JUDGMENT Kalyan Jyoti Sengupta, Actg.C.J. 1. The appellant above-named being unsuccessful before the learned Trial Judge preferred this appeal against the judgment and order dated 10th September, 2009 in the above Writ Petition by which the learned Trial Judge dismissed the Writ Petition. The short fact leading to filing the Writ Petition consequently preferring the appeal is as follows:-- 2. In or about April, 1975 the appellant became the agent of the respondent-Corporation and since then he continued to remain as agent till his agency terminated. According to the writ-petitioner/appellant he resigned on 7th March, 2002 by addressing a letter to the respondent Nos. 4 and 5 and dispatched the same Under Certificate of Posting. However, it is claimed by the respondent that the said resignation letter was not received. Thus from nearly 27 years the appellant remained agent with obligation to procure and business and some times without any obligation to procure the same as he was exempted occasionally. The problem started on 18th March, 2002 when appellant was asked by the L.I.C. Branch Manager concerned to inform the name and address where the appellant has joined a private Insurance Company. On 26th March, 2002 the appellant replied to the letter dated 18th March, 2002. Before the said letter dated 18th March, 2002 was issued respondent issued a letter on 6th February, 2002 to the appellant intimating that agent license shall expire on 31st March, 2002 unless the renewal is made. On receipt of the same pay order for a sum of Rs. 250/- for renewal of license of the appellant was prepared and shortly thereafter he sent in letter of resignation as stated above. On 22nd May, 2002 the said renewal fee of Rs. 250/- was returned by the Branch Manager of the respondent-Corporation on the ground of resignation from the agency. On 22nd April, 2002 respondent No. 4 issued a show cause notice for alleged misconduct and an action for termination of agency of the appellant. The letter dated 7th May, 2002 was replied to taking the plea that Corporation had no jurisdiction as the agency stood terminated on 7th March, 2002. On 16th August, 2002 an order imposing penalty of termination of agency of the appellant was issued by the LIC Senior Divisional Manager and communicated to the appellant by letter dated 17th August, 2002. The letter dated 7th May, 2002 was replied to taking the plea that Corporation had no jurisdiction as the agency stood terminated on 7th March, 2002. On 16th August, 2002 an order imposing penalty of termination of agency of the appellant was issued by the LIC Senior Divisional Manager and communicated to the appellant by letter dated 17th August, 2002. The appellant unsuccessfully preferred departmental appeal to the respondent No. 3 who upheld the said order of termination. On 13th August, 2003 the appellant filed Writ Petition (W.P. No. 1646 of 2003) challenging the order dated 16th August, 2002 and 27th May, 2003 for various other reliefs. On 6th November, 2003 the learned Single Judge of this Court set aside the order dated 27th May, 2003 namely the order of Appellate Authority and gave direction to Zonal Manager to reconsider the matter. Thereafter the Zonal Manager reconsidered the matter and on 5th March, 2004 Zonal Manager upheld the earlier order by passing a speaking order. Thereafter the above writ petition was filed challenging the said speaking order. 3. Learned counsel for the appellant by highlighting the fact, says that appellant ceased to be an agent of the Corporation on and with effect from 1st April, 2002 as licence to act as an insurance agent under the Insurance Act, 1938 expired on 31st March, 2002 and was not renewed thereafter. In spite of termination of agency on resignation show cause notice dated 22nd April, 2002 was issued, and the same is invalid and without jurisdiction as relationship of Principal and Agent comes to an end. Thereafter the provisions of section 44 of the Insurance Act, 1938 as mentioned in the show cause notice would not be applied. The domestic proceedings or enquiry should be initiated so long the aforesaid relationship exists. The respondent cannot withhold the renewal commission or give any other ground whatsoever in the facts and circumstances of this case. In any event section 44 of the Insurance Act, 1938 has been made applicable to LIC in modified form pursuant to notification of the Central Government published under section 43(2) of the Life Insurance Corporation Act, 1956 (the LIC Act). In any event section 44 of the Insurance Act, 1938 has been made applicable to LIC in modified form pursuant to notification of the Central Government published under section 43(2) of the Life Insurance Corporation Act, 1956 (the LIC Act). This provision of the Insurance Act is intended to confer a right and benefit on an insurance agent and cannot be restored to deprive an insurance agent of what he is otherwise entitled to under the contract of agency with an insurer. On the facts and circumstances of this case section 44(1)(c) cannot be applied where there is no provision in the contract of agency providing for withholding of renewal commission in the event of termination of contract of agency or its cessation. In the instant case Regulation 19 of the LIC Regulations, 1972 does not contain any provision for withholding of renewal commission on account of termination or discontinuance of agency except in case of fraud. The expression cessation and termination under section 44 have the same meaning as this provision comes into play only if there is termination of agency. 