w w w . L a w y e r S e r v i c e s . i n

M.U. Sivasundaram v/s M/s. United India Insurance Company Ltd, Registered & Head Office

Company & Directors' Information:- UNITED INDIA INSURANCE COMPANY LIMITED [Active] CIN = U93090TN1938GOI000108

Company & Directors' Information:- J B UNITED PRIVATE LIMITED [Active] CIN = U93000MH2014PTC258844

Company & Directors' Information:- J B UNITED PRIVATE LIMITED [Active] CIN = U74999MH2014PTC258844

Company & Directors' Information:- UNITED CORPORATION LIMITED [Liquidated] CIN = U99999TN1942PLC003159

    WP(C). No. 4850 of 2011(E)

    Decided On, 28 February 2020

    At, High Court of Kerala


    For the Applicant: N.T. Sasi, T. Madhu, C.R. Saradamani, Advocates. For the Respondent: P.K. Manojkumar, Advocate, P. Vijayakumar, ASG of India.

Judgment Text

1. The petitioner who was working as Senior Assistant under the respondents is aggrieved by the punishment of removal and the rejection of his appeal.2. The petitioner commenced his service as Assistant (Typist) on 13.11.1985 under the Deputy General Manager, United India Insurance Company Ltd. Thereafter on promotion while he was continuing as Senior Assistant, he was placed under suspension as per Ext.P1 order dated 23.02.2006, in contemplation of disciplinary proceedings. Ext.P2 memo of charges was issued on 06.04.2006 with 7 articles of charges, out of which Article of charge no 7 contained 6 items. Article of charge no. 1 was that while he was working at Divisional Office at Kochi during the period January 2002-2006 he diverted direct business of the company in respect of 533 policies to different agents by fraudulently modifying the agency module and thereafter demanded and obtained the agency commission from the concerned agents and misappropriated an amount of Rs.91,837.19. Second article of charge was that in July,2005 he manipulated accounting records of D.O fraudulently incorporating the name of 'K.K.Velu' who is unrelated to the transaction, on D.D requisition instead of 'New India Insurance Company' in respect of share of co-insurance premium, payable to New India Insurance Co. Ltd., relating to policy issued by B.O Tripunithura, Kochi and misappropriated a sum of Rs.3,47,000/-. The third, fourth and fifth charges related to misappropriation of Rs.3,25,651/-, Rs.39,580/- and Rs.35,000/- respectively by generating duplicate disbursement vouchers showing different names of receivers manipulating the records. The 6th charge related to misappropriation of a sum of Rs . 1,36,772/- from cash collection while he was working as Cashier from 28.7.2004 to 8.10.2004. Article 7 related to manipulation of records and misappropriation of various amounts during the period from January, 2003 to January, 2006 manipulating his net salary/salary statements for the respective months and inflating his net salary. It is stated that he was asked to submit his defence statement within 6 days. He submitted Ext.P3 representation requesting for extension of time and for permission to peruse the documents referred to in the memorandum in support of the charges in order to submit an effective representation. Thereafter he submitted Ext.P5 defence statement. By Ext.P6 representation he requested for permission to avail the services of a lawyer to defend himself. He also requested to furnish copies of documents and items of evidence proposed to be relied on in the inquiry. By Ext.P8 representation he again requested for permission to take the assistance of a lawyer and to grant him time for perusal of the documents requesting to postpone the inquiry.3. The inquiry was conducted and the Inquiry Officer furnished a report finding the petitioner guilty of the charges; even though a copy of the inquiry report was submitted and the petitioner submitted a representation against the findings, the disciplinary authority issued a show cause notice proposing punishment of removal; the petitioner submitted Ext.P21 reply stating that the inquiry report itself is unsustainable; thereafter Ext.P22 order was issued removing the petitioner from service which shall not be a disqualification for future employment and ordered recovery of a sum of Rs.14,76,383.97 being the amount misappropriated by him. Even though the petitioner filed Ext.P23 appeal it was rejected as per Ext.P24 order.4. The writ petition is filed alleging that the inquiry is vitiated since (i) his application for permitting a legal practitioner as defence assistant was rejected when a highly experienced and qualified person was appointed as the presenting officer and (ii) several unlisted witnesses were examined and unlisted documents were marked in the inquiry.5. It is stated that confession statement of the petitioner before the Vigilance Officer was marked in the inquiry; Copy of the unlisted documents was submitted on the date of hearing only as per Ext.P7; inquiry was conducted day to day; witnesses were not examined in the order in which they were shown in the witness list; witness No. 12 in the witness list was examined as MW2 ; witness No.15 in the list was examined as MW5. New witnesses M/s. O.K.Sasi, P.P.Mohanan etc. were introduced without notice and they were allowed to leave the venue of the inquiry without even affixing the signature in the inquiry proceedings; Enquiry Officer compelled the petitioner to answer the questions as desired by him. Even though the petitioner submitted a representation Ext.P9 