Gitesh Ranjan Bhattacharjee, J.
1. In this writ petition the petitioner has challenged the order of his retirement dated March 16, 1994 Annexure-C to the writ petition by which the petitioner was retired from service of the Life Insurance Corporation of India (L. I .C. or Corporation, for short) with effect from that date on completion of the age of 58 years and odd days. On that day the petitioner was serving as a Class-1 category employee of the Life Insurance Corporation of India. The petitioner's contention is that he, being a 'transferred employee', is entitled to retire on completion of 60 years of age under Clause (1) of Regulation 19 of the Life Insurance Corporation of India (Staff) Regulations, 1960 (Staff Regulations, for short) whereasthe case of the respondent Life Insurance Corporation of India is that the petitioner has to retire on completion of 58 years of age under Clause (2) of the said Regulation 19. The petitioner's contention is that initially he was appointed as an organiser on September 1, 1955 under the National Insurance Company Ltd. and thereafter obtained fresh appointment in the said National Insurance Company Ltd. as Inspector on and from January 1, 1956. His further contention is that with effect from September 1. 1956, when the Life Insurance Corporation of India was created under the Life Insurance Corporation Act, 1956. he was absorbed in the LIC as Field Officer/Development Officer, and accordingly as 'transferred employee' he is entitled to retire on completion of the age of 60 years under Regulation 19(1) of the said Staff Regulations. Regulation 3(L) defines 'transferred employee' as an employee of an insurer or of a chief Agent who was deemed to have become an employee of the L.I.C. on the 'Appointed Day' under Section 11 or under Section 12 of the L.I.C. Act. It may be mentioned here, the 'Appointed Day' was September 1, 1956. Section 11 of the Life Insurance Corporation Act, 1956 inter alia provides that every whole-time employee of an insurer whose controlled business has been transferred to and vested in the L.I.C. and who was employed by the insurer wholly or mainly in connection with his controlled business, immediately before the appointed day, shall, on and from the Appointed Day become an employee of the Corporation. The respondents' contention is that the petitioner was not a whole-time employee of the National Insurance Company Ltd. and as such he cannot be a 'transferred employee.' Their further case is that although the petitioner was working as Field Officer/Development Officer on probation since the Appointed Day, that is, September 1, 1956 yet he could not fulfil the business targets given to him and as such he was not confirmed as Development Officer by the L.I.C. and was rather liable to be dismissed from service but on compassionate ground he was given an offer as to whether he was willing to work in the Administrative side of the L.I.C. as Class-III staff and the petitioner by his letter dated December 15, 1959 intimated that he was agreeable to accept the offer of absorption in the Administrative side and requested for such appointment and accordingly by letter dated March 30, 1960 the petitioner was appointed as a Class-III staff on the Administrative side of the L.I.C. by way of a new appointment as Assistant and he was subsequently promoted to Class-I category and as such he had to retire on completion of 58 years of age under Clause (2) of Regulation 19 inasmuchas his appointment as Assistant in 1960 was a new appointment and he was thus not a 'transferred employee'.
2. The contentions raised before me on behalf of the respondents thus revolve into two parts, namely, (1) whether the appointment of the petitioner in 1960 by the L.I.C. to the post of Assistant in Class-III constituted a new appointment so as to sever his earlier connection with the L.I.C. as Field Officer/Development Officer thereby rendering him liable to be governed by Clause (2) of Regulation 19 requiring retirement on completion of 58 years of age, and (2) whether he was a whole-time employee of the National Insurance Company Ltd. immediately before September 1, 1956.
3. There cannot be any dispute that at the relevant time in 1960 the petitioner was serving as a Development Officer which is a Class-II category of post under the L.I.C. It has been submitted on behalf of the respondents that since the petitioner was on probation as Development Officer and was never confirmed in that post he cannot claim a right to that post. The question whether the petitioner was on probation as Development Officer and whether he was never confirmed in that post is totally irrelevant in determining the question as to whether even as a probationary Development Officer the petitioner was an employee of the L.I.C. It is needless to say that probationary employee is also an employee of his employer. Regulation 5 of the Staff Regulations makes classification of the staff of the Corporation (that is, L.I.C.) into four categories. Development Officers constitute Class-II category. Regulation 14 provides for probation of persons appointed to posts of different classes. It is, therefore, evident that Development Officers are also employees of the Corporation and the mere fact that Development Officer is on probation does not deprive him of his status as an employee of the Corporation. Rather the question of placing a person under probationunder Regulation 14 arises only when such person has been appointed as an employee of the Corporation and not otherwise. It is the contention of the respondents that as the performance of the petitioner as Development Officer was not satisfactory he was liable to be dismissed but on compassionate ground he was offered appointment on the Administrative side of the Corporation and such appointment was an appointment de novo in the year 1960 under the Corporation and the question as to whether the petitioner should retire at the age of 58 years or 60 years has to be determined with reference to his date of such de novo appointment under the Corporation in 1960 in which case there cannot be any question of his getting any benefit as 'transferred employee' under Regulation 19(1).
