Quashed

Life Insurcance Corpn. of India v. Mrs. S. G. Solanki and Anr.

Bombay HC14 Jul 2006WP/1655/2003

Case brief

AI extract

What is this about?

This writ petition challenges an industrial tribunal award reinstating a part-time sweeper. The High Court held that the Corporation's Staff Regulations of 1960, which govern temporary employment, override the Industrial Disputes Act. Consequently, the protection for retrenchment was unavailable, and the award was quashed.

What did the court decide?

Judgment and award dated 2nd August, 2002 passed by the Presiding Officer of CGIT-I, Mumbai were quashed and set aside.

Life Insurcance Corpn. of India Vs Mrs. S. G… — Labour and Industrial Disputes | Bombay HC (2006)

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 ORDINARY ORIGINAL CIVIL JURISDICTION

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 WRIT PETITION NO.1655 OF 2003
 1. Life Insurance Corporation of
 India, a statutory corporation
 incorporated under the provisions
 of the Life Insurance Corporation
 Act, 1956 and having its registered
 office and Western Zonal office at
 Yogekshema, Jeevan Bima Marg,
 Mumbai 400 021.
 2. The Senior Divisional Manager,
 Life Insurance Corporation of’
 India, Thane Divisional office,
 at "Jeevan Cghintamani", Eastern
 Express Highway, Thane 400 604 .. Petitioners.
 Versus.
 1. S.G.Solanki,
 Indian Inhabitant represented
 by Western Zone Insurance
 Employees Association, 19A,
 Laxmi Niwas, Manmala Tank Road
 Mumbai 400 016.
 2. The Presiding Officer,
 CGIT-I having its office at
 Shram Raksha Bhavan, Shivsrushti
 Road, Eastern Express Highway,
 Sion, Mumbai. .. Respondents.

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 Ms. S.Paranjape i/b M/s.Little & Co. for the
 petitioners.

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 Shri Saikumar Ramamurthy for the respondent No.1.
 --

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CORAM: ABHAY S. OKA, J

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DATED: 14TH JULY, 2006.

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ORAL JUDGMENT :

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 1. On the last Friday, I have heard the
 submissions made by learned counsel appearing for the
 parties.

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 2. By this petition under Article 226 of the
 Constitution of India, the first petitioner - the Life
 Insurance Corporation of India has taken exception to
 the judgment and award dated 2nd August, 2002 passed
 by the learned Presiding Officer of the Central
 Government Industrial Tribunal - I. By the impugned
 judgment and award, the learned Presiding Officer has
 held that the petitioners have acted illegally in
 discontinuing the services of Mrs.S.G.Solanki, the
 first respondent with effect from 5th July, 1994. It
 was held that she was retrenched and therefore the

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 petitioner should reinstate her as a part time
 Sweeper. Necessary orders were passed for payment of
 back wages on the footing that the first respondent
 had worked for two hours every day from 6th July, 1988
 to 4th July, 1994.

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 3. With a view to appreciate the submissions made

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 by learned counsel appearing for the parties, it will
 be necessary to refer to the facts of the case.
 According to the case of the first respondent, she was
 employed by the first petitioner as a part time
 sweeper on or about 7th July, 1988 and she
 continuously worked as such upto 4th July, 1994.
 According to her, the petitioners terminated her
 services abruptly with effect from 5th July, 1994
 without notice or payment of retrenchment
 compensation. It is the contention of the first
 respondent that she was paid wages for 1/2 hour
 contrary to the award dated 17th April, 1986 made by
 Justice R.D.Tulpule. The first Respondent’s case is
 that she was entitled to regularisation in the
 employment. On the basis of the demand made, a
 reference was made to the Central Government

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 Industrial Tribunal No.1, Mumbai, which reads thus:

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 "Whether the action of the management of Life

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 Insurance Corporation of India in
 discontinuing the service of Mrs.S.G.Solanki
 w.e.f. 05.07.1994 is legal and justified ?
 If not, to what relief the said workman is
 entitled ?

