T.G. Subhash v. Life Insurance Corporation of India (W.P.(C). Nos. 2624 of 2017 & 28655 of 2020), High Court of Kerala at Ernakulam

W.P.(C).Nos.2624/17 & 28655/20 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 15[TH] DAY OF DECEMBER 2022 / 24TH AGRAHAYANA, 1944** ## **WP(C) NO. 2624 OF 2017** ## **PETITIONERS:** T.G.SUBHASH AGED 52 YEARS S/O. T.G.GOPINATHAN,LEKHSMI KRIPA, 123-MATHRUKA NAGAR,ULIYAKOVIL PO., KOLLAM KERALA, PIN-691019 BY ADVS. SRI.SHABU SREEDHARAN SRI.M.YOHANNAN SMT.RESHMA ABDUL RASHEED AMARNATH.K.G ## **RESPONDENTS:** 1 THE SR.DIVISIONAL MANAGER LIC OF INDIA, DIVISIONAL OFFICE, JEEVAN PRAKASH, PATTOM PO., THIRUVANANTHAPURAM KERALA, PIN-695004 2 THE BRANCH MANAGER LIC OF INDIA, BRANCH NO.II ROSHEES SQUARE,RESIDENCY ROAD, KADAPPAKKADA PO, KOLLA KERALA PIN-691008 BY ADVS. SRI.T.V.AJAYAKUMAR KUM.P.H.RIMJU THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.11.2022, ALONG WITH WP(C).28655/2020, THE COURT ON 15.12.2022 DELIVERED THE FOLLOWING: W.P.(C).Nos.2624/17 & 28655/20 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 15[TH] DAY OF DECEMBER 2022 / 24TH AGRAHAYANA, 1944 WP(C) NO. 28655 OF 2020** ## **PETITIONER:** T.G.SUBHASH AGED 56 YEARS S/O. T.G.GOPINATHAN, 'LEKSHMI KRIPA', MATHRUKA NAGAR -123, ULIYAMKOVIL P.O.,KOLLAM-691 019 BY ADVS. SHABU SREEDHARAN SMT.MEENU THAMPI SHRI.AMAL STANLY ## **RESPONDENTS:** 1 THE LIFE INSURANCE CORPORATION OF INDIA REPRESENTED BY ITS CHAIRMAN, YOGASHEMA BUILDING, JEEVAN BEEMA MARG, MUMBAI-400021 2 THE CHIEF (SBA), LIC OF INDIA, YOGASHEMA BUILDING, JEEVAN BEEMA MARG, MUMBAI400021 3 THE ZONAL MANAGER, LIC OF INDIA, ZONAL OFFICE, ANNA SALAI, CHENNAI600002 4 THE SENIOR DIVISIONAL MANAGER, LIC OF INDIA, DIVISIONAL OFFICE, PATTOM P.O., THIRUVANANTHAPURAM 695004. 5 THE BRANCH MANAGER LIC OF INDIA, BRANCH NO.11, KADAPPAKKADA P.O., KOLLAM - 691008. 3 W.P.(C).Nos.2624/17 & 28655/20 BY ADVS. SRI.T.V.AJAYAKUMAR KUM.P.H.RIMJU THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.11.2022, ALONG WITH WP(C).2624/2017, THE COURT ON 15.12.2022 DELIVERED THE FOLLOWING: W.P.(C).Nos.2624/17 & 28655/20 4 ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = = W.P.(C).Nos.2624 of 2017 & 28655 of 2020** **= = = = = = = = = = = = = = = = Dated this the 15[th] day of December, 2022** ## **JUDGMENT** 1. W.P.(C).No.2624 of 2017 is filed challenging Ext.P7 order dated 06.12.2016 and Ext.P11 communication dated 14.01.2017, as also seeking directions to the 2[nd] respondent to facilitate a Senior Business Associate Scheme (hereinafter referred to as 'SBA Scheme' for short) in the branch premises, as provided in Ext.P4 and P13. The contention of the petitioner is that the petitioner is a Development Officer in the LIC since 1992 and he was functioning as Senior Business Associate under Ext.P1 scheme, by Ext.P2 letter dated 10.06.2009. It is submitted that the petitioner was maintaining a Life Plus Office in Kollam. However, in the year 2013 due to reduction in business, he was excluded from the entitlement of Office Maintenance Allowance (hereinafter referred to as OMA for short) with effect from W.P.(C).Nos.2624/17 & 28655/20 5 01.08.2013. However, Ext.P3 Scheme for business development was issued on 13.07.2015 providing for 75% of OMA to Non Regular Senior Business Associates, who are entitled to the benefit of the said scheme. It is submitted that the petitioner submitted Ext.P5 application for the benefits of the Scheme and continued as a Non Regular Senior Business Associate on the basis of the permissions granted and 75% of the OMA was paid to the petitioner. Thereafter, on the basis of an internal audit conducted by the respondents, Ext.P7 communication was issued to the petitioner threatening recovery of the amounts paid. The petitioner has submitted a detailed reply to the same. However, without considering the same, Ext.P11 communication was issued on 14.01.2017 requiring the petitioner to immediately remit an amount of Rs.3,01,200/-. It is submitted that Ext.P12 representation was submitted by the petitioner, but no reply was received for the same. 2.The writ petition was admitted on 25.01.2017 and an order of stay of recovery on the basis of Exts.P7 & P11 was issued on the said date. W.P.