L.D. Gupta vs The Life Insurance Corporation of India and Others

Surinder Gupta, J.

CM No. 697 of 2012

For the reasons mentioned in the application, the same is allowed and the delay of 30 days in filing the appeal is hereby condoned.

LPA No. 273 of 2012

This Letters Patent Appeal is directed against the judgment and order dated 07.11.2011 passed by the learned Single Judge dismissing the writ petition of the appellant-petitioner. The appellant was appointed as Field Officer with the respondent-Corporation in the year 1961. The said post was later on re-designated as Development Officer. While the appellant was on probation, his services were terminated vide order dated 29.01.1963. The appellant challenged the order of his termination in the Civil Court and after prolonged litigation, his matter was finally decided by Hon''ble the Supreme Court in Civil Appeal No. 496 of 1979 decided on 04.03.1993 titled as ''The Life Insurance Corporation of India v. Shri L.D. Gupta'' with the observations as follows:

We see no infirmity in the judgment of the High Court, we agree with the reasoning and the conclusions reached therein. We therefore, upheld the finding of the trial Court that since no enquiry was held the termination of services of the respondent was not justified and as such he is entitled to be reinstated into service. We are, however, of the view that in the facts and circumstances of this case, the interest of justice would be met if the respondent is allowed 60% of the back wages with effect from February 1, 1963. We order accordingly. The learned counsel for the appellant states that the respondent may report for duty within four weeks from today. We further direct the appellant-Corporation to pay back wages as directed by us within three months from today. The appeal is disposed of in the above terms with costs. We quantify the costs as Rs. 10,000/-.

The appellant gave his joining report on 30.03.1993. He was allowed to join and his salary was fixed in the pay scale of Development Officer. However, he was not granted the consequential benefits like seniority and promotion etc.

The appellant made a representation on 24.07.1993 seeking consequential benefits as have been granted by Hon''ble the Supreme Court vide judgment dated 04.03.1993. The appellant filed a Civil Writ Petition No. 14089 of 1994 against the order dated 03.06.1993 denying him the consequential benefits. The said petition was disposed of vide order 31.07.1995 by a Division Bench of this Court observing as under:

The petitioner alleges that inspite of the submission of a representation dated 21.07.1993, his claim for promotion w.e.f. the date persons junior to him were promoted has not been considered by the respondent-Corporation. The counsel for the respondent-corporation states that no such representation has been received by it.

In the circumstances of the case, we consider it appropriate to direct the respondent-corporation to consider and decide the representation, a copy of which has been produced with Annexure P/6 to the writ petition, by passing a speaking order. The needful should be done within three months from the date of receipt of a copy of this order.

The respondents passed an order dated 28.11.1995 whereby the representation of the appellant for grant of consequential benefits was declined. The appellant preferred a Civil Writ Petition against the order dated 28.11.1995 claiming consequential benefits like seniority and promotion etc. The contention of the appellant was that once the termination of his service has been held to be bad in law and Hon''ble the Supreme Court has allowed him 60% back wages, it is implied that he is also entitled to the other benefits like seniority and promotion etc. The appellant has claimed that if allowed all the consequential benefits, he will become Divisional Manager as the persons appointed with him or juniors to him are manning this post. He is entitled to be promoted as Assistant Branch Manager, Branch Manager, Additional Divisional Manager and then as Divisional Manager in due course, irrespective of the fact that he has not worked from 1963 to 1993. His confidential reports during this period are required to be treated as good. He has sought quashing of order dated 20.11.1995 and grant of consequential relief like seniority and promotion etc.

