{"id":169184,"date":"2008-10-16T00:00:00","date_gmt":"2008-10-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sr-divisional-managerlic-of-i-vs-union-of-india-ors-on-16-october-2008"},"modified":"2016-10-25T04:21:46","modified_gmt":"2016-10-24T22:51:46","slug":"sr-divisional-managerlic-of-i-vs-union-of-india-ors-on-16-october-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sr-divisional-managerlic-of-i-vs-union-of-india-ors-on-16-october-2008","title":{"rendered":"Sr.Divisional Manager,Lic Of I vs Union Of India & Ors. on 16 October, 2008"},"content":{"rendered":"
Jharkhand High Court<\/div>\n
Sr.Divisional Manager,Lic Of I vs Union Of India & Ors. on 16 October, 2008<\/div>\n
                   Writ Petition (service) No.1366 of 2003\n                                With\n                   Writ Petition (service) No.4455 of 2003\n                                -----\n<\/pre>\n
            In the matter of an application under Articles 226 and 227 of the
\n            Constitution of India.\n<\/p>\n
                                 —–\n<\/p>\n
            Employer in relation to the Management of
\n            Life Insurance Corporation of India through the
\n            Divisional Manager, Divisional Officer, Jeevan
\n            Prakash, Uma Shankar Prasad Marg, P.O – Mithanpura,
\n            District- Muzaffarpur… ……..Petitioner [in W.P.(S) no.1366 of 2003]<\/p>\n
            Sr. Divisional Manager, Life Insurance
\n            Corporation of India, Divisional Office,
\n            Muzaffarpur ……………………Petitioner [in W.P.(S) no.4455 of 2003]<\/p>\n
                   VERSUS<\/p>\n
            The Union of India through the Secretary,
\n            Ministry of Labour and others ………………………..Respondents<\/p>\n
            For the Petitioner:M\/s.Umesh Prasad Sinha & Rajeev Ranjan Prasad
\n            For the Union of India : Md. Mokhtar Khan
\n            For the Respondents 3 and 4 : Mr.J.Dubey<\/p>\n
                    P R E S E N T
\n           THE HON’BLE MR. JUSTICE R. R. PRASAD
\nReserved on 22.9.2008                  Delivered on 16.10.2008<\/p>\n
R.R.Prasad, J.,    Since the issues involved in both the cases are same and<\/p>\n
            even the parties are the same, both the cases were heard together<\/p>\n
            and hence, both the matters are being disposed of by this common<\/p>\n
            judgment.\n<\/p>\n
                   The facts which have given rise to W.P.(S) No.1366 of 2003<\/p>\n
            are as follows:-\n<\/p>\n
                   One B.N.P.Srivastava, respondent no.4, while was working<\/p>\n
            as Stenographer in the Divisional Office of Life Insurance<\/p>\n
            Corporation of India at Muzaffarpur, visited Purnea on an official<\/p>\n
            work. Thereupon he claimed Rs.85.50paise as travelling allowance<\/p>\n
            which was paid but subsequently, in course of enquiry, it could be<\/p>\n
            ascertained that on the date of journey, i.e, 16.4.1981, not a single<\/p>\n
            ticket of 1st class had been issued from Muzaffarpur to Purnea<\/p>\n
            and, therefore, charge was framed putting an allegation that<\/p>\n
            respondent no.4 deliberately made a false claim of Rs.85.50paise
\n                              2<\/span><\/p>\n
as travelling allowance and thereby he acted in the manner<\/p>\n
prejudicial to good conduct and detrimental to the interest of the<\/p>\n
Corporation and as such, he is liable to be punished under<\/p>\n
Regulation 39(1)(a) to (g) of the Life Insurance Corporation of<\/p>\n
India (Staff) Regulation, 1960 for violating provisions of Clauses<\/p>\n
21, 24 and 39 of the aforesaid Regulation.      Accordingly, enquiry<\/p>\n
officer was appointed to enquire into the charge framed against<\/p>\n
the respondent no.4.        The enquiry officer having found the<\/p>\n
respondent no.4 guilty for the charges submitted its report to the<\/p>\n
Disciplinary Authority, who on finding the second show cause to be<\/p>\n
unsatisfactory imposed penalty for reduction in pay by three stages<\/p>\n
in terms of Regulation 39(1)(d) and also passed an order for<\/p>\n
recovery of Rs.85.50paise.\n<\/p>\n
