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2016 DIGILAW 190 (JK)

United India Insurance Co. Ltd. v. Mst. Riaz

2016-04-15

MUZAFFAR HUSSAIN ATTAR

body2016
JUDGMENT : Muzaffar Hussain Attar, J. 1. Mr. Gulzar Ahmad Ganai, the original writ petitioner, who completed his sojourn on the planet earth during pendency of Letters Patent Appeal (LPA) (for short writ petitioner), had challenged order of his removal from service of the Appellant-Insurance Co. in SWP No. 385/2005. The learned writ court allowed the writ petition and quashed the order of removal as also the Enquiry Report. Respondents were given liberty to initiate enquiry in accordance with rules occupying the field. 2. The Appellant-Insurance Co. challenged the said judgment in the LPA. The Letters Patent Bench returned a split verdict, which resulted in formulation of question, which is taken note of: “Whether, in the facts and circumstances of the case, the Petitioner-respondent was entitled to relief.” 3. In view of the split judgment, the matter has been referred, for determination of the aforesaid question, to the third Judge. 4. During the pendency of Appeal, in view of passing away of the writ petitioner, the present respondent, being his widow, was substituted in his place as respondent in the LPA. 5. In order to return finding on the question, formulated by the Division Bench, it becomes necessary to briefly summarize facts of the case. 6. The writ petitioner was an employee of the Appellant-Insurance Co. At the time he was removed from service, he was working as Development Officer. On the allegation of having committed misconduct, the Disciplinary Authority, under rule 25 of the General Insurance (Conduct, Discipline & Appeal) Rules, 1975 (for short Rules of 1975), served Substance of Imputation of Misconduct and Articles of Charge on him. In the Articles of Charge, the writ petitioner was informed that while he was working as Development Officer in B.O III, Batamaloo, Srinagar, during the period 1998-2001, he caused issuance of Motor Acceptance Advice No. 227431 through his Agent for covering vehicle No. JKD-8113 of one Shri. Ghulam Mohammad Bhat for the period 24-01-2000 to 23-01-2001 and collected premium of Rs. 6098/-. The vehicle met with an accident on 09-02-2000 and in consequence thereof, TP claim was projected. It was alleged that in the Acceptance Advice, the writ petitioner, fraudulently, mentioned Policy No. 24/805/2000, relating to vehicle No. JKE-5264. 7. In the Articles of Charge, writ petitioner was also informed that he had received Acceptance Advice Pad, S. No. 227401 to 227450 on 13-03-2000. It was alleged that in the Acceptance Advice, the writ petitioner, fraudulently, mentioned Policy No. 24/805/2000, relating to vehicle No. JKE-5264. 7. In the Articles of Charge, writ petitioner was also informed that he had received Acceptance Advice Pad, S. No. 227401 to 227450 on 13-03-2000. He was also informed that in this fact situation, he had antedated the insurance cover after the occurrence of accident to confer undue pecuniary advantage on the insured. The Appellant-Insurance Co. had to pay Rs. 50,000/- in view of the Award passed by the Motor Accidents Claims Tribunal (MACT). It was also alleged that the writ petitioner had not deposited in the office, the Motor Acceptance Advice No. 227431 and had also not deposited the premium amount, thus misappropriated the said amount. He was informed that he allegedly failed to maintain integrity, devotion to duty and acted dishonestly in the manner prejudicial to the interests of the Insurance Company by committing misconduct in terms of rule 3(i)(ii)(iii) read with 4(1)(5) & (9) of the Rules of 1975. 8. In terms of order dated 20-05-2003, the Disciplinary Authority appointed Shri. Deepak Sharma, AM, RO, Chandigarh and Ms. Himali Batra, AAO, RO, Chandigarh, as Enquiry Officer and Presenting Officer respectively in accordance with rule 25(4) and 25(5) of Rules of 1975. Enquiry was to be conducted at Chandigarh. The Charge Sheet was issued on 20-05-2003. The Enquiry Officer submitted his Enquiry Report on 17-06-2003, wherein he stated that preliminary enquiry was fixed on 16-06-2003 and in the enquiry, the writ petitioner admitted the charge leveled against him and also gave in writing his admission in respect of the charges framed against him. The Disciplinary Authority, on 05-05-2004, ordered for removal of the writ petitioner from service in terms of rule 23(g) of the Rules of 1975. 9. The writ petitioner filed Appeal against the order of removal from service, which did not find favour with the appellate authority, who dismissed the same vide order dated 31-01-2005. 10. The writ petitioner, after the Memorandum of Charge was served on him, replied the same. In his reply, he denied the allegations leveled against him. He specifically stated that he had not done anything wrong as his conscience was clear and he had not deceived the Company. 