requesting to delete the answers given by him under stress and compulsion of the Inquiry Officer, which contained admission of guilt, the same was not allowed; Inquiry Officer was not at all impartial and the petitioner was not permitted to cross examine MW5 Velu and the questions put to him were not permitted by the Inquiry Officer in the 6th sitting held on 2.11.2006. It is stated that he submitted Exts.P10 and P11 representations as against the inquiry Officer and the disciplinary authority. It is stated that by Ext.P12 letter his request was rejected by the 3rd respondent. The petitioner also pointed out the gap between 10th sitting on 22.12.2006 and 11th sitting on 11.04.2007 which was followed by the next sitting held on 26.07.2007, which caused further delay in completing the proceedings. It is his further case that one Smt. Smitha Krishnakumar, an agent of the respondent company, while attending the 14th sitting was permitted by the Inquiry Officer to call her husband who is an employee of the Corporation, to the venue of the inquiry and was permitted to sit with her husband throughout the chief examination and cross examination thereby permitting them to discuss before answering the questions put to her. The contention is that the said witness answered the questions with the assistance of her husband who himself was witness No. 8 in Annexure 4 of Ext. P2 and was examined as MW11. It is stated that since the petitioner was unable to cross examine Smt. Smitha Krishnakumar effectively, he submitted Ext.P13 representation to the Inquiry Officer to recall her to enable him to cross examine her. Further allegation is that petitioner was denied a copy of the investigation report of the Vigilance Officer, before he was examined in the 16th sitting and the petitioner had to cross examine the said Madhavan without going through the investigation report. It is also his case that the Inquiry Officer did not permit him to examine his defence witnesses stating that those witnesses were irrelevant. It is also stated that the Inquiry Officer did not record the questions put to the Vigilance Officer during the cross examination. It is stated that even though he submitted Ext.P15 representation, requesting to allow him to examine his witness, the Inquiry Officer did not summon the witness though he was readily available. It is also his complaint that he was not given sufficient time to submit written brief despite his request. At the same time he gave the presenting officer 89 days' time; whereas the petitioner was given only 10 days after receipt of the said written brief despite his application for extension.6. The 3rd respondent has filed a statement stating that the Inspector of Police, CBI, SPE Cochin registered acrime against the petitioner and in the detailed investigation conducted by CBI in Divisional Office Ernakulam in the year 2005, it was revealed that huge amounts of public funds had been misappropriated from that office and crime was registered under section 13(2) read with 13(1) (c) and (d) of Prevention of Corruption Act, 1988. The petitioner was working in the Divisional Office during the relevant period from 2002 to 2005. The Vigilance Officer Sri.T.P.Madhavan was thereupon authorised to conduct Vigilance Investigation. It is also stated that the 4th respondent was also charge sheeted by the Vigilance Department and was found guilty. It is stated that the petitioner had submitted written admissions of guilt before the Vigilance Officer and Vigilance Officer had submitted report before the Vigilance Department of the Company. It is further pointed out that the petitioner was given copies of the documents in accordance with the provisions contained in General Insurance (Conduct Disciplinary and Appeal) Rules 1975. It is further stated that as per rule 25(6) of the Rules 1975 assistance of legal practitioner as defence assistant is not permitted. The petitioner's request for the defence assistance through a legal practitioner was rejected in accordance with rule 25(6). Itis further stated that all the documents were marked in the enquiry in the presence of petitioner only and the petitioner had already inspected the documents. According to them there was no coercion on the petitioner in giving evidence. It is their further case that the petitioner did not raise any objection during the course of examination of Smt.Rajalakshmi. According to the respondents enquiry was conducted giving every opportunity to the petitioner to defend and the enquiry officer had given due weight to petitioner's objections. Respondents have also produced Ext.R3(A) reply given to petitioner with respect to the allegations raised by him against the enquiry officer. In this letter dated 24.01.2008 it was stated that petitioner did not raise any allegation against non recording of his questions during the course of the enquiry and that he had already signed the daily order sheet without any protest. It was stated that petitioner has also not raised any allegation of bias as against the enquiry officer during the course or before the enquiry and no particulars were furnished to substantiate his view. With respect to the allegation of the petitioner that he was put under pressure to sign the proceedings, it was stated that he signed the order sheet without stating any protest. With respect to his allegation that the questions put by him in the cross examination Sri.T.P.Madhavan, Vigilance