AI Structured Summary
Not yet generated for this judgment
Judgment
Tejinder Singh Doabia, J.—Petitioner, a Development Officer in the Oriential Insurance Company (hereinafter referred to as the Company)
traces his service profile with the Company in the initial paragraph of the petition. In para 3 of the petition, he submits that he joined the Company
in Oct '85. He submits that he was basically posted at Doda. According to him, he has been rendering service to the Company to the best of his
ability inspite of the fact that the area in question was a militancy prone. It is submitted that the respondent Company did not appreciate the ground
reality and the difficult circumstances under which he was performing his duties in this area. The Company was of the view that the petitioner had
not maintained the cost ratio within the limits as stipulated in paragraph 3 Clause 17(c) of the Scheme of 1987. It is submitted that an action was
initiated against the petitioner. His salary was reduced. The petitioner was administered a warning on 3rd April '90. The attention of the petitioner
was invited to paragraph 11 of the General Insurance (Rationalisation of Pay Scales and other Condition of Service of Development Staff) Scheme
of 1976. This warning administered on 3rd April '90 has been placed on record as Annexure P.1. Two other warning letters dealing with the same
subject dated 28th Dec '92 and 27th July '93, which letters were served on the petitioner, have also been placed on record as Annexure P.2 and
P.3 with the writ petition. It is the case of the petitioner that he was called upon to restrict his work and not to accept any premium outside the
town area. It was felt that the practice of accepting cover notes from outside the town is not desirable. Petitioner in these circumstances made a
request to the Company that he be transferred from Doba. This, however, did not happen. On 25th Nov '94, another warning letter was issued to
the petitioner under Paragraph II of General Insurance (Rationalisation of Pay Scales and Other conditions of Service of Development Staff)
Scheme, 1996. Thereafter, the petitioner was issued a communication dt. 30th Jan '95. It was found that the petitioner while working as
Development Officer during the period 199091 failed to maintain absolute integrity and devotion to duty in as much as issued a Miscellaneous
cover note No. 193468 dt. 19th Feb '90 to one Admin. It was alleged that he had collected a sum of Rs. 582/ in cash towards premium which
was misappropriated. An enquiry was held and as a consequence of this, punishment of reduction in basic pay by lower stage in a time scale was
imposed. After this, on 25th Aug '95. another warning letter came to be issued in terms of the Scheme of 1976. Ultimately, a notice dt. 22nd May
'96 was issued to the petitioner. This is annexure P.11 with the writ petition. As the petitioner had failed to maintain the cost ratio, the above notice
of 30 days was served on the petitioner. It was proposed to terminate his services. Petitioner preferred an appeal against this. This is annexure
P.12 with the petition. This appeal was considered and rejected on 9th Aug '96. Petitioner still submitted an application for constituting the Appeal
Committee. This as per the petitioner has not been done. Petitioner in this petition accordingly challenges :
1/ Warning letter dt. 22nd Aug '95;
2/ Notice of termination dt. 22nd May '96;
3/ Order passed by respondent No. 2 confirming the termination of the petitioner. This is dt. 9th Aug '96.
The basic submission made by the petitioner is that he was called upon to serve in a militancy prone area; the volume of work had gone down
on account of this factor and therefore, the petitioner wanted to get some business from the places which fell in rural area. This was adversely
commented upon by the respondent Company. On 19th May '94, the petitioner was called upon to not to accept any premium outside the town
area. In a nutshell, what is submitted by the petitioner is :
i/ that the decrease in the business was on account of militancy in the area;
ii/ that the business was also affected on account of restricting the area of operation of the petitioner.
RespondentCompany has filed objections.
The stand taken is that the petitioner was supposed to generate business which is cost effective. Paragraph II of the Scheme which deals with the
Cost Control stands reproduced at page 3 of the objections preferred by the respondents. It is submitted that the petitioner's interest in the
procurement of the business of the Company was showing slackness and he was unable to procure any business during Dec '87 and Jan '88 also.
Therefore, he was issued communications R. II and R. III. Inspite of this, it is stated that there was no improvement on the part of the petitioner.
The facts and figures have been given in para 6 of the objections. It is submitted that in the year 199293, the petitioner committed a serious
irregularity in the matter of issuing of cover note to a contractor covering the labour under Workmen's Compensation Act. He misappropriated an
amount of Rs. 582.00. This led to the issuance of order annexure P.8. It is further submitted that there was decrease in the cost ratio during the
year 199293, 199394 and 199495. The petitioner was issued warnings. It is submitted that despite the facts that warnings were administered,
there was no improvement. This ultimately resulted in issuance of notice of termination. This is annexure P.11. The petitioner is said to have
preferred an appeal. This was referred to the Appeal Committee. This appeal was rejected on 9th Aug '96. With a view to substantiate that
another Development Officer namely Aman Deep Kotwal had performed his duties during all these years and had been able to get business has
been highlighted. It is stated that the above said officer was posted at Bhaderwah. The comparative statement has been given in paragraph 13 of
the objections filed by respondents. With regard to eruption of militancy it is submitted that it started for the first time in Bhaderwah in the year
1992 but it was a short lived phenomenon. It is accordingly submitted that the order of termination has been validly passed. With regard to the
preferring of appeal and its disposal, it is submitted that this was considered and rejected on merits.
