Karnataka High Court
N.B. Kulkarni vs Life Insurance Corporation Of India, ... on 17 February, 1999
Equivalent citations: ILR1999KAR2677, 1999(3)KARLJ325
Author: H.L. Dattu
Bench: H.L. Dattu
ORDER
1. Petitioner was an officer in the service of respondent-Life Insurance Corporation of India ('LIC' for short). While working as Assistant Branch Manager (Sales), Kolar Branch, Kolar, he was served with a charge-memo dated 30-8-1990. Charge-sheeted officer had filed his written statement of defence in detail, denying the accusations made in the charge-memo which related to an incident said to have occurred in the month of March 1985, which constituted his dishonesty, lack of integrity unbecoming of an officer of respondent-Corporation. An enquiry officer was appointed, who reported after holding a due enquiry that the charges was fully established. On the basis of the said report, the appropriate authority has passed an order imposing a penalty of reduction of the basic pay of the petitioner by two stages in the time scale. The appeal preferred by the delinquent was dismissed by the Appellate Authority by its order dated 18-7-1995. It is the correctness or otherwise of the aforesaid orders is questioned by the petitioner in this petition filed under Article 226 of the Constitution of India, being aggrieved by the same.
2. The charges framed against the petitioner in the charge-memo dated 30-8-1990 are the following:
"CHARGE-SHEET You, Sri N.B. Kulkarni, Assistant Branch Manager, (Sales) Kolar Branch, Bangalore Division, are hereby charged as under:
That while functioning as a Development Officer, Gulbarga Branch, a proposal bearing No. 5609 was procured under your organisation through the agency of Sri G.G. Hiremath, No. 2257046 on 12-3-1985 on the life of Sri Parameshwaran, son of Mallikarjuna. The said proposal subsequently resulted into Policy No. 75528717 for a sum assured of 1 lakh.
That you produced along with the proposal form Elder's Declaration on a stamped paper purported to have been signed by one Sri C.G. Deshpande in support of the age of the life proposed. The age of the life proposed given in the declaration is 30 years. You have also completed Moral Hazard Report dated 29-5-1985 in respect of above proposer, in which you have stated that age of the life to be assured as 30 years.
That it has come to light that the age of the life to be insured, namely, Sri Parameshwaran, on the date of the proposal was more than 60 years. Thus, your information of age of life to be assured in the M.H.R. is totally false.
That you have, thus, with mala fide intention and ulterior motive, deliberately understated the age of the proposer with a view to make the Corporation accept the risk on the life of the proposer, Sri Parameshwaran".
3. A look at the charge-memo clearly indicates that it relates to an event, that had taken place some time in the month of March 1985 and among other things, it specified that as Development Officer, he had given Moral Hazard Report indicating the age of life to be assured as 30 years, while the actual age of the life to be assured on the date of proposal was more than 60 years, thus violating Regulations 21 and 24 read with Regulation 39(1) of LIC of India (Staff) Regulations, 1960. In support of these charge, the respondents had examined four witnesses including the life assured but strangely not producing him for full cross-examination by the delinquent. The management also did not take the trouble of producing three medical examiners, who had examined the life assured not once but thrice, who had not contradicted the age of the life assured in the proposal papers. The enquiry officer notices all these discrepancies and also observes in his enquiry report that:
"It is to be stated that no substantial evidence by way of documents, witnesses has been produced to prove that C.S.O. deliberately and with mala, fide, fraudulent intention and ulterior motive understated the age. Circumstances neither indicate nor suggest even remotely this accusation on the C.S.O. PO's conclusion in this regard is by way of probable guess".
Yet the enquiry officer finds the charge-sheeted officer guilty of the allegations made in the charge-memo. Strangely, the disciplinary authority concurs with the findings of the enquiry officer without even properly appreciating the evidence and other material on record.