Officer were not recorded, it was stated that all the questions which he claimed that enquiry officer did not record, were allowed to be put in the enquiry when his answers were already recorded in the daily order sheet stating that the petitioner was given a reasonable opportunity to prove his innocence. The Disciplinary Authority informed him that allegations were baseless and requested the petitioner to attend enquiry. It is stated that the request of petitioner to summon One Balakrishnan Nair was rejected as there was no relevance. It is stated that the General Insurance (Conduct Discipline and Appeal) Rules specifically provides that only those witnesses who are relevant to the issue need be examined in a departmental inquiry. Respondents have also produced Ext.R3B enquiry report pointing out that all the charges against him were found proved after assessing evidence. It is stated that rules do not mandate to give copy of written brief of the presenting officer to the delinquent; despite this petitioner was given sufficient time to submit the same from 30.11.2007 onwards and since petitioner failed to submit the written brief even thereafter, enquiry officer submitted his report.7. From Ext.P22 order it is seen that disciplinary authority has passed the final order after examining the evidence adduced in the enquiry and also after considering the representation submitted by the petitioner against the findings of the enquiry report. In Ext.P22 disciplinary authority stated that the petitioner was not the only officer against whom proceedings were initiated. The disciplinary authority on the basis of the evidence found that the petitioner has misrepresented the facts to superiors and got their signatures on the vouchers. With respect to the contention of the petitioner that he was not permitted to examine his witness Sri.Balakrishnan, it was found that there was no relevance for examination of the said witness. It was also found that though the petitioner was given opportunity to cross examine the witnesses MW3 and MW5, he failed to do so and only asked some general questions, unrelated to the charge levelled against him. On the basis of the evidence adduced, the disciplinary authority found that charges relating to misappropriation were found proved after the petitioner was given adequate opportunity to defend and there were materials to show that the petitioner had manipulated the records and misappropriated the funds fraudulently, which were very grave in nature. Punishment of removal from service awarded would not be disqualification for future employment in accordance with rule 23(g) of GI(CDA) Rules 1975 and ordered to recover the misappropriated amount of Rs.14,76,383.97 in accordance with Rule 23(c) of the GI(CDA) Rules 1975. Simultaneously it was ordered that the period during which he was kept under suspension would be treated as period not spent on duty.8. In the appeal Ext.P23 the petitioner has submitted that he was made a scapegoat for the misdeeds of his superiors and that being an ordinary clerk in the establishment with no authority to pass vouchers, sign cheques or deal in cash he has not manipulated the accounts. He stated that he had generated the vouchers and prepared cheques under the instruction of the superior officers and all those cheques and vouchers were scrutinised, verified and passed by the superior officers. His contention was that it was not possible for a clerk to misappropriate lacks of rupees, as alleged, by himself without the assistance of superior officers. He also stated that the officers including the Vigilance Officer have not bothered to conduct a proper inquiry into the irregularities detected or to ascertain the truth and they were all interested only in obtaining confessions from the appellant so that the entire blame could be heaped on him. He claimed that he had not put his signature in the confession statement. But the enquiry officer did not care to note that, as the intention was to hold him guilty. It was also stated that he has not paid subsistence allowance. He alleged that the findings are vitiated by mala fides and extraneous considerations. It was also his contention that the interested testimonies of the management witnesses were not worth of any credence and that the enquiry officer failed to examine the veracity of the documents.9. The appellate authority has considered the contentions described by him in the appeal and it was found that the findings of the disciplinary authority were on the basis of the evidence after the charges were found proved. It is after considering each of the contentions, appellate authority arrived at the conclusion that enquiry was conducted observing the prescribed procedure and conclusions were arrived at in a well reasoned manner. It was found that the penalty imposed by the disciplinary authority was commensurate with the gravity of misconduct committed by the appellant.10. Heard the learned counsel on both sides. The main contention of the learned counsel for the petitioner was that the misconduct alleged against the petitioner cannot be committed by one person alone especially in the rank of a Clerk and that superior officers are let off in the proceedings. However what is relevant to be determined in this writ petition is whether the orders impugned are liable to be interfered with. It is settled law that judicial review over orders in