Bhoop Ram Garg v. United India Insurance Company Ltd.
2017-03-08
AJAY MOHAN GOEL
body2017
DigiLaw.ai
Ajay Mohan Goel, J. By way of this writ petition, the petitioner has prayed for the following reliefs: “(a) That to issue writ of certiorari or direction in nature thereof directing the respondents to reinstate the petitioner in the service from dated 7.8.2007 with all consequential service benefits and the impugned order vide annexure P-12 dated 7.8.2007, Annexure P-13 vide office order dated 12.2.2009, Annexure P-15 vide office order dated 1.9.2009 may kindly be quashed in favour of the petitioner and against the respondent company. (b) That to issue writ of certiorari or direction in nature thereof to the respondents to release arrears of salary from the date of dismissal of the petitioner i.e. 7.8.2007 till the petitioner is reinstated in the service by the direction of this Hon’ble Court. (c) That the respondents be directed to produce the service record of the petitioner before this Hon’ble Court. (d) That any other relief which deem fit and proper in the facts and circumstances of the case may kindly be issued in favour of the petitioner and against the respondent company in the interest of justice and fair play.” 2. Brief facts necessary of the adjudication of the present case are that a memorandum dated 04.05.2006 was issued to the petitioner by the respondent-Company intimating the petitioner that the respondent- Company proposed to hold an inquiry against him under Section 25 of the General Insurance (Conduct, Discipline and Appeals) Rules 1975 and that the substance of imputation of the misappropriation in respect of inquiry so proposed to be held was set out in enclosed statement of articles of charge and a statement of allegations in support of articles of charge was also enclosed alongwith list of documents and a list of witnesses. The petitioner was directed to submit his written statement to the said memorandum as to whether he admits or denies any or all the articles of charge. 3.
The petitioner was directed to submit his written statement to the said memorandum as to whether he admits or denies any or all the articles of charge. 3. There were in all eight articles of charge framed against the petitioner and primarily the allegations against him were that the petitioner while working as Sub Staff in Divisional Office, Shimla of the respondent- Company during the period w.e.f. 1999 to 2003 was entrusted with the function of depositing daily cash collections of the office handed over to him into the bank for which he was paid a cash allowance and that it had come to light that during the period 1999 to 2003, the petitioner did not either deposit amount in full or had not deposited at all the amount into the bank and tampered/generated counterfoils of the cash pay-in-slips so as to given an impression that whatever cash premium collections amount was received by him from the office stood deposited in account No. 251 maintained with Canara Bank, The Mall, Shimla. 4. Before proceeding further, it is pertinent to mention that this Court had directed the respondent- Company to produce the record of the disciplinary proceedings vide its order dated 30.11.2016 and the said record was made available during the course of arguments on 01.03.2017 which was gone into by this Court with the assistance of the learned counsel for the parties. The necessity to call for records arose as all the relevant documents were not appended alongwith the petition. 5. Original record demonstrates that in response to memorandum dated 04.05.2006 (Annexure P-6) by way of his reply dated 18.05.2006, the petitioner accepted the allegations contained in the articles of charges dated 04.05.2006. This was followed by appointment of one Sh. Vivek Sharma, Senior Branch Manager, BO III, Chandigarh, as Inquiry Officer by the Manager-cum-Disciplinary Authority vide letter dated 24.05.2006 to inquire the charges leveled against the present petitioner. 6. Record further demonstrates that in response to a communication dated 26.06.2006, petitioner appeared before the Inquiry Officer on 11.07.2006 i.e. the date so fixed, at Chandigarh and vide communication dated 11.07.2006 he again admitted the article of charges framed against him and wrote therein that his admission was without coercion or duress and appropriate action be taken against him.