      Being aggrieved with that order, respondent no.4 preferred<\/p>\n
an appeal under Clause 46 of the Regulations before the Appellate<\/p>\n
Authority, who affirmed the order passed by the Disciplinary<\/p>\n
Authority. Thereafter memorial preferred by the appellant was also<\/p>\n
dismissed. Thereupon, respondent no.4 raised an industrial dispute<\/p>\n
before the Assistant Labour Commissioner (Central), Ministry of<\/p>\n
Labour, Government of India, whereupon Central Government in<\/p>\n
exercise of power conferred under section 10(1)(d) of the Industrial<\/p>\n
Disputes Act referred the dispute for its adjudication to the Central<\/p>\n
Government Industrial Tribunal, Dhanbad         and the terms of<\/p>\n
reference was as follows:\n<\/p>\n
             ” Whether the action of the management of Life
\n             Insurance Corporation of India,         Muzaffarpur in
\n             imposing the punishment on Shri B.N.P. Srivastava,
\n             Stenographer, by way of reduction by three stages in
\n             the existing time scale per month and recovery of
\n             Rs.85.50paise from him is justified, if not, what relief
\n             is the said workman entitled to.”<\/p><\/blockquote>\n
      The Tribunal after taking into consideration the evidences<\/p>\n
led by the parties came to the conclusion that action of the
\n                            3<\/span><\/p>\n
management imposing the punishment on the workman Shri B.N.P.<\/p>\n
Srivastava, is not justified and accordingly, management was<\/p>\n
directed to restore all the benefits to the respondent no.4.<\/p>\n
       After participating in the said proceeding when the order<\/p>\n
went against the appellant (Life Insurance Corporation of India),<\/p>\n
Life Insurance Corporation of India has preferred              this writ<\/p>\n
application challenging the award on the ground that reference by<\/p>\n
the Central Government to the Tribunal is itself illegal, arbitrary and<\/p>\n
without any authority of law as services of the concerned workman<\/p>\n
is being regulated in accordance with Regulations\/Rules framed by<\/p>\n
the Central Government by virtue of the power conferred under<\/p>\n
Section 48 as amended by the Amending Act 1981 of the Life<\/p>\n
Insurance Corporation of India Act, 1956.\n<\/p>\n
       The facts giving rise to W.P.(S) No.4455 of 2003 are as<\/p>\n
follows:-\n<\/p>\n
       The same B.N.P.Srivastava at one point of time was asked to<\/p>\n
report to Investigating Officer, namely, B.P.Singh and to give<\/p>\n
assistance in connection with investigation of one case but he<\/p>\n
remained absent from duty from 3.12.1985 to 13.3.1986, though it<\/p>\n
was claimed by the petitioner that he remained engaged with the<\/p>\n
said Police Officer during that period but the petitioner being a<\/p>\n
public servant was not supposed to remain absent without consent<\/p>\n
of the employer and therefore, a proceeding was initiated for<\/p>\n
enquiring into said charge. After submission of the enquiry report,<\/p>\n
Disciplinary Authority inflicted punishment of censure and at the<\/p>\n
same time salary for the said period was not paid as his<\/p>\n
unauthorized    absence    was   treated    as   extraordinary    leave.<\/p>\n
Thereafter the petitioner preferred statutory appeal which was<\/p>\n
dismissed. Thereupon, an application was filed under section 33(C)<\/p>\n
of the Industrial Dispute Act before the Presiding Officer, C.G.I.T
\n                              4<\/span><\/p>\n
No.1 Dhanbad wherein said B.N.P Srivastava put a claim of<\/p>\n
Rs.12,670\/-.68paise as salary from December 1986 to 13.3.1986<\/p>\n
and also claimed interest over the said amount.<\/p>\n
       The   petitioner     did    appear   before   the   Tribunal   and<\/p>\n
questioned about the maintainability of the application. However,<\/p>\n
the absence of the applicant was never found to be an<\/p>\n
unauthorized by the Tribunal and, hence, the Tribunal directed the<\/p>\n
petitioner to pay admissible amount and also interest @ 6% per<\/p>\n
annum on the total amount which is due to be paid                      to<\/p>\n
B.N.P.Srivastava.\n<\/p>\n
       Being aggrieved with that order, this writ application has<\/p>\n