The plea of the petitioner that he made a prayer for transfer to some other place so that he is in a position to work effectively and procure
business for the Company, reliance is being placed on annexure P.6. This is dated 10h Oct '94. This is referred to in para 12 of the petition. The
stand of the Company to this para is brief and simple. This is to the effect that ""para 12 is admitted.
The relevant paragraph of the Scheme under which power has been exercised with a view to bring an end to the service tenure of the petitioner
be noticed. This reads as under :
If the Development Officer continues to be beyond stipulated cost limits even after bringing down his basic pay to the minimum of the scale of
Development Officer Grade II and providing him an opportunity of one year under subparagraph (5) his services shall be terminated by an officer
not below the rank of Assistant General Manager, after giving him a notice of 30 days. Provided that service of no Development Officer shall be
terminated unless he is given an opportunity of appeal to the appeals committee constituted for the purpose under subparagraph (7) within the
period of 30 days from the date of serving a notice of termination and unless the said appeals committee considers the said appeal and confirms
that the services of the concerned Development Officer are liable for termination.
Provided further that the services of the concerned Development Officer shall not be terminated if the appeals committee after considering the
appeal decides that certain relief should be provided to him.
Another paragraph which is of relevance is paragraph (8). This is also being reproduced below :
8: Any Development Officer whose services are liable to be terminated under this paragraph may, on his specific request, be appointed as clerical
staff on such terms as may be decided by the Chairman of the Corporation if he is eligible and considered suitable and subject to the condition that
(i) he is at least 45 years of age but has not completed 55 years of age and has put in at least 15 years service as Development officer; or (ii) there
are ground of individual extenuating circumstances such as illness, injury or disablement.
A perusal of the above paragraphs 6 and 8 of the Scheme referred to above would indicate:
i/ That a notice of 30 days has to be served on the concerned officer. This notice was served on the petitioner on 22nd May '96
ii/ That the concerned officer has to be given an opportunity of filing an appeal. The petitioner preferred this appeal on 11th June '96;
iii/ That the appeal has to be decided by the Appeal Committee. This as per the respondent Company was decided by the Appeal Committee and
the Committee found no reason to not to act and exercise power in terms of paragraph 6;
iv/ That the Committee further found no reason to exercise power under section 8. This was because the petitioner's age was less than 45 years
and he not completed 15 years of service.
The decision of the Appeal Committee has, however, not been made available to the petitioner. All that has been conveyed to him is that his
appeal stands rejected. This communication was sent to the petitioner by the Assistant General Manager. The petitioner submitted a specific
application on 16th Oct '96 for supplying him with the copy of order passed by the Appeal Committee. The requisite averments have been made in
Paragraph 16(C) of the petition. Nothing has been said by the company as to whether this copy of order passed by the appeal Committee is to be
supplied to the petitioner or not. This decision has also not been placed on the record.
After having gone through the pleadings of the parties, I am of the opinion that the communication dated 9th Aug '96 indicating that the appeal of
the petitioner has been rejected cannot be sustained. The reasons for this are given below :
The basic reason which has led to the order of termination being passed is that the petitioner was not generating business which as per the
respondent Company should have been cost effective. For this, as indicated above, the facts and figures have been given in para 13 of the reply.
The premium procured by the petitioner and one Amandeep Kotwal was compared. In this regard, it would be apt to notice that there were two
Development Officers in the area. What was required to be taken note of by the Company was to see as to whether there is need for retention of
two Development Officers in the area. This was an administrative decision to be taken by the Company.
The petitioner had again brought to the notice of the Company that the said area is militant prone. When the petitioner ventured into expanding
his area of operation in the rural areas, he was specifically told on 19th May '94 that he should not accept the premium outside the town. Such
were not the terms and conditions of his employment. If his area of operation was to be restricted in the manner indicated in the letter dt. 19th May
'94, then there should have a corresponding reduction in the procurement of business which he was supposed to get for the Company. On the one
hand, the company is taking a view that the business which is being procured by the petitioner is less and on the other hand, the petitioner has been
called upon to not to accept cover notes outside the urban areas. The Oriential Insurance company and for that matter, all Companies dealing in
such business are supposed to cover risks. It is only the rate of premium which differs. Wherever risk is higher, the rate of premium goes up.
Calling upon the petitioner to restrict his business and then taking a punitive action against him is a matter which does and can not go side by side.
If for their own instructions, the petitioner was called upon to restrict his business, then the fault for lesser procurement cannot be laid on the
petitioner.
There is another aspect of the matter. The petitioner had made a request for transfer. This aspect of the matter has been admitted by the
respondent/Company. This prayer of his was neither accepted nor rejected. He had given good reasons; he had stated that he would not be able
to procure much more business in the said area on account of the militancy. He had further stated that in case he is transferred out from that area,
he would be able to generate more business. This prayer of his, as indicated above, was not considered.
