Allahabad High Court
Anand Kumar Singh vs Zonal Manager, L.I.C. Of India And Ors. on 31 October, 2002
Equivalent citations: 2003(1)AWC284, (2003)1UPLBEC392
Author: M. Katju
Bench: M. Katju, Rakesh Tiwari
JUDGMENT M. Katju, J.
1. This writ petition has been filed against the impugned order dated 11.1.2000 Annexure-8 to the writ petition and the impugned appellate order dated 28/29.9.2000 Annexure-14 to the writ petition.
2. Heard learned counsel for the parties.
3. The petitioner was appointed as an agent of the Life Insurance Corporation of India (hereinafter referred to as 'L.I.C.') in Varanasi division. Initially, the appointment was for three years which was renewed after every three years. The last renewal was granted in 1998 which was valid up to July, 2001.
4. In paragraphs 3, 4 and 5 of the writ petition, it is alleged that the petitioner was doing his work very well and the number of policies sold by him is given in the chart in para 4. The agents of the corporation are non-salaried employees of the corporation. They are paid bonus commission upon sale of the policies. Their job is to search the policy purchasers and to sell the L.I.C. policy to them and they pay the premium directly to the corporation. After receiving the premium, the L.I.C. calculated the bonus commission and the payment is made through cheques to the agents.
5. The petitioner received a letter dated 22.1.1999 vide Annexure-1 to the petition. In this letter, it was alleged that the petitioner had been paid an excess amount of Rs. 3,17,833.51. This letter was followed by another letter dated 20.9.1999 (Annexure-2 to the writ petition) in which it was stated that excess payment was made of Rs. 4,19,247.24. In response to these letters, the petitioner approached the respondent No. 3 and submitted that no excess payment has been made to him, and if there is any mistake in the accounting, he may be supplied the details. He also filed a civil suit in the Court of Civil Judge, Varanasi, for furnishing the details of the accounts. However, another letter dated 30.9.1999 Annexure-3 to the petition was received by the petitioner alleging that the excess payment was of Rs. 3,95,311.62. The corporation sent a show cause notice dated 7.10.1999 alleging that the petitioner had received an excess payment of Rs. 4,19,247.24 and he should show cause why the same should not be recovered and his agency be not terminated and the renewal commission be forfeited. True copy of the show cause notice is Annexure-4 to the writ petition. Thereafter the petitioner was served two letters, one a statement of T.D.S. wherein a sum of Rs. 4,00,031.33 was shown to be excess payment, whereas the other letter informed the petitioner that a sum of Rs. 3,13,642.75 have been recovered and adjusted towards the alleged excess payment. True copies of the letters are Annexures-5 and 6 to the writ petition. The petitioner submitted his reply on 21.10.1999 vide Annexure-7 to the writ petition. He also sent another letter dated 8.11.1999 vide Annexure-8 to the writ petition.
6. It is alleged in paragraph 18 of the writ petition that the respondent No. 2 without going into details of the replies and without looking into the accounts, passed an order dated 11.1.2000 imposing penalty of terminating of the petitioner's agency vide Annexure-9 to the writ petition. It is alleged that this order was passed in a casual manner without application of mind.
7. In paragraph 20 of the writ petition the petitioner has quoted Regulation 16 which deals with termination of agency for certain lapses. In paragraph 21 of the petition it is stated that the allegation in the impugned order is that the petitioner did not keep proper record for commission payable and paid to him. It was submitted that it was nowhere provided in the Regulations that the agents should keep a record of the commission. The premium is directly paid by the policy holder to be corporation through cheques or cash and the agent is not involved in the deposit of premium. It is the sales and account department of the L.I.C. which prepare the bills for payment of bonus and commission. Hence, it is alleged that the termination of the petitioner's agency is wholly illegal.
8. In paragraph 22 of the writ petition it is stated that there was no excess payment to the petitioner.
9. The petitioner filed Writ Petition No. 5827 of 2000 against the termination order. The petition was dismissed on the ground of alternative remedy of filing an appeal. An appeal under Regulation 20 of the regulations was filed before the Zonal Manager vide Annexure-11 to the writ petition. The petitioner was heard by the Zonal Manager on 16.6.2000 and the appeal was decided on 28/29.9.2000 vide Annexure-14 to the writ petition.
10. Learned counsel for the petitioner submitted that the appellate order is illegal because it was in violation of Regulation 23 (2) which states that the appeal should be decided as expeditiously as possible but not later than six months from the date of receipt of the appeal. It is alleged in paragraph 33 that the appeal was filed on 7.3.2000 and the six months period expired on 9.8.2000, whereas the appeal was decided on 28/29.9.2000. Hence, it is alleged that the appellate order is illegal.