been filed assailing the order on the same point which has been<\/p>\n
raised in other writ application.\n<\/p>\n
       It was submitted by learned counsel appearing on behalf of<\/p>\n
the petitioner that under Section 48            of the Life Insurance<\/p>\n
Corporation of India Act,         Central Government is empowered to<\/p>\n
make rules to carry out for the purposes of the Act for all or any of<\/p>\n
the matters specified in sub-section (2) of said Section 48, whereas<\/p>\n
Section 49 of the Act provides that the Corporation may with the<\/p>\n
previous approval of the Central Government by notification in the<\/p>\n
Gazette of India, make regulations, not consistent with the Act and<\/p>\n
the rules made thereunder, to provide for all matters for which<\/p>\n
provision is expedient for the purpose of giving effect to the<\/p>\n
provisions of the Act and accordingly, Corporation framed<\/p>\n
Regulation in the year 1960 known as Life Insurance Corporation of<\/p>\n
India (Staff) Regulation, 1960 defining the terms and conditions of<\/p>\n
service of its employees.\n<\/p>\n
       It was further pointed out that as per Regulation 39, an<\/p>\n
employee is liable to punishment if he does anything detrimental to<\/p>\n
the interest of the Corporation and the kind of punishment which
\n                            5<\/span><\/p>\n
could be imposed is also enshrined under Regulation 39(1)(a) to<\/p>\n
(h).\n<\/p>\n
         Learned counsel proceeds further to place that in the year<\/p>\n
1981, there was significant change in the Life Insurance<\/p>\n
Corporation Act, 1956 wherein new sub-clause (cc) relating to the<\/p>\n
terms and conditions of the services of the employees and agents<\/p>\n
of the Corporation was inserted with retrospective effect in sub-<\/p>\n
section (2) of section 48 of the Principal Act by virtue of amending<\/p>\n
Act 1981.\n<\/p>\n
         Further Section 2 (c) was added to Section 48 whereby any<\/p>\n
rule made under      the said clause (cc) shall have   retrospective<\/p>\n
effect      notwithstanding anything contained in the Industrial<\/p>\n
Disputes Act, 1947 or any other law or any agreement, settlement,<\/p>\n
award etc. and as such, when terms and conditions of the service is<\/p>\n
itself regulated by the Regulation framed under the Act which has<\/p>\n
its force as that of rules,    provisions of Industrial Dispute Act<\/p>\n
cannot be enforced and this proposition of law has already been<\/p>\n
laid down in a case of A.V.Nachane and another vs. Union of<\/p>\n
India and another (AIR 1981 SC 1126) and also in a case of<\/p>\n
V. Venugopal vs. Divisional Manager,               Life Insurance<\/p>\n
Corporation of India, Machilipatnam, Andhra Pradesh and<\/a><\/p>\n
another (AIR 1994 SC 1343).\n<\/p>\n
         Thus, it was submitted that when the respondent no.4 was<\/p>\n
found guilty for the charge not only by the Disciplinary Authority<\/p>\n
but even by Appellate Authority and also by Revisional Authority by<\/p>\n
way of deciding memorial, the issue can not be allowed to be<\/p>\n
agitated in terms of the provisions of Industrial Disputes Act, when<\/p>\n
the provisions of the Life Insurance Corporation of India Act and its<\/p>\n
Rules\/ Regulation will have overriding effect upon the provisions of<\/p>\n
the Industrial Disputes Act.\n<\/p>\n
                              6<\/span><\/p>\n
      Learned counsel further submitted that the impugned award<\/p>\n
is also bad on account of the fact that once the authority under the<\/p>\n
Life Insurance Corporation of India Act decided the issue which got<\/p>\n
its finality that will operate as res judicata upon the subsequent<\/p>\n
proceeding.\n<\/p>\n
      As   against   this,   learned   counsel   appearing   for   the<\/p>\n
respondents submitted that when the appellant had participated in<\/p>\n
a proceeding before the Tribunal and never raised legality of the<\/p>\n
reference it would not be open for the appellant to challenge the<\/p>\n
award on the ground of reference being illegal when the appellant<\/p>\n
had lost before the Tribunal.\n<\/p>\n
      Learned counsel further submitted that the jurisdiction of<\/p>\n