4. Annexure-B to the affidavit-in-opposition affirmed on behalf of the Corporation is a letter dated December 15, 1959 addressed by the petitioner to the Divisional Manager, L.I.C., by which the petitioner informed that he was agreeable to the offer for absorption on the Administrative side and requested for appointment as such. Annexure-D to the said affidavit-in-opposition is the letter of appointment addressed to the petitioner by the Senior Divisional Manager, L.I.C. dated March 30, 1960 whereby the petitioner was informed that his case had been duly considered by the Zonal Committee and it had been decided to absorb him in the Office from Field as an Assistant on the emoluments mentioned therein with effect from April 1, 1960. He was further informed that he would be eligible for all the benefits that were enjoyed by confirmed employees of the Corporation with effect from April 1, 1960. This letter itself rather indicates that the petitioner's appointment as Assistant on the Administrative side was by way of absorption from Field where he was working as Development Officer under the Corporation.It is further evident that his appointment on the Administrative side as Assistant (in Class-III category) was made on a confirmed basis and he was not placed under probation in the post of the Assistant. Regulation 14(3) provides inter alia that the appointing authority may in its discretion dispense with the probationary period. The fact that in the petitioner's case he was not placed on probation in the post of Assistant also is an indication that it was not a case of induction of the petitioner de novo as an employee in the Corporation by appointment as Assistant on the Administrative side, and it was rather a case of absorption maintaining a link of continuity of the relationship between the Corporation and the petitioner as employer and employee. May be that because of the deficiency in the performance of the petitioner as Field Officer or Development Officer the Corporation was entitled to dismiss him, but as it appears, that was not done and on the other hand he was withdrawn from Field and was absorbed on the Administrative side under the Corporation. There was no termination of or dismissal from service, nor was there resignation from service followed by fresh appointment to a new post. It was rather a case of transition from one post to another within the cover of the all-embracing umbrella of employer-employee relationship. Such kind of transition also takes place in case of appointment of an employee to higher post by promotion, although in the present case such transition was not by promotion but by absorption on the Administrative side. It is not the respondent's case that by reason of the unsatisfactory performance of the petitioner as Development Officer his service was actually terminated although Clause 6 of Schedule-III to the Staff Regulations provides for termination of service of a Development Officer after giving him an opportunity to show-cause against the proposed termination. Clause 9(2) of the said Schedule provides that any Development Officer whose services are liable to be terminated under the saidSchedule may, with his consent, be appointed to do Administrative work in Class-III, on such terms as may be decided by the Corporation. Understandably this is precisely what has been done in the case of the petitioner. The said clause envisages appointment on Administrative side when the services of the officer is 'liable to be terminated'. This clause does not require actual termination of service. It rather authorises certain thing to be done in lieu of termination of service.
5. The petitioner has also produced papers such as the arrear calculation sheet prepared in 1970, Annexure-X to the affidavit-!n-reply, to show that his date of increment in the pay-scale enjoyed by him was January 1, all through. This, according to the petitioner, shows that although the petitioner was absorbed on the Administrative side yet even after such absorption his earlier date of increment was maintained which would suggest that his absorption on the Administrative side in April 1960 on a different pay-scale was not by way of snapping of the pre-existing employer-employee relationship between the parties but by maintaining its linkage with such relationship. Having regard to the facts and circumstances discussed above I am clearly of the opinion that the absorption of the petitioner as Assistant in April 1960 on the Administrative side of the Corporation cannot be treated to have caused a break in the employer-employee relationship between the parties which was already in existence. That being so there is no scope of arguing that the petitioner will have to be treated as a fresh appointee for the purpose of determining his age of retirement in accordance with Regulation 19(2). On the contrary 1 am clearly of the opinion that the retirement age of the petitioner has to be determined, notwithstanding his absorption on the Administrative side in April 1960, on the basis of his status on September 1, 1956. If it is found that on September 1, 1956, that is, the date on which the Life Insurance Corporation of India came into existence the petitioner was a 'transferred employee' under the Corporation in terms of the provisions of Section 11 of the Life Insurance Corporation Act read with Regulation 3(L) of the Staff Regulations, in that event the retirement of the petitioner will be governed by Regulation 19(1) and he will retire on completion of 60 years of age.
