S.Kannan v. United India Insurance Company Ltd.

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03.08.2009CORAM:THE HONOURABLE MR. JUSTICE K.N.BASHAW.P.No.19291 of 2004 S.Kannan.. PetitionerVs.1. United India Insurance Company Ltd., No.24, Whites Road, Chennai – 600 014, represented by its Chairman-cum-Managing Director2. The Assistant General Manager, Head Office, United India Insurance Company Ltd., Chennai – 600 014.3. The Regional Manager, United India Insurance Company Ltd., Regional Office, No.364-367, Dr.Nanjappan Road, Coimbatore – 641 018.... RespondentsPRAYER: Writ petition filed under Article 226 of the Constitution ofIndia to issue a Writ of Certiorarified Mandamus calling for therecords relating to (1) Order in CBE/RO/RM/SECT.742/2003 dated11.07.2003 of the third respondent and (2) Ref.No.2001-45/12/2004dated 19.02.2004 of the second respondent, quash the said orders andissue consequential directions to reinstate the petitioner in servicewith consequential service and monetary benefits. For Petitioner : Mr.C.Jaya PrakashFor Respondents :Ms.R.Revathi O R D E RThe challenge in this petition is to the order passed by thethird respondent dated 11.07.2003 in CBE/RO/RM/SECT.742/2003 removingthe petitioner from service and as confirmed by the appellateauthority, the second respondent herein by order dated 19.02.2004 inRef.No.2001-45/12/2004 with prayer for a consequential relief of adirection to the respondents to reinstate the petitioner in servicewith attendant monetary benefits. https://hcservices.ecourts.gov.in/hcservices/

2. The factual matrix leading to the filing of this writpetition could be briefed hereunder :2.1. The petitioner joined the first respondent insurancecompany limited as a Development Officer on 27.04.1987 and his postwas confirmed with effect from 01.05.1998. The petitioner statedthat he is having unblemished record of service and his service andperformance as Development Officer was appreciated by the SeniorDivisional Manager, Coimbatore, by his letters dated 23.05.1995,28.11.1995 and 19.07.1996. By another letter dated 29.07.1999, theRegional Manager has appreciated the performance of the petitioner onthe Market Front for having registered a growth rate of 57.58 %.That being the position, the third respondent herein initiatedproceedings by his memorandum dated 23.08.2001 under Rule 25 of theGeneral Insurance (Conduct Disciplinary and Appeal) Rules, 1975(hereinafter referred to as "the rules").The following charge wasframed against the petitioner :"Shri.S.Kannan, whilst working as DevelopmentOfficer in Branch Office V, Coimbatore, during 1995,issued Cover Note No.186621 on 15.05.1995 CoveringVehicle No.TN-37-Z-2599 belonging M/s.Velu TransportService, marking the date of issue of the Cover Note as13.05.1995 and period of insurance as 13.05.1995 to12.05.1996. The Cover was ante-dated with a view tobring into Cover the occurrence of accident to the aboveVehicle on 15.05.1995 at 09.25 A.M. involving death of athird party person. Shri.S.Kannan had ante-dated theinsurance with a view to confer undue pecuniary benefitto the insured. Thus Shri.S.Kannan failed to maintainabsolute integrity and devotion to duty acted in a mannerunbecoming of a public servant and committed misconductwithin the meaning of Rule 391) (I), (II) and (III) readwith Rule 4(1) 4(5) and 4(9) of General Insurance(General Discipline and Appeal) Rules". 2.2. The petitioner submitted his explanation to the above saidcharge dated 01.10.2001 stating that only on the instructions of theSenior Branch Manager, he had issued the above Cover Note to M/s.VeluBus Transports to cover their vehicle bearing No.TN-37-Z-2599 for theperiod from 13.05.1995 to 12.05.1996 and the proposal had been filledin by the then Senior Branch Manager and initialed on 13.05.1995 at10.30 a.m. itself as a mark of acceptance of the business on13.05.1995 itself and the policy was also issued for the same period,i.e., from 13.05.1995 to 12.05.1996 signed by the Senior BranchManager. The petitioner further stated in the explanation that asper the normal practice prevailing in the office, the cover note willbe taken with the permission of the Senior Branch Manager and entrieswill be made on subsequent working day and 13.05.1995, being aholiday, the cover note was issued by the then Senior Branch Managerwithout making entries in the Cover Note Register as the saidregister was kept locked by the record clerk. As 15.05.1995 beingthe next working day, the Cover Note was signed by the petitioner https://hcservices.ecourts.gov.in/hcservices/ herein. The petitioner further