Life Insurance Corporation Of India vs Abhijit Sutradhar And Ors

[1] Heard Mr. N Majumder, learned counsel appearing for the appellants as well Mr. K. Nath, learned counsel appearing for the sole respondent (the writ petitioner).

[2] By these inter court appeals being WA No. 05 of 2017 [titled as LIC of India & 5 Ors. Vs. Sri Abhijit Sutradhar] & WA No. 06 of 2017 [titled as LIC of India & 5 Ors. Vs. Sri Aparesh Das] are consolidated for disposal by a common judgment as these appeals are symbiotically related by the common judgment dated 27.04.2018 delivered in WP(C) No. 377 of 2016 [titled as Sri Aparesh Das Vs. Life Insurance Corporation of India & 5 Ors.] & WP (C) No. 378 of 2016 [titled as Sri Abhijit Sutradhar Vs. Life Insurance Corporation of India & 5 Ors].

[3] The appellants were working as the Financial Service Executives under a scheme called "LICI of India (Financial Services Executive) Scheme 2007" which admittedly provides a contractual service on tenure basis and subject to renewal till the scheme is alive and also subject to the expected level of performance during the tenure.

[4] The respondents (the writ petitioners) were engaged as the Financial Service Executive, (in short, FSE) on two different dates i.e. on 02.05.2008 & 05.05.2008 after following a well-coded selection process. After their engagement as the FSEs they were also imparted training under the said scheme. There is no complaint against any of the writ petitioners (the respondents herein) that they under-performed during the tenure.

[5] Suddenly, by a communication dated 30.06.2015 (Annexure-P/6 to the writ petition) the petitioner of WP(C) 377/2016 was informed that his contractual service as FSE shall automatically cease on 31.05.2016. By a similar letter dated 30.06.2015 (Annexure-P/9 to the writ petition) the petitioner of WP(C) 378/2016 was informed that his service too will automatically cease on 31.05.2016.

[6] Finding no other alternative, the writ petitioners (the respondents herein) approached this court by filing an application under Article 226 of the Constitution of India. According to the writ petitioners, when the scheme is alive, such premature termination is grossly arbitrary and such action is an anathema to the constitutional philosophy as enshrined in Article 14 of the Constitution of India. The writ petitioners relied on few decisions of the Apex Court in this regard.

[7] The appellants herein, the Life Insurance Corporation of India Ltd., has taken a stand that the engagement of the petitioners are temporary & contractual in nature for a specific period. After such period is over, they do not have any indefeasible right to claim continuation in such engagement.

[8] Having scrutinized the conditions of such engagement, we have come across a clause called the „renewal clause‟ which clearly shows that their services can be renewed. The writ petitioners‟ services had been renewed more than once on assessment of their performance. But, this time completely ignoring this renewal clause, suddenly their services are brought to end.

[9] On overall assessment of the submission and the records produced before him learned single judge has observed that the petitioners have not urged for regularization of their contractual service, they have pressed for limited relief of continuation in the contractual engagement as long as the scheme is in force, else they would be facing serious financial difficulty for no reason.

[10] The appellants herein took a formidable stance that the court cannot direct regarding renewal of any contractual engagement. The said objection has been discarded by learned Single Judge in terms of the principle laid down in Md. Abdul Kadir & Anr. Vs. Director General of Police, Assam & Ors. reported in (2009) 6 SCC 611 where the Apex Court had occasion to observe that even in the contractual service as long as the scheme is alive, the fairness in action would justify the continuation of the engagement, but that would not change the nature of engagement and such engagement would remain co-terminus with the scheme.

[11] Learned Single Judge by the impugned judgment has directed the appellants to allow the writ petitioners to continue in the contractual engagement as long as the scheme is alive.

[12] Being aggrieved by the judgment dated 27.04.2018, this appeal has been filed on the solitary ground that when the scheme had been curbed and the appellants were terminating the FSEs phase by phase, the court by extending its jurisdiction and directing the appellants to allow the writ petitioners to continue in the service has transcended its jurisdiction and hence such direction cannot sustain in law.