11. We cannot agree with this submission. In our opinion, the time prescribed by Regulation 23 (2) for deciding the appeal is only directory and not mandatory. At any event, writ jurisdiction is discretionary jurisdiction and we are not inclined to set aside the appellate order on this technical ground. In fact, even if we set aside the appellate order on this ground, it will be no help to the petitioner because the order dated 11.1.2002, Annexure-8 to the writ petition will still stand,
12. It has been alleged in paragraph 35J of the writ petition that the petitioner requested the appellate authority to show him the documents relating to the alleged excess payment but no record or document was shown to him. It is alleged that the petitioner was pressurized to accept the alleged excess payment and he was humiliated and insulted. In paragraph 35K. It is alleged that the petitioner has always assured in writing to pay back any amount in excess but the corporation did not provide bill and vouchers in this connection.
13. A counter-affidavit has been filed by the L.I.C. and in paragraph 10 of the same, it is stated that the petitioner has received very heavy and illegal wrong payments from the L.I.C. to the extent of Rs. 4,19,247.24 which was not payable to him. He was directed to refund the said amount which he has illegally obtained from the L.I.C. but he did not return it voluntarily. The said amount was obtained by the petitioner with the collusion of the staff member in a fraudulent manner by preparing commission bills on the manipulated amount of premium and not on the correct amount of premium. The concerned staff member has already been charge-sheeted in this regard. In paragraph 11 of the counter-affidavit it is denied that the petitioner was not expected to keep proper record of commission payable and paid and if any discrepancy is observed they should inform the office immediately. With every payment the L.I.C. provide the petitioner a copy of the voucher and commission bill for checking and maintaining of his own record. In paragraph 27 of the counter-affidavit, it is stated that the impugned order was rightly passed and does not suffer from any illegality.
14. A counter-affidavit has also been filed by the Administrative Officer of L.I.C. In paragraph 8 of the same it is stated that the petitioner cannot treat himself as a Government servant. The agent is basically a contractor for procuring business for the purposes of the corporation. In paragraph 14 it is stated that the petitioner has taken excess payment of a huge amount and there was no question of pressurizing him to accept the said fact. The proof of the amount by way of excess payment to the petitioner is already on record and was well within his knowledge. It is denied that the petitioner was humiliated or insulted or pressurized. In paragraph 15 it is stated that highly disputed questions of fact are involved, in this petition.
15. A rejoinder-affidavit has also been filed and we have perused the same.
16. In our opinion, highly disputed questions of fact are involved in this petition e.g., whether the petitioner was made excess payment by L.I.C. or not. In the impugned appellate order, it has been alleged that an excess of amount of Rs. 4,19,247.24 was paid to the petitioner towards the bonus commission and this figure was reached after referring to the detailed report. It was further observed in the appellate order that such excess amount received and deposited by the petitioner in his bank account was made by the staff members of the branch office in a fraudulent manner by preparing commission bill on the manipulated amount of premium instead of on the correct amount. Thus, the excess amount was paid fraudulently to the petitioner. The appellate order also states that at the time of personal hearing, a pointed question was put to the petitioner about the maintenance of record of his earnings, but the petitioner categorically denied having maintained any record of the same.
17. In our opinion, the petitioner cannot be believed when he stated before the appellate authority that he did not maintain any record of his commission earnings. The L.I.C. agents are doing business, and every businessman maintains his record of his earnings. Hence, it is evident that the petitioner made a wrong statement before the appellate authority. We find no illegality in the appellate order dated 28.9.2000, Annexure-14 to the petition. The finding recorded by the authorities below are findings of fact and we cannot interfere with the same in writ jurisdiction.
18. Moreover, this petition also deserves to be dismissed on the ground that the petitioner filed a civil suit in respect of the same matter and he cannot be allowed to pursue two remedies. Hence, also this is not a fit case for interference under Article 226 of the Constitution.
19. It has been stated in paragraph 10 of the counter-affidavit that the amount of excess payment was arrived at by the L.I.C. after referring to the relevant records. In our opinion, the petitioner obtained excess payment in a fraudulent manner in collusion with a staff member by preparing commission bill on a manipulated amount of premium. The petitioner has been given a personal hearing and hence the L.I.C. has acted fairly towards him. In our opinion, the petitioner has behaved in a dishonest manner and this Court will not grant any indulgence to such dishonest persons.
20. The petition is dismissed. Interim order, if any is vacated. No order as to costs.