Senior Divisional Manager, LIC of India v. Joseph Kunju Zachariah (WA No. 112 of 2016)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE THE CHIEF JUSTICE MR.ASHOK BHUSHAN & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE WEDNESDAY, THE 6TH DAY OF APRIL 2016/17TH CHAITHRA, 1938 WA.No. 112 of 2016 () IN WP(C).2772/2014 ------------------------------------------ AGAINST THE JUDGMENT IN WP(C) 2772/2014 of HIGH COURT OF KERALA DATED 09-10-2015 APPELLANTS/RESPONDENTS: ------------------------ 1. SENIOR DIVISIONAL MANAGER, LIC OF INDIA DIVISIONAL OFFICE, KOTTAYAM-686 001. 2. THE ZONAL MANAGER LIC OF INDIA, ZONAL OFFICE, ANNAI SALAI, CHENNAI-600002. 3. CHAIRMAN LIC OF INDIA, CENTRAL OFFICE, MUMBAI-400 001. BY ADV. SRI.S.EASWARAN RESPONDENT/PETITIONER: --------------------- JOSEPH KUNJU ZACHARIAH SR NO.536827, DEVELOPMENT OFFICER (RETD), NADUMTHAKADY HOUSE, KURUVAMOOZHY PO, ERUMELY, KOTTAYAM-686 509. R1 BY ADV. SRI.N.DHARMADAN (SR.) R1 BY ADV. SMT.D.P.RENU THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 16-03-2016, 06-04-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **ASHOK BHUSHAN, CJ & A.M.SHAFFIQUE, J. * * * * * * * * * * * * *** W.A.No.112 of 2016 ---------------------------------------Dated this the 6[th] day of April 2016 ## **J U D G M E N T** ## **Shaffique, J** This appeal is filed against judgment dated 09/10/2015 in WP(C) No.2772 of 2014 by which the learned Single Judge allowed the writ petition filed by the respondent herein and directed respondents 1 and 2 to transmit Ext.P4 review petition before the competent authorities in terms of Regulation 48 of the Life Insurance Corporation of India (Staff) Regulations, 1960 (hereinafter referred to as 'the Regulations'), so as to to enable the said authority to take an appropriate decision on the said review petition, in accordance with law. 2. The short facts involved in the writ petition would disclose that the respondent herein, who is hereinafter referred to as the petitioner, retired from service of Life Insurance Corporation of India (LIC) on 31/05/2013. He was placed under suspension with effect from 16/11/1993 as he was involved in a criminal case on allegations of commission of offence under Section 120B read with 302 of IPC. He was acquitted from the W.A.No.112/2016 2 charges and accordingly his suspension was revoked with effect from 26/07/2002. After rejoining duty, he field a petition for treating his service as regular, without any break. His representations were rejected by the Chairman as per order dated 17/03/2004. A review petition was filed as Ext.P4, but no action was taken in the matter. After retirement, he received a communication from which it was noticed that his claim for regularisation was not acceded by the respondents/appellants. According to the petitioner, since he was honourably acquitted from the charges, he was entitled to receive all service benefits and hence he sought for the following reliefs: _“(a) declare that the petitioner is entitled to get full pension and other service benefits treating the period from 16.11.1993 to 26.7.2002 as regular service so as to avoid break in service and denial of full pension taking into account his total service including the period from 16.11.1993 to 31.5.2013;_ _(b) issue a writ of mandamus or other writ or order or direction calling for the papers leading upto Ext.P4 and direct the respondents to consider the same in the light of the decisions of the Apex Court and pass orders in the interest of justice;_ W.A.No.112/2016 3 _(c) Issue a writ of mandamus or other writ or order or direction to the 1[st] respondent to disburse to the petitioner all arrears due to him taking into account his total service without any break in service due to suspension from 16.11.1993 to 26.7.2002 with 18% interest as well;”_ 3. Counter affidavit has been filed by respondents 1 and 2 inter alia stating that petitioner was suspended when he was arrested in a crime on 16/11/1993. During the period of suspension, he was paid 50% subsistence allowance as per Regulation 37 of the Regulations and 75% of the salary was paid as subsistence allowance beyond the suspension period of 180 days. His suspension was revoked as per order dated 25/07/2002. While revoking suspension, the competent authority has ordered that the period of suspension would be treated as “period not spent on duty” and his basic pay was fixed as Rs.6900/-. He preferred an appeal before the Zonal Manager, who is the appellate authority. The appeal was rejected as per order produced as Ext.R1(c). Against the said order, he filed a memorial before the Chairman as per the provisions contained under the Regulations. Ext.R1(d) dated 04/07/2003 is the W.A.No.112/2016 4 memorial. The same was taken up for consideration by the Chairman in terms of Regulation 49 and an order was passed on 17/03/2004, rejecting the memorial. It is stated that since the acquittal of the petitioner is based on the premise of benefit of doubt and when the disciplinary authority had exercised the powers as per the Regulations, taking into account the facts and circumstances of the case, petitioner was not entitled for any further benefits. It is submitted that Ext.P2 order on the revision was again sought to be reviewed by filing Ext.P4. The review petition has no legal sanctity and therefore no provision under the Regulations enables the Chairman to consider the review petition. It is therefore held that the petitioner cannot have any right by virtue of filing a review petition. 4. Learned Single Judge, after considering the matter, observed that when petitioner had filed Ext.P4 review petition addressed to the 3[rd] respondent/Chairman of the Corporation, who is the appellate authority in terms of Regulation 40, ought to have transmitted it to the authority competent to entertain such a review filed in terms of Regulation 48. Therefore, the learned Single Judge, after having elaborately considered the matter, W.A.No.112/2016 5 disposed of the writ petition directing Ext.P4 to be considered in accordance with Regulation 48. 