(C).Nos.2624/17 & 28655/20 6 3. Thereafter, a detailed counter affidavit has been placed on record by the respondents stating that the petitioner had admittedly exited from the SBA scheme with effect from 01.8.2013 and that he was not entitled to the benefit of Ext.P3, since he did not satisfy any of the conditions provided therein. It is stated in paragraph 6 of the counter affidavit as follows:- “Since the cost ratio of the petitioner during different Appraisal periods are very relevant and material for the proper adjudication of the above case, the data on his cost ratio from the Appraisal Year relating to his enrolment as SBA onwards is furnished herein below: |is furnished herein below:||| |---|---|---| |Appraisal Year|Cost ratio|Remarks| |8/2007 to 7/2008|2.84|| |8/2008 to 7/2009|3.15|| |8/2009 to 7/2010|2.78|| |8/2010 to 7/2011|4.38|Competent authority waived<br>the cost ratio on the first<br>occasion as per circular<br>issued in 2009.| |8/2011 to 7/2012|5.84|Competent authority waived<br>the cost ratio on the second<br>and last occasion as per<br>circular issued in 2009.| |8/2012 to 7/2013|7.36|| |8/2013 to 7/2014|8.35|| |8/2014 to 7/2015|12.01%|| W.P.(C).Nos.2624/17 & 28655/20 7 8/2015 to 7/2016 14.12% From the aforesaid data, it can be seen that the petitioner has worked at the cost ratio of 3% or less only in two appraisal years i.e.,2007-2008 and 20092010 only. It is reiterated that he was authorised to work as SBA on satisfying the conditions stipulated in Ext.P-1 circular and not on the basis of any top business performance as wrongly claimed by him.” 4. It is submitted that the competent authority had waived the cost ratio limit of the petitioner on two occasions and that he exited the scheme on 01.08.2013 and is not eligible for the reduced OMA at 75% of the regular earning in terms of Ext.P3 scheme, since that scheme is applicable only to persons who exit the SBA scheme on or after 1[st] April 2015. It is submitted that thereafter the benefit of Ext.P3 had been extended to officers who exit the scheme between 01.04.2014 and 31.03.2015 also, but the petitioner would not come within the said criteria as well. It is contended that Ext.P12 representation had been answered by Ext.R1(c) as early as on 24.01.2017 and the said order is not under challenge. It is further contended by the learned counsel for the respondents that the petitioner was very well aware that he is not entitled W.P.(C).Nos.2624/17 & 28655/20 8 to the benefit of Ext.P3 and that he had filed Ext.P5 application without disclosing any of the relevant factors which led to a wrong grant of reduced OMA , which was found liable to be recovered. - 5.Reply affidavits and additional statements have also been placed on record in W.P.(C) No.2624 of 2017. 6. Relying on the decisions of the Apex Court in **Chandi Prasad Uniyal and Others v. State of Uttarakhand and others** [(2012) 8 SCC 417], the learned counsel for the respondents contends that the amounts are liable to be recovered from the petitioner. It is contended that the petitioner does not come within any of the criteria fixed by the Apex Court in the decision reported in **State of Punjab** v. **Rafiq Masih (White Washer)** [(2015) 4 SCC 334]. The decision of the Apex Court in **High Court of Haryana and others v. Jagdev Singh** [(2016) 14 SCC 267] is also relied on. - 7.W.P.