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 4. The petitioners filed written statement and

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 contested the case. It is the case of the petitioners
 that one V.S.Dalvi was appointed as a part time
 sweeper for two hours a day. Due to shortage of
 water, his services were deployed for fetching water
 and he was paid an extra sum as if he was working for
 1 and 1/2 hours more. Therefore, one more person by
 name M.B.Ruvekar was appointed as sweeper on temporary
 basis till a regular part time worker was appointed.
 He was paid wages for 2 hours daily on account of
 award given by Justice Tulpule on 17th April, 1986.
 According to the case of the petitioners, as per the
 desire expressed by the said M.B.Ruvekar, he was
 relieved of his duties with effect from 6th July, 1988
 and the first respondent who is his daughter was
 appointed. According to the petitioners, she was also
 paid wages for 2 hours work in a day following the
 award. It was submitted that her appointment was
 purely stop gap as the intention was to fill the post
 through employment exchange. It is contended that the

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 first respondent did not possess minimum
 qualifications prescribed for the post. It was
 contended that as the office of the first petitioner
 was shifted to new premises, employment of the first
 respondent was no longer required and accordingly her
 services were terminated.

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 5. The learned Presiding Officer of the Tribunal
 proceeded on the footing that the first respondent
 worked as a part time sweeper from 5th July, 1988 to
 4th July, 1994. The learned Preisidng Officer
 observed that as the said fact was not in dispute, it
 was not necessary to go into the question whether the
 appointment of the first respondent was an ad-hoc
 appointment pending regular appointment. The
 Presiding Officer came to the conclusion that the only
 question involved was whether a workman could be
 retrenched without notice and without payment of
 compensation in violation of Section 25F of the
 Industrial Disputes Act, 1947 ( hereinafter referred
 to as "the said Act of 1947"). The learned Presiding
 Officer has held that the Tribunal was not required to
 look into the manner of her appointment. The
 Presiding Officer therefore proceeded to pass the
 order of reinstatement.

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 6. Learned counsel appearing for the petitioners
 has made extensive submissions. Learned counsel
 relied upon a decision of the learned Single Judge of
 this Court in the case of Life Insurance Corporation

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of India v. Ravindra Vyankat Ladhe & Ors. delivered

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 on 13th April, 2005 by the learned Single Judge in
 Writ Petition No.1655 of 2002. Learned counsel for

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 the petitioners submitted the (Staff) Regulations,
 1960 (hereinafter referred to as "the Regulations of
 1960 ) framed by the first petitioner in exercise of
 powers vested in it under clauses (b) and (bb) of
 sub-section (2) of Section 49 of the Life Insurance
 Corporation Act, 1956 ( hereinafter referred to as
 "the said Act of 1956) will have overriding effect
 over the provisions of the said Act of 1947. She
 relied upon the Regulation 8 of the said Regulations
 of 1960 and submitted that power to dispense with
 employment of a temporary workman was implicit in
 Regulation 8 of the said Regulations of 1960. She
 submitted that in view of the clear legal position
 which is evident from the aforesaid decision in the
 case of Life Insurance Corporation case (supra) the
 impugned award is unsustainable and deserves to be set
 aside.

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 7. Shri Ramamurthy, learned counsel appearing for
 the first respondent invited my attention to the
 written statement of the first petitioner. He also
 invited my attention to the affidavit of one
 R.Shrinivasan filed on behalf of the first respondent.
 He stated that the stand taken on oath is that the
 said Regulations of 1960 apply only to full time
 salaried employees of the first petitioner and have no

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 application to the part time employees. He submitted
 that in view of the said stand taken on oath by the
 first petitioner, now is not open for the petitioners
 to contend that the appointment of the first
 respondent will be governed by the said Regulations of
 1960. He submitted that infact a statement on oath
 was made that the Central Government has not framed
 any rules under Section 48 of the said Act of 1956.
 he submitted that admittedly the first respondent was
 employed as a part time sweeper and therefore in view
 of the Regulation 2 of the Regulations of 1960, the
 said regulations will have no application. He
 submitted that the decision relied upon by learned
 counsel for the petitioners will have no application
 to the facts of the case. He submitted that now the
 petitioners are trying to take up the stand which is
 completely contrary to the stand taken before the
 Tribunal. He submitted that it is obvious that the
 said Regulations of 1960 will not have any application
 to the service conditions of a part time employee of
 the first petitioner. He also relied upon certain
 averments made by the petitioners in the written
 statement. He submitted that the learned Presiding
 Officer of the Tribunal was therefore right in holding
 that the first respondent was entitled to order of
 reinstatement with backwages. He invited my attention

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 to the various findings recorded by the Presiding
 Officer of the Tribunal. He urged that the Tribunal
 was required to see whether the first respondent was
 covered by Section 2(oo) of the said Act of 1947 and
 whether the services of the first respondent were
 terminated without payment of retrenchment
 compensation. He, therefore, submitted that it was
 not at all necessary to go into the question of method
 of appointment of the first respondent when the fact
 that she was appointed as a part time sweeper was
 admitted by the petitioners.

