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2009 DIGILAW 93 (JK)

United India Insurance Co. Ltd. v. Riaz

2009-02-28

BARIN GHOSH, HAKIM IMTIYAZ HUSSAIN

body2009
Barin Ghosh, CJ. 1. The writ petitioner-respondent approached this Court challenging the order of removal passed by the disciplinary authority in a disciplinary proceeding and the order rejecting the appeal preferred by the petitioner-respondent against the said order of removal. By the judgment and order under appeal, the Writ Court interfered with the said orders and hence the present appeal by the appellant-employer. 2. The disciplinary proceeding was initiated by issuing a charge sheet. The charge, as was framed, is as follows: "Shri G. A. Ganai has been working as Development Officer in BO-III, Batmaloo, Srinagar during the period 1998-2001. Whilst working as such he caused issuance of Motor Acceptance Advice no.227431 through his agent for covering vehicle no.JKD-8113 of Sh. Ghulam Mohd. Bhatt for the period 24.01.2000 to 23.01.2001 by collecting a premium of Rs.6,098/-, which met with an accident on 09.02.2000 resulting in TP claim. In the Acceptance Advice he fraudulently mentioned a policy no.24/805/2000 relating to vehicle no.JKE-5264. Investigation revealed that Sh. G.A. Ganai received the Acceptance Advice pad serial no.227401 to 227450 on 13.03.2000. The fact that he received the Acceptance Advice paid on 13.03.2000 shows that the cover was antedated after the accident to confer undue pecuniary advantage to the insured. Based on the Acceptance Advice, MACT awarded NFL of Rs.50,000/-. Investigation further revealed that the Motor Acceptance Advice no.227431 and also the premium were not deposited in the office, thus misappropriating the premium. He thus failed to maintain integrity, devotion to duty and acted dishonestly in a manner prejudicial to the interest of the Company by committing misconduct in terms of Rules 3(I) (ii) (iii) read with 4(1) (5) and (9) as per GI(CDA) Rules, 1975." 3. Petitioner-respondent gave a reply to the charge sheet. There he contended that he did nothing wrong as his conscience was clear and he did not deceive the employer and has not done any fraud or dishonesty with the employer but accepted that he has committed a mistake by believing some human promise. It was stated that a vehicle met with an accident and the said vehicle was seized by the Police. When he was approached for help in releasing the vehicle from police custody, it was represented to him that police did not release the vehicle and were adamant to check the insurance papers thereof. It was stated that a vehicle met with an accident and the said vehicle was seized by the Police. When he was approached for help in releasing the vehicle from police custody, it was represented to him that police did not release the vehicle and were adamant to check the insurance papers thereof. He accepted that the vehicle was running without insurance but contended that he was overpowered to issue some insurance paper for the said vehicle for its release from police custody with a promise that the insurance papers would be returned after release of the vehicle. He stated that he did so for he needed business and he issued the insurance paper only for release of the vehicle from police custody. He also stated that he came to know about the misuse of the insurance acceptance issued to the vehicle without his consent. He stated that the same was done in breach of trust given and promise made to him. He lastly contended that he did not gain anything out of the said mishap and the same was a mistake on his part to believe in some human promise, but did not commit a sin. 4. In view of such reply to the charge sheet, which accepted the foundational facts of the charge, but held out that the same was a product of mistake, insinuating thereby that the same was not misconduct, an enquiry became necessary and, for that matter, an Enquiry Officer and a Presenting Officer were appointed for proper conduct of the enquiry. Before the Enquiry Officer, in connection with the said disciplinary proceeding, by a writing addressed to the Enquiry Officer, petitioner-respondent represented as follows: "With reference to my previous statements, I once again admit the fact that I have committed the mistake and also admit all the charges leveled in the charge sheet against me. The competent authorities are requested to impose the minimum penalty keeping in view my past record." 