(C).No.28655 of 2020 is a consequential writ petition filed by the petitioner seeking the following prayers :- W.P.(C).Nos.2624/17 & 28655/20 9 “i) To issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to refrain from implementing the scheme covered by Exhibit-P6. ii) To issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to treat the petitioner as NRSBA and grant him sufficient time to acquire the required qualification so as to get re-instated as SBA. iii) To issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to disburse the reduced OMA henceforth along with its arrears, disburse the benefit of monthly meal coupon henceforth with its arrears, disburse the entertainment allowance henceforth with its arrears. iv) To issue a writ of mandamus or any other appropriate Writ, Order, or direction commanding the respondents to permit the petitioner to continue operating the Life Plus Office and to sign on the portal and also to provide him the opportunity to attend high level trainings for career development.” - 8.A counter affidavit has been filed by the respondents stating that the petitioner had exited SBA Scheme as on 01.08.2013 and is not entitled either to the reduced OMA in accordance with the 2015 scheme or for any reinstatement as SBA thereafter. 9. I notice from the pleadings and the materials on record as well as from the arguments raised on either side that the W.P.(C).Nos.2624/17 & 28655/20 10 question which requires consideration is with regard to the entitlement of the petitioner for OMA after 1.8.2018 and legality of recovery of the amounts from the petitioner. The petitioner admittedly was inducted as a Senior Business Associate in the year 2009 and had availed the benefits of the Scheme till 2013. It is clear from the materials on record that the petitioner exited from the Scheme as on 01.08.2013, going by the parameters mentioned in the scheme itself. Thereafter, no OMA was released to the petitioner. After the issuance of Ext.P3 (in W.P.(C).No.2624/17) on 13.07.2015, the petitioner appears to have submitted an application for issuance of the reduced OMA as a Non Regular Senior Business Associate. The said application was allowed by the respondents and the amounts were paid to the petitioner. However, on an internal audit being conducted, it was noticed that the petitioner is not eligible for the benefit and a notice for recovery was issued. It is also clear that Exhibit P12 (in W.P.(C).No. 2624/17) representation submitted by the petitioner had been answered by Exhibit R1(c) on 24.1.2017 itself, which is not under challenge. W.P.(C).Nos.2624/17 & 28655/20 **==> picture [14 x 8] intentionally omitted <==** 10.The petitioner is a Class II Officer, being a Development Officer under the LIC. The benefit which was erroneously granted to the petitioner was sought to be recovered within a very short time, that is within one year from the date of grant of the benefit itself. The specific contention of the respondents is that the petitioner was not entitled for the grant of the reduced OMA and that the said payment was made only by mistake, which was detected in the internal audit and the mistake was sought to be rectified without any undue delay. In the above factual situation, I am of the opinion that the prayers, as sought for, are not liable to be granted. Writ petitions fail and the same are accordingly dismissed. sd/- **Anu Sivaraman, Judge** sj W.P.