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 8. I have carefully considered the submissions

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 made by learned counsel appearing for the parties. It
 will be necessary to refer to the stand taken by the
 first petitioner in the written statement before the
 Tribunal. A specific stand has been taken that the
 Regulations of 1960 will have overriding effect over
 the provisions of the said Act of 1947. it is
 contended that the first respondent was employed
 purely on a temporary basis to clean the toilets in
 the office premises until a regular sweeper was
 appointed on part time basis. It is submitted that as
 per the directions in the award dated 17th April, 1986
 the first respondent was paid wages equivalent to
 wages of part time sweeper of 2 hours a day. In

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 paragraph 13 of the written statement, it is
 specifically stated by the first petitioner that:

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 The appointment and terms and conditions of

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 services of the temporary and part-time
 employees are regulated by administrative
 instructions issued by the Chairman in terms
 of Regulation 8, read with Regulation 4 of the
 Staff Regulations. Specifically it is denied
 that the appointing authority to the post of
 sweepers has got the power of framing the
 terms and conditions of service of employees
 of the said category. By way of clarification
 it is submitted that while in respect of the
 whole-time salaried employees it is the
 Central Government which in exercise of the
 power vested in its under section 48 of the
 LIC Act which can frame their terms and
 conditions of service, in so far as the
 temporary and part time employees are
 concerned it is the Chairman of the
 Corporation who, in exercise of the power
 vested in him by Regulation 8 read with
 Regulation 4 of the Staff Regulations, can lay
 down the terms and conditions of their
 services."

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 Thus, it has been contended that the Chairman of the
 first petitioner has exercised powers under Regulation
 4 of the said Regulations of 1960 read with the
 Regulation 8 and the appointment of part time
 employees will be regulated by the instructions issued
 by the Chairman in exercise of powers under Regulation
 4 read with Regulation 8 of the said Regulations of
 1960. It is true that in the affidavit of R.
 Shrinivasan filed on behalf of the first Petitioner, a
 stand has been taken that Regulations of 1960 apply
 only to full time salaried employees of the
 Corporation and will have no application to part time
 employees. However, it is also stated that in the
 affidavit that Regulation 4 of the Regulations of 1960
 empowers the Chairman of the first petitioner to issue
 instructions and directions as regards terms and
 conditions of the services of part time employees
 engaged by the first petitioner and the employment of
 part time employees is governed solely by the
 instructions issued by the Chairman in exercise of the
 said powers.

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 9. It will be necessary to refer to the relevant
 Regulations of the said Regulations of 1960.
 Regulation No.2 reads thus:-

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 "Application :

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 They shall apply to every whole-time
 (salaried) employee of the Corporation (in
 India) unless otherwise provided by the terms
 of any contract, agreement or letter of
 appointment.

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 Explanations: "Employee" excludes insurance
 agents and work-charged employees whose
 salaries are charged to particular
 property/properties or work/works. In the
 case of a female employee "he" and "his" are
 to be read as "she" and "her".

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 Regulations 4 and 8 read thus:-

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 Power to implement Regulations:

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 4. The Chairman may, from time to time, issue
 such instructions or directions as may be
 necessary to give effect to, and carry out,
 the provisions of these regulations and in
 order to secure effective control over the

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 staff employed in the Corporation.

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 Temporary staff:

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 8. (1) Notwithstanding anything contained in

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 these Regulations, a Managing Director,

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 Executive Director (Personnel), a Zonal
 Manager or a Divisional Manager may employ
 staff in Class III and IV on a temporary basis
 subject to such general or special directions
 as may be issued by the Chairman from time to
 time.

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 . (2) No person appointed under
 sub-regulation (1) shall only by reason of
 such appointment be entitled to absorption in
 the service of the Corporation or claim
 preference for recruitment to any post."