stated in the explanation that thecover note dated 13.05.1995 was issued by the petitioner as per theinstructions of the then Senior Branch Manager purely in the interestof the Company without any motive. Therefore, it is submitted by thepetitioner that the charge framed against the petitioner wasbaseless.2.3. An Enquiry Officer was appointed to inquire into the chargeand submitted his enquiry report dated 13.03.2003 holding that thecharge framed against the petitioner had been proved. The thirdrespondent by his letter dated 28.04.2003 inLr.No.CBI/RO/RM/Sect./682/03 forwarded a copy of the enquiry reportto the petitioner for submitting further representation on theenquiry report. The petitioner submitted his further representationdated 21.05.2003 reiterating the earlier explanation and furtherpointed out that the enquiry was not conducted in a fair manner. Thefinal orders were passed on 11.07.2003 by the third respondentimposing the penalty of "Removal from Service" which shall not be adisqualification for the petitioner's future employment.2.4. Against the said order, the petitioner preferred an appealbefore the second respondent and his appeal was also rejected by thesecond respondent by order dated 19.02.2004. The petitioner furthersubmitted a detailed memorandum to the first respondent on 25.05.2004and the same is pending till the date of filing this writ petitionbefore this Court. The petitioner being aggrieved against such orderspreferred the present writ petition.3.1. Mr.A.Sasidaran, learned counsel for the petitionercontended that there is absolutely not an iota of evidence availableon record to substantiate the charge framed against the petitionerherein. It is contended that the petitioner only acted as per theinstructions of the then Senior Branch Manager and issued the CoverNote on 13.05.1995 itself by obeying such instructions given by hishigher official. It is contended that if really, the petitionerdeliberately ante-dated the cover, he could not have acknowledged theCover Note book mentioning the date as 15.05.1995. The learnedcounsel would further submit that the findings of the Enquiry Officerthat the cover note was only received on 15.05.1995 and not on13.05.1995 is not based on any material available on record but onlyon mere presumption. It is further contended that the vehicleinvolved in the alleged accident on 15.05.1995 is covered by covernote No.186622 bearing registration No.TN-37-Z-2599 whereas in thecharge issued against the petitioner, the cover number is mentionedas 186621 and as such the charge itself is defective and the entireproceedings is vitiated. The learned counsel would contend that thecharge was framed on the basis of irrelevant materials and documents.3.2. The learned counsel without prejudice to his earliercontentions further submitted that in a similar matter of anti-datingof cover, the concerned delinquent officer was imposed with thepenalty of "Reduction in Basic Pay by One Step" in the time scaleapplicable to him as per Rule 23 (d) of the rules and as such the https://hcservices.ecourts.gov.in/hcservices/ penalty imposed against the petitioner is disproportionate to themisconduct alleged against him.4. Per contra, learned counsel for the respondents contendedthat there is no infirmity or illegality in the impugned orders. Thelearned counsel would contend that though there are discrepancies andvariations in respect of the cover note numbers, the enquiry officerconsidered those aspects in the light of the other materialsavailable on record. It is further contended that both the saiddocuments, namely, cover notes bearing Nos.186622 and 186621 areforms part of the records of the respondents herein and during thepreliminary enquiry the same was also acknowledged by the petitionerherein. The learned counsel would further contend that thepetitioner has not given any probable explanation for the chargeframed against him and as such the enquiry officer in his enquiryreport rejected his explanation and found the charge framed againstthe petitioner is proved. It is contended that the appellateauthority also rightly confirmed the original order of thedisciplinary authority imposing the penalty of "Removal from Service"which shall not be a disqualification for the petitioner's futureemployment. The learned counsel would contend that there is noground made out by the petitioner warranting the interference in theimpugned orders.5. I have carefully considered the rival contentions put forwardby either side and also perused the entire materials available onrecord including the impugned orders