WP(C). No. 39134 of 2017 (N) - P.D. Joseph & K.M. Cherian v. LIC of India & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 07TH DAY OF AUGUST 2019 / 16TH SRAVANA, 1941** ## **WP(C).No.39134 OF 2017(N)** ## **PETITIONER:** - **1 P.D. JOSEPH AGED 86 YEARS** - **'PERAVIL', SOUTH JANATHA ROAD, PALARIVATTOM, COCHIN, PIN-682 025.** - **2 K.M.CHERIAN KUMBALAKUNNEL HOUSE, KANDANAD P.O., (VIA) THIRUVANKULAM, PIN-682305.** **BY ADVS.** - **SRI.JACOB MATHEW MANALIL SRI.G.G.MANOJ** ## **RESPONDENTS:** - **1 LIFE INSURANCE CORPORATION OF INDIA REPRESENTED BY ITS CHAIRMAN, YOGAKSHEMA, JEEVAN BHIMA MARG, MUMBAI-400021.** - **2 THE ZONAL MANAGER LIFE INSURANCE CORPORATION OF INDIA, ZONAL OFFICE, ANNA ROAD, MADRAS-600002.** - **3 THE SENIOR DIVISIONAL MANAGER LIC OF INDIA, DIVISIONAL OFFICE, M.G.ROAD, ERNAKULAM.** - **4 UNION OF INDIA REPRESENTED BY THE SECRETARY (BANKING AND INSTITUTIONS),MINISTRY OF FINANCE "JEEVAN DEEP", PARLIAMENT STREET, NEW DELHI-110001.** **BY ADVS.** - **SHRI.S.EASWARAN, SC, LIFE INSURANCE CORPORATION OF INDIA SRI.R.PRASANTH KUMAR CGC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-062019, THE COURT ON 07-08-2019 DELIVERED THE FOLLOWING:** **WP(C).No.39134 OF 2017(N) 2** ## **JUDGMENT** This writ petition is filed by the retired employees of Life Insurance Corporation (LIC)seeking the following reliefs :- _''(i) Declare that the petitioners who are Class 1 Officers of the LIC of India, retired between the period from 01.8.1992 to 31.03.1993 are entitled to all the benefits of pay revision brought into effect from 01.08.1992 and all consequential benefits._ _(ii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the Respondents 1 to 3 herein to grant the benefits of pay revision to the Petitioners who are retired Class 1 Officers with all consequential benefits, treating the revision of pay to have come into effect from 01.8.1992 to all the Class 1 Officers.''_ 2. Heard the learned counsel for the petitioners and the learned Standing Counsel appearing for the respondents. ## **WP(C).No.39134 OF 2017(N) 3** 3. It is stated that the petitioners, who were Class 1 officers of the LIC, who retired during the period from 1.08.1992, to 31.03.1993 are also entitled to the benefits of pay revision brought into effect from 1.08.1992 and to all consequential benefits. 4. The learned counsel for the petitioners places reliance on a decision of the Rajasthan High Court which found that the denial of such benefits to a similarly situated employee was illegal and unsustainable. Ext.P3 judgment of a Division Bench of the Jaipur Bench of the Rajasthan High Court is relied upon to contend that the same benefits are liable to be granted to the petitioners as well. 5. A detailed counter affidavit has been placed on record by the respondents. It ## **WP(C).No.39134 OF 2017(N) 4** is stated that Ext.P1 pay revision order was applicable to employees of the LIC. But Ext.P2 instructions had been issued specifying that the revision of pay shall take effect from 1.4.1993 and no arrears shall be paid to persons who were in service from 1.8.1992 to 1.4.1993. It is stated that the petitioners having retired from service during the said period had not raised their claim for twenty five years and the claim is therefore hopelessly belated. It is stated that Ext.P3 judgment was not one in rem and that the benefits would be available only to the petitioner therein. The copy of the writ petition which resulted in Ext.P3 judgment has been produced in support of this contention. It is stated that the Special Leave Petition filed ## **WP(C).No.39134 OF 2017(N) 5** against Ext.P3 judgment had been dismissed taking note of peculiar facts and circumstances of the case alone and that as such, the same would have no application in the instant case. 6. It is stated that the applicability of Ext.P1 pay revision order to the employees of the LIC had been considered by this Court in O.P.No.11231 of 1997 and it was specifically held that the benefit of revision of pay would be confined to persons who continued in service as on 1.4.1993 or thereafter. Ext.R1(c) judgment dated 8.7.2003 is produced in support of this contention. It is stated that W.A.No.32 of 2004 filed against the judgment had been dismissed on 29.9.2005 by Ext.R1(d) judgment. It is stated that the Special **WP(C).No.39134 OF 2017(N) 6** Leave Petition attempted against Ext.R1(d) was also dismissed on 12.2.2008 by a well considered judgment. 7. It is stated that in view of the fact that the issue raised stands squarely covered by judgment of this Court against which a Special Leave Petition was attempted, but dismissed, Ext.P3 judgment will have absolutely no application. It is stated that since the petitioners had not raised any claim for the benefits till 2017, even if they have any such claim, the same would be time barred. 