Raghuchandra vs Senior Divisional Manager, Life Insurance Corporation of India

R.S. Chauhan, J—The petitioner is aggrieved by the order dated 25/4/2015 passed by the Senior Divisional Manager, LIC of India, Shimoga, whereby the Senior Divisional Manager has rejected the petitioner''s prayer for including the period of interruption from 11/10/1984 to 17/10/2002 as part of his qualifying service for the purpose of fixing his pension.

Briefly the facts of the case are that on 12/10/1973 the petitioner joined the services of the respondent-Corporation as Sub-ordinate Staff in the year 1980 he was promoted to the post of Record Clerk. On 16/12/1983, the Divisional Manager, Udupi issued a charge-sheet against the petitioner alleging that the petitioner has unauthorisedly collected a sum of Rs. 255.20 i.e., quarterly premium of a customer in cash. He did not deposit the said amount with the Corporation on the same day, but misappropriated the said amount. After holding a complete enquiry on the said charge-sheet, by order dated 9/10/1984, the petitioner was removed from service. Since the petitioner was aggrieved by the said order, he challenged the same before the Central Government Industrial Tribunal-cum-Labour Court, Bengaluru. By award dated 24/10/2001, the learned Tribunal set aside the dismissal order, and directed the respondents to reinstate the petitioner with continuity of service. However, the Tribunal did not allow any back wages for the interrupted period from the year 1984 to 2001.

Since the respondents were aggrieved by the said award, they challenged the same before this court by filing a writ petition, namely W.P. No. 17331/2002. However, by order dated 21/6/2002, this court dismissed the writ petition and confirmed the award dated 24/10/2001. This court also directed the respondents to reinstate the petitioner. Consequently on 17/10/2002, the petitioner was reinstated.

However, as the petitioner was not paid the wages from the date of the award, he approached this court by filing a writ petition, namely W.P. No. 39367/2003. By order dated 4/4/2007 this court directed the respondents to pay the wages to the petitioner from the date of the award.

Although the petitioner was reinstated from 24/10/2001, he was not permitted to opt for pension. Therefore the petitioner again approached this court by filing a writ petition, namely W.P. No. 346/2008. By order dated 17/9/2008, this court allowed the said writ petition, and directed the respondents to consider the petitioner''s matter in accordance with law and to grant the service benefits as per the award.

Subsequently on 29/11/2008, the petitioner has retired from service. While the respondents have extended the pensionary benefits to the petitioner as per the order of this court dated 17/9/2008, they have not included the period of interruption from 11/10/1984 to 17/10/2002, while calculating the petitioner''s qualifying service. Therefore, the petitioner submitted a representation on 17/12/2008 requesting the respondents to include the interruption period as part of the qualifying service of 35 years. However, by order dated 11/3/2010, the respondents have rejected the petitioner''s request ostensibly on the ground that Rule 28(3) of the Life Insurance Corporation of India (Employees'') Pension Rules, 1995, (hereinafter referred to as the ''Rules 1995'', for brevity) does not permit the respondents to include the period of interruption as part of qualifying service.

Since the petitioner was aggrieved by the order dated 11/3/2010, he challenged the same before this court by filing writ petitions in W.P. Nos. 24020-24021/2010. By order dated 18/12/2013, this court set aside the order dated 11/3/2010 and remitted the matter back to the respondents for reconsideration. But despite this particular direction to reconsider the petitioner''s case, the respondents maintained a silence. Therefore the petitioner submitted another representation dated 18/3/2015. However, the said representation has been rejected by the impugned letter dated 24/5/2015. Therefore this petition before this court.

The learned counsel for the petitioner has vehemently contended that the respondents are unjustified in denying the benefit of inclusion of the period of interruption ostensibly on the ground that Rule 28 of the Rules 1995, do not permit them to include the period of interruption as part of qualifying service. According to the learned counsel, since the removal order dated 9/10/1984 was set aside by the Labour Court, and since the award of the Labour Court was confirmed by this court, the petitioner was reinstated in service. Secondly, once an employee has been reinstated in service, the period of interruption should be included as part of the qualifying service. After all, the reinstatement would hark back to the date of removal, especially when the Labour Court had directed that he shall be reinstated with continuity of service and other benefits.

Heard the learned counsel and perused the impugned letter.

According to the impugned letter, the respondents have relied on Regulations 28 and 7 of the Rules 1995, to deny the benefit as claimed by the petitioner. Regulation 28 reads as under:

"28. "Condonation of interruption in service -

(1) in the absence of a specific indication to the contrary in the service records, an interruption between two spells of service in the corporation rendered by an employee including service counted in terms of the various provisions contained in these rules shall be treated as automatically condoned and the pre-interruption service treated as qualifying service.

(2) nothing in sub/rule (1) shall apply to an interruption caused by resignation or dismissal or removal or compulsory retirement or termination from the service.

(3) the period of interruption referred to in sub-rule(2) shall not count as qualifying service."

A perusal of Regulation 28 clearly reveals that in the absence of a specific indication to the contrary in the service records, an interruption between two spells of service shall be treated as automatically condoned, and the pre-interruption period should be treated as qualifying service. However, sub-regulation (2) of Regulation-28 raises a bar and clearly states that nothing in sub-rule (1) shall apply to an interruption caused by resignation, or dismissal, or removal, or compulsory retirement, or termination from the service. Thus, if an interruption has been caused due to a penalty imposed upon the employee of dismissal, or removal, or compulsory retirement, or termination, then the said period shall not be included as part of qualifying service. Naturally, the question of including the period of interruption would arise, only when the order of penalty has been set aside by a court of law. But according to the said provision, even if such a penalty has been set aside, even then, the said interruption period cannot be included as part of qualifying service. Therefore the respondents are certainly justified in relying on Regulation 28(2) of the Rules 1995, for not including the period of interruption from 11/10/1984 to 17/10/2002, even if the said removal order has been set aside by the Labour Court and affirmed by this court.

Regulation-7 of the Rules 1995, reads as under:

"7. "Composition of the Fund - The Fund shall consist of the following namely:- (a) the contribution by the Corporation at the rate of ten percent, per month of the pay of the employee."

A bare perusal of this rule clearly shows that the ''Fund'' shall consist of contribution by the Corporation at the rate of 10% per month of the pay of the employee. However, according to the award passed by the Labour Court dated 24/10/2001, the petitioner was not allowed any back wages. Thus, the petitioner was not awarded any pay for the period of interruption. The said award has been upheld by this court also. Therefore, for the period of interruption, the petitioner did not receive any pay. Hence, the question of the Corporation making any contribution up to 10% of "the pay" does not even arise. Therefore, the respondents are certainly justified in claiming that a co-joint reading of Regulation 7 with Regulation 28, does not permit them to include the period of interruption as part of the qualifying service.

Since the respondents have given cogent and legally valid reasons for rejecting the petitioner''s request, this court does not find any illegality in the impugned letter dated 25/4/2015. This petition being devoid of merit, is hereby dismissed.