10. The writ petitioner, after the Memorandum of Charge was served on him, replied the same. In his reply, he denied the allegations leveled against him. He specifically stated that he had not done anything wrong as his conscience was clear and he had not deceived the Company. He had, however, stated that he had “committed a mistake by believing some human promises.” He had, in detail, narrated the circumstances, in which he was made to issue the Acceptance Cover. He had stated that the Mini Bus Operators Union-Jehangir Chowk, Srinagar, was operating a fleet of Mini Buses in Jehangir Chowk, Srinagar. He had also stated that because of his efforts, an agreement was entered into with the said Mini Bus Union, whereunder they agreed to insure their vehicles with the Appellant-Insurance Co. He had also stated that while his business relations with the Mini Bus Union was continuing in the aforesaid manner, one vehicle bearing No. JKD/8113 met with an accident. The vehicle was seized by the police. He had, specifically, mentioned in his reply that the Mini Bus Union approached him for help in releasing the vehicle. The office bearers of the said Union had told the writ petitioner that the police was reluctant to release the vehicle in absence of the Insurance Policy. He had also stated that the vehicle was being plied without Insurance Policy. He had also stated that the Union people asked him to render help to them in providing the Insurance Policy and they had promised that the moment the vehicle will be released by the police, they will return the documents to him. He had also underlined in his reply that at that point of time, he was badly in need of business and could not afford to annoy the office bearers of the Mini Bus Union. He had also stated that the unfortunate decision of rendering help proved fatal as the Insurance Policy was misused. He had also stated that the breach of trust and promise had frustrated him and he became helpless and was caught in the web of circumstances. He had also stated that in the aforesaid backdrop his superior officers had made enquiries to find out whether, in lieu of issuance of insurance cover, he had accepted anything in cash or kind but while thanking the Almighty, he had stated that nothing like that was proved. He had also stated that in the aforesaid backdrop his superior officers had made enquiries to find out whether, in lieu of issuance of insurance cover, he had accepted anything in cash or kind but while thanking the Almighty, he had stated that nothing like that was proved. He reiterated that he had committed a mistake by believing some human promises but did not commit any sin and requested that his case be considered sympathetically. The aforesaid reply is dated 15-04-2003. 11. In a representation send to Branch Manager, BO, Sopore, he (writ petitioner) reiterated the circumstances, in which he had caused issuance of insurance papers. He had further stated in the said representation that he had offered to the Company to appear as witness before the Court to prove his innocence and to show that fraud was practiced upon him by the Mini Bus Union and he had not to gain anything out of it. He had also stated that he served the Company with honesty for twenty three years. He had also stated in the said representation that these facts were already brought to the notice of the Investigating Party. 12. The unfortunate tide of bad times, however, further turned against him when he reached Chandigarh to participate in the enquiry proceedings. On the first day of hearing of the enquiry, i.e. 16-06-2003, a communication was sent to the Enquiry Officer by the writ petitioner, in which he stated that with reference to his previous communication, he admitted to have committed a mistake. He further added that he admit all the charges leveled against him in the Charge Sheet. He requested for imposing of minimum penalty, keeping in view his past record. It is this communication, which became basis for concluding the enquiry, in as much as, the Enquiry Officer did not proceed thereafter and submitted his report to the Disciplinary Authority in view of the so called admission of guilt made by the writ petitioner. 13. The writ petitioner, in his memorandum of Appeal, filed before the appellate authority in terms of rule 31 of the Rules of 1975, had specifically mentioned that he had not signed the document but one Agent, working in the Appellant-Insurance Co., without any bad intention, had done the same for a valuable client for the benefit of the Company. 13. The writ petitioner, in his memorandum of Appeal, filed before the appellate authority in terms of rule 31 of the Rules of 1975, had specifically mentioned that he had not signed the document but one Agent, working in the Appellant-Insurance Co., without any bad intention, had done the same for a valuable client for the benefit of the Company. He had also reiterated that the insured party played mischief with him and the Enquiry Officer did not conduct the enquiry as prescribed by rules. He had also taken a plea that the documents, enquiry proceedings and copies of the statements of the witnesses were not supplied to him. He had also taken a further plea that he was not permitted to produce his evidence. He had also specifically pleaded in the Memo of Appeal that he was made to admit the guilt under influence by the Enquiry Officer. Writ petitioner had also pleaded that he was told to save the reputation of the Corporation and own the responsibility under the promise that he will be let off. As already stated, the Appeal was also dismissed. 14. The respondent-writ petitioner, challenged the original order and the appellate order in SWP 385/2005, which, as already stated, was allowed by the learned writ Court in the manner already provided hereinabove. 