6. Record further demonstrates that in response to a communication dated 26.06.2006, petitioner appeared before the Inquiry Officer on 11.07.2006 i.e. the date so fixed, at Chandigarh and vide communication dated 11.07.2006 he again admitted the article of charges framed against him and wrote therein that his admission was without coercion or duress and appropriate action be taken against him. Order sheet dated 11.07.2006, (Annexure P-8), which is duly signed by the Presenting Officer, Inquiry Officer and the present petitioner, reads as under: “The inquiry was fixed for today for preliminary hearing at 11:00 a.m. at BO III, Chandigarh. The P.O and CSE are present as directed. The charges leveled in the chargesheet were read over to the CSE and he was specifically asked whether he admitted or denied the charges mentioned in the chargesheet. The CSE was further told that since the chargesheet against him was for a major penalty, the Company could take any action as deemed fit. After hearing the charges leveled in the chargesheet, the CSE has admitted the charges unconditionally and also tendered letter (Annexure I) in his own writing in this regard. As the charges have been admitted unconditionally, further inquiry is not required and the inquiry is hereby concluded. The inquiry report shall be submitted to the Disciplinary Authority in the due course. A copy of this ordersheet is supplied to both P.O. and the CSE.” 7. Thereafter the inquiry Officer submitted his report (Annexure P-9) to the Disciplinary Authority in which it was mentioned by the Inquiry Officer that as the charges had been admitted by the petitioner unconditionally and unambiguously, therefore the charges stood proved. 8. This was followed by communication dated 23.10.2006 addressed by the Disciplinary Authority to the present petitioner vide which petitioner was called upon to submit his representation, if any, against the findings returned by the Inquiry Officer in his inquiry report. 9. Original record demonstrates that in response to communication dated 23.10.2006, petitioner submitted his written reply dated 09.11.2006 in which he again admitted his guilt and requested the Disciplinary Authority to deal with his case expeditiously. 10.
9. Original record demonstrates that in response to communication dated 23.10.2006, petitioner submitted his written reply dated 09.11.2006 in which he again admitted his guilt and requested the Disciplinary Authority to deal with his case expeditiously. 10. This was followed by the Disciplinary Authority passing order dated 07.08.2007, Annexure P-12, vide which, Disciplinary Authority imposed penalty of “removal from service which shall not be a disqualification for future employment” upon the present petitioner in terms of Rule 23 (g) of the General Insurance (Conduct, Discipline and Appeals) Rules 1975 and also ordered recovery of Rs.1,11,999/- from the petitioner being the amount misappropriated by him in terms of Rule 23 (g) of the General Insurance (Conduct, Discipline and Appeals) Rules 1975. 11. The order so passed by the Disciplinary Authority was challenged by way of an appeal. In his appeal the stand taken by the petitioner was that he was forced to confess/admit the charges leveled against him in order to save other Officers/ officials of the respondent-Company. Besides other grounds, it was also mentioned in the appeal that as the charges were not proved in accordance with law and the amount allegedly embezzled by him was not proved on record to have been collected by him, the order passed by the Disciplinary Authority be set aside. Petitioner also prayed in his appeal that Appellate Authority may take a lenient view in the matter keeping in view of the fact that he had a wife and four minor children to look after. 12. The Appeal so filed by the petitioner was dismissed vide order dated 12.02.2009 by the learned Appellate Authority by holding as under: “Thus, there are no merits in the appeal dated 23.08.2007 preferred by Shri Bhup Ram Garg. It is observed that the enquiry was conducted as per prescribed procedure and the conclusions of the Inquiring Authority are well reasoned and in order. It is also observed that the misconduct of tampering/altering/interpolating the counterfoils of the pay-in-slips and thereby misappropriating the premium to the tune of Rs.1,11,999/- is very grave in nature and the penalty imposed is commensurate with the gravity of misconduct committed by him.
