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2015 Supreme(Ker) 855
IN THE HIGH COURT OF KERALA AT ERNAKULAM
ASHOK BHUSHAN AND A.M.SHAFFIQUE, JJ.
LIFE INSURANCE CORPORATION OF INDIA - APPELLANT
Vs.
SONIA BHASKAR - RESPONDENT
W.A.No.2006 of 2014 & W.A. Nos.8, 415 & 536 of 2015
Decided On : 3.8.2015.
Advocate Appeared:
FOR THE APPELLANT : SRI.S.EASWARAN
FOR THE RESPONDENT: SRI.N.DHARMADAN (SR.), SRI.M.R.VENUGOPAL, SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
Headnote:
Life Insurance Corporation of India Development Officers (Revision of Certain Terms and Conditions of Service) Rules, 2009 - Rules 6(8) and 7(1) - Maternity Benefit Act 1961 - Life Insurance Corporation of India (Staff) Regulations 1960 - Regulation 69(5) - Order of Termination from service - Challenging her termination order the other Writ Appeals, filed against the judgment - Whether Rules 6(8) and 7(1) of 2009 Rules confer arbitrary and unguided power in the hands of Zonal Manager of LIC to terminate service of Development Officer which Rules ought to have been struck down by learned Single Judge - Whether according to Rule 6(8) of the 2009 Rules when a Development Officer exceeds cost ratio of 38% it is obligatory and mandatory for the Zonal Manager to terminate the service of the Development Officer - Scope and extent of opportunity as contemplated under Rule 7(1) of the 2009 Rules to a Development Officer - Held, No error was committed by learned Single Judge in refusing to strike down Rr.6(8) and 7(1) of 2009 Rules by impugned judgment - Provisions of Rr.6(8) and 7(1) are held to be valid except to interpretation and clarification made hereinafter while considering subsequent issues in this case - Any other interpretation will lead to the mandatory requirement of termination as arbitrary and unreasonable - The word "shall" used in R.6(8) has to be read down to save it from becoming unconstitutional- If the appellate authority can be said to have the power to consider the 'circumstances of the case - It cannot be said that the Zonal Manager, while considering the show cause given under Rule 7(1) cannot advert to the explanation given by the Development Officer - Mere fact that 'annual remuneration' used in Rule 2(b) does not use leave salary it cannot lead to the conclusion that salary received by an employee during the leave period is to be excluded from annual remuneration.
Writ Appeal No.2006 of 2014 (LIC of India and another v. Sonia Bhasker and another) and W.A. No.8 of 2015 (Sonia Bhaskar v. Union of India and Others) have been filed against the same judgment of the learned Single Judge dated 22.11.2014 in W.P(C) No.6094 of 2014 filed by Smt.Sonia Bhaskar, Development Officer working in the Life Insurance Corporation of India (for short, "the LIC") challenging her termination order. The other Writ Appeals, i.e., W.A. Nos.415 of 2015 and W.A. No.536 of 2015 have been filed against the judgment dated 26.11.2014 in W.P(C) No.30525 of 2013 filed by S.Syamkumar, Development Officer challenging his termination order dated 27.11.2013.
2. Learned Single Judge by the impugned judgments in both the set of Writ Appeals has set aside the termination orders of the Writ Petitioners. However, prayer of the Writ Petitioners to strike down Rule 6(8) and 7(1) of the Life Insurance Corporation Development Officers (Revision of Certain Terms and Conditions of Service) Rules, 2009 was rejected. Aggrieved by the judgments of the learned Single Judge, both the Writ Petitioners and the LIC are in appeal.
3. The parties shall be referred to as noted in the Writ Petitions.
4. Brief facts of the case relating to both set of appeals are as follows:
5. Smt.Sonia Bhaskar was appointed as probationary Development Officer on 09.02.2009. On successful completion of probation her appointment was confirmed as Development Officer on 09.02.2010. The Central Government has framed Rules, namely Life Insurance Corporation Development Officers (Revision of Certain Terms and Conditions of Service) Rules, 1989. The said Rules were superseded by another set of Rules by the Central Government, namely Life Insurance Corporation Development Officers (Revision of Certain Terms and Conditions of Service) Rules, 2009 (hereinafter referred to as "the 2009 Rules"). The 2009 Rules contemplated maintenance of expense limit and cost ratio as fixed in the Rules by the Development Officer to the eligible premium in a appraisal year. In the event the Development Officer exceeds the expense limit and cost ratio, Rules 6 and 7 provided various actions by the LIC including termination from service. Petitioner is a member of the Scheduled Caste Community. Petitioner was on maternity leave for six months with effect from 16.08.2011 to 13.02.2012. First appraisal year of the petitioner began from 09.02.2009 till 28.02.2010. The second and third appraisal years were from 01.03.2010 to 28.02.2011 and 01.03.2011 to 29.02.2012. Petitioner by letter dated 27.02.2012 informed the Senior Divisional Manager that her cost ratio is above the point stipulated in the norms and she was on maternity leave from 16.08.2011 to 13.02.2012 during which period a baby was born, hence she could not do the required business during that period. Petitioner requested that her above period be exempted from calculating her cost ratio.
6. A notice dated 15.09.2012 was issued to the petitioner that petitioner's performance for the appraisal year ending 29.02.2012 has been assessed. It was stated that the cost ratio for the relevant appraisal year was 47.15%. The notice further stated that the cost ratio immediately preceding the appraisal year which ended 29.02.2011 was 45.20% and as a consequence, petitioner's service was liable to be terminated under the 2009 Rules. Petitioner was asked to show cause why her services be not terminated. Petitioner submitted reply to the notice to the Senior Divisional Manager on 17.10.2012 mentioning health issues, prolonged medical treatment for infertility from August, 2010 and maternity leave from 16.08.2011 to 13.02.2012. She stated that during maternity leave she was on complete rest and restricted movement which restricted her marketing activity which affected new business performance and lack of agency recruitment. It was also st
