AI Structured Summary
Not yet generated for this judgment
Judgment
Narayan Shukla, J.—Heard Mr. Sharad Tewari alongwith Mr. Vinay Kumar Mishra, learned Counsels for the Petitioner and Mr. Tarun Kumar Mishra, learned Counsel for the Respondents.
The Petitioner has assailed the order dated 25th November, 2004, passed by the opposite party No. 1, whereby the Petitioner has been discharged from service of the Respondents'' company. The Petitioner submits that the order impugned has been passed in violation of the General Insurance (Rationalization of Pay Scales and other Conditions of Service of Development Staff) Scheme, 1976, under which the Petitioner''s services were governed. The governance of the Petitioner''s service by the aforesaid scheme is not disputed. The Petitioner submits that from perusal of the order impugned it is evident that the Respondents have taken into consideration the performance of the Petitioner for the years 1992-1993 to 2001-2002 except for the year 1995-1996 and 1999-2000 as well as 2002-2003 and 2003-2004 which has been found decreasing and poor in these years. The Petitioner submits that since he met with a serious accident on 3rd March, 2000 and he was not able to perform the duties under the circumstances he submitted a request before the authority concerned for exemption from field posting and also offered his reduction in rank. So far as the performance of the earlier years is concerned, he submits that under paragraph 11 (4) of the Scheme it is provided that if inspite of development officer cost ratio is in excess of stipulated limit for the first or subsequent performance years in success the non-core allowance payable to him, if any, in the following performance years shall be reduced to the excess of the amount by which his cost ratio exceeded the stipulated limits. Provided that if no non-core allowance are payable to him or the amount of non-core allowance payable to him in the year following such third or subsequent successive performance years in less than the excess cost, decrements shall be effected to such Development Officer as per table given below from the 1st January of the relevant appraisal year to provide him an opportunity to conform to the stipulated limits of cost.
REDUCTION IN BASIC PAY WHERE COST RATIO IS IN EXCESS OF STIPULATED LIMIT IN THE RELEVANT PERFORMANCE YEAR Actual cost on 1st on 2nd on 3rd on 4th on 5th and subsequent ratio over occasion successive successive successive successive stipulated occasion occasion occasion occasion limits NUMBER OF DECREMENTS TO BE EFFECTED FROM 1st JANUARY OF RELEVANT APPRAISAL YEAR 1. By not more than 1% 1 1 1 1 1 2. By margin exceeding 1% but not exceeding 3% 1 1 2 2 2 3. By margin exceeding 3% 2 2 3 3 4 4. By margin exceeding 5% 2 3 3 4 4
Sub-clause (5) speaks that the Development Officer whose basic pay has been fixed at the minimum of the scale of Development Officer Grade II, after reduction under sub-paragraph (4), shall be provided an opportunity of one year to conform to the stipulated cost limits and shall be issued a warning that his services shall be liable for termination if he still continues to exceed the stipulated cost limits.
Sub-clause (6) provides that if the Development Officer continues to be beyond stipulated cost limits even after bringing down his basic pay to the minimum of the scale of Development Officer Grade II and providing him an opportunity of one year under sub-paragraph (5), his services shall be terminated by an officer not below the rank of Assistant General Manager, after giving him a notice of 30 days.
From perusal of the aforesaid provisions it is obvious that providing an opportunity of one year for improvement of performance is a condition precedent for termination and thereafter his services can be terminated only when the employee fails to improve his performance.
A bare perusal of the order impugned shows that the Petitioner was served with a warning letter as per paragraph 11 (5) of the scheme on 8th August, 2000 as his request from conversion from Class II to Class III was not entertained. Undisputedly, the Petitioner met with an accident on 3rd of March, 2000 and injured seriously, on account of which on the basis of warning letter issued subsequently it was quite difficult for him to improve his performance and certainly his performance of the years subsequent to the accident could not have been taken into account for discharge of service.
The Respondents have contested the matter through the counter-affidavit on the ground that his premium procuration was decreasing by the year except in the years 1995-1996 and 1999-2000 and his premium procuration for the performance year 2003-2004 was nil. Under the circumstances, since his services were not found beneficial to the Respondents insurance company, he has been discharged from service. But he has failed to establish that in the years 1992-1993, 1993-1994 and 1994-1995 any show cause notice was issued prior to the warning notice dated 8th August, 2000 and his performance in the year 1995-1996 and 1999-2000 has been admitted as better performance.
Mr. Mishra learned Counsel for the Respondents has cited following judgments regarding the scope of this Court for the judicial review:
Regional Manager, Rajasthan State Road Transport Corporation v. Sohan Lal, 2004 SCC 1078: 2004 (4) AWC 3387 (SC).
Bharat Forge Co. Ltd. v. Uttam Manohar Nakate, 2005 SCC 298.
In both the judgments the Hon''ble Supreme Court held on the point of quantum of punishment that normally the Courts should not interfere on the basis of misplaced sympathy unless it is wholly disproportionate to the misconduct.
On the strength of the aforesaid judgments the learned Counsel for the Respondents submits that in this matter the order impugned has rightly been passed and the same is not liable to be interfered with by this Court.
The learned Counsel for the Petitioner disputes the contentions raised by Respondents in defence and submits that the action taken by the Respondents through the order impugned discharging the Petitioner from service is in violation of the schemes and since after meeting with the accident the Petitioner became physically handicapped he should have been adjusted on any suitable post instead discharging him from service. In support of his contention he relied upon the decision of the Hon''ble Supreme Court rendered in the case of Narendra Kumar Chandla Vs. State of Haryana and others, in which the Hon''ble Supreme Court held that Article 21 protects the right to livelihood as integral facet of right to life. When an employee is afflicted with unfortunate disease due to which, when he is unable to perform the duties of the posts he was holding, the employer must make very endeavour to adjust him in a post in which the employee would be suitable to discharge the duties.
On the strength of the aforesaid judgment he submitted that the Petitioner has himself offered his reduction in rank in view of his physical incapacity, but the same has been rejected arbitrarily and without application of mind.
From perusal of the order impugned in light of the schemes framed for the governance of the service conditions of the employees of Respondents insurance company I find that before terminating the Petitioner''s services the Respondents have failed to comply with the conditions laid down therein and they directly by jumping over have inflicted the punishment of discharge from service, which is not in accordance with law and in light of the decision rendered in the case of Narendra Kumar Chandla (supra) the Respondents are under obligation to adjust the Petitioner on any suitable post in view of his physical incapacity and thus they have wrongly denied the same. Under the circumstances I hereby quash the order impugned dated 25th of November, 2004, passed by opposite party No. 1 as well as the subsequent orders and issue a writ of mandamus to the Respondents to adjust the Petitioner on any suitable post with all consequential benefits within a period of one month from the date of production of a certified copy of this order.
The writ petition is allowed.