The respondents have resisted the claim of the appellant in the written statement. In the earlier suit filed by the appellant, the Hon''ble Supreme Court has allowed him the relief of reinstatement in service with 60% of arrears of wages till the date of reinstatement. The civil writ petition filed by him claiming additional benefit is not maintainable and is also barred by the principle of res judicata. The appellant also sought similar relief by filing contempt petition, which was dismissed by Hon''ble the Supreme Court. Even after his reinstatement on 30.03.1993 and till the filing of the writ statement on behalf of the respondents, the appellant had not done any business at all for the Corporation despite the fact that he had drawn salary for the last more than 3 years. He has not submitted even a single proposal for insurance to the Corporation or has recruited any agent to book the insurance business. He is claiming promotion without doing any work. All the other claims made in the Civil Writ Petition were contested, controverted and denied.

Learned Single Judge vide order dated 07.11.2012, dismissed the writ petition.

Learned counsel for the parties have been heard and the record perused.

It has been argued by the learned counsel for the appellant that the appellant had remained out of service not because of any fault on his part but because of illegal termination of his services. Once he has been ordered to be reinstated with 60% of back wages, he is entitled to all the consequential benefits like seniority and promotion.

We are not inclined to accept the arguments of learned counsel for the appellants and find the same without merits. Hon''ble the Supreme Court while passing the order dated 04.03.1993 had ordered the reinstatement of the appellant. While allowing the consequential benefits only 60% back wages were allowed w.e.f. 01.02.1963 and no relief of seniority or promotion was allowed to the appellant. A relief which has not been specifically allowed by the Court is deemed to have been declined. The matter would have been different in case Hon''ble the Supreme Court had also allowed the consequential benefit like seniority and promotion etc. to the appellant while allowing 60% of back wages. On this very short ground, we find no merit in this appeal. Learned Single Judge has gone a step further to evaluate as to whether the conduct of the appellant even after joining the service makes him entitled to be considered for promotion. The observations made by learned Single Judge, in this regard are as follows:

Even if one were to travel a bit further to contend that the respondents ought to have explored his suitability by resorting to interview or examination, it becomes insignificant in view of what has been stated in the counter-affidavit of Shri I.S. Mehangi, Manager Legal who has stated that the petitioner upon his reinstatement in service on 30.3.1993 did not procure any business for the Corporation during the year 1993-94. His performance for the year ending 31.3.1994 was conveyed to him vide letter 4.8.1994, to which no reply was submitted by the petitioner and as such 60% cut was imposed on his conveyance allowance and one decrement in his pay was made as per provisions of law. It was further stated that performance of the petitioner was again nil for the period ending 31.3.1995 as he had not brought business of even a single penny in the entire period, even though he was drawing regular salary. This was conveyed to him vide letter dated 27.4.1995 and again a cut of 80% in his conveyance allowance and one decrement was imposed as per rules and this was conveyed to him vide letter dated 5.6.1995. Subsequently, again, the petitioner did not procure any business for the 3rd year ending 31.3.1996 and even this performance was conveyed to him vide letter dated 27.5.1996 and in fact, then once again his termination of services was proposed to which he submitted his reply on 22.7.1996, but since he was approaching the age of superannuation, he was permitted to retire.

The petitioner has not controverted these averments made in the counter-affidavit implying thereby that in the year 1995 when his case regarding merit and suitability was considered, this material was available with the respondents which persuaded them to deny promotion to the petitioner.

When the aforesaid material is considered, there does not seem to be any arbitrariness in the action of the respondents. The petitioner has not acquitted himself appropriately even after his reinstatement in 1993. His record was full of blemishes and prior thereto for the last 30 years i.e. from 1963 to 1993, there was no record of his performance. Thus, when the rule of promotion talks of merit which the petitioner having demonstrated lack of; there apparently does not seem to be any error of law having been committed by the respondents. Promotion is not a matter of right and at the best, the petitioner could have had a right of consideration which consideration was granted to him, but finding his performance below the mark, the promotion was rightly denied to him.

In view of the above discussion, there are no merits in the claim made by the appellant or any legal or factual infirmity in the order of the learned Single Judge. The appeal is devoid of any merit and is, thus, liable to be dismissed. Accordingly, the appeal fails and the same is dismissed.