Gauhati High Court
Mr Kollol Kumar Dutta vs Union Of India & Ors on 5 March, 2014
Author: Hrishikesh Roy
Bench: Hrishikesh Roy
THE GAUHATI HIGH COURT
(The High Court of Assam: Nagaland: Mizoram and Arunachal Pradesh)
Writ Petition (C) No. 2888/2006
Mr. Kollol Kumar Dutta,
S/o. Late N.C. Dutta,
Resident of Barsapara, Kalapahar
Guwahti-18. ............ Petitioner
Versus-
1. The Union of India, represented by the Secretary,
Ministry of Finance, Govt. of India, New Delhi.
2. The National Insurance Company Ltd.
Represented by Chairman cum Managing Director,
3 Middleton Street, Kolkata.
3. Chairman cum Managing Director,
The National Insurance Company Ltd.
3 Middleton Street, Kolkata.
4. Sri Sujit Das,
General Manager cum Competent Authority
National Insurance Co. Ltd.
3 Middleton Street, Kolkata. ...... Respondents
BEFORE
THE HON'BLE MR. JUSTICE HRISHIKESH ROY
For the Petitioner : Mr. G.P. Bhowmik,
Mr. R. Hazarika, Advocates.
For the Respondents : Mr. S.N. Sarma, Sr. Advocate.
Mr. A. Ahmed,
Mr. R.K. Bhatra,
Ms. P. Hujuri, Advocates.
Date of Judgment : 05.03.2014.
JUDGMENT (ORAL)
Heard Mr. G.P. Bhowmik, the learned counsel appearing for the petitioner. The National Insurance Company Ltd. (hereinafter referred to as the "Insurance Company") is represented by the learned Sr. Advocate Mr. S.N. Sarma.
2. The petitioner superannuated on 31.12.2003 as the Regional Manager, Guwahati of the Insurance Company and he challenges the order dated 23.05.2005 (Annexure-5), whereby the penalty of reduction in pension by Rs.500/- p.m. plus WP(C) No.2888 of 2006 Page 1 of 6 recovery of Rs.20,000/- against the pensioner was ordered by the disciplinary authority. The resultant appeal filed by the aggrieved pensioner was rejected by the Appellate Authority through the order dated 19.05.2006(Annexure-6).
FACTUAL BACKGROUND 3.1 National Insurance Co. Ltd. booked 2 (two) numbers of Premiere Padmini Delux BU cars with M/S Dynasty Walford Ltd. for 2 (two) Development Officers of Golaghat Branch of the Company for which a sum of Rs.4,60,277.08 was paid to Dynasty Walford Ltd. on 08/10/96. But the said Dynasty Walford inspite of receipt of the aforesaid amount neither deliver the cars within the specified period nor did they refund the amount with interest. Hence, the Company filed a Consumer Case being No.8/98 before the State Consumer Dispute Redressal Commission, Guwahati in the year 1998. In the said Consumer Case, the Opp. Party M/S Dynasty Walford appeared through counsel and contested the case. The learned State Commission on hearing both the parties passed the order dated 15/11/98 directing M/S Dynasty Walford to refund the amount of Rs.4,60,277.08 alongwith interest @ 12% per annum to the Company within a period of 15 days from the date of receipt of the order, failing which the rate of interest would be enhanced to 18% per annum. Against the aforesaid order of the State Commission, M/S Dynasty Walford preferred an appeal before the National Commission. In the said appeal, the stay petition filed by M/S Dynasty Walford being No.19/99 had been rejected by the National Commission vide its order dated 28/07/99. On 19.10.99 a petition was moved on behalf of M/S National Insurance Co. Ltd. before the State Commission U/S 27 of CPR, 1986. In the said petition, the State Commission vide its order dated 07/04/01 directed the opp.party M/S Dynasty Walford to clear the amount due to National Insurance Co. Ltd. by paying Rs.50,000/- per month till clearance of the entire amount as ordered by the State Commission.
WP(C) No.2888 of 2006 Page 2 of 6 3.2 In compliance of the order dated 07/04/01 the first instalment amount of Rs.50,000/- was tendered to National Insurance Co. Ltd. by the Dynasty Walford through a cheque, but the said cheque on being presented to the bank for clearance was dishonoured due to insufficient fund.
3.3 Since the cheque issued by M/S Dynasty Walford for Rs.50,000/- towards payment of first instalments was dishonoured by the bank, one more petition was filed by the National Insurance Co. Ltd. before the State Commission which was disposed of by the State Commission vide its order dated 10/8/2002 with a direction that the National Insurance Company may attach and sell the properties of M/S Dynasty Walford for realizing Rs.9,43,798.13. In the said order it was also mentioned that for implementing the aforesaid order, the National Insurance Co. Ltd. may take the police help and sell the properties in presence of the police. Further U/S 27 it was ordered that the General Manager of M/S Dynasty Walford. Ltd., Head Office at Guwahati shall be arrested. The appellant-National Insurance Co. Ltd. may make necessary application before the C.J.M., Kamrup at Guwahti who shall issue warrant of arrest in terms of the order of the State Commission and the C.J.M., Kamrup may also release the said person on being arrested on furnishing a bail bond of Rs.10,00,000/-.