8. The learned counsel for the petitioners submits that a sustainable plea cannot be defeated on the technical ground of delay. Reliance is placed on the decisions of the Apex Court in _**Madras Port**_ **WP(C).No.39134 OF 2017(N) 7** _**Trust v. Hymanshu International by its propreitor V.Venkidadri (dead) by lrs. [(1979) 4 SCC 176] and Sital Singh v. State**_ _**of Punjab [AIR 1983 SCC 652],**_ it is contended that issue considered by the Rajasthan High Court was specifically as to the applicability of pay revision orders and it was held that the arrears would be payable to all the employees who were in service on 1.8.1992 and who retired on or before 31.3.1993 as well. 9. I have considered the contentions advanced. Ext.R1(c) judgment of this Court specifically considered the right of the persons who retired between 1.8.1992 and 31.7.1994 and considered their claim for the benefit of the pay revision orders which had been made applicable to the employees of the **WP(C).No.39134 OF 2017(N) 8** LIC. It was the specific case of the petitioners, who were represented by the first petitioner Retired LIC Officers Association, that the persons who retired from service from 1.8.1992 onwards had been discriminated in the matter of reckoning of gratuity though they were treated as eligible for pay and allowances from March, 1993. The issue of applicability of the pay revision orders was considered by this Court. It was held that by virtue of the power conferred on the Chairman, LIC under Regulations 51(2) of the Life Insurance Corporation of India (Staff) Regulations, 1960, the chairman was empowered to fix a date from which alone the benefit of revision of pay would be extended to the employees. It was therefore held that claims **WP(C).No.39134 OF 2017(N) 9** raised in the original petition are upheld, but confined to persons who continued in service after 1.4.1993. However, in respect of gratuity, it was held that the terminal pay is to be taken note of and that as such, the employees would be entitled to get gratuity taking note of the pay as revised in respect of officers who had retired after 1.4.1993. 10. This judgment was taken in appeal by the LIC and Ext.R1(d) judgment was the result. Considering the powers under clause 51(2)of the Regulations, the Division Bench held that the power under the Clause is only with regard to the fixation of date on which the pay revision benefits would become payable. It was therefore held that gratuity being a statutory claim, the provisions of ## **WP(C).No.39134 OF 2017(N) 10** the Payment of Gratuity Act would have overriding effect and that gratuity is to be paid taking note of the revision which had come into effect from 1.4.1993. Ext.R1(c) judgment was upheld. The Special Leave Petition attempted against R1(d) judgment was also dismissed. 11. Having considered the contentions advanced, I am of the opinion that Ext.R1(c) judgment as upheld by the Division Bench in Ext.R1(d) and affirmed by the Apex Court would govern the case of the petitioners who are admittedly persons who retired from service between 1.8.1992 and 1.3.1993. Ext.R1(c) judgment was issued in the writ petition filed by the retired LIC officers association. Ext.P3 judgment on the other hand, was a judgment in personam. The ## **WP(C).No.39134 OF 2017(N) 11** prayers sought for were with regard to grant of benefits under Rule 27 of Life Insurance Corporation of India Employee Pension Rules, 1995 to the petitioner. No declaration of any nature was sought for in the writ petition. Ext.P3 judgment was rendered on the pleadings placed on record in the case and would therefore be applicable to the facts and circumstances of that case. The order in the Special Leave Petition would also show that it was one rendered taking note of the facts of the said case alone. 12. The petitioners, who had retired from service in 1992 had not raised any claim presumably because they believed that their claim had already been considered by this Court in Ext.R1(c) and R1(d) judgments. The claim raised in 2017 on the strength of **WP(C).No.39134 OF 2017(N) 12** Ext.P3 judgment is therefore hopelessly belated. 13. In the above facts, I am of the opinion that the prayers sought for in this writ petition cannot be granted The writ petition fails and is accordingly dismissed. ## **Sd/-** ## **ANU SIVARAMAN** **JUDGE** ACM **WP(C).No.39134 OF 2017(N) 13** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1** **TRUE COPY OF THE NOTIFICATION DATED 1807-1996 ISSUED BY THE 1ST RESPONDENT UNDER THE HEAD 'LIFE INSURANCE CORPORATION OF INDIA CLASS I OFFICERS RULES, 1996.** - **EXHIBIT P2 TRUE COPY OF THE INSTRUCTION DATED 1907-1996 ISSUED BY THE CHAIRMAN OF LIC OF INDIA REVISING PAY SCALES OF CLASS I OFFICERS.** - **EXHIBIT P3 TRUE COPY OF A PRINTOUT OF THE JUDGMENT/ORDER DATED 17-12-2012.** - **EXHIBIT P4 TRUE COPY OF THE LETTER DATED 08-062013 ADDRESSED TO LIC OF INDIA BY THE FEDERATION OF RETIRED LIC CLASS I OFFICERS ASSOCIATION.** - **EXHIBIT P5 TRUE COPY OF THE LAWYER'S NOTICE DATED 01-06-2017.** ## **RESPONDENT'S/S EXHIBITS:** - **EXHIBIT R1 A** - **TRUE COPY OF THE MEMORANDUM OF WRIT PETITION, WP NO.1454/2009 ON THE FILE OF THE RAJASTHAN HIGH COURT.** - **EXHIBIT R1 B TRUE COPY OF THE ORDER IN SLP(C) NO.16713/2014 OF THE HON'BLE SUPREME COURT.** - **EXHIBIT R1 C TRUE COPY OF THE JUDGMENT DATED 08/06/2003 IN OP NO.11231/1997.** - **EXHIBIT R1 D TRUE COPY OF THE JUDGMENT DATED 29/09/2005 IN WA NO.32/2004.**