4. While dealing with the allegation on fact it is contended that it cannot be said that the appellant has directly or indirectly procured insurance business for any other person as such business can only be solicited or procured if the appellant was an insurance agent in terms of section 2(10) of the Insurance Act, 1938. There is no evidence that the appellant acted as an insurance agent after March 31, 2002, section 44(1)(c) in its application to LIC, has been interpreted by both the Patna High Court and Orissa High Court reported in AIR 2011 Patna 139 and 133 FLR 136 wherein both the High Courts have held that expression "any other person" occurring in section 44(1)(c) could not include another insurer. Gujarat High Court in two decisions has held that renewal commission cannot be withheld unless there has been fraud on the part of the insurance agent and termination of agency under Regulation 16(1)(b) does not amount to termination on account of fraud. In that view of the matter the renewal commission which was payable as on June 2011 is an amount in excess of Rs. 44 lakh with interest as has been admitted in the documents. Therefore direction should be given to make over the appellant and for payment of gratuity amounting to Rs. In that view of the matter the renewal commission which was payable as on June 2011 is an amount in excess of Rs. 44 lakh with interest as has been admitted in the documents. Therefore direction should be given to make over the appellant and for payment of gratuity amounting to Rs. 1 lakh with interest and the appeal should be allowed. 5. Mr. Laksmi Gupta, learned Senior Counsel appearing for the respondent contends that the word ceases as mentioned in section 44(1)(c) of Insurance Act, 1938 need not be cancellation/termination but includes cessation by efflux of time of an agency as is the case here, section 44(1)(c) permits forfeiture of renewal commission on cessation of agency where such agent directly or indirectly solicits or procures insurance business for any person. It is an admitted position that the appellant has been working as Regional Manager of Metlife India Insurance Company Private Limited which is engaged in Life Insurance business. The respondent-Corporation wanted to know the name and address of the company where the appellant had joined and in which capacity. Reply was evaded by him. Since such fact was especially within the knowledge of the appellant, the burden of proving the fact laid upon him as per section 106 of the Evidence Act. Further, in terms of section 102 of the Evidence Act such burden being laid on the appellant since he would fail if no evidence was given on either side. In fact when he had joined Metlife India Insurance Company Private Limited and section 44(1)(c) of Insurance Act was also referred to as the ground for his ineligibility to get renewal commission. Non-disclosure of the nature of his functions in Metlife thus gives rise to obvious conclusion that as a Regional Manager he is at least associated with the formulation of policies and guidelines regarding soliciting or procuring insurance business for Metlife. In the present case "any other person' in section 44(1)(c) is referable to Metlife which being a Company is definitely a "person" under General Clauses Act since "person" has not been defined in Insurance Act. 6. In the present case "any other person' in section 44(1)(c) is referable to Metlife which being a Company is definitely a "person" under General Clauses Act since "person" has not been defined in Insurance Act. 6. After hearing the learned counsel for the parties and having gone through impugned judgment and order and noting the undisputed fact it appears that decision is required to be rendered in this appeal on the following two questions:-- (i) Whether on the date of issuance of show cause notice the respondent authority had jurisdiction to initiate disciplinary proceedings so much so to deny his renewal commission and gratuity for the business already procured? (ii) If the first question is answered in the negative then whether on termination by efflux of time or on resignation the appellant is disqualified to receive renewal commission for his agency from the other insurance company as an officer thereof? 