3.4 The order aforesaid being passed by the State Commission, the learned counsel conducting the case on behalf of the Insurance Company by his letter dated 14/8/02 advised the company to file a caveat before the National Commission immediately and also to take steps in the C.J.M., Court for issuance of warrant of arrest against the General Manger, Dynasty Walford. Accordingly a departmental note was put up before Shri K.K. Dutta who was the Regional Manager at the relevant time, but for the reason best known to Mr. Dutta he simply ignored the departmental note and so also the advice of the learned advocate and on his own, keeping aside the orders of the State Commission, wrote letter to M/S Dynasty WP(C) No.2888 of 2006 Page 3 of 6 Walford Ltd. thereby giving them a fresh opportunity to further litigation and thereafter entered into a negotiation with M/S Dynasty Walford Ltd., but it did not work.
3.5 Since the National Insurance Co. Ltd was armed with an order of the State Commission in its favour and considering the conduct of M/S Dynasty Walford no further negotiation was called for with them. Thus, it was incumbent upon Mr. K.K. Dutta to pursue the legal recourse available to the company for realization of the amount, but the action of Mr. Dutta clearly indicates that he was also interested to get the order of the State Commission frustrated causing loss to the company. The aforesaid action of Mr. K.K. Dutta being the Regional Manager of the Company was uncalled for and unbecoming of a Regional Manager and hence, the competent authority thinks it fit to draw up departmental proceeding against him which was accordingly done under Rule 25 of the General Insurance (Conduct, Discipline & Appeal) Rules, 1975. But, since Mr. Dutta had retired immediately the after the said proceeding was converted into one under the General Insurance (Employees) Pension Scheme, 1995 and on conclusion of the proceeding, the competent authority being satisfied about the gross misconduct on the part of Mr. K.K. Duta imposed penalty under Rule 47 of the aforesaid Rule."
4. Assailing the legality of the impugned penalty, Mr. GP Bhowmik, the learned counsel refers to Rule 47 of the General Insurance (Employees') Pension Scheme, 1995 (hereinafter referred to the "Pension Scheme") to project that before ordering recovery of any pensionable amount from an employee, the Board of the Insurance Company must be consulted before any final order is passed by the disciplinary authority.
5. The petitioner also contends that financial loss was not caused to the Insurance Company through the alleged misconduct and accordingly the recovery WP(C) No.2888 of 2006 Page 4 of 6 ordered from the pensionable dues was not at all warranted in the facts of the present case.
6. Representing the employer, Mr. SN Sarma, the learned Sr. Counsel however submits that the petitioner served in the responsible position of Regional Manager of the Insurance Company since August, 2000 till he superannuated on 31.12.2003 and therefore he was responsible for protecting the interest of the Insurance Company. But he failed to take appropriate steps in pursuant to the order passed by the State Consumer Commission on 10.08.2002 to attach the properties of the judgment debtor M/S Dynasty Walford Ltd. to recover the decreetal amount and failed to apply to the Chief Judicial Magistrate, Guwahati to have the Manager of M/S Dynasty Walford arrested and accordingly the Sr. Counsel argues that the petitioner's negligence cannot be ignored as a small matter and that is why the recovery from his pensionable dues was rightly ordered by the disciplinary authority.
7. The Sr. Counsel refers to the penalty order dated 23.05.2005 (Annexure-5) which refers the Rule 47 of the Pension Scheme and accordingly Mr. Sarma submits that the recovery must be presumed to have been ordered with due approval of the Board of Directors of the Insurance Company.
8. The enquiry report shows that of the 14 charges in the memorandum dated 09.09.2003 (Annexure-1), the Inquiry Authority found 11 charges to be not proved. However, the remaining 4 charges, i.e. (k),(l),(m ) & (n) were found to be partially proved. These four charges in substance, relate to the delinquent failing to take steps to file the caveat before the National Consumer Commission to defend the State Commission's order dated 10.08.2002, whereby attachment of the property of the judgment debtor M/S Dynasty Walford Ltd. was ordered by the State Consumer Commission. Since the Inquiry Officer found four charges as proved, the disciplinary authority could have imposed some penalty which is proportionate with the misconduct. But the question is when the delinquent in the meantime had WP(C) No.2888 of 2006 Page 5 of 6 retired on 31.12.2003, the recovery from the payable pension could be ordered without prior approval of the Board, as is mandated under Rule 47 of the Pension Scheme.
9. Although the impugned order of the disciplinary authority shows that the same was passed under Rule 47 of the Pension Scheme, Mr. Bhowmik has produced the letter dated 11.07.2013 furnished to the petitioner on his RTI application of the Vigilance Department of the Insurance Company. This letter shows that records are unavailable on the approval of the Board of Directors ordering pension cut and recovery from the retirement dues of the delinquent.
10. In view of above information contained in the letter dated 11.07.2013 of the Vigilance Department of the Insurance Company, the court is left with no choice but to conclude that deduction of pension was ordered without following the procedure laid-down under Rule 47 of the Pension Scheme. To dispel this conclusion, the respondents couldn't produce any document to establish that the approval of the Board of Directors was secured to order recovery and deduct from the pensioner's dues. It may also be noted that the respondents hadn't suffered any loss through the negligence of the delinquent.
11. Therefore the impugned penalty dated 23.05.2005 (Annexure-5) and the appellate order dated 19.05.2006 are declared to be unsustainable and are quashed, without any order on cost. Consequently the recovered amount should be refunded to the petitioner within 4 weeks. It is ordered accordingly.
12. The copy of the letter dated 11.07.2013 of the Chief Manager, Vigilance Department of the Insurance Company produced by advocate Mr. GP Bhowmik in course of hearing, should be kept in the case records.
JUDGE Benoy WP(C) No.2888 of 2006 Page 6 of 6