Writ Petition (service) No.1366 of 2003
With
Writ Petition (service) No.4455 of 2003
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In the matter of an application under Articles 226 and 227 of the
Constitution of India.
—–
Employer in relation to the Management of
Life Insurance Corporation of India through the
Divisional Manager, Divisional Officer, Jeevan
Prakash, Uma Shankar Prasad Marg, P.O – Mithanpura,
District- Muzaffarpur… ……..Petitioner [in W.P.(S) no.1366 of 2003]
Sr. Divisional Manager, Life Insurance
Corporation of India, Divisional Office,
Muzaffarpur ……………………Petitioner [in W.P.(S) no.4455 of 2003]
VERSUS
The Union of India through the Secretary,
Ministry of Labour and others ………………………..Respondents
For the Petitioner:M/s.Umesh Prasad Sinha & Rajeev Ranjan Prasad
For the Union of India : Md. Mokhtar Khan
For the Respondents 3 and 4 : Mr.J.Dubey
P R E S E N T
THE HON’BLE MR. JUSTICE R. R. PRASAD
Reserved on 22.9.2008 Delivered on 16.10.2008
R.R.Prasad, J., Since the issues involved in both the cases are same and
even the parties are the same, both the cases were heard together
and hence, both the matters are being disposed of by this common
judgment.
The facts which have given rise to W.P.(S) No.1366 of 2003
are as follows:-
One B.N.P.Srivastava, respondent no.4, while was working
as Stenographer in the Divisional Office of Life Insurance
Corporation of India at Muzaffarpur, visited Purnea on an official
work. Thereupon he claimed Rs.85.50paise as travelling allowance
which was paid but subsequently, in course of enquiry, it could be
ascertained that on the date of journey, i.e, 16.4.1981, not a single
ticket of 1st class had been issued from Muzaffarpur to Purnea
and, therefore, charge was framed putting an allegation that
respondent no.4 deliberately made a false claim of Rs.85.50paise
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as travelling allowance and thereby he acted in the manner
prejudicial to good conduct and detrimental to the interest of the
Corporation and as such, he is liable to be punished under
Regulation 39(1)(a) to (g) of the Life Insurance Corporation of
India (Staff) Regulation, 1960 for violating provisions of Clauses
21, 24 and 39 of the aforesaid Regulation. Accordingly, enquiry
officer was appointed to enquire into the charge framed against
the respondent no.4. The enquiry officer having found the
respondent no.4 guilty for the charges submitted its report to the
Disciplinary Authority, who on finding the second show cause to be
unsatisfactory imposed penalty for reduction in pay by three stages
in terms of Regulation 39(1)(d) and also passed an order for
recovery of Rs.85.50paise.
Being aggrieved with that order, respondent no.4 preferred
an appeal under Clause 46 of the Regulations before the Appellate
Authority, who affirmed the order passed by the Disciplinary
Authority. Thereafter memorial preferred by the appellant was also
dismissed. Thereupon, respondent no.4 raised an industrial dispute
before the Assistant Labour Commissioner (Central), Ministry of
Labour, Government of India, whereupon Central Government in
exercise of power conferred under section 10(1)(d) of the Industrial
Disputes Act referred the dispute for its adjudication to the Central
Government Industrial Tribunal, Dhanbad and the terms of
reference was as follows:
” Whether the action of the management of Life
Insurance Corporation of India, Muzaffarpur in
imposing the punishment on Shri B.N.P. Srivastava,
Stenographer, by way of reduction by three stages in
the existing time scale per month and recovery of
Rs.85.50paise from him is justified, if not, what relief
is the said workman entitled to.”
The Tribunal after taking into consideration the evidences
led by the parties came to the conclusion that action of the
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management imposing the punishment on the workman Shri B.N.P.
Srivastava, is not justified and accordingly, management was
directed to restore all the benefits to the respondent no.4.
After participating in the said proceeding when the order
went against the appellant (Life Insurance Corporation of India),
Life Insurance Corporation of India has preferred this writ
application challenging the award on the ground that reference by
the Central Government to the Tribunal is itself illegal, arbitrary and
without any authority of law as services of the concerned workman
is being regulated in accordance with Regulations/Rules framed by
the Central Government by virtue of the power conferred under
Section 48 as amended by the Amending Act 1981 of the Life
Insurance Corporation of India Act, 1956.
The facts giving rise to W.P.(S) No.4455 of 2003 are as
follows:-
The same B.N.P.Srivastava at one point of time was asked to
report to Investigating Officer, namely, B.P.Singh and to give
assistance in connection with investigation of one case but he
remained absent from duty from 3.12.1985 to 13.3.1986, though it
was claimed by the petitioner that he remained engaged with the
said Police Officer during that period but the petitioner being a
public servant was not supposed to remain absent without consent
of the employer and therefore, a proceeding was initiated for
enquiring into said charge. After submission of the enquiry report,
Disciplinary Authority inflicted punishment of censure and at the
same time salary for the said period was not paid as his
unauthorized absence was treated as extraordinary leave.
