C) No.11238 of 2017-D that Ext.P1 order is issued without considering her explanation or the condonation in Ext.P4 order. ## 4. The following reliefs are sought in the writ petition. “(a) issue a writ of certiorari or other writ or order and quash Ext.P1 and all further steps taken by the respondents 2 and 3 to terminate the service of the petitioner w.e.f 4.4.2017 from the post of Development Officer; (b) issue a writ of certiorari or other writ or direction and quash Sub Rule (8) of Rule 6 and sub rule (1) of Rule 7 of Ext.P3 Rules as amended by Ext.P3(a) to the limited extent they are having no guidelines and therefore they would affect detrimentally to the fundamental right and denial of pension and right to life guaranteed to the petitioner and similar Development Officers under Art.14, 19 and 21 of the Constitution of India; (c) issue such other orders as this Hon'ble Court may deem fit and necessary in the facts and circumstances of the case.” 5. The respondents filed a counter affidavit objecting to the maintainability of the writ petition on the ground that it is premature and that the writ petition is filed challenging a show cause notice. It is stated that the filing of the writ petition itself is an abuse of the process of court. The petitioner had filed writ petition – W.P(C).No.28220/2014, challenging termination of her services, which resulted in Ext.P2 judgment. It is stated that in the previous writ petition also, the 2[nd] relief sought for in this writ petition was the same, i.e the second relief was “to quash Sub Rule-(8) of Rule 6 and Sub Rule (1) of Rule 7 of Ext.P3 Rules as amended by Ext.P3(a) to the limited extent they are having no guidelines and therefore they would 4 W.P(C) No.11238 of 2017-D affect detrimentally to the fundamental rights and the denial of pension and right to life guaranteed to the petitioner and similar Development Officers under Articles 14, 19, 21 of the Constitution of India”. Therefore, it is stated that the second relief is barred by resjudicata. It is stated that the petitioner had been given sufficient opportunity to raise her claims pursuant to Ext.P1 show cause notice and she should not have rushed to this Court. 6. It is stated that the petitioner had filed Ext.P5 representation on 28.3.2017 and even before it reached for consideration of the 3[rd] respondent, she filed the writ petition. In Ext.P2 judgment this Court had already considered the validity of the provisions challenged in the writ petition in the light of Ext.P6 judgment. It is stated that by way of amendment in 2016 substantial change has been brought in with respect to the cost ratio. It is further stated that pursuant to the direction of this Court in Ext.P2 judgment the petitioner was given an opportunity for submitting representation and for personal hearing and the zonal manager sympathetically considered her representation and reinstated her, as a special case setting aside the order of termination, relying on the assurance of the petitioner that she would put her maximum effort to recruit agents and to procure new business to achieve the prescribed target. The petitioner failed in her duty as Development Officer W.P(C) No.11238 of 2017-D 5 and did not take any steps to redeem her performance. It is also stated that out of the 9 Development Officers of the branch only 2 persons including the petitioner have exceeded the cost ratio which indicates the poor performance of the petitioner. Ext.P1 notice was issued in accordance with law. The issue involved in the case is covered by Exts.P2 and P6 judgments. As per the amended rules, the authority to terminate the services of a Development Officer is the Senior Divisional Manager. As per the amended rules, the cost ratio has been relaxed and even then the petitioner failed to achieve the target. 7. The petitioner filed a reply affidavit reiterating her contentions. 8. Having considered the contentions on both sides, I find that the second relief sought for by the petitioner in this writ petition is the same as the one which she sought in W.P(c).No.28220 of 2014. The petitioner, who had sworn to an affidavit that she has not filed any writ petition seeking the same/similar relief, should not have again filed a writ petition seeking the very same relief. 