The above are the matters which have been taken note of with a view to indicate that the respondent Company did not examine the case of the
petitioner in true perspective. No doubt, these are administrative matters but then if these administrative matters lead to a prejudicial effect on the
rights of a citizen, then these can always be taken note of by this Court.
Independently of the above, the decision taken by the Appeal Committee is not that type of a decision which is taken by the Appellate
Authority. It was, as a matter of fact, a decision taken at the first instance, though termed as a decision of the Appeal Committee. The pleas put
forward by the petitioner are contained in communication dt. 11th June '96. He had specifically stated that the business has gone down on account
of militancy. In para 4 of this communication, it was stated ""that despite handicap, I have procured a premium of Rs. 71120 during the financial
year 199596 against Rs. 16506 during the financial year 199495."" In para 6 of this communication he has stated that he would make further
improvements. The question as to whether the above aspect of the matter was considered by the respondent Company or not is not apparent.
Therefore, the order in question which is bereft of reasoning and which does take into consideration the point of view put across by the petitioner
can be set aside on the ground that this is a nonspeaking order. Again, the plea of the petitioner that he be adjusted in the Clerical wing has been
declined on the ground that he is less than 45 years of age and has not rendered 15 years service as Development Officer. It appears that the
Appeal Committee acted technically. It did not take notice of the condition stipulated at serial (ii) of paragraph (8). This is to the effect that ""there
are grounds of individual extenuating circumstances such as illness, injury or disablement."" RespondentCompany was supposed to take notice of
the extenuating circumstances. No doubt, this makes mention of illness, injury or disablement, but this would include the circumstances which have
been pointed out by the petitioner. If the petitioner was disabled on account of militancy in the year, then this was a factor which was required to
be taken note of by the respondents.
Reverting back to the question as to whether a speaking order is required to be passed or not, it would be apt to refer to the decision of
Supreme Court in the case of Bhagat Raja v. Union of India and others, AIR 1967 SC 1606. In the aforesaid case, the view expressed was that
while passing appellate order, the process of reasoning should be given so that when such a decision is examined by the higher authorities, then the
higher authorities are in a position to know as to what prevailed with that authority. If this is not done, then the superior authority is under a grave
disadvantage. It was for this reason, it was observed that the order passed by the appellate authority should be a speaking order. What was said in
paragraph 9 of the foresaid judgment is being reproduced below :
Let us now examine the question as to whether it was incumbent on the Central Government to give any reasons for its decision on review. It was
argued that the very exercise of judicial or quasi judicial powers in the case of a tribunal entailed upon it an obligation to give reasons for arriving at
a decision for or against a party. The decisions of tribunals in India are subject to the supervisory powers of the High Courts under Article 227 of
the Constitution and of appellate powers of this Court under Article 136. It goes without saying that both the High Court and this Court are placed
under a great disadvantage if no reasons are given and the revision is dismissed curtly by the use of the single word ""rejected, or, ""dismissed"". In
such a case, this Court can probably only exercise its appellate jurisdiction satisfactorily by examining the entire records of the case and after giving
a hearing come to its conclusion on the merits of the appeal. This will certainly be a very unsatisfactory method of dealing with the appeal.
Ordinarily, in a case like this, if the State Government gives sufficient reasons for accepting the application of one party and rejecting that of the
other, as it must, and the central Government adopts the reasoning of the State Government, this Court may proceed to examine whether the
reasons given are sufficient for the purpose of upholding the decision. But, when the reasons given in the order of the State Government are
scrappy or nebulous and the Central Government makes no attempt to clarify the same, this Court, in appeal may have to examine the case de
novo without anybody being the wiser for the review by the Central Government. If the State Government gives a number of reasons some of
which are good and some are not, and the Central Government merely endorses the order of the State Government without specifying those
reasons which according to it are sufficient to uphold the order of the State Government, this Court, in appeal, may find it difficult to ascertain
which are the grounds which weighed with the Central Government in upholding the order of the State Government. In such circumstances, what is
known as a ""speaking order"" is called for.
Again, the requirement to afford opportunity of hearing when cases with service jurisprudence are dealt with by an authority exercising
appellate power has been highlighted in the decision reported as AIR 1986 SC 1173, Ram Chander v. Union of India. In the above case, the view
expressed was that personal hearing should be afforded. This has apparently not happened in this case. It be further seen that the order passed by
the Appeal Committee has not been placed on record. This has not been made available to the petitioner though demanded by him. As such, the
communication, dt. 9th Aug '96 which makes mention of the fact some order has been passed by the Appeal Committee is set aside. The
petitioner shall be reinstated. He would be given proper opportunity of hearing and a fresh order would be passed by the respondent authorities in
accordance with the law. As to how the intervening period is to be treated would depend upon the decision which may be taken by the
respondentCompany.
Disposed of accordingly.