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 10. The Chairman of the first petitioner has
 issued instructions and/or directions in exercise of
 powers conferred by the Regulation No.4. Thus,
 appointment of the first respondent on a part time
 basis has been made on the basis of the directions
 issued in exercise of powers conferred by the
 Regulations. Regulation 8 applies to all categories
 of staff employed on temporary basis in class II and
 class IV subject to general or special direction, as
 may be issued by the Chairman from time to time.
 Clause (2) of Regulation 8 provides that no person
 appointed under sub-regulation (1) shall only by
 reason of such appointment be entitled to absorption

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 in the service of the Corporation or claim preference

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 for recruitment to any post. As pointed out earlier,
 the appointment of part time staff on temporary basis
 has been made in exercise of powers under Regulation 4
 by the Chairman of the first petitioner Corporation.
 Regulation 8 on its plain reading applies to all
 categories of the staff members who are employed on
 temporary basis. Thus, it is obvious that the
 employment of staff members who are appointed
 temporarily on part time basis will be governed by the
 Regulation No.8. It is true that a stand has been
 taken on oath by the concerned officer of the first
 petitioner that the regulations will not apply to the
 employment of the first respondent. However, the
 applicability of the regulations which are held to be
 having overriding effect over the provisions of the
 said Act of 1947 will have to be decided not on the
 basis of the concession made by the parties but on
 interpretation of the regulations. Thus, no
 importance can be attached to the statement made by
 Shri R.Shrinivasan in his affidavit.

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 11. The learned Presiding Officer of the Tribunal
 has observed in the judgment that there is a violation
 of Section 25F of the said Act of 1947 and therefore,
 the first respondent is entitled to be reinstated. In

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 that behalf, it would be necessary to refer to a
 decision of the learned Single Judge in the case of

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Life Insurance Corporation of India’s case (supra).

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 In paragraph 7 of the said decision, the learned
 Single Judge has adverted to the Regulations of 1960.
 The learned Single Judge has thereafter referred to
 the provisions of the Life Insurance Corporation Act
 (hereinafter referred to as "the said Act of 1956") as
 amended by Amending Act I of 1981 by which clause (cc)
 was inserted in sub-section (2) of Section 48 which
 confers the power upon the Central Government to make
 rules to carry out provisions of the said Act. The
 learned Single Judge held that as a result of

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 sub-sections (2A), (2B) and (2C) which were

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 introduced, the Regulations of 1960 are deemed to be
 the rules made under clause (cc) of sub-section (2) of
 Section 48. The learned Single Judge has thereafter
 referred to the provisions of sub-section (2C) of
 Section 48 of the said Act and held that the effect of
 sub-section (2C) is to impart overriding effect to any

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 rules which have been made under clause (cc)

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 nothwithstanding anything contained in the said Act of
 1947. The conclusion drawn by the learned Single
 Judge is that said Regulations of 1960 are rules
 within the meaning of Section 48(2)(cc) of the said
 Act of 1956. Therefore, the learned Single Judge held

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 that Regulation 8 of the Regulations of 1960 will have
 overriding effect over the provisions of the said Act
 of 1947. Relying upon the decision of the Apex Court
 in the case of M. Venugopal v. Divisional Manager,

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Life Insurance Corporation of India, Machilipatnam,

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 reported in (1994) 2 SCC 323, the learned Single Judge
 held that the persons who are appointed under the said
 Regulations of 1960 will not get benefit of Section
 25F of the said Act of 1947 as the regulations have
 overriding effect over the provisions of the said Act
 of 1947. The learned Single Judge held that the
 protection of Section 25F and other provisions of the
 said Act of 1947 was plainly unavailable, once the
 provisions of the said Act of 1947 are overridden.

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 12. As this is the law laid down on the subject
 and as it is found that the employment of the first
 respondent will be governed by the said Regulations of
 1960, the impugned award passed by the learned
 Presiding Officer of the Tribunal will have to be
 quashed and set aside. Hence, I pass the following
 order.

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ORDER

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 (i) The judgment and award dated 2nd August, 2002

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 passed by the learned Presiding Officer of the Central
 Government Industrial Tribunal-I, Mumbai, is hereby
 quashed and set aside. The Reference No.CGIT-47 of
 1997 stands dismissed. Rule is made absolute
 accordingly.

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 (ii) There shall be no order as to costs.

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Judge

Life Insurcance Corpn. of India v. Mrs. S. G. Solanki and Anr.

Case brief

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Life Insurcance Corpn. of India v. Mrs. S. G. Solanki and Anr.

Case brief

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What the court decided

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