15. At the time of hearing, Mr. Khuroo, learned counsel for the Appellant-Insurance Co., produced xerox copy of the record. The record, which was produced, stands already annexed with the Reply Affidavit filed by the Appellant-Insurance Co. before the writ Court. Mr. Khuroo submitted that in view of admission of guilt by the writ petitioner, there was no necessity of further proceeding with the enquiry and the writ petitioner was rightly ordered to be removed from service. Learned counsel, in support of his contention, referred to and relied upon judgments of Hon'ble the Supreme court reported in 1997 (3) Supreme 480 , 2001 (4) Supreme 298 , 2002 (5) Supreme, 323 and (1996) 10 SCC 659 to show that the Rules of Procedure, which are being followed in criminal Courts for appreciating evidence, are not to be followed with same rigor in Departmental enquiries. 16. Mr. Jehangir Iqbal Ganai, learned Senior Advocate, appearing for the respondent-petitioner, submitted that the Appellant-Insurance Co. 16. Mr. Jehangir Iqbal Ganai, learned Senior Advocate, appearing for the respondent-petitioner, submitted that the Appellant-Insurance Co. committed total breach of Rules of 1975, in as much as, they have not followed the mandatory provisions contained therein for conducting Departmental Enquiry against the writ petitioner. Learned counsel submitted further that the so called admission of the writ petitioner, which resulted in conclusion of enquiry against him, cannot, both in fact and law, be said to be an admission of guilt. He submitted that in view of breach of Rules of 1975, the learned writ Court was justified in law to allow the writ petition. Learned counsel also supported the view taken in favour of the writ petitioner by one of the Hon'ble members of the LPA Bench, who, in His judgment, dismissed the Appeal. 17. The Appeal of the Insurance Company was allowed by the then Hon'ble Chief Justice (Mr. Barin Gosh) and it was dismissed by Hon'ble Mr. Justice Hakim Imityaz Hussain. 18. Human nature, behavior and conduct is of utmost importance for running the affairs of this world. It is normally difficult to judge the true intentions of a human being. Sometimes an action of a human being appears to be bad but his intentions can be very good. At other times an action of a human being may appear to be very good but the intention behind such action can be bad. It can be illustrated as under: ‘A’ finds his friend ‘B's’ minor son ‘C’ puffing a cigarette at a public place, which is detrimental to human health. ‘A’ slaps ‘C’ for puffing cigarette. The action of ‘A’ for slapping ‘C’ is a bad action but the action of ‘A’ in slapping ‘C’ is to ensure that he does not puff cigarette in future. The explicit action of slapping ‘C’ in such circumstance, would not be bad because the intention is to correct ‘C’. ‘A’ sees ‘D's’ son ‘E’ puffing a cigarette at a public place. ‘A’ is not having a good relationship with ‘D’. He slaps ‘E’ though for puffing cigarette but with the intention that respect of ‘D&E’ shall be brought down in the eyes of public. The action of slapping ‘E’ is same as that of slapping ‘C’ but intention is different, which is to humiliate ‘D’. 19. ‘A’ is not having a good relationship with ‘D’. He slaps ‘E’ though for puffing cigarette but with the intention that respect of ‘D&E’ shall be brought down in the eyes of public. The action of slapping ‘E’ is same as that of slapping ‘C’ but intention is different, which is to humiliate ‘D’. 19. The above illustration is sufficient to show that one single action can be good and it can be bad as well. Though action in both the circumstances was negative in character, viz. that of slapping child, yet intention in first circumstance was good and in second instance it was bad. 20. A human being itself being a complex creation of Almighty Allah, judging his conduct, will not, in all circumstances, be an easy job. For judging conduct of a person and arriving at a reasonable conclusion, besides looking at his past performance, the circumstances, in which he did an act in a particular manner, require to be ascertained and enquired into. 21. For arriving at a definite and reasonable conclusion, that the conduct of a particular person in a particular set of facts and circumstances, constitutes misconduct, all the determinative circumstances have to be taken into consideration. 22. Reverting to the facts of this case, the writ petitioner, the moment he was confronted with the allegation of providing insurance cover to a person, whose vehicle was not insured at the time it met with an accident, without concocting a story, did admit issuance of insurance documents to him, but simultaneously he explained the circumstances, in which those documents were issued. He, at the very outset, made clean breast of all the facts and circumstances. He did admit that he had committed a mistake by believing the promise made to him by the members of Mini Bus Union. He, it appears, due to his helping nature, was trapped to extricate the owner of the vehicle from the circumstances into which he had landed, least knowing that these treacherous people will betray his faith reposed in them. Had the writ petitioner really committed misconduct or done something wrong for securing benefit for himself and causing loss to the Insurance Company, then he could simply deny the allegations made against him and concoct