4. Mr. Rupert M. Rosario, learned Counsel for petitioner raised threefold contention. It is firstly urged that the delay in initiating enquiry proceedings of an incident said to have taken place about 5 years back would vitiate the entire enquiry proceedings. This contention is raised by the petitioner in his pleadings also. Respondents though they have filed their objection statement, they do not advert to this specific legal contention. In my opinion, under all circumstances, the delay in initiating domestic enquiry proceedings is not fatal to such proceedings. It depends on the facts and circumstances of each case and also the explanation offered by the employer/management. In the instant case the irregularities which were the subject-matter of enquiry is said to have taken place sometime in the year 1985. It is not the case of the Corporation that they were not aware of the said irregularity. They have not even offered any explanation much less satisfactory explanation for initiating the enquiry nearly after 5 years. In view of this inordinate delay in initiating the proceedings, petitioner was prevented from successfully participating in the enquiry proceedings to producing the witnesses in support of his case. In that view of the matter, the proceedings are vitiated since it is opposed to rules of natural justice and since it has caused prejudice to the delinquent in the enquiry proceedings.
5. The next question that requires to be considered and decided is whether non-securing of P.W. who is supposed to be the prime witness in the case and whose evidence is the main basis for the enquiry officer to come to the conclusion that the petitioner is guilty of the allegations in the charge-memo, has vitiated the enquiry proceedings.
6. The Corporation to prove the prime allegation against the delinquent had examined one Sri P.M. Yadawade, who is supposed to be the person whose life had been insured and whose age had been understated by the delinquent. The said witness participates halfway through the inquiry and when he was asked to answer specific questions, he disappears from the scene and the management does not bother to trace him and produce him for further cross-examination. However, the enquiry officer gives much credence to the statement made by P.W. and finds the delinquent guilty of the offence alleged in the charge-memo. In my opinion, it was improper on the part of the enquiry officer to have received the evidence of P.W., without producing him for full cross- examination by the delinquent. It was the duty of the management to have produced this witness, whose statement in the examination-in-chief has been taken as gospel truth by the enquiry officer. As the statement of this witness was sought to be relied on by the enquiry officer, in my opinion, he should have been tendered for full cross-examination by the delinquent. Since the same has not been done, in my opinion, it causes prejudice to the case of the delinquent and therefore proceedings are vitiated.
7. Lastly, it is contended that the findings of the enquiry officer is wholly perverse, on the ground that it is based on no evidence and entirely against the evidence.
8. To consider this legal issue canvassed by the learned Counsel for the petitioner, I have carefully gone through the report of the enquiry officer keeping in view that this Court while exercising its jurisdiction of judicial review will not sit as a Court of appeal to re-assess the evidence on record and also keeping in view the settled legal position that even if there is some evidence on record however little it may be to support the finding, there is no perversity.
9. The enquiry officer in his report submitted to the disciplinary authority finds petitioner guilty of the allegation made in the charge-memo. To come to that conclusion, in my view, he only assumes and presumes certain things for the reason that in the enquiry report, he categorically states:
"It is to be stated that no substantial evidence by way of documents, witnesses has been produced to prove that the CSO deliberately and with mala fide, fraudulent intention and ulterior motive understated the age. Circumstances neither indicate nor suggest even remotely this accusation on the CSO. PO's conclusion in this regard is by way of probable guess.
The record of CSO as an agent earlier and as a Development Officer later, for about 15 years appears to be without any blemish. He was, he stated, awarded prizes, certificates, appreciations as an agent, as a D.O. He has appended a 'flash' dated 25-3-1985 issued by the D.M., Dharwar, about his performance in 1984-85, upto 19-3-1985 and earlier years. He was promoted as ABM(S) in 1989".
10. In that view of the matter, it can safely be said that the finding of the enquiry officer is not based on any evidence and in fact entirely against the evidence. Based on such a finding, the disciplinary authority without properly appreciating the findings of the enquiry officer could not have concurred with the findings and could not have imposed punishment as has been done by him in the impugned order dated 30-8-1994.
11. In the result, petition deserves to be allowed. Accordingly, it is allowed. The impugned orders are set aside and a direction is issued to the respondents to give him all the benefits which he is entitled to, including monetary benefits in view of the setting aside of the impugned orders. In the facts and circumstances of the case, parties are directed to bear their own costs. Ordered accordingly.