5. While impugning the aforesaid judgment, the learned counsel for the appellants contends that the request for regularization of period of suspension, made before the competent authority, was rejected by order dated 25/07/2002. This decision has been taken in terms of Regulation 38(b) of the Regulations. He preferred an appeal before the Zonal Manager, which was rejected as per order dated 16/12/2002. A memorial given to the Chairman as per Regulation 49 was also rejected as per 17/03/2004. He again requested for reconsidering the memorial by letter dated 07/06/2004 which was again rejected on 30/06/2004. It is, thereafter that, Ext.P4 review petition was submitted to the very same authority, who had rejected the memorial. It is submitted that these facts were not properly appreciated by the learned Single Judge. That apart, Ext.P4 review was filed only on 27/06/2005, the Chairman has rejected his memorial as per order dated 17/03/2004 and the writ petition was filed only on 27/01/2014. According to the learned counsel, a stale claim cannot be re-agitated by approaching this Court under W.A.No.112/2016 6 Article 226 of the Constitution of India. That apart, it is contended that Regulation 48 does not provide for a statutory review, an order passed on a memorial by the Chairman under Regulation 49 can be challenged only before the Corporation. In so far as Ext.P4 is not submitted before the Corporation, the review petition itself was not maintainable. Therefore the learned Single Judge was not justified in directing consideration of the same by the competent authorities. 6. On the other hand, learned counsel appearing for the petitioner, supporting the stand taken in the matter had submitted that there was no reason to interfere with the judgment of the learned Single Judge. It is submitted that the appellate power can be invoked only if the judgment is perverse or when the discretion is exercised in an arbitrary manner. Merely because a different view is possible on the same facts, cannot be a reason to exercise appellate jurisdiction. Unless an order under appeal is claimed to be clearly wrong, the appellate Court shall not interfere in the judgment. Reliance is placed on **Kerala Trading Corporation v. State of Kerala** _[1989 (1) KLT 33]_ . Reference is also made to the judgment of the learned W.A.No.112/2016 7 Single Judge in **Usha.K v. State of Kerala** [2007(4) ILR 862 (Ker)]. This judgment is cited to contend that if a decision of the Government is unconstitutional and void, no irrevocability can be attributed to such an order. It is a constitutional obligation on the part of executive Government to set right an infraction of law, which it had committed earlier. It is argued that the learned Single Judge was justified in directing Ext.P4 to be considered. A perusal of Ext.P4 itself would show that it is a review submitted against order dated 17/03/2004 and the power of review is available only under Regulation 48. 7. Having heard the learned counsel on either side and having perused the records, the short question involved in the writ petition is whether the learned Single Judge was justified in directing the Corporation to consider Ext.P4 review on merits. Two specific contentions raised on behalf of the appellants have to be considered. One is that review is not filed before the competent authority. Secondly, a stale claim is sought to be reagitated by filing the writ petition after the retirement and after about 10 years from the date when the issues have been concluded. As to how the period of suspension has to be treated W.A.No.112/2016 8 after revocation of suspension, is dealt with in Regulation 38 which reads as under: ## _**“Treatment of the period of Suspension:**_ _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, under these regulations may grant to him for the period of his absence from 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._ _In a case falling under clause (a), the period of absence from duty will be treated as a period spent on duty. In a case falling under clause (b), the period of absence shall not be treated as a 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_ W.A.No.112/2016 9 _period of absence which has not been treated as period spent on duty or on leave shall not count as service for any purpose under these Regulations but will not constitute break in service_ _No order passed under this regulation shall have the effect of compelling any employee to refund the subsistence allowance payable under regulation 37.”_ Regulation 38(a) clearly specifies that if the employee is honourably acquitted, he is entitled for the full pay and allowances. However, Regulation 38(b) clearly indicates that if it is not so, in other words, if it is not an honourable acquittal, employee will be entitled to receive such pay and allowances as the disciplinary or appellate or reviewing authority may prescribe. 8. Regulation 40 relates to right of appeal which is extracted hereunder: _“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. An appeal against an order of suspension passed under Regulation 36 shall lie to the authority to which the authority which made or is deemed to have made the order of suspension is immediately_ W.A.No.112/2016 10 _subordinate. Notwithstanding anything contained in this regulation and subject to the provisions of the Life Insurance Corporation Act, Rules and Regulation no appeal to the Corporation shall lie against an order made by the Corporation under Regulation 36 or Regulation 39.”