passed by the respondentsherein dated 11.07.2003 and 19.02.2004 by the third and secondrespondents respectively.6. A perusal of the materials available on record discloses thatthe petitioner was working as a Development Officer in the firstrespondent insurance Corporation. The fact remains that thepetitioner joined service of the first respondent on 27.04.1987. Thethird respondent initiated disciplinary proceedings under Rule 25 ofthe rules and framed the charge as stated above. The crux of theallegation levelled against the petitioner is to the effect that thepetitioner anti-dated the cover with a view to bring into cover theoccurrence of accident to the vehicle bearing Registration No.TN-37-Z-2599 involved on 15.05.1995 at 9.25 a.m. with a view to conferundue pecuniary benefit to the insured. Though there are certainvariations and discrepancies in respect of the charge moreparticularly in respect of the cover note number to the effect thatin the charge, the cover note number is mentioned No.186621, whereas,the vehicle involved in the alleged accident on 15.05.1995 is coveredby cover note No.186622, the charge against the petitioner cannot bethrown out as baseless. A perusal of the impugned order reveals thatthe disciplinary authority, the third respondent herein, stated inhis order dated 11.07.2003 that such variation in cover number hasnot caused any prejudice to the defence of the delinquent officer andby such variation, the essence of the charge of anti-dating of covernote not resulted in material alteration. As pointed out by thedisciplinary authority in the impugned order, it is seen that both https://hcservices.ecourts.gov.in/hcservices/ the said cover notes formed part of the same cover note book that wasissued on 15.05.1995 and the same was produced during enquiry andacknowledged by the petitioner, the delinquent officer. Theappellate authority,the second respondent herein also had givencategorical reasons for confirming the order passed by thedisciplinary authority dated 11.07.2003 in his order dated09.02.2004. This Court is of the considered view that the reasonsassigned in the impugned orders for holding that the charges areproved against the delinquent officer, the petitioner herein, cannotbe stated to be contrary to the materials available on record orperverse warranting the interference of this Court.7. Now this Court is left with the remaining question "whetherthe punishment of removal from service imposed on the writ petitioneris disproportionate to the delinquency committed by him ?"8. Before proceeding to consider the above said question inrespect of interfering with the punishment imposed on the petitioner,it is relevant to refer the settled principle of law regarding theinterference in the punishment imposed on the delinquent officer.9. The Hon'ble Apex Court in U.P. State Road TransportCorporation V. Mahesh Kumar Mishra reported in AIR 2000 SC 1151 hasheld as follows :"It is not, that the High Court can, in nocircumstances, interfere with the quantum of punishmentimposed upon a delinquent employee after disciplinaryproceedings. Not only Supreme Court but also the HighCourt can interfere with the punishment inflicted uponthe delinquent employee if, that penalty, shocks theconscience of the Court." 10. The Division Bench of the Kerala High Court in State Bank ofIndia & others V. T.J.Paul reported in 1998 (2) LLJ 923 (Kerala) hasheld as hereunder:"High Court in exercise of its discretionary powerscan interfere with the quantum of punishment where thepunishment is not only disproportionate to the provedcharges but also harsh and excessive and the Court canimpose appropriate punishment in exceptionally rare casesto shorten the life of litigation."11. Yet another Division Bench of this Court in T.Arumai SounderRajan V. State of T.N. reported in 2009 (1) MLJ 1283 took a similarview.12. The Division Bench of this Court in P.Sekar, S/o.Ponnan V.The Registrar, Tamil Nadu Administrative Tribunal and 2 othersreported in 2008 Writ L.R. 902 interfered with the punishment andmodified the same as hereunder : https://hcservices.ecourts.gov.in/hcservices/ "8. Keeping in view the fact that there is no findingnor any material to indicate that the petitioner hadknowingly submitted a false mark sheet and such questionwould be ultimately decided in the pending criminal caseand taking into consideration the social strata from whichthe petitioner comes, we feel in the interest of justicethat punishment of termination of service is required to bemodified and instead we direct that the petitioner shall bereverted to the post of Flock Man and shall not beconsidered for promotion to any other post. As aconsequence of such order, it is further directed that theperiod during which the petitioner has not worked, shallnot be counted for any purpose." 