Rajendra Singh Jayas vs New India Assurance Co. Ltd. and Others

R.B. Misra, J.—On 4.4.2003 an order was passed that if no assistance is rendered by the next date of hearing on behalf of the New India Assurance Co. Ltd., then a cost of Rs. 1,000 shall be imposed each on the Chairman, New India Assurance Co., Bombay and Regional Manager, Regional Office, Delhi and a non-bailable warrant shall also be issued against the Chairman and the Regional Manager, New India Assurance Co. Ltd.

Now in reference to the aforesaid order Sri Parmatma Rai has appeared on behalf of the Respondent as a new counsel. Heard also Sri Dhruva Narayan learned Counsel for the Petitioner along with Sri Bala Krishna Narayan as well as learned Standing Counsel for the Respondent.

The brief facts are that the Petitioner was appointed as Inspector on Ist March, 1979 and was confirmed as Inspector Grade I vide letter dated 4th March, 1981 confirming him w.e.f. 30th June, 1980. The Petitioner remained suspended w.e.f. 24th August, 1982 to 20th August, 1983 on various charges as per letters dated 30th August, 1982 and 16th January, 1986 on various charges, inter alia, on late deposit of premium charge in the dates of the cover notes, demanding illegal gratification in various claims, fall in premium from Rs. 49,094 in the year 1986 against Rs. 1,46,309 in the year 1985, misbehaviour with superiors, insubordination and disobedience. The Petitioner was charge-sheeted on 26th August, 1982 and a departmental enquiry was conducted following which vide letter dated 20th August, 1983 the Petitioner was awarded punishment. The Petitioner was called by the vigilance officer in Delhi on 17/18th January, 1986 to answer the various quaries as per the questionnaire, however, the Petitioner did not submit any reply despite reminders dated 6.11.1986, 18.11.1986 and 8.1.1987. On 7th July, 1987 the Regional Manager (Competent Authority) issued a letter accompanied with statement of charges, statement of imputation of misconduct reported, list of witnesses and documents to the Petitioner. The supply of said documents/papers was in satisfaction of provisions of Rule 25 (3) of the General Insurance (Conduct, Discipline and Appeal) Rules, 1975. The main charge which were levelled against the Petitioner are abridged hereunder as (i) demanding Rs. 800 as illegal gratification from the insured one Mr. Vikram Singh with regard to settling the cattle claim and (ii) failure to furnish the required information tantamounting to insubordination and disobedience of the orders of the superiors. The Respondent No. 2 was appointed as enquiry officer by the competent authority and upon Petitioner''s request, the copy of the charge-sheet was translated in Hindi and severed upon him allowed and all along the enquiry and thereafter the reasonable opportunity was provided to the Petitioner to defend himself and his case. On 28th December, 1987, the domestic enquiry commenced and the Petitioner took the enquiry lightly and in fact on some dates during the proceedings, remained absent. The charges of demanding bribe and disobedience, etc. were duly proved and it was found by the Regional Manager that the acts of omission and commission committed by the Petitioner in breach of discipline were in fact grave misconduct which calls for major penalty thereby dismissal of the Petitioner but the disciplinary authority was considerate in exercising its discretionary powers in a reasoned manner and awarded the penalty of removal only.

The Enquiry Officer has held that the aforesaid charge has not been proved for the following reasons :

(1) The physical transaction of money did not take place.

(2) Though five witnesses were examined, the complainant, i.e., Mr. Vikram Singh could not be examined by the Presenting Officer since he had already expired.

(3) Evidence of Mr. Vikram Singh was material since he was the Insured and Complainant.

(4) Mr. Jayas was not in a position to settle the claim even if he had accepted Rs. 800 as illegal gratification.

In respect of the second charge where Mr. Jayas has disobeyed his superiors, the Enquiry Officer has held this charge proved. Though Mr. Jayas has stated that he has already submitted the replies to Mr. R.S. Bansal on 6.5.1988, he could not produce a copy of the same till the enquiry was concluded. Therefore, the disciplinary authority agreed with the Enquiry Officer for holding this charge as proved.

After examining the charges framed in the present charge-sheet in natural course, the disciplinary authority had gone to spell the award by saying that there were at earlier two occasions when he was charge-sheeted for misconducts including :

(1) Misappropriation of Rs. 1,748;

(2) Misbehaviour and fraudulent actions in the settlement of claims.

The disciplinary authority by order dated 13th June, 1991, opined that end of justice would meet if a major penalty of removal from services which shall not be a disqualification for future employment under Rule 23 (f) of the General Insurance (Conduct, Discipline and Appeal) Rules, 1975, is imposed.

The learned Counsel for the Petitioner has submitted that the disciplinary authority has deferred on the finding of the enquiry officer and has enhanced the punishment which is in derogation laid down by the Supreme Court in Punjab National Bank and Others Vs. Sh. Kunj Behari Misra, , according to which, whenever, the disciplinary authority disagrees with the enquiring authority on any article of charge, then before it records its findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the Enquiry Officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persue the disciplinary authority to accept the favourable conclusion of the Enquiry Officer. For the compliance the principles of natural justice require the authority which has to take a final decision and can impose a penalty after providing an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer.

In Yoginath D. Bagde Vs. State of Maharashtra and Another, , where the Supreme Court has clearly indicated that disciplinary authority either to agree or disagree with the Enquiry Officer''s finding. If agree, no problem, if disciplinary authority defers and does not give punishment in reference to the finding of Enquiry Officer no problem but the problem arises when disciplinary authority imposes penalty over and above the recommendation of the findings of exoneration of Investigating Officer then the opportunity of hearing is essential to be given to the delinquent officer.

According to the Respondent adequate opportunity of hearing was afforded to the Petitioner and reasons were recorded by the disciplinary authority. Learned Counsel for the Respondent Sri A. B. Saran, senior advocate has also submitted that the Petitioner has been dismissed without stigma for the charges of illegal gratification and insubordination and the Petitioner has not exhausted the statutory remedy provided under Rule 31 of the General Insurance (Conduct, Discipline and Appeal) Rules, 1975 and by not availing the alternative remedy of filing an appeal under Rule 31, the grievance of the Petitioner cannot be allowed to be entertained.

I have heard learned Counsel for the parties, I find that the disciplinary authority had considered all the charges and keeping in view the serious allegation of the charges had not agreed by the finding of the Enquiry Officer and that it was not necessary to give proper opportunity of hearing before arriving at the conclusion of dismissal. The cases referred by the learned Counsel for the Petitioner are applicable in the present facts and circumstances of the case.

In view of the above observation and in view of observation in Kunj Behari Misra (supra), the order dated 13th June, 1991, cannot be legally sustainable, therefore, it is set aside. However, keeping in view the seriousness of the charges and the conduct of the Petitioner, the disciplinary authority shall provide an opportunity to the Petitioner in respect of the finding on the first charge of the Enquiry Officer and shall pass an appropriate order expeditiously.

Till the decision of the disciplinary authority passed afresh, the Petitioner shall not be entitled to be reinstated by the disciplinary authority. In order to arrive at a final conclusion, keeping in view the finding of the Enquiry Officer, the Petitioner is expected to give full cooperation to the disciplinary authority so that the disciplinary authority may take the decision expeditiously.

In view of the above, the writ petition is disposed of.