7. The entitlement of the renewal commission as an agent has been mentioned in section 19 of the Life Insurance Corporation of India (Agents) Regulations, 1972 (hereinafter referred to as the 'Regulation'). The said section 19 reads as follows:-- 19. Payment of commission on discontinuance of agency:-- (1) In the event of termination of the appointment of an agent, except for fraud, the commission on the premiums received in respect of the business secured by him shall be paid to him if such agent: (a) has continually worked for at least 5 years since his appointment and policies assuring a total sum of not less than Rs. 2 lakhs effected through him were in full force on a date one year before his ceasing to act as such agent; or (b) has continually worked as an agent for at least 10 years since his appointment; or (c) being an agent whose appointment has been terminated under clause (e) of sub-regulation (1) of regulation 16 has continually worked as an agent for at least two years from the date of his appointment and policies assuring a total sum of not less than Rs. 1 lakh effected through him were in full force on the date immediately prior to such termination: Provided that in respect of an absorbed agent the provisions of clause (a) shall apply as if for the letters, figures and word "Rs. 2 lakhs", the letters and figures "Rs. 50,000" had been substituted. 1 lakh effected through him were in full force on the date immediately prior to such termination: Provided that in respect of an absorbed agent the provisions of clause (a) shall apply as if for the letters, figures and word "Rs. 2 lakhs", the letters and figures "Rs. 50,000" had been substituted. (2) Any commission payable to an agent under sub-regulation (1) shall, notwithstanding his death, be payable to his nominee or nominees or, if no nomination is made or is subsisting, to his heirs, so long as such commission would have been payable had the agent been alive. (3) In the event of the death of the agent while his agency subsists, any commission payable to him had he been alive shall be paid to his nominee, or, if no nomination is made or is subsisting, to his heirs, so long such commission would have been payable had the agent been alive, provided he had continually worked as an agent for not less than 2 years from the date of his appointment and policies assuring a total sum of not less than Rs. 1 lakh effected through him were in full force on the date immediately prior to his death. (4) If the renewal commission payable under sub-regulation (1) or sub-regulation (2) or sub-regulation (3) falls below Rs. 100/- in any financial year (hereinafter referred to as the said financial year), the competent authority may, notwithstanding anything contained in the said sub-regulation, commute all commission payable in subsequent financial years for a lump sum which shall be three times the amount of renewal commission paid in the said financial year, and on the payment of such lump sum to the agent or his nominees or heirs, as the case may be, no commission on the business effected through the agent shall be payable in the financial years subsequent to the said financial year. 8. Thus it appears that the qualifying years of getting renewal commission is for 5 years and from the date of his appointment and also procuring business a total sum not less than 2 lakhs effected through him and his continual work as an agent for at least 10 years since his appointment. Here undisputedly the appellant has fulfilled the period of his working as an agent as he served as we have mentioned above. There is no dispute with regard thereto. 9. Here undisputedly the appellant has fulfilled the period of his working as an agent as he served as we have mentioned above. There is no dispute with regard thereto. 9. It appears from the records that appellant sent in his resignation on 7th March, 2002 under sub-regulation (2) of Regulation 17 of the said Regulation. The respondent however did not admit receipt of the same but it appears that it must have received subsequently as it would appear from a letter dated 22nd May, 2002 of the Branch Manager concerned conveying the return of pay order for a sum of Rs. 250/- sent earlier for renewal of the license of the appellant as the appellant had resigned from the agency. This fact has been admitted in its letter copy whereof is annexed at page 104 of the paper book. We think that the resignation has been accepted, and this relates back to the date of 7th March, 2002. Nowhere it provided that acceptance of resignation is a must and in any view of the matter when this has been accepted subsequently by its act and conduct this Court is of the view that on 17th March, 2002 the relationship of Principal and the Agent has come to an end. As such by upholding the contention of the learned counsel for the appellant that the Corporation officials had no jurisdiction to issue show cause on 7th May, 2002. We think that the relationship has ceased not only on account of resignation but also on non renewal of the license. 10. It is rightly pointed out that the learned Trial Judge has ignored the aforesaid legal position based on fact. It is true that Writ Court cannot appreciate the fact and it is within the domain of the respondent authorities but when the fact is undisputed and can at least be conclusively proved by document the legal position can obviously be applied we think that learned Trial Judge has been in error in not doing so. 11. Under such circumstances the order passed in the disciplinary proceedings is not liable to be sustained and the same is liable to be set aside. 12. But the dispute in this appeal does not end here as the appellant-writ petitioner wants something more than payment of the renewal commission. 11. Under such circumstances the order passed in the disciplinary proceedings is not liable to be sustained and the same is liable to be set aside. 