departmental enquiry are very limited. First of all it is necessary to examine whether there is any procedural violation.11. The contention of the petitioner is that he was denied permission to engage a legal practitioner as defence assistant. Yet another contention is that the enquiry Officer did not summon the defence witness, which according to the respondents, was not found relevant. In this context it is necessary to have a look at the provisions contained in Rule 25 of the General Insurance (Conduct, Discipline and Appeal) Rules, 1975 which provides for the procedure for imposing major penalties. Sub rule (6) of Rule 25 provides that an employee may take assistance of any other employee but may not engage a legal practitioner for the purpose. Therefore, the petitioner's complaint that he was not allowed to engage a legal practitioner is unsustainable. The denial of permission to engage legal practitioner was therefore in accordance with sub rule (6) of Rule 25.12. Similarly his request for summoning and examining the witnesses are seen rejected in the light of the note to rule 25(8), according to which the witnesses cited by him need be examined only if the inquiring authority is satisfied about their relevance to the charges under inquiry. The petitioner has also not stated that what purpose for which the witness mentioned by him was sought to be examined. Under the Note to Sub-rule 8 of Rule 25 the authority to determine the relevance of the witness and the requirement to examine a witness are on the enquiry officer and it is up to his satisfaction over the relevance of witness with respect to the charges under enquiry. As long as such a provision is there it cannot be said that the inquiry officer has to permit any witness pointed out by him.13. Another contention is that petitioner was not given sufficient time to submit written brief submission governed by sub rule 16 of Rule 25, which provides that after completion of production of evidence, employee and presenting officer may file written briefs of the irrespective case within 15 days of completion of production of evidence. Therefore rules do not provide that the delinquent employee should be given a copy of the written brief filed by the Presenting officer or that time should be given to the delinquent after the Presenting Officer submitted his written brief.14. Regarding the contention that his petition for recalling the witness was not allowed, it is seen that such a request was made on the ground that he could not effectively cross examine her since he became nervous. That cannot be a reason for recalling a witness. It is not a case where the petitioner was denied an opportunity to cross examine the witnesses. The enquiry officer cannot be compelled to recall witnesses as and when the delinquent employee requests. The petitioner has not raised any ground as to want of legal evidence or that the punishment was awarded when the enquiry could not bring about any evidence against the petitioner. Therefore it cannot be said that there had been any violation of procedural formalities.15. Further contention raised by the learned counsel for the petitioner at the time of argument was that the respondents ought to have waited for the decision of the CBI court. However no such contention is raised in the Writ Petition.16. Even otherwise it is settled law that the intent and purpose behind the criminal proceedings and departmental proceedings are distinct and different. The petitioner does not have a case that the charges alleged against him under the departmental enquiry and the offences for which he is being tried in the criminal court are one and the same.17. It is settled law that judicial review of disciplinary proceedings shall be very limited and it can be only in cases where there is no evidence, where there is procedural irregularity or when there is no jurisdiction. No such case arise in this case.18. Learned counsel for the respondents relied on the judgment of the apex court in Keshav H. Gholve and another vs. Thermax Limited and others, (2017) 13 SCC 741 in support of his contention that when the management does not engage a legal practitioner, employee cannot be granted permission to to be represented by a legal practitioner. Judgments in Allahabad bank and others vs. Krishana narayan Tewari, (2017) 2 SCC 308, Cm Praksh Mann vs. Director of Education (BASIC) and others, (2006) 7 SCC 558, Maya Devi K.S. vs. Deputy General Manager, SBT, Zonal Office, Ekm, 2017 (5) KHC 588, Mihir Kumar Hazara Choudhury vs. Life Insurance Corporation and another, (2017) 9 SCC 404, State Bank of Patiala and others vs. S.K. Sharma : (1996) 3 SCC 364 as well as Rosily L. vs. Manager, Fathima Matha National College and others : 2018 (4) KHC 371 (DB) were also relied on.19. It is seen that the punishment of removal is ordered after a full fledged enquiry in which the petitioner participated and was given sufficient opportunity to defend his case. It is on the basis of the evidence arising in the case that he was found to be guilty in the charges. Even though the petitioner claimed that involvement of others would also be there, on that ground alone petitioner cannot be let free.20. The apex court has in Union of India vs. V P. Gunasekharan, (2015) 2 SCC 610, after analysing various judgments on judicial review over departmental action, held as follows:"Under Articles 226/227 of the Constitution of India, th