It is also observed that the misconduct of tampering/altering/interpolating the counterfoils of the pay-in-slips and thereby misappropriating the premium to the tune of Rs.1,11,999/- is very grave in nature and the penalty imposed is commensurate with the gravity of misconduct committed by him. Hence, I find no reason to interfere with the order dated 07.08.2007 of the Disciplinary Authority and therefore in exercise of powers conferred on me, I hereby reject the appeal dated 23.08.2007 of Shri Bhup Ram Garg in terms of Rule 37 (2) (c) of GI (CDA) Rules 1975”. 13. Representation filed by the petitioner against the order passed by the Appellate Authority was rejected vide communication dated 12.03.2009 on the ground that there was no such provision under the CDA Rules to reconsider the fresh appeal which did not include any fresh grounds and mitigating factors. 14. Feeling aggrieved by the major penalty so imposed by the Disciplinary Authority upon him which stands confirmed by the Appellate Authority, the petitioner has filed this appeal. 15. Ms. Bhavna Datta, learned counsel for the petitioner has argued that the disciplinary proceedings initiated against the petitioner and the orders passed by the Disciplinary Authority as well as by the Appellate Authority respectively are void abinitio because the authorities below have failed to appreciate that no case for holding any disciplinary proceedings against the petitioner was at all made against the petitioner and further that the confession which was given by the petitioner was not out of his free volition but was under coercion and duress from his senior officers who had assured him that in case he confessed his misconduct, then neither any criminal complaint etc. shall be lodged against him nor any action shall be initiated against him on the administrative side. She has further argued that the senior officers of the petitioner have in fact made the petitioner a scapegoat as it was not the petitioner who was guilty of misappropriation of the funds but the said misappropriation was done by the senior officers and they took advantage of the petitioner being an illiterate person. It is on these grounds that learned counsel for the petitioner has argued that the impugned orders are liable to be set aside. No other ground was agitated. 16. On the other hand, Dr.
It is on these grounds that learned counsel for the petitioner has argued that the impugned orders are liable to be set aside. No other ground was agitated. 16. On the other hand, Dr. Lalit K. Sharma, learned counsel for the respondent-Company has vehemently argued that the contentions raised by the learned counsel for the petitioner besides being totally incorrect were also without any basis or genesis because there was no material produced on record by the petitioner to demonstrate or substantiate that his admission of misconduct was not out of free will but was under coercion. Dr. Sharma further argued that the petitioner was not put under duress by any of the Officers of the respondent-Company and the allegations so leveled and made in the writ petition were baseless, cryptic and totally vague. He further argued that the disciplinary proceedings were held against the petitioner strictly as per the provisions of General Insurance (Conduct, Discipline and Appeals) Rules 1975 and as per him learned counsel for the petitioner could not point out any infringement of the said Rules in the matter while holding all the disciplinary proceedings. He further submitted that penalty imposed upon the petitioner by the Disciplinary Authority was reasonable and justified in the facts and circumstances of the case especially in view of the fact that the petitioner had admitted his misconduct and that too not on one or two occasions but on three different occasions. It was further urged by him that even the order passed by the Appellate Authority could not be faulted with because order passed by the Disciplinary Authority had to be considered by the Appellate Authority on the basis of records of the inquiry proceedings and not on the basis of grounds taken in appeal by the petitioner which were totally alien to the stand taken by the petitioner during the course of disciplinary proceedings. On these bases, it was urged by Dr. Sharma that there was no merit in the present petition and the same be dismissed. 17. Mr. Rajiv Jiwan, learned counsel for respondent No. 5 has adopted the arguments made by Dr. Lalit Sharma, learned counsel for respondents No. 1 to 4. 18. I have heard learned counsel for the parties and also gone through the records of the case. 19.