12. But the dispute in this appeal does not end here as the appellant-writ petitioner wants something more than payment of the renewal commission. Under the terms of the contract, which is governed by the regulation under Regulation 19 so far, the payment of commission on discontinuance is concerned. This has to be read with section 44 of the Insurance Act which is reproduced hereunder:-- Section 44. Prohibition of cessation of payments of commission:-- (1) Notwithstanding anything to the contrary contained in any contract between any person and an insurance agent providing for the forfeiture or stoppage of payment of renewal commission to such insurance agent, no such person shall, in respect of Life Insurance business transacted in India, refuse payment to any insurance agent of commission due to him on renewal premium under the agreement by reason only of the termination of his agreement, except for fraud; provided that:-- (a) such agent ceased to act for the insurer concerned after the Central Government has notified in the Official Gazette that it is satisfied that the circumstances in which the said insurer is placed are such as to justify the agents ceasing to act for him; or (b) such agent has served the insurer continually and exclusively in respect of Life Insurance business for at least five years and policies assuring a total sum of not less than Rupees fifty thousand effected through him for the insurer were in force on a date one year before his ceasing to act as such agent for the insurer and that the commission on renewal premium due to him does not exceed four percent in any case or; (c) such agent had served the insurer continually and exclusively for at least ten years and after his ceasing to act as such agent he does not directly or indirectly solicit or procure insurance business for any other person. Explanation 1.--For the purpose of this Sub-section, service of an insurance agent under a Chief Agent of the insurer, whether before or after the commencement of the Insurance (Amendment) Act, 1950 (47 of 1950) shall be deemed to be service under the insurer. Explanation 1.--For the purpose of this Sub-section, service of an insurance agent under a Chief Agent of the insurer, whether before or after the commencement of the Insurance (Amendment) Act, 1950 (47 of 1950) shall be deemed to be service under the insurer. (2) Any commission payable to an insurance agent under the provisions of Clauses (b) and (c) of the proviso to sub-section (1) shall, notwithstanding the death of the agent continue to be payable to his heirs, for so long as such commission would have been payable had such insurance agent being alive. 13. If two provisions are read conjointly it will appear that even on termination of the agreement the renewal commission has to be paid except on the ground of fraud and, section 44 sub-section (1) further provides that the agent is disentitled to get any renewal commission on cessation to act as such agent if he does directly or indirectly solicit or procure insurance business for any other person. 14. In this case admittedly the appellant joined as an Officer not an agent of a Company. Whether joining of this office rendered himself disentitled to get any renewal commission or not? According to us on reading of clause (c) it will appear that after cessation of agency with the Corporation the same will apply to anyone who does any act which tantamount to direct or indirect soliciting or procuring insurance business for any other person. We think that this act and action must be an act as an agent of the another person which may be having juristic entity also. An officer of the Insurance Company cannot be said to be an agent nor can he be said to be involved in soliciting business directly or indirectly as business is procured by the agent either directly or indirectly not by an individual officer, unless it is proved that he is involved in soliciting or procuring business. 15. We think that the provisions of the Evidence Act as contended by Mr. Gupta does not apply in this case. The respondent cannot deny right accrued by operation of law unless there is a complete proof. Mere presumption or assumption or for that matter taking advantage of provision of law based on presumption such right cannot be taken away. We, therefore, do not find any force in this submission of Mr. Gupta. Gupta does not apply in this case. The respondent cannot deny right accrued by operation of law unless there is a complete proof. Mere presumption or assumption or for that matter taking advantage of provision of law based on presumption such right cannot be taken away. We, therefore, do not find any force in this submission of Mr. Gupta. Consequently, the judgment and order of the learned Trial Judge is set aside and we hold that the petitioner-appellant is entitled to get all benefits of renewal commission as well as gratuity. We accordingly direct the respondent-Corporation to quantify the same and make payment and, we permit three months time to do so. Thus the appeal is allowed. However, on the facts and circumstances of this case there will be no order as to costs. Asim Kumar Mondal, J. I agree.