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e High Court shall not:(i) reappreciate the evidence;(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;(iii) go into the adequacy of the evidence;(iv) go into the reliability of the evidence;(v) interfere, if there be some legal evidence on which findings can be based.(vi) correct the error of fact however grave it may appear to be;(vii) go into the proportionality of punishment unless it shocks its conscience.21. In this case findings are with respect to financial misconduct. When there is some evidence connecting the petitioner it cannot be said that in the light of the findings arrived at by the enquiry officer which are accepted by the disciplinary authority as well as the appellate authority warrants interference by this court.22. It is also relevant to note the observations of the apex court in the judgment in Mihir Kumar Hazara Choudhury's case (supra) while considering a similar issue. In para.26 of the judgment the apex court held as follows:16. An employee in discharging of his duties is required to exercise higher standard of honesty and integrity. In a case where he deals with the money of the depositors and customers, it is all the more necessary for him to be more cautious in his duties because he deals with the money transactions for and on behalf of his employer. Every such employee/officer is, therefore, required to take all possibles steps to protect the interest of his employer. He must, therefore, discharge his duties with utmost sense of integrity, honesty, devotion and diligence and must ensure that he does nothing, which is unbecoming of an employee/officer. Indeed, good conduct and discipline are inseparable from the functioning of every employee/officer of any institution and more when the institution delas with money of the customers. Any dereliction in discharge of duties whether by way of negligence or with deliberate intention or with casualness constitutes misconduct on the part of such employee/officer.The charges found proved against the petitioner relates to commission of grave financial misconduct. In the light of the aforesaid judgment also the punishment awarded in Ext.P22 or the appellate order Ext.P24 are not liable to be interfered with by this Court.Accordingly, the Writ Petition is dismissed.