a story to protract the enquiry proceedings. Had the writ petitioner really committed misconduct or done something wrong for securing benefit for himself and causing loss to the Insurance Company, then he could simply deny the allegations made against him and concoct a story to protract the enquiry proceedings. As already stated, he, at the first instance, admitted to have committed a mistake but, he had explained the circumstances leading thereto. Even in his letter to the Enquiry Officer, he had referred to his earlier communication. The very fact that he referred to the earlier communication would show that he had not admitted the charge framed against him. The reply send by him in response to the charge and his representation were not inculpatory but were exculpatory in nature. Both, in his reply to the charge and in his representation, he had not admitted commission of the guilt. He had only admitted that he had committed a mistake. 23. Misconduct is an intentional and wanton deviation from the normal human behavior. Misconduct is where a person, for securing an impermissible and illegal benefit, deliberately and intentionally, causes loss to the other person. 24. The writ petitioner had volunteered even to step into the witness box as witness of the Appellant-Insurance Co. to dislodge the claim filed before the MACT. Had the Appellant-Insurance Co. afforded him that opportunity, his claim of innocence could have been tested by the Court of law. The Appellant-Insurance Co. rushed through the whole matter. It would have been just and reasonable on the part of the Appellant-Insurance Co. to allow the writ petitioner to face the cross examination before the Court of law. This bona fide offer of the writ petitioner, in the backdrop of the fact that he had accepted his mistake, knowing that it may even cost him of his job should have not been turned down. Had the request of writ petitioner been accepted by appellant, and allowed him to appear as witness in claim petition proceedings, may be, the claim petition may have been dismissed. Not responding to the request of writ petitioner, without any justification, is sufficient to indicate that he had all along acted bona-fide. 25. The circumstances of this case would show that writ petitioner because of his nature of trusting people made himself to lose both his reputation and his job. Not responding to the request of writ petitioner, without any justification, is sufficient to indicate that he had all along acted bona-fide. 25. The circumstances of this case would show that writ petitioner because of his nature of trusting people made himself to lose both his reputation and his job. He on one hand trusted union people and on the other hand the enquiry officer. He on both counts because of his simple nature walked into a trap. Writ petitioner trusted people, least knowing that certain appearances are deceptive. 26. In view of the aforestated circumstances, what emerges is that the act of writ petitioner was unacceptable, yet it would not constitute “misconduct”. 27. The enquiry has not been conducted in the manner it was required to in terms of Rules of 1975 and even the appellate authority, before whom writ petitioner had taken a plea that he was rather coerced to make a confession, did not consider and deal with such plea properly. 28. Framing of charge of misconduct against the writ petitioner, in the aforesaid background, was not warranted in law. It is held that writ petitioner had not committed any misconduct. Nothing is brought on record to show that writ petitioner had in past committed any misconduct. He appears to have rendered impeccable service to appellant. 29. In almost identical circumstances in OWP 477/2012, decided on 22nd May, 2013, reported in AIR 2013 J&K 103 , the Court ruled in favour of the writ petitioner therein, holding that his actions were not misconduct. Paragraphs 10 to 16 of the said judgment, relevant to the issue, are reproduced hereunder: “10. The facts and the material placed on the record by the parties bring to the surface one fact that petitioner, a non practicing lawyer, is dependant for his survival upon the “practice of certificate” issued to him by competent authority under the Act of 1952. 11. A lease deed was executed between the Custodian Evacuee Property, Jammu and the Dr. Kamal Saini, IPS Dy. Inspector General of Police, Security J&K in respect of land measuring 06 kanal and 03 marlas falling under Khasra No. 254 and 245 Revenue Estates Nowabad, Tehsil Jammu. Property was leased out to the Security Department of J&K Police for construction of Security Headquarter complex and for using the same as office complex. Kamal Saini, IPS Dy. Inspector General of Police, Security J&K in respect of land measuring 06 kanal and 03 marlas falling under Khasra No. 254 and 245 Revenue Estates Nowabad, Tehsil Jammu. Property was leased out to the Security Department of J&K Police for construction of Security Headquarter complex and for using the same as office complex. This document was executed on 16.03.2009 as per the admission of the petitioner in his reply to the show cause notice, in his statement before the Principal District Judge, Jammu and in the writ petition itself. The petitioner was called by the Custodian Evacuee Property Jammu on 19.03.2009 and was asked to attest the said document. In the document, the date of attestation was mentioned as “19.03.2009”. In his statement before the Principal District Judge, Jammu which was the first opportunity given to him to project his defence and thereafter at every stage, the petitioner, in unequivocal terms, stated that though he mentioned the date “19.03.2009”, on which date he attested the document, but he was forced to change it to 16.03.2009 This act of the petitioner was taken to be misconduct in terms of Section 10(d) of the Act of 1952 and ultimately impugned notification SRO was issued thereby removing his name from the Registry of Notaries. 