9. In view of the stiff opposition from the respondents it is necessary to have a look at Ext.P4 order. Ext.P4 is an order in an appeal filed by the petitioner against the termination of her services ordered on 6 W.P(C) No.11238 of 2017-D 24.7.2014 under Rule 7(2) of the Special Rules, 2009. The appeal was considered pursuant to Ext.P2 judgment in W.P(c).No.28220 of 2014. The respondents were directed to afford an opportunity of hearing to the petitioner on her representation against the order of termination. The zonal manager has stated that the petitioner had explained the crucial situation in which she had worked during the last 5 appraisal years from 31.8.2011 to 31.8.2016. The zonal Manager also explained the grievances raised by the petitioner relating to an accident in 2011, the infertility treatment she is undergoing, the ailment of her father who expired on 12.12.2015, etc. in Ext.P4. It is also stated therein that she expressed her physical problem for movement in feet and to procure new business. The petitioner was reinstated, referring to the same, as a very special case by setting aside the order of termination dt.24.7.2014. Ext.P4 does not say that the lapses on her part are condoned or that such lapses for the 5 preceding years were condoned. Ext.P4 is an order in an appeal filed by the petitioner against the termination of her services, when the order of termination was issued in the year 2014. Therefore, the appeal cannot be with reference to any year subsequent to the original order of termination. While considering an appeal against such a termination effected in the year 2014, it cannot be said that 7 W.P(C) No.11238 of 2017-D the Zonal Manager had condoned the lapses on the part of the petitioner, if any, till 2015-16 or any other year. Therefore, there is no basis for the contention that her reinstatement ordered in Ext.P4 was after condoning her lapses notwithstanding the exceeding of the cost ratio above the relevant percentage. Therefore, the contention of the petitioner that Ext.P1 show cause notice is issued without considering Ext.P4 or her contentions, cannot be accepted. 10. The petitioner filed this writ petition immediately after she submitted Ext.P5 representation alleging that Ext.P1 notice is issued contrary to Ext.P2 judgment and Ext.P4 order, while challenging s 6, 8 and 7. As pointed out by the learned counsel for the respondents, remedies are very much available to the petitioner by way of submitting explanation to the show cause notice as well as by way of appeal under Rule 7. Similarly, contentions regarding the absence of guidelines etc. for the impugned rules do not deserve any consideration since the petitioner had already filed a writ petition seeking the very same relief which the petitioner should not have done. The judgment in that writ petition would govern the second relief. 11. When this Court has upheld the rules in Ext.P2 in the light of Ext.P6 judgment and thereafter the petitioner was afforded an opportunity 8 W.P(C) No.11238 of 2017-D against the termination which was effected in 2014, the petitioner cannot be heard to contend again that the rules are ultravires or they suffer from any vices. All the contentions raised with respect to the validity of the rules were already considered in Ext.P2 judgment as well as in Ext.P6 judgment. 12. The learned Senior Counsel relied on the judgment of this Court in _**Omanakutty Amma v. Sajeevkumar M.R**_ [2011 (1) Ker. 474] in support of the contention that this Court can entertain the writ petition even against a show cause notice when the statutory authority has acted without jurisdiction. At the same time, the learned counsel for the respondents also relied on the very same judgment pointing out that a writ petition could not be entertained when the petitioner has sought an effective remedy by way of an explanation as well as an appeal. It cannot be said that the show cause notice is issued by the Senior Divisional Manager without jurisdiction. At any rate, the petitioner did not have any such contention in the writ petition. 13. It is seen that the petitioner has already filed a representation Ext.P5 against Ext.P1 show cause notice. Therefore, it is for the competent authority to pass orders on it, in accordance with law. I do not find any circumstance for interfering with the show cause notice Ext.P1. There is no basis for the apprehension of the petitioner that the respondents would not 9 W.P(C) No.11238 of 2017-D consider her grievances or explanation. 14. In the above circumstances, I do not find any reason to interfere with Ext.P1 notice. The Senior Divisional Manager would be free to pass orders on Ext.P5 representation pursuant to Ext.P1 notice after taking into consideration of Ext.P4 and after affording the petitioner an opportunity of hearing. The writ petition is disposed of accordingly. Sd/- _**(P.V.ASHA, JUDGE)**_ _rtr/_