[13] Mr. Majumder, learned counsel appearing for the appellants has clearly stated that this is the solitary ground based on which these appeals are preferred. In support of his contention, Mr. Majumder, learned counsel has referred to the judgment dated 27.04.2018 delivered in WP(C) No. 1704/2017 [Sri Sidhartha Dey Vs. Life Insurance Corporation of India & 6 Ors. etc]. It appears from reading of the said judgment that this court has refused to grant relief to the similarly situated FSEs having observed that whether the services under the contractual engagement would be renewed or not depends on the sole discretion of the employer. The court cannot give a direction to compel the employer to continue the petitioners as FSEs. That apart, this direction would stand contrary to the conditions of the contractual engagement.

[14] Having made a reference to Ugar Sugar Works Ltd. Vs. Delhi Administration reported in (2001) 3 SCC 635, it has been contended that in exercise of power of the judicial review, the courts do not ordinarily interfere with the policy decisions of the executive, unless the policy can be faulted on grounds of mala fide, unreasonableness, arbitrariness or unfairness etc. Arbitrariness, irrationality, perversity and mala fide will render the policy unconstitutional. However, if the policy cannot be faulted on any of these grounds, the mere fact that it would hurt interest of a party, does not justify invalidating the policy.

[15] It has also been observed that whether there can be a better policy or not, such consideration does not also fall within the domain of the judicial review.

[16] Mr. Majumder, learned counsel has also referred to the other decisions but according to us, those are not relevant in the perspective of facts.

[17] Mr. K Nath, learned counsel appearing for the respondents (the writ petitioners) has submitted that the relief as sought by the writ petitioners was confined to their continuation till the scheme is alive, not beyond that.

[18] By filing the interlocutory application being I.A. No. 02 of 2018, the appellants have brought to the notice of this court the communication vide. No. CO/MBAC/ZD/47/2017-18 dated 09.12.2017 [which has been marked as annexure-7 in that interlocutory application] whereby the Board of Directors of LIC of India in its 576th meeting held on 08.06.2017 took the decision and formed the administrative instruction duly approved by the Chairman. Instructions as laid down in the said communication dated 09.12.2017, the material clause being clause 4 reads as follows:

"In case an FSE does not opt to migrate to the CLIA scheme, his/her engagement as FSE will end at the close of office hours on Saturday, 30.12.2017. All such persons shall be issued letters of termination as per Proforma 3. All his/her dues till that date should be settled along with one month's gross remuneration as compensation in lieu of notice period."

[19] The other instruction which will be material for settlement of dues may also have their sway if any FSE prefers not to migrate to the CLIA scheme. One FSE if has completed 5 years in the contractual engagement will also be, according to the decision, as reflected in the communication dated 09.12.2017, entitled to get the gratuity as per their rules.

[20] We are not aware whether the writ petitioners have migrated to CLIA scheme or not. But, if they have not migrated, according to this communication dated 09.12.2017, their contractual engagement as FSEs shall come to end without any further life.

[21] Since, by the impugned judgment, the writ petitioners were allowed to continue as FSEs till the scheme is alive, this court having given to the perspective facts and keeping an eye to equity we will not interfere with the said decision. But, we are persuaded to clarify for averting any confusion that the decisions/instructions contained in the communication dated 09.12.2017 shall equally apply to the present writ petitioners and their services. If they have not migrated to the new scheme, called CLIA scheme, their services shall stand terminated w.e.f. 30.12.2017 and their dues shall be settled in terms of the said instruction.

[22] It is made further clear that from the date of judgment till the date of termination or migration, if any payment of the writ petitioners are withheld by the Life Insurance Corporation of India Ltd. (the appellants herein) such financial benefit shall be released to the petitioners within a period of two months from today.

[23] The appellants shall also be at liberty to take appropriate action in terms of the clarification as made above.

[24] The writ appeals are disposed of.

No order as to costs.

Pending application(s), if any, shall stand disposed of.