At, High Court of Kerala
By, THE HONOURABLE MR. JUSTICE A.M. SHAFFIQUE & THE HONOURABLE MR. JUSTICE P. GOPINATH
For the Appellant: V.K. Prasad, Santheep Ankarath, Advocates. For the Respondents: K. Jayesh Mohankumar, R2-R5, S. Easwaran (B/O), Advocates.
Shaffique, J.1. The appellant is the writ petitioner, who was unsuccessful in challenging Ext.P11 order issued by the Senior Divisional Manager, Life Insurance Corporation of India terminating his service from the post of Development Officer.2. Petitioner joined service in the cadre of Development Officer in 2002 and worked for 9 years in Adoor Branch of Kottayam Division. He was transferred to Thiruvananthapuram Division in the year 2011. He was issued notice alleging that during the appraisal years, 2015-16, 2016-17 and 2017-18, his performance was not matching the stipulated standards and he was asked to show cause why he should not be terminated from service under Rule 7(1) r/w Rule 6(8) of the Life Insurance Corporation of India (Revision of Certain Terms and Conditions of Service) Rules, 2009 as amended in 2016 (hereinafter referred to as 'the Special Rules').3. The main contention urged by the petitioner is that it was not proper on the part of the respondents in clubbing together the appraisal process of three years and none of the material factors which had been stated by him in respect of each year was considered by the competent authority.4. In the counter affidavit filed by LIC, they took up a contention that petitioner has an alternate statutory remedy by way of an appeal and therefore there is no necessity for this Court to interfere in the matter. That apart, it was contended that disincentive notice dated 17/6/2014 has been issued to the petitioner under Rule 6(4) of the Special Rules based on his performance in the appraisal year which ended on 31/3/2014. He submitted a representation for reconsidering the imposition of disincentive. However, it was found that there was no factual error or any cause beyond the control of the officer and accordingly his representation was rejected. Again when show cause notice was issued for the next year's performance, petitioner approached this Court by filing WP(C) No.8737/2015 which came to be disposed of granting the petitioner three weeks time to submit a representation and the Corporation was directed to dispose of the matter. After personally hearing the petitioner on 1/1/2016, termination notice was issued on 9/1/2016 based on the poor performance of the petitioner for the appraisal year ended 31/3/2015. Petitioner thereafter filed WP(C) No. 2311/2016 for quashing the termination notice. There was a stay of termination proceedings, consequent to which LIC moved an application for modifying the interim order seeking permission to proceed on the basis of performance of the petitioner for subsequent years which was permitted by this Court as per order dated 6/7/2018 pursuant to which show cause notice was issued to the petitioner for termination of his service as per the Special Rules. Petitioner submitted reply. He again filed WP(C) No. 28009/2018 to set aside the show cause notice. The said writ petition was disposed of directing the 4th respondent to take a decision after affording the petitioner an opportunity of hearing. He submitted a representation and the 4th respondent, after giving sufficient opportunity to the petitioner for hearing, issued Ext.P11 order on 5/10/2018. It is pointed out that as per the Special Rules governing the service of Development Officer under the LIC of India, performance of the Development Officer forms the basis of his continuation in service. It is pointed out that the petitioner was transferred to Thiruvananthapuram Division on his request. Thereafter, on assessment of the performance of the petitioner, it was found that the cost ratio exceeded the prescribed limit. Accordingly, there was a reduction in his basic pay effective from 01/04/2013 when the disincentive got attracted. It is thereafter show cause notice dated 26/4/2014 was issued as his performance was not up to the standard prescribed.5. According to the respondents, petitioner's service had been terminated in terms with Rule 6(8) of the Special Rules. Rule 6(8) can be invoked when the cost ratio exceeds the maximum of 50% in three consecutive appraisal years. When factually the aforesaid position is clear, petitioner cannot seek for reinstatement in service. It is also pointed out that by virtue of the amendment in the year 2016, the cost ratio was raised form 38% to 50% and the said relaxation was not utilized and applied by the petitioner which indicates that he is a non performer.6. The learned Single Judge after evaluating the respective contentions of the parties dismissed the writ petition having formed an opinion that there is no illegality in the action taken by the LIC. However, it was pointed out that if there is any factual issues to be raised by the petitioner, it is open for him to take up the matter before the appellate authority.7. The main contention urged by the learned counsel for the appellant is that clubbing together the appraisal process of three years has defeated the very purpose of the system and he was denied a fair opportunity to take up performance of each year with the competent authority in terms of the relevant provisions of the Special Rules. He has also a contention that the instructions in Ext.P8 circular which contains the implementing provisions of the rule have not been properly complied with. Ext.P8 circular does not make any difference in the factual aspects involved in the matter, which are only certain instructions given pursuant to the amendment to the rules.8. We heard the learned counsel appearing for LIC as well who submits that LIC has invoked Rule 6(8) of the Special Rules, to terminate the service of the petitioner. Rule 6(8) reads as under:“6.xxxxx(8) Notwithstanding anything contained in sub rules (1) to (7) where the annual remuneration of a Development Officer in any preceding year (hereafter in this sub-rule referred to as the “relevant year”) exceeds 38% of the eligible premium of that year and the aggregate of the annual remuneration in the relevant year and the appraisal year immediately preceding the relevant year exceeds 38% of the aggregate of the eligible premium in those two years, his services shall be liable to be terminated in accordance with rule 7.”Rule 7 is the provision by which service of an officer is terminated, which reads as under:“7. Termination of service in certain cases (1) Where a Development Officer has failed to conform to the expense limit and where no opportunity to conform to such limit could be given under the provisions of rule 6, the Zonal Manager may terminate his services after giving him three months notice or salary in lieu thereof:Provided that the Development Officer shall be given an opportunity to show cause against such proposed termination of his service.”In sub-rule (8) of Rule 6, which we have extracted, by virtue of the 2016 amendment, the figure 38% has been amended to 50%.9. Apparently, the Rule permits LIC to take into consideration three appraisal years for evaluating the eligibility of the candidate to remain in service. What we find is that LIC had acted only in accordance with the statutory provisions. When there is no illegality in LIC considering appraisals and it is in accordance with the statutory provision, this Court cannot interfere in the matter.10. Learned counsel tried to emphasis on an argument that he was not put to notice regarding individual years appraisal. Such an argument cannot be accepted especially in view of the fact that every person working as Development Officer will be fully aware of the specific details regarding the annual
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remuneration and the eligible premium in respect of that year. If there is any defect in the computation, those are all matters to be taken up before the fact finding authority and this Court cannot sit in judgment over such matters.11. We are therefore of the view that the learned Single Judge had correctly evaluated the scope of jurisdiction in the matter and had even permitted the petitioner to approach the appellate authority in the event of any factual errors in the impugned order. But as far as jurisdiction of LIC to initiate action in terms of Rule 6(8), r/w Rule 7, we are of the view that there is justification on the part of the learned Single Judge to have rejected the claim of the petitioner.In the result, we do not find any grounds to interfere with the judgment of the learned Single Judge. Writ appeal is dismissed.