5. Thereupon, the Enquiry Officer submitted his report. The Enquiry Officer in the enquiry report stated that the enquiry procedure was explained to the petitioner-respondent in brief and then the charges leveled in the charge sheet were read over and explained in detail to him. Thereupon, the Enquiry Officer submitted his report. The Enquiry Officer in the enquiry report stated that the enquiry procedure was explained to the petitioner-respondent in brief and then the charges leveled in the charge sheet were read over and explained in detail to him. The enquiry report further recorded that after the petitioner-respondent confirmed that he had understood the charges levelled in the charge sheet, he was asked by the Enquiry Officer whether he admits the charges or denies them. The Enquiry report further recorded that the petitioner-respondent admitted the charges levelled against him in the charge sheet and also placed on record his letter of admission dated June 16, 2003, wherein he admitted all charges levelled against him. The enquiry report lastly reported that the petitioner-respondent has prayed for imposition of minimum penalty keeping in view his past record and his candid admission. The enquiry report ultimately concluded the enquiry by holding that the charges levelled against the petitioner-respondent stand proved. A copy of the enquiry report was, thereupon, sent to the petitioner-respondent by the disciplinary authority under cover of a letter. In that letter, it was mentioned that the enquiry officer conducted the enquiry wherein the petitioner-respondent admitted the charges levelled against him unconditionally and also submitted a letter dated June 16, 2003 to that effect and, thereafter, the Enquiry Officer submitted his report. The purpose of that letter, as it appears from the contents thereof, was to give an opportunity to the petitioner-respondent to make representation, if any, against the conclusion of the Enquiry Officer, holding the charges levelled against him as proved, with a caution that the same would warrant awarding of major penalty against the petitioner-respondent. 6. The petitioner-respondent then made a representation. He once again stated that he has committed the mistake by believing some human hearts and since he did not want to waste time and energy and further financial loss to the employer, for the Company had already suffered some loss due to some mistake committed by him and, therefore, he accepts every responsibility on his shoulders for the said unfortunate mistake. He then repeated what he had stated in reply to the charge sheet and also elaborated the same and, ultimately, contended that, having regard to the facts as stated, his case could be considered sympathetically. He specifically prayed for mercy and, that too, again and again. 7. He then repeated what he had stated in reply to the charge sheet and also elaborated the same and, ultimately, contended that, having regard to the facts as stated, his case could be considered sympathetically. He specifically prayed for mercy and, that too, again and again. 7. Thereupon, by the order impugned in the writ petition, the petitioner-respondent was removed from service as and by way of penalty for the proved misconduct. 8. The petitioner-respondent, thereupon, preferred an appeal where he contended that reasonable opportunity of being heard was denied to him and the enquiry was conducted against procedural safeguards which resulted in failure of justice. On facts, he contended that he did not sign the document but one agent did it for a valuable client; unfortunately the insured played a mischief. It was further contended that the charge had not been proved. It was submitted that the penalty as imposed is harsh and not commensurate with the act allegedly done. It was stated that the documents, enquiry proceeding and copies of the statements of witnesses were not supplied. It was stated that the petitioner-respondent was not permitted to produce his evidence despite his requests and, lastly, contended that he was made to admit the guilt under influence by the Enquiry Officer. In the appeal, therefore, the only additional .thing that was contended by him was the harshness of the penalty and that the admission was procured. When the petitioner-respondent made a representation against the enquiry report, he did not say that the admission was procured from him. 9. After the appeal was dismissed considering all the points as were raised before the appellate authority, the petitioner-respondent filed the writ petitioner where he contended that the Enquiry Officer and the Presenting Officer pressurized, coerced and put undue influence to obtain admission and, for the first time, contended that they promised to exonerate the petitioner-respondent with full honour, if he admits the charge to save the reputation of the employer-Company and thus he recorded the admission of the charge. 10. By the judgment and order under appeal, the writ petition was allowed proceeding on the basis that the petitioner-respondent had allegedly admitted the charge while filing reply to the charge sheet. 10. By the judgment and order under appeal, the writ petition was allowed proceeding on the basis that the petitioner-respondent had allegedly admitted the charge while filing reply to the charge sheet. The learned Judge, who dealt with the writ petition, held that when the admission was contained in the reply to the charge sheet, there was no occasion, in terms of the rules, to hold an enquiry. The learned Judge held that, inasmuch as an enquiry was held, the same suggested that there was no admission in the reply to the charge sheet and, admittedly, since no evidence was recorded, there was nothing on record which authorized passing of the impugned order of removal. 