Thereafter the petitioner preferred statutory appeal which was
dismissed. Thereupon, an application was filed under section 33(C)
of the Industrial Dispute Act before the Presiding Officer, C.G.I.T
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No.1 Dhanbad wherein said B.N.P Srivastava put a claim of
Rs.12,670/-.68paise as salary from December 1986 to 13.3.1986
and also claimed interest over the said amount.
The petitioner did appear before the Tribunal and
questioned about the maintainability of the application. However,
the absence of the applicant was never found to be an
unauthorized by the Tribunal and, hence, the Tribunal directed the
petitioner to pay admissible amount and also interest @ 6% per
annum on the total amount which is due to be paid to
B.N.P.Srivastava.
Being aggrieved with that order, this writ application has
been filed assailing the order on the same point which has been
raised in other writ application.
It was submitted by learned counsel appearing on behalf of
the petitioner that under Section 48 of the Life Insurance
Corporation of India Act, Central Government is empowered to
make rules to carry out for the purposes of the Act for all or any of
the matters specified in sub-section (2) of said Section 48, whereas
Section 49 of the Act provides that the Corporation may with the
previous approval of the Central Government by notification in the
Gazette of India, make regulations, not consistent with the Act and
the rules made thereunder, to provide for all matters for which
provision is expedient for the purpose of giving effect to the
provisions of the Act and accordingly, Corporation framed
Regulation in the year 1960 known as Life Insurance Corporation of
India (Staff) Regulation, 1960 defining the terms and conditions of
service of its employees.
It was further pointed out that as per Regulation 39, an
employee is liable to punishment if he does anything detrimental to
the interest of the Corporation and the kind of punishment which
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could be imposed is also enshrined under Regulation 39(1)(a) to
(h).
Learned counsel proceeds further to place that in the year
1981, there was significant change in the Life Insurance
Corporation Act, 1956 wherein new sub-clause (cc) relating to the
terms and conditions of the services of the employees and agents
of the Corporation was inserted with retrospective effect in sub-
section (2) of section 48 of the Principal Act by virtue of amending
Act 1981.
Further Section 2 (c) was added to Section 48 whereby any
rule made under the said clause (cc) shall have retrospective
effect notwithstanding anything contained in the Industrial
Disputes Act, 1947 or any other law or any agreement, settlement,
award etc. and as such, when terms and conditions of the service is
itself regulated by the Regulation framed under the Act which has
its force as that of rules, provisions of Industrial Dispute Act
cannot be enforced and this proposition of law has already been
laid down in a case of A.V.Nachane and another vs. Union of
India and another (AIR 1981 SC 1126) and also in a case of
V. Venugopal vs. Divisional Manager, Life Insurance
Corporation of India, Machilipatnam, Andhra Pradesh and
another (AIR 1994 SC 1343).
Thus, it was submitted that when the respondent no.4 was
found guilty for the charge not only by the Disciplinary Authority
but even by Appellate Authority and also by Revisional Authority by
way of deciding memorial, the issue can not be allowed to be
agitated in terms of the provisions of Industrial Disputes Act, when
the provisions of the Life Insurance Corporation of India Act and its
Rules/ Regulation will have overriding effect upon the provisions of
the Industrial Disputes Act.
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Learned counsel further submitted that the impugned award
is also bad on account of the fact that once the authority under the
Life Insurance Corporation of India Act decided the issue which got
its finality that will operate as res judicata upon the subsequent
proceeding.
As against this, learned counsel appearing for the
respondents submitted that when the appellant had participated in
a proceeding before the Tribunal and never raised legality of the
reference it would not be open for the appellant to challenge the
award on the ground of reference being illegal when the appellant
had lost before the Tribunal.
Learned counsel further submitted that the jurisdiction of
Industrial Tribunal to decide validity of the order passed by the
Disciplinary Authority or by the Appellate Authority has never been
ousted expressly or by implication by the Amending Act of the Life
Insurance Corporation of India and hence, there has been no merit
in the submission advanced on behalf of the appellant.
Learned counsel in support of his submission has relied upon
a decision rendered in a case of Life Insurance Corporation of
India vs. R. Suresh [2008 II-L.L.J-708 (SC)].
In the context of the submission advanced hereinabove on
behalf of the parties, amendment made in the Life Insurance
Corporation of India Act, 1956 by Life Insurance Corporation
(Amendment ) Act, 1981 (Act 1 of 1981) needs tobe taken notice
of. Clause (cc) added to sub-section(2) of Section 48 with effect
from 31.1.1981 reads as follows:
” (cc) the terms and conditions of service of the
employees and agents of the Corporation including
those who became employees and agents of the
Corporation on the appointed day under this Act.”