Industrial Tribunal to decide validity of the order passed by the<\/p>\n
Disciplinary Authority or by the Appellate Authority has never been<\/p>\n
ousted expressly or by implication by the Amending Act of the Life<\/p>\n
Insurance Corporation of India and hence, there has been no merit<\/p>\n
in the submission advanced on behalf of the appellant.<\/p>\n
      Learned counsel in support of his submission has relied upon<\/p>\n
a decision rendered in a case of Life Insurance Corporation of<\/p>\n
India vs. R. Suresh<\/a> [2008 II-L.L.J-708 (SC)].<\/p>\n
      In the context of the submission advanced hereinabove on<\/p>\n
behalf of the parties, amendment made in the Life Insurance<\/p>\n
Corporation of India Act, 1956 by Life Insurance Corporation<\/p>\n
(Amendment ) Act, 1981 (Act 1 of 1981) needs tobe taken notice<\/p>\n
of. Clause (cc) added to sub-section(2) of Section 48 with effect<\/p>\n
from 31.1.1981 reads as follows:\n<\/p>\n
              ” (cc) the terms and conditions of service of the
\n              employees and agents of the Corporation including
\n              those who became employees and agents of the
\n              Corporation on the appointed day under this Act.”<\/p><\/blockquote>\n
\n                             7<\/span><\/p>\n
           With introduction of clause (cc), the Central Government<\/p>\n
can by notification in Official Gazette, make rules in respect of the<\/p>\n
terms and conditions of the service of the employees and agents of<\/p>\n
the Corporation. By the aforesaid Amending Act, three new sub-<\/p>\n
sections were also introduced, which are relevant for the present<\/p>\n
case:-\n<\/p>\n
                 “(2-A) The regulations and other provisions as in
\n               force immediately before the commencement of the
\n               Life Insurance Corporation ( Amendment) Act, 1981,
\n               with respect to the terms and conditions of service of
\n               employees and agents of the Corporation including
\n               those who became employees and agents of the
\n               Corporation on the appointed day under this Act, shall
\n               be deemed to be rules made under clause (cc) of
\n               sub-section (2) and shall subject to the other
\n               provisions of this section, have effect accordingly.\n<\/p><\/blockquote>\n
               (2-B) The power to make rules conferred by clause
\n               (cc) of sub-section (2) shall include –\n<\/p><\/blockquote>\n
               (i)   the power to give retrospective effect to such
\n                     rules; and\n<\/p><\/blockquote>\n
               (ii)  the power to amend by way of addition,
\n                     variation or repeal the regulations and other
\n                     provisions referred to in sub-section(2-A), with
\n                     retrospective effect, from the date not earlier
\n                     than the twentieth day of June, 1979
\n               (2-C) The provisions of clause (cc) of sub-section (2)
\n                     and sub-section (12-B) and any rules made
\n                     under the said clause (cc) shall have effect,
\n                     and any such rule made with retrospective
\n                     effect from any date shall also be deemed to
\n                     have had effect from that date notwithstanding
\n                     any judgment, decree or order of any court,
\n                     tribunal or other authority and notwithstanding
\n                     anything contained in the Industrial Disputes
\n                     Act, 1947 (14 of 1947) or any other law or any
\n                     agreement, settlement, award or other
\n                     instrument for the time being in force.”<\/p><\/blockquote>\n
         Thus, by virtue of incorporation of these provisions in the<\/p>\n
Principal Act the regulation framed under the Principal Act would<\/p>\n
have effect as that of rules and the same will have overriding effect<\/p>\n
over the provisions of Industrial Dispute Act in respect of terms and<\/p>\n
conditions of an employee of the Corporation who is covered under<\/p>\n
the definition of workman under the Industrial Dispute Act.