_ 9. The Senior Divisional Manager passed an order dated 25/07/2002 in terms of Regulation 38(b) indicating that the period of absence will be treated as “period not spend on duty” and shall not count as service for any purpose as per the Regulations. It is found that the petitioner was acquitted holding that he is entitled for benefit of doubt. Ext.R1(c) is the order passed in the appeal. The appellate order was passed by the Zonal Manager who is the appellate authority. Apparently, the appeal was entertained as per Regulation 47. The appellate authority concurred the view of the disciplinary authority. Ext.R1(d) is the memorial submitted to the Chairman on 04/07/2003 as per Regulation 49. Regulation 49 reads as under : ## _“_ _**Memorial**_ _49. An employee whose appeal under these Regulations has been rejected by the appellate authority subordinate to the Chairman, or in_ W.A.No.112/2016 11 _whose case such appellate authority has enhanced the penalty either on appeal under Regulation 40 or on review under Regulation 48(2) 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.”_ A memorial can be submitted in circumstances when an appeal has been rejected by the Appellate authority, who is subordinate to the Chairman, in a case where the appellate authority has enhanced the penalty either on appeal under Regulation 40 or on review under Regulation 48(2). 10. It is not in dispute that the memorial has been rejected by the Chairman as per proceedings dated 17/03/2004. Materials have been produced to further indicate that re-memorial was submitted by the petitioner to the Chairman on 07/6/2004, which was not entertained and the same was communicated to the petitioner on 30/06/2004. Regulation 48(1) deals with power of review, which reads as under: _“48(1) Notwithstanding anything contained in these Regulations, the Corporation_ W.A.No.112/2016 12 _may, on its own motion or otherwise, after calling for the records of the case, review any order which is made or is appealable under these regulations,”_ 11. Power of review is to be exercised by the Corporation. The power of review apparently seems to be very wide enough to permit a review of any order which is made or appealable under the Regulations. An analysis of Regulation 49 indicates that when an appellate authority has rejected the appeal or when the appellate authority has enhanced the penalty either on appeal or on review under Regulation 48(2), the employee may address a memorial to the Chairman. This provision categorically indicates that a memorial has to be submitted after other remedies. It seems to be a special power conferred on the Chairman to take a decision under certain special circumstances. This is an instance where petitioner's appeal had been rejected. Instead of seeking a review to the Corporation, he had submitted a Memorial to the Chairman. However, it is seen that the Memorial can be submitted only with reference to an order passed under Regulation 40 or review under Regulation 48(2). Perusal of Regulation 48(1) indicates that review can be filed against any W.A.No.112/2016 13 order which is made or is appealable under the Regulations. 12. The learned Single Judge had proceeded to observe that though Ext.P4 review petition was submitted to the Chairman, it should be considered by a competent officer. Apparently Chairman of LIC is not the reviewing authority. As per the Life Insurance Corporation Act, 1956, the Corporation is formed by a minimum of sixteen persons nominated by the Central Government, and one among such person shall be appointed as Chairman by the Central Government. The Corporation functions through the Committees constituted under section 19 of the LIC Act. The Corporation can also appoint Managing Director or Directors for carrying on its powers and duties as may be delegated by the Executive Committee or the Corporation. 13. Therefore as rightly contended by the learned counsel for appellant, a review addressed to the Chairman is not a review in terms of Regulation 48 of the Staff Regulations. Hence, we are of the view that the learned Single Judge had clearly erred in directing consideration of Ext.P4 by a competent Officer of the Corporation. W.A.No.112/2016 14 14. That apart, materials available on record clearly indicate that the petitioner's claim was rejected as early as on 25/07/2002. He filed an appeal, the same came to be rejected on 16/12/2002, he filed a memorial which was rejected on 17/2/2004 and the contention that petitioner was waiting for a decision in Ext.P4 review petition, as a reason for filing the writ petition after ten years and after he retired from service, should not have been entertained. The writ petition ought to have been rejected on the ground of delay and laches. 15. The learned Single Judge, however proceeded on the basis that the Corporation ought not to have kept Ext.P4 pending for such a long time. As already held, when Ext.P4 review is not maintainable, as it was not filed before the Corporation which is the reviewing authority, there was no reason to find fault with the LIC for having not passed an order in Ext.P4. We do not think that non-consideration of Ext.P4 was neither illegal nor arbitrary. Ext.P4, apparently, could not have been entertained by the Chairman, who had already considered and rejected his memorial. 16. Under such circumstances, we are of the view that the petitioner was not entitled for any relief, as sought for. Claim of W.A.No.112/2016 15 the petitioner having been rejected and confirmed in appeal and also the memorial having been rejected without any interference with the order passed by the disciplinary authority and the appellate authority, there is no reason to reconsider the same at this point of time. In the said circumstances, the judgment of the learned Single Judge is liable to be set aside. Accordingly, the writ appeal is allowed. The judgment of the learned Single Judge is set aside and the writ petition is dismissed. (sd/-) **(ASHOK BHUSHAN, CHIEF JUSTICE)** (sd/-) **(A.M.SHAFFIQUE, JUDGE)** True Copy PA to Judge jsr W.A.No.112/2016 16