6. The petitioner relies upon his service record Annexure-A to the writ petition certified on December 20, 1990 by the Administrative Officer of the L.I.C. in connection with his membership of the National Insurance Co-operative Credit and Banking Society Ltd. where the petitioner's date of appointment has been recorded as September 1955 under the previous employer National Insurance Company Ltd. It is also submitted on behalf of the petitioner that it is the practice of the Corporation to serve advance notice of the date of retirement to every employee a few months before retirement, but in the case of the petitioner no such advance notice was served and the petitioner was rather asked to retire on the very day on which the notice was served upon him when he was already aged 58 years 22 days although according to the Corporation's contention the petitioner was required to retire immediately on completion of 58 years of age. There is no doubt that this is an unusual feature of the case that an employee was retired without any earlier notice after he had crossed 58 years and odd days of age on the ground that he was required to retire on completion of 58 years. It is difficult to understand if really the petitioner was required to be retired at 58 years and if really he was not treated as a 'transferred employee', why he was not retired immediately on completion of 58 years after serving advance notice a few months earlier to the date of retirement as was being done in case of the employees of the Corporation generally. This is a strong pointer to the possibility that something has gone wrong somewhere as a result of which the petitioner was perhaps unduly asked to retire on instant notice quite sometime after he had already crossed 58 years of age. But then this Court is under certain limitation in the matter. Section 11(3) of the Life Insurance Corporation Act, 1956 expressly provides that if any question arises as to whether any person was a wholetime employee of an insurer or as to whether any employee was employed wholly or mainly in connection with the controlled business of an insurer immediately before the appointed day, the question shall be referred to the Central Government whose decision shall be final. The question whether the petitioner is a 'transferred employee' on which depends the fact of the petitioner's retirement age, therefore depends upon the question whether he was a wholetime employee of the National Insurance Company Ltd. and this is a question which has to be decided by the Central Government under Section 11(3) of the Life Insurance Corporation Act, 1956 and the Court cannot decide the same in this writ petition. The learned Advocate for the respondents has referred to certain decisions in support of his argument that this is a point which the Court cannot decide and is required to be decided by the Central Government. There is no doubt that this is a point which has to be decided by the Central Government under the said Section 11(3) and the Court cannot embark upon the task of taking a decision on the same in this writ petition. I would however rather like to observe that since the respondents, as it appears, treated the petitioner as a 'transferred employee' till after the petitioner crossed the age of 58 years and thereafter suddenly changed their mind and took a contrary decision to the detriment of the petitioner's interest and expectation, it was incumbent upon the respondents to treat their decision as a tentative one (even if given effect to) and refer the matter thereafter to the Central Government under Section 11(3) for final decision which unfortunately they did not do, thereby thrusting upon the petitioner the ordeal of taking steps against the sudden decision of the Corporation. Since some time has already elapsed in the meantime, I allow the liberty to the writ petitioner tomake the Government of India a party to this writ petition by making the Union of India a respondent through the Additional Secretary (Insurance Division), Ministry of Finance, New Delhi and amend the cause title of the writ petition accordingly. The unreported decisions in M.J Narandeo v. LI.C and in Mishrilal Ramchandra v. Union of India and Ors., both of Bombay High Court as relied upon by the respondents are not applicable to our present case because in those cases there were express stipulations that for all purposes the employment with the Corporation would begin from a particular date or that the employment was not in continuation of any previous employment with any insurer in any capacity which is not the case here in the present case. Those cases are therefore clearly distinguishable on facts.
7. I direct the Central Government to treat the writ petition itself as a reference under Section 11(3) of the Life Insurance Corporation Act, 1956 and consider and decide in accordance with law by passing a speaking order as to whether the petitioner was a wholetime employee of the National Insurance Company Ltd. or was an employee of the type mentioned in said Section 11(3), after giving an opportunity of hearing to the petitioner and the Life Insurance Corporation of India and of producing such further documents as may be considered necessary within a period of ten weeks from the communication of this order. The decision so taken by the Central Government shall be communicated to the petitioner as well as to the Life Insurance Corporation of India within one week from the date of taking of the decision. While communicating this order to the Central Government the petitioner shall enclose therewith copies of the writ petition, affidavits-in-opposition and affldavits-in-reply. The Life Insurance Corporation of India will pay necessary T.A/D.A to the petitioner for attending the hearing of the matter referred to the Central Government as directed above if such hearing takes place anywhere other than in Calcutta. For the purpose of calculating the rate of such T.A./D.A the petitioner shall be treated to be in service at the time of such hearing. Advance towards T.A./D.A shall be paid to the petitioner on request, subject to adjustment against final bill to be submitted within ten days from the date of conclusion of the hearing under Section 11(3). If the Central Government holds under Section 11(3)of the L.I.C. Act that the petitioner was a wholetime employee under the National Insurance Co. Ltd. or was an employee of the type mentioned in the said Section 11(3) immediately before September 1, 1956, in that event the petitioner shall retire on completion of 60 years of age under Regulation 19(2) of the Staff Regulations and the petitioner shall be reinstated in service with full back salary and service benefits if he has not completed 60 years of age by then. But if the petitioner completes 60 years of age and a decision of the Central Government favourable to the petitioner comes thereafter, in that event the petitioner shall be deemed to have retired on completion of 60 years of age, and for the period from March 17, 1994 tili completion of 60 years of his age the petitioner shall be entitled to and given the full salary and service benefits as if he was on duty during Ural period. In that event the decision of the Central Government goes in favour of the petitioner, the impugned order of retirement dated March 16, 1994 Annexure-C to the writ petition shall stand quashed. The writ petition stands disposed of accordingly. No cost is ordered.