17. Mr. Rajiv Jiwan, learned counsel for respondent No. 5 has adopted the arguments made by Dr. Lalit Sharma, learned counsel for respondents No. 1 to 4. 18. I have heard learned counsel for the parties and also gone through the records of the case. 19. It is not disputed that there are three communications of confession of his guilt on record submitted by the petitioner. All these three communications are of different dates and there is considerable time gap in the date of submissions of these three communications. There is no material on record from which it can be inferred that the confessions of his misconduct which were made by the petitioner on three different occasions were not out of his free will and volition but were on account of coercion and duress exercised upon him by his senior officers. None of the so called officers of the petitioner who allegedly coerced him to confess the misconduct alleged against him have been impleaded as party respondent in the writ petition. In my considered view, there is no merit in the contention of learned counsel for the petitioner that the confession of his guilt/ misconduct made by the petitioner on three different occasions was under coercion or under duress. The petitioner has miserably failed to substantiate this averment with any cogent material. Similarly, there is no merit in the contention of learned counsel for the petitioner that the disciplinary proceedings initiated against the petitioner and the orders passed by the Disciplinary Authority and the Appellate Authority are non est and liable to be set aside. During the course of arguments, learned counsel for the petitioner could not point out that the disciplinary proceedings conducted against the petitioner were in violation of the procedure laid down under General Insurance (Conduct, Discipline and Appeals) Rules 1975. She also could not point out any infirmity or illegality in the mode and manner in which the proceedings were conducted by the Inquiry Officer. Records demonstrate that the petitioner was duly associated with the disciplinary proceedings by the Inquiry Officer and the petitioner admitted his misconduct before the Inquiry officer. Similarly, even when the Disciplinary Authority called upon the petitioner to put forth his response to the inquiry report, the petitioner admitted his guilt.
Records demonstrate that the petitioner was duly associated with the disciplinary proceedings by the Inquiry Officer and the petitioner admitted his misconduct before the Inquiry officer. Similarly, even when the Disciplinary Authority called upon the petitioner to put forth his response to the inquiry report, the petitioner admitted his guilt. It was on this basis that the Disciplinary Authority imposed major penalty upon the petitioner, as is contained in Annexure P-12, dated 07.08.2007. Therefore, in my considered view, it cannot be said that the proceedings were not conducted by the Inquiry Officer in consonance with the provisions laid down in General Insurance (Conduct, Discipline and Appeals) Rules 1975 or that the order passed by the Disciplinary Authority is not sustainable in law. Similarly, the order passed by the Appellate Authority is also self speaking and learned Appellate Authority has spelled out reasons in the appellate order as to why the appeal filed by the petitioner against the order of major penalty passed by the Disciplinary Authority was being dismissed. This order also, in my considered view, does not suffer from any infirmity, irregularity or illegality. 20. It is settled law that the Courts will not act as an appellate Court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the inquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. The Courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. 21. Hon’ble Supreme Court in State Bank of Bikaner and Jaipur vs. Nemi Chand Nalwaya (2011) 4 SCC 584 has held that the test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of nature justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, malafide or based on extraneous considerations. Recently, Hon’ble Supreme Court in Allahabad bank and Ors.
The courts will however interfere with the findings in disciplinary matters, if principles of nature justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, malafide or based on extraneous considerations. Recently, Hon’ble Supreme Court in Allahabad bank and Ors. v. Krishna Narayan Tewari, JT 2017(1) SC 51 has held that the writ court will certainly interfere with disciplinary enquiry or the resultant orders passed by the competent authority on that basis if the enquiry itself was vitiated on account of violation of principles of natural justice, non-application of mind by the Inquiry Officer or Disciplinary Authority and non-recording of reasons in support of conclusions arrived at by them. 22. In the present case, it is amply clear that principles of natural justice were adhered to. Learned counsel for the petitioner has not been able to demonstrate that statutory regulations were violated or that the order passed by the Disciplinary Authority or the Appellate Authority is either arbitrary or capricious or is the result of malafide or is based on extraneous considerations. The conclusions arrived at by the Disciplinary Authority and the Appellate Authority are borne out from the material on record and, therefore, there is no reason to interfere with the findings arrived at by the said authorities, by this Court. 23. Therefore, I find no merit in the writ petition and the same is dismissed. Pending miscellaneous applications, if any, also stand disposed of. No order as to costs.