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With introduction of clause (cc), the Central Government
can by notification in Official Gazette, make rules in respect of the
terms and conditions of the service of the employees and agents of
the Corporation. By the aforesaid Amending Act, three new sub-
sections were also introduced, which are relevant for the present
case:-
“(2-A) The regulations and other provisions as in
force immediately before the commencement of the
Life Insurance Corporation ( Amendment) Act, 1981,
with respect to the terms and conditions of service of
employees and agents of the Corporation including
those who became employees and agents of the
Corporation on the appointed day under this Act, shall
be deemed to be rules made under clause (cc) of
sub-section (2) and shall subject to the other
provisions of this section, have effect accordingly.
(2-B) The power to make rules conferred by clause
(cc) of sub-section (2) shall include –
(i) the power to give retrospective effect to such
rules; and
(ii) the power to amend by way of addition,
variation or repeal the regulations and other
provisions referred to in sub-section(2-A), with
retrospective effect, from the date not earlier
than the twentieth day of June, 1979
(2-C) The provisions of clause (cc) of sub-section (2)
and sub-section (12-B) and any rules made
under the said clause (cc) shall have effect,
and any such rule made with retrospective
effect from any date shall also be deemed to
have had effect from that date notwithstanding
any judgment, decree or order of any court,
tribunal or other authority and notwithstanding
anything contained in the Industrial Disputes
Act, 1947 (14 of 1947) or any other law or any
agreement, settlement, award or other
instrument for the time being in force.”
Thus, by virtue of incorporation of these provisions in the
Principal Act the regulation framed under the Principal Act would
have effect as that of rules and the same will have overriding effect
over the provisions of Industrial Dispute Act in respect of terms and
conditions of an employee of the Corporation who is covered under
the definition of workman under the Industrial Dispute Act.
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The aforesaid amended provision came up for consideration
before the Hon’ble Supreme Court in a case of V. Venugopal vs.
Divisional Manager, Life Insurance Corporation of India,
Machilipatnam, Andhra Pradesh and another (supra) where
the petitioner of that case had questioned the legality of the order
of his termination However, it was held by the Court that the
amendments introduced in Section 48 of the Corporation Act have
clearly excluded the provisions of the Industrial Disputes Act, so far
they are in conflict with the rules framed under Section 48(2) (cc)
but that proposition was laid down on the factual background of
the case that the termination effected in terms of clause 14 of the
Regulation during the period of probation of the petitioner of that
case never considered to be a retrenchment within the meaning of
Section 2(oo) of the Industrial Disputes Act and as such, it was
held that there was no application of Section 25(F) of the Industrial
Dispute Act.
Therefore, having regard to the provision brought through
amendment and the proposition of law laid down by the Hon’ble
Supreme Court in the case referred to above one can safely comes
to conclusion that only those rules/regulations will have overriding
effect over the provision of Industrial Dispute Act which are in
inconsistent with the Regulation/Rules framed under the Life
Insurance Corporation Act but if the Rules made under 1956 Act
are not in conflict with the provisions giving jurisdiction to the
Industrial Tribunal to go into the question of validity or legality of
an order passed in departmental proceeding initiated in terms of
the provision of Regulation, the question of jurisdiction of the
Industrial Tribunal being ousted does not arise particularly when
the Life Insurance Act does not contain any provision ousting the
jurisdiction of the Industrial Tribunal. Almost similar question fell
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for consideration before the Hon’ble Supreme Court in a case of
Life Insurance Corporation of India vs. R. Suresh (supra) and
their Lordship took notice of the fact that 1956 Act never
contained any provision ousting the jurisdiction of the civil court or
the Industrial court and in that background their Lordships after
considering the provision of Section 48(2)(cc) of the Life Insurance
Corporation of India Act and also taking into consideration the
ratio laid down in case of A.V.Nachane and another vs. Union
of India and another (supra) and also in the case of V.
Venugopal vs. Divisional Manager, Life Insurance
Corporation of India, Machilipatnam, Andhra Pradesh and
another (supra) did observe that if rules made under the 1956
Act are not in conflict with the jurisdiction of Industrial Tribunal to
go into the question of validity or legality of an order of termination
of service, we fail to see how the jurisdiction of Industrial Code
stood ousted ? Consequently it was held that jurisdiction of the
Industrial Tribunal Court being wide and it having been conferred
with to interfere with the quantum of punishment, it could go into
the nature of the charge so as to arrive at a conclusion as to
whether respondent had misused his position or his act or any
breach of trust conferred upon by his employees.
In view of the proposition laid down by the Hon’ble Supreme
Court in the aforesaid case, I do not find any substance in the
submission that the jurisdiction of the Industrial Tribunal gets
ousted by virtue of the enactment of the provisions by the
Amending Act, 1981 as contained in Section 48(2)(cc) of the
Principal Act and therefore, the Tribunal was quite justified to go
into the legality of the order passed by the Disciplinary Authority
and also by other authority including the Appellate Authority and
the finding arrived at never seems to be erroneous.
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In the result, I do not find any merit in these writ
applications. Hence, both the writ applications are dismissed.
(R.R.Prasad, J.)
Jharkhand High Court, Ranchi
The 16th October, 2008
NAFR/N.Dev