Heard Sri Abhinav N. Trivedi, learned counsel for the petitioner and Sri P. K. Khare for the opposite parties.
The petitioner has challenged order dated 16.1.2014, as contained in annexure No.1 to the writ petition by which his engagement as Financial Services Executive at Satellite Office Branch Sitapur under Lucknow Division of Life Insurance Corporation of India has been terminated.
Sri P. K. Khare has raised a preliminary objection that the writ petition is not maintainable as the same arises out of a contract and breach of contract. At best it can be redressed by filing civil suit for damages.
Sri A. N. Trivedi has submitted that the impugned order has been passed casting aspersions on petitioner's character and conduct. This order will not only have an effect of termination of contract but the stigma which has been caste upon the petitioner will debar the future rights of employment with any bank, insurance company or any other institution for that matter. Such an order amounts to dismissal of service which is a major penalty. An inquiry was a must in which the principles of natural justice should have been followed. He has referred to the stigmatic portion of the order given on internal page 3 of the order and running page 28 of the writ petition. For ready reference the portion of the order which is objectionable to the petitioner is quoted herein-below:-
"This clearly establishes that he adopted unethical business practices to solicit health insurance proposals with mala fide intention of winning prize money under sales promotional business competitions launched for the Health Insurance policies in the period. "
Petitioner says that the impugned order of termination carrying stigmatic words violate the principles of natural justice and could -2- not been incorporated without proper inquiry.
Sri P. K. Khare has drawn the attention of this Court towards the impugned order and has mentioned that a show cause notice was given to Sri R. K. Diwakar. His reply has been exhaustively considered by the opposite parties and it can not be said that inquiry was not conducted.
Sri A. N. Trivedi, on the other hand, insists that no date, time and place was ever fixed for proving the charges. No charge-sheet was issued and no opportunity of oral hearing was ever afforded to the petitioner. Normally in cases of contract such inquiry is not required for terminating a contract because the petitioner is not a regular employee of L.I.C. and no regular procedure is necessary to be adopted in case services have to be terminated but at the same time it has been held right from the High Courts upto Supreme Court that any stigmatic order which debars future employment will have the effect of ruining the future career of that person and when that has to be done complete and exhaustive inquiry is necessary.
Sri P. K. Khare has relied upon a judgment of this Court passed in writ petition No.2207 (M/S) of 2006 (Muntazim Ali Vs. Zonal Manager (Appellate Authority), Life Insurance Corporation of India, Jeevan Vikas 16/98 MG Marg Kanpur and others) In this judgment the Court has held as under:-
"Thus, on the proposition laid down by Hon'ble the Supreme Court as well as of this Court, as above, it is settled that the relation of respondent-Corporation as well as the petitioner was of the Master and Agent. The respondent-corporation created an agency in favour of the petitioner and the petitioner was engaged to work as an agent of the Corporation. The terms of agency are governed under the Life Insurance Corporation of India (Agents) Rules, 1972. The rules speak that the Agents are appointed on commission basis. The nature of the engagement of the petitioner (Agent) does not lead to prove an appointment alike to Government servant. Therefore, I am of the view that the petitioner being an Agent could not claim the benefit of service like Civil Servants, unless it is provided under the Rules. The rules do not provide so."
This Court is in respectful agreement with the proposition of law laid down by his Lordship in the said judgment. At the same time, -3- it is further respectfully observed that this case is not a simple case of breach of contract. The facts of the case and the law laid down in that case will not be applicable for the simple reason that we were dealing with the case where stigma has been caste upon the conduct of the petitioner. Even in the relationship of master and agent the master will not be allowed to ruin the life of a person and stop him from any future prospects of employment. Clearly the law laid down by his Lordship is not applicable to the present case.
The petitioner has relied upon a judgment of a Division Bench of a coordinate Court i.e. Jharkhand High Court in the case of Tulsi Rai vs. Life Insurance Corporation decided on 22nd July, 2002 which has laid down in paragraph 13 as under:-
"13. In our opinion, therefore, ex-facie the impugned order of termination is stigmatic and since his order was issued without holding an inquiry much less a preliminary inquiry and without giving an opportunity to the petitioner to satisfy that his performance is quite satisfactory, the impugned order of termination of the petitioner appears to be in violation of the principles of natural justice."
Petitioner has further relied upon a judgment of Hon'ble Supreme Court in the case of A. P. State Federation of Coop. Spinning Mills Ltd. and another Vs. P. V. Swaminathan, (2001) 10 Supreme Court Cases 83. In this judgment in Para 3 their Lordships have held as under:-
"3. The legal position is fairly well settled that an order of termination of a temporary employee or a probationer or even a tenure employee, simpliciter without casting any stigma may not be interfered with by the court. But the court is not debarred from looking at the attendant circumstances, namely, the circumstances prior to the issuance of order of termination to find out whether the alleged inefficiency really was the motive for the order of termination or formed the foundation for the same order. If the court comes to a conclusion that the order was, in fact, the motive, then obviously the order would not be interfered with, but if the court comes to a conclusion that the so-called inefficiency was the real foundation for passing of order of termination, then obviously such an order would be held to be penal in nature and must be interfered with since the appropriate procedure has not been followed. "
The petitioner in support of his contentions has further relied upon a judgment of this Court in the case of Km. Nutan Shukla Vs. State of U.P. and others passed on 18.1.2010 in writ petition No.198 (S/S) of 2010.
The Court comes to the conclusion that the order passed by opposite parties, contained in annexure No.1 is per-se illegal and bad. It is accordingly set aside. However, the opposite parties will be at liberty to pass any fresh order in accordance with law.
The Court has not given any finding on the conduct of the petitioner.
The petition is partly allowed.
Order Date :- 5.3.2014 RKM.