\n                            8<\/span><\/p>\n
       The aforesaid amended provision came up for consideration<\/p>\n
before the Hon’ble Supreme Court in a case of V. Venugopal vs.<\/p>\n
Divisional Manager, Life Insurance Corporation of India,<\/p>\n
Machilipatnam, Andhra Pradesh and<\/a> another (supra) where<\/p>\n
the petitioner of that case had questioned the legality of the order<\/p>\n
of his termination   However, it was held by the Court that the<\/p>\n
amendments introduced in Section 48 of the Corporation Act have<\/p>\n
clearly excluded the provisions of the Industrial Disputes Act, so far<\/p>\n
they are in conflict with the rules framed under Section 48(2) (cc)<\/p>\n
but that proposition was laid down on the factual background of<\/p>\n
the case that the termination effected in terms of clause 14 of the<\/p>\n
Regulation during the period of probation of the petitioner of that<\/p>\n
case never considered to be a retrenchment within the meaning of<\/p>\n
Section 2(oo) of the Industrial Disputes Act and as such, it was<\/p>\n
held that there was no application of Section 25(F) of the Industrial<\/p>\n
Dispute Act.\n<\/p>\n
       Therefore, having regard to the provision brought through<\/p>\n
amendment and the proposition of law laid down by the Hon’ble<\/p>\n
Supreme Court in the case referred to above one can safely comes<\/p>\n
to conclusion that only those rules\/regulations will have overriding<\/p>\n
effect over the provision of Industrial Dispute Act which are in<\/p>\n
inconsistent with the Regulation\/Rules framed under the Life<\/p>\n
Insurance Corporation Act but if the Rules made under 1956 Act<\/p>\n
are not in conflict with the provisions giving     jurisdiction to the<\/p>\n
Industrial Tribunal to go into the question of validity or legality of<\/p>\n
an order passed in departmental proceeding initiated in terms of<\/p>\n
the provision of Regulation, the question of jurisdiction of the<\/p>\n
Industrial Tribunal being ousted does not arise particularly when<\/p>\n
the Life Insurance Act does not contain any provision ousting the<\/p>\n
jurisdiction of the Industrial Tribunal. Almost similar question fell
\n                             9<\/span><\/p>\n
for consideration before the Hon’ble Supreme Court in a case of<\/p>\n
Life Insurance Corporation of India vs. R. Suresh<\/a> (supra) and<\/p>\n
their Lordship       took notice of the fact that 1956 Act never<\/p>\n
contained any provision ousting the jurisdiction of the civil court or<\/p>\n
the Industrial court and in that background their Lordships after<\/p>\n
considering the provision of Section 48(2)(cc) of the Life Insurance<\/p>\n
Corporation of India Act and also taking into consideration        the<\/p>\n
ratio laid down in case of A.V.Nachane and another vs. Union<\/p>\n
of India and another (supra) and also in the case of                V.<\/p>\n
Venugopal      vs.     Divisional   Manager,       Life    Insurance<\/p>\n
Corporation of India, Machilipatnam, Andhra Pradesh and<\/a><\/p>\n
another (supra) did observe that if rules made under the 1956<\/p>\n
Act are not in conflict with the jurisdiction of Industrial Tribunal to<\/p>\n
go into the question of validity or legality of an order of termination<\/p>\n
of service, we fail to see how the jurisdiction of Industrial Code<\/p>\n
stood ousted ? Consequently it was held that jurisdiction of the<\/p>\n
Industrial Tribunal Court being wide and it having been conferred<\/p>\n
with to interfere with the quantum of punishment, it could go into<\/p>\n
the nature of the charge so as to arrive at a conclusion as to<\/p>\n
whether respondent had misused his position or his act or any<\/p>\n
breach of trust conferred upon by his employees.<\/p>\n
       In view of the proposition laid down by the Hon’ble Supreme<\/p>\n
Court in the aforesaid case, I do not find any substance in the<\/p>\n
submission that the jurisdiction of the Industrial Tribunal gets<\/p>\n
ousted by virtue of the enactment of the provisions by the<\/p>\n
Amending Act, 1981 as contained in Section 48(2)(cc) of the<\/p>\n
Principal Act and therefore, the Tribunal was quite justified to go<\/p>\n
into the legality of the order passed by the Disciplinary Authority<\/p>\n
and also by other authority including the Appellate Authority and<\/p>\n
the finding arrived at never seems to be erroneous.
\n                                       10<\/span><\/p>\n
                   In the result, I do not find any merit in these writ<\/p>\n
            applications. Hence, both the writ applications are dismissed.<\/p>\n
                                                            (R.R.Prasad, J.)<\/p>\n
Jharkhand High Court, Ranchi
\nThe 16th October, 2008
\nNAFR\/N.Dev\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Jharkhand High Court Sr.Divisional Manager,Lic Of I vs Union Of India & Ors. on 16 October, 2008 Writ Petition (service) No.1366 of 2003 With Writ Petition (service) No.4455 of 2003 —– In the matter of an application under Articles 226 and 227 of the Constitution of India. —– Employer in relation to the Management of […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,18],"tags":[],"class_list":["post-169184","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jharkhand-high-court"],"yoast_head":"\nSr.Divisional Manager,Lic Of I vs Union Of India & Ors. on 16 October, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sr-divisional-managerlic-of-i-vs-union-of-india-ors-on-16-october-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sr.Divisional Manager,Lic Of I vs Union Of India & Ors. on 16 October, 2008 - 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