13. By keeping the above said principle of law laid down by theHon'ble Apex Court as well as this Court in mind, let me knowconsider the circumstances warranting the interference of this Courtin the punishment imposed on the petitioner herein.14. The materials placed before this Court discloses thefollowing circumstances :(i) The petitioner was having unblemished record of serviceright from 1987 till the charge in this matter framed against thepetitioner ;(ii) The Senior Divisional Manager in his letter dated23.05.1995 have given compliment to the petitioner as herein :"On verification of the concluded business performanceof our Division, I am glad to inform you that you haveprocured a premium of Rs.23.10 lakhs as against lastyear's income of Rs.19.27 lakhs showing a growth rate of20%. Indeed it is a splendid performance when compared tothe base premium you had on which the accretion made byyou."(iii) The Regional Manager in his letter dated 23.07.1999 alsogiven a compliment to the petitioner herein about his performance asa Development Officer ;(iv) No adverse remarks are made against the petitioner till thecharge in the instant case.(v) Neither the disciplinary authority nor the appellateauthority has given any explanation or finding to the contention ofthe petitioner by producing two letters one from Mr.N.Nagaraj of VeluTransport Service and another from Shri.Jayaprakash (then Manager ofVelu Transport Service) certifying that the premium payment forinsuring the vehicles bearing No.TN 27 Z 2599 and TN-37-Z-2799 wasmade on 13.05.1995 and cover note No.180621 and 186622 respectivelywere obtained then and there. https://hcservices.ecourts.gov.in/hcservices/ (vi) The disciplinary authority admittedly held that there isvariation and contradiction in respect of the cover note numbers,namely, 186621 and 186622 but only held such variation andcontradiction not resulted in any prejudice to the defence of thepetitioner.(viii) The disciplinary authority in respect of the similarmatter of charge of anti-dating of cover in respect of anotherdevelopment officer in his proceedings in CEB:RO:MKTG:363:99 dated09.01.1999 imposed a penalty of reduction in basic pay by one step inthe time scale applicable to the said delinquent officer and as suchthere should not be any discrimination between the writ petitionerand another similarly placed delinquent officer. 15. Considering the above said circumstances, this Court has nohesitation to hold that the punishment imposed on the petitioner isnot only disproportionate to the proved charges but also harsh andexcessive and shocks the conscience of this Court. Accordingly, thisCourt is of the considered view that modification of the punishmentfrom "removal from service which shall not be a disqualification forfuture employment" to "reduction in basic pay in one step in the timescale applicable to the petitioner" would meet the ends of justice.16. For the aforesaid reasons, this Court is left with the noother alternative except to interfere with the punishment imposed onthe petitioner. Accordingly, the punishment awarded on thepetitioner by the third respondent in his proceeding inCBE/RO/RM/SECT.742/2003 dated 11.07.2003 as confirmed by theappellate authority, the second respondent herein, in Ref.No.2001-45/12/2004 dated 19.02.2004 is hereby modified as "reduction in basicpay in one step in the time scale applicable to the petitioner".Consequently, the respondents herein are directed to reinstate thepetitioner in service without backwages within a period of four weeksfrom the date of receipt of a copy of this order. However, theservice of the petitioner should be treated as in continuous servicewhich shall accrue to his future service benefits.With this modification in punishment, the writ petition isordered accordingly. No costs.Sd/Asst. Registrar/true copy/Sub Asst.RegistrarggTo1. The Chairman-cum-Managing Director United India Insurance Company Ltd., No.24, Whites Road, Chennai – 600 014. https://hcservices.ecourts.gov.in/hcservices/

2. The Assistant General Manager, Head Office, United India Insurance Company Ltd., Chennai – 600 014.3. The Regional Manager, United India Insurance Company Ltd., Regional Office, No.364-367, Dr.Nanjappan Road, Coimbatore – 641 018.+ 1 CC to Mrs.R.Revathy,Advocate,SR.35452+ 1 CC to Mr.C.JayaPrakash,Advocate,SR.35407W.P.No.19291 of 2004MG(CO)EM/20.8.09