12. “Misconduct” is a relative expression. Misconduct is an intentional or deliberate deviation from the accepted norms of behavior. A mistake or a human error which would include, working in a particular background under pressure, would not mean intentional deviation from accepted norms of behavior and will not in all circumstances constitute misconduct. 13. In order to arrive at a lawful conclusion, at to whether, the act of petitioner in mentioning wrong date of attestation on the document, would constitute misconduct, following questions would require to be answered: a. Whether a person against whom the allegations of misconduct are leveled has ever before committed misconduct in his professional life? b. Whether a person against whom the allegations of misconduct are leveled was direct beneficiary of the act by gaining any pecuniary or other benefit therefrom? 14. Human beings are not infallible. Mistakes or errors are being committed by human beings. But all errors and mistakes committed by human beings, in all circumstances and at all times, may not constitute misconduct. 14. Human beings are not infallible. Mistakes or errors are being committed by human beings. But all errors and mistakes committed by human beings, in all circumstances and at all times, may not constitute misconduct. After considering the case of the petitioner on the afore-stated touchstone, it can be safely concluded that petitioner had not committed any misconduct. This conclusion is arrived at because nothing is brought on record to show that prior to this incident, any such allegation was leveled against the petitioner. His license for practice has been renewed at all times by the competent authority in hassle free manner. In this particular case, while attesting the documents which is executed between the two Departments of the State Government, it not even alleged that he had gained any pecuniary or material benefit. Petitioner, as already stated, is a non practicing advocate, who was sustaining himself by discharging the function as a public notary. This petitioner, who admittedly is a powerless person, was summoned to the office of Custodian Evacuee Property, Jammu and was asked to attest the document wherein he mentioned the date 19.03.2009, but the Custodian Evacuee Property compelled him to change the date from 19.03.2009 to 16.03.2009 In the normal course, petitioner should have not agreed to change the date, but in the circumstances in which he had landed, it appears, he had no option, but to change the date. This change of date has not affected any of the rights of the parties to the documents. The Court does not approve the change of date by the petitioner, but in the facts and circumstance of this case, as discussed herein above, it still will not constitute misconduct, but would be a mistake committed by the petitioner. It is also to be noticed that petitioner was in lesser bargaining position viz-a-viz the Custodian Evacuee Property Jammu. In the totality of the circumstances of this case the act of petitioner will not constitute an intentional or deliberate deviation from the accepted norms of behavior. He had to gain nothing from his act of changing the date. He in fact has not gained anything, but in the process has lost his sole source of sustenance. 15. The integrity of petitioner appears to be unquestionable. In order to extricate himself, from the web of circumstances in which he was caught, he could have concocted a defence. He had to gain nothing from his act of changing the date. He in fact has not gained anything, but in the process has lost his sole source of sustenance. 15. The integrity of petitioner appears to be unquestionable. In order to extricate himself, from the web of circumstances in which he was caught, he could have concocted a defence. He instead choose to make clean breast of all the facts, knowing fully well that by his “truthful disclosure”, he may have to “bear the cross.” 16. In the aforesaid backdrop of this case and for the reasons mentioned herein above, it is held that petitioner had not committed any misconduct.” 30. In view of the aforesaid discussion, it is held that the petitioner was entitled to relief. The order of removal is held to be non est in law. 31. There is now no scope for conducting of fresh enquiry, in as much as, the writ petitioner has passed away. The respondent has to be given all the service benefits. 32. For the aforementioned reasons, this Appeal is dismissed along with connected IAs. The writ petitioner shall be deemed to have continued in service till his death. Accordingly, the Appellant-Insurance Company is directed to pay the respondent all the service benefits, to which the writ petitioner would have been, otherwise, entitled to as an employee of the Appellant-Insurance Company.