11. Before us, the appellant has contended that the conclusions of the learned Judge are not based on correct facts, inasmuch as the admission upon which the charge was declared to have been proved, was not contained in the reply to the charge sheet, but was contained in a separate letter submitted before the Enquiry Officer in course of the enquiry. 12. The learned counsel for the petitioner-respondent contended before us that the admission given in the letter submitted before the Enquiry Officer was obtained by coercion and making promise that the petitioner-respondent would be exonerated. Such a contention having not been taken in the representation made against the enquiry report, in law, such a contention cannot be permitted to be raised. Further, even assuming such a contention can be raised; it is the obligation of the person raising the contention to establish the same. No attempt was made by the petitioner-respondent to try to establish such a bold contention raised, by even applying before the appellate authority to permit him to adduce evidence for that purpose; far less doing anything to that effect in the writ petition or while the writ petition was being considered and decided. 13. A mistake or an error of judgment is always not misconduct. However, the resultant effect of the mistake is catastrophic, like a Nurse, instead of giving intramuscular injection, gives an intravenous injection resulting in death of the patient, such a mistake would be deemed misconduct. In the instant case, the admission of the facts constituting the charge and describing the same as a mistake may not be said to be a deemed misconduct, although the mistake committed resulted in financial loss to the employer. In the instant case, the admission of the facts constituting the charge and describing the same as a mistake may not be said to be a deemed misconduct, although the mistake committed resulted in financial loss to the employer. As in the event of fulfillment of the promise, upon which the action was taken, there would have been no loss at all. It was, therefore, a requirement of law to hold an enquiry to ascertain whether the mistake as projected was, in fact, a mistake or a misconduct. Since the plea was confession and avoidance, it was obligatory to prove facts entailing avoidance. The petitioner-respondent was, therefore, required to lead evidence to establish that he, in fact, committed a mistake relying upon false promise made to him. Instead of taking any such action, he went before the Enquiry Officer and admitted his guilt by holding out that he admits all the charges levelled in the charge sheet against him. In view of such admission, there was no further requirement of concluding the matter. The Enquiry Officer, accordingly, reported. When the enquiry report was given to the petitioner-respondent in order to enable him to make a representation in relation thereto, he once again highlighted his mistake but did not say that he did not admit all the charges levelled against him in the charge sheet by the said letter dated June 16, 2003 placed before the Enquiry Officer. Instead, he accepted every responsibility on his shoulders for the said unfortunate mistake. In the circumstances, one and the only conclusion would be that the charge stood proved. 14. Before the appellate authority, the petitioner-respondent contended that he was made to admit the guilt under influence by the Enquiry officer, but he did not make any effort to prove the same by requesting the appellate authority to permit him to lead evidence. In relation to the disciplinary proceeding, the petitioner-respondent did not utter a single word in the representation given by him against the enquiry report. In the circumstances, the appellate authority had no other option but to dismiss the appeal. 15. The question, however, still remains whether the punishment meted out was disproportionate to the guilt proved. In relation to the disciplinary proceeding, the petitioner-respondent did not utter a single word in the representation given by him against the enquiry report. In the circumstances, the appellate authority had no other option but to dismiss the appeal. 15. The question, however, still remains whether the punishment meted out was disproportionate to the guilt proved. Petitioner-respondent was in such a position, as would be evident from the admitted facts of the case, that there was a fiduciary relationship in-between the petitioner-respondent on the one hand and the employer-appellant on the other, and if the appellant-employer, for the petitioner-respondent having breached the trust reposed in him, decided to disassociate itself with the petitioner-respondent, which can only be done by removing him from service of the appellant-employer, no Court can interfere with such a decision, for, it is not in a position to restore such trust in the employer. 16. The learned counsel for the petitioner-respondent submitted that during the pendency of the appeal, the writ petitioner-respondent has died and his heirs have been substituted and, accordingly, taking into account the said fact and all other aspects, appropriate direction should be issued to modify the order of the disciplinary authority as confirmed by the appellate authority. Rule of law cannot be sacrificed on the basis of misplaced sympathy. 17. The appeal is, accordingly, allowed.