(C).Nos.2624/17 & 28655/20 12 ## **APPENDIX OF WP(C) 2624/2017** PETITIONER EXHIBITS EXHIBIT P1: COPY OF THE SBA SCHEME, DATED 27.07.2009 EXHIBIT P2: COPYOF THE AUTHORISATION LETTER, DATED 10.06.2009 TO WORK AS SBA EXHIBIT P3: COPY OF THE SCHEME OF SBAS EXCEEDINGS 5% COST RATIO, DATED 13.07.2015 FOR RUNNING "LIFE PLUS OFFICES" EXHIBIT P4: COPY OF THE SCHEME DATED 27.08.2015 "CONTINUATION OF SELECT BENEFITS FOR SBAS EXCEEDING 5% COST RATION" EXHIBIT P5: COPY OF THE PETITIONER'A APPLICATION, DATED 10.08.2015 FOR CONTINUATION OF "LIFE PLUS OFFICES" AT REDUCED OMA EXHIBIT P6: COPY OF THE ORDER, DATED 12.10.2015 "SANCTION OF OMA" AT REDUCED RATE 75% OF NORMAL OMA FOR "LIFE PLUS OFICES" EXHIBIT P7: COPY OF THE ORDER DATED 06.12.2016 FOR REMITTING THE RECOVERYOF TRANSACTIN CHARGES AND OMA EXHIBIT P8: COPY OF THE PETITIONER'S REPRESENTATION DATED 07.12.2016 TO 2ND RESPONDENT AGAINST RECOVERYLETTER DATED 06.12.2016 EXHIBIT P9: COPY OF THE PETITIONER'S REPRESENTATION DATED 07.12.2016 TO 2ND RESPONDENT AGAINST RECOVERY LETTER DATED 06.12.2016 EXHIBIT P10: COPY OF THE PETITIONER'S REPRESENTATION DATED 28.12.2016 TO THE RESPONDENTS AGAINST RECOVERY LETTER DATED-06.12.2016 13 W.P.(C).Nos.2624/17 & 28655/20 - EXHIBIT P11: COPY OF THE 2ND RESPONDENT'S ORDER. DATED 14.01.2014 FOR REMITTANCE OF RECOVERY OF OMA - EXHIBIT P12: COPY OF PETITIONER'S REPRESENTATION DATED 17.01.2014 AGAINST RECOVERY DATED 17/01/2017 - EXHIBIT P13: COPY OF SBA SCHEME, DATED 31.07.2009 FOR SEPARATE SPACE IN THE BRANC OFFICE - EXHIBIT P14: COPY OF PETITIONER'S LETTER DATED 11.05.2010 FOR OFFICE SPACE SURRENDER - EXHIBIT P15: COPY OF PETITIONER'S REQUEST DATED 05/08/2014 FOR PROVIDING SBA CORNER - EXHIBIT P16: COPY OF THE MODIFIED “SBA SCHEME' DATED 12.4.2012 - EXHIBIT P17: COPY OF CONSOLIDATED COST RATIO STATEMENT OBTAINED FROM 2ND RESPONDENT FOR THE PERIOD 8/2007 TO 7/2016. - EXHIBIT P18: COPY OF THE RECOMMENDATIONS OF THE 2ND RESPONDENT ON MY EXT.P5 APPLICATION - EXHIBIT P19: COPY OF THE INSPECTION REPORT OF THE REPORTING OFFICER IN ANNEXURE E FORMAT. RESPONDENT'S EXHIBITS EXT.R1(A) TRUE COPY OF THE CIRCULAR DATED 12.4.2012 ISSUED EXT.R1(B) TRUE COPY OF THE RELEVANT EXTRACT OF THE AUDIT REPORT W.P.(C).Nos.2624/17 & 28655/20 14 EXT.R1(C) TRUE COPY OF THE LETTER DATED 24.1.2017 OF THE MARKETING MANAGER OF THE PETITIONER. EXHIBIT R1(D) TRUE COPY OF THE LETTER DATED 28.2.2013 ISSUED BY THE ASSISTANT SECRETARY OF MARKETING ADDRESSED TO THE SENIOR DIVISIONAL MANAGER. EXHIBIT R1(E) TRUE COPY OF THE LETTER DATED 21.5.2012 OF THE CHIEF SBA OF LIC ADDRESSED TO THE SECRETARY (AUDIT)LIC. W.P.(C).Nos.2624/17 & 28655/20 15 ## **APPENDIX OF WP(C) 28655/2020** PETITIONER EXHIBITS EXHIBIT P1 THE TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DATED 10.8.2015 BEFORE THE 4TH RESPONDENT ALONG WITH AN INSPECTION REPORT AND RECOMMENDATION OF THE 4TH RESPONDENT - EXHIBIT P2 THE TRUE COPY OF THE SANCTION ORDER OF THE 5TH RESPONDENT DATED 12.10.2015 - EXHIBIT P3 THE TRUE COPY OF THE RECOVERY NOTICE DATED 6.12.2016 - EXHIBIT P4 THE TRUE COPY OF THE NOTICE ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER DATED 14.1.2017 - EXHIBIT P5 THE TRUE COPY OF THE INTERIM ORDER OF THIS HON'BLE COURT IN WPC NO.2624/2017 DATED 25.1.2017 - EXHIBIT P6 THE TRUE COPY OF THE TAX MESSAGE SEND BY THE 2ND RESPONDENT TO THE MOBILE PHONE OF THE PETITIONER WITH NO.9447266966 DATED NIL - EXHIBIT P7 THE TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT WITH COPIES TO THE RESPONDENTS 2 TO 4 DATED 17.12.2020 RESPONDENT'S EXHIBITS EXT.R1(A) TRUE COPY OF THE CIRCULAR DATED 13.7.2015 ISSUED EXT.R1(B) TRUE COPY OF THE CIRCULAR DATED 27.8.2015 ISSUED BY THE SABA (CHIEF) OF THE LIC. TRUE COPY PS TO JUDGE