Rajasthan High Court - Jodhpur
Tara Chand Choudhary vs Oriental Insurance Co. Ltd. And Ors. ... on 6 November, 2024
Author: Dinesh Mehta
Bench: Dinesh Mehta
[2024:RJ-JD:44776] HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 4505/1998 Legal Representatives of Tara Chand Choudhary- 1/1. Smt. Pushpa Devi Choudhary widow of Late Shri Tara Chand Choudhary, aged 61 years.
1/2. Devendra Choudhary S/o Late Shri Tara Chand Choudhary aged 40 years.
1/3. Virendra Choudhary S/o Late Shri Tara Chand Choudhary aged 38 years.
----Petitioner Versus
1. The Oriental Insurance Company Limited, Oriental House, A- 24-25, Asaf Ali Road, New Delhi.
2. The Assistant General Manager, the Oriental Insurance Company Limited, Oriental House, A-24-25, Asaf Ali Road, New Delhi.
3. The Regional Manager, the Oriental Insurance Company Limited, Anand Bhawan, Sansar Chandra Road, Jaipur.
----Respondent
For Petitioner(s) : Mr. Anil Bhandari
For Respondent(s) : Mr. Jagdish Vyas
JUSTICE DINESH MEHTA
Order
06/11/2024
1. By way of the present writ petition, the petitioner, who was working as a Development Officer in the respondent - Insurance Company at the relevant time (hereinafter referred to as 'delinquent officer') has challenged the order dated 31.03.1998 passed by the respondent no.3 - Regional Manager and disciplinary authority, whereby the petitioner has been removed (D.B. SAW/213/2013 has been filed in this matter. Please refer the same for further orders) (Downloaded on 08/11/2024 at 11:31:11 PM) [2024:RJ-JD:44776] (2 of 12) [CW-4505/1998] from services in terms of rule 23 of General Insurance (Conduct, Discipline & Appeal) Rules, 1975 (hereinafter referred to as 'the Rules of 1975').
2. It may be noted that the petitioner - Tara Chand Choudhary has since passed away on 16.04.2017, whereafter his legal representatives moved the application for substitution, which was allowed and hence, they are pursuing the present petition.
3. Mr. Bhandari, learned counsel for the delinquent officer, argued that the inquiry report dated 18.02.1997 so also the order of the disciplinary authority dated 31.03.1998 passed by the competent authority are illegal.
4. At this juncture, Mr. Vyas, learned counsel counsel for the Insurance Company interjected and submitted that the inquiry report per-se has not been challenged, while inviting Court's attention towards the prayer clause of the petition.
5. This Court is, however, not inclined to accept the preliminary objection raised by learned counsel for the respondents that since the inquiry report has not been challenged, the delinquent officer cannot be permitted to lay challenge thereto and canvass grounds finding fault in the inquiry report.
6. Because, the delinquent officer has challenged the termination order dated 31.03.1998, and the inquiry report has formed the basis of such order. Even if, on account of inadvertence or otherwise, a formal challenge to the inquiry report has not been laid in the prayer clause, the delinquent officer's right to challenge the inquiry report cannot be taken away, when specific grounds attacking the same have been taken in the memo of petition.
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7. The charges levelled against the delinquent officer were as under:-
1. He issued a TP motor covernote no.0552888 on 21.7.89 covering the vehicle No.GRM-7648 of Shri Badri Lal Sudhar deliverately and dishmestly back dating the period of cover as 29.06.89 to 28.6.90. He thus exposed the company to an unwarranted liability of cover Rs.7,91,000/- in three MACT claims no.487/89, 486/89 and 448/89 arising out of third party fatal accident by this vehicle on 08.07.89.
2. He issued TP covernote No.211386 on 10.6.87 covering Autorickshaw No.RRY-3265 of Shri Sephi Moh deliverately and dishonestly backdating the period of cover as 6.6.87 to 5.6.88. He thus exposed the company to an unwarranted liability of Rs.50,000/- in MACT Udaipur claim No.8/88 arising out of third party fatal accident by this vehicle on 6.6.87.
3. He issued covernote No.212443 on 30.11.87 on thereafter for covering Mini Bus No.RRZ-8945 of Shri Bhim Singh after the occurrence of third party fatal accident with Luna RSJ-703 but backdated the issue of covernote as 1 PM on 30.11.87. He thus exposed the company to an unwarranted liability of Rs.12,60,000/- in MACT Udaipur claim No.27/88.
4. He had temporarily misappropriated the amount of premium of Rs.2310/- mentioned as under:-
(a) He issued the motor covernote No.962273 w.e.f. 18.4.90 to 17.4.91 favouring Shri Sukh Lal against a premium of Rs.5960/- As against this he deposited only an amount of deposit of Rs.660/- by Sh. Choudhary in the office. He later on deposited the balance amount of premium Rs.660/- in the office vide collection no.2238 dated 14.9.90.
(b) He issued the motor covernote has 962147 and 962148 w.e.f. 30.3.90 to 29.3.91 against a premium (D.B. SAW/213/2013 has been filed in this matter. Please refer the same for further orders) (Downloaded on 08/11/2024 at 11:31:11 PM) [2024:RJ-JD:44776] (4 of 12) [CW-4505/1998] of Rs.2939/- each (total Rs.5878/-) (Rs.2114 each) in the office on 30.3.90 thus there was short deposit of Rs.1650/- by Shri Choudhary in the office. He later on deposited the balance amount of premium of Rs.1650/- vide collection No.02236 and 02237 dated 14.9.90. By this above acts, Shri T.R. Choudhary has failed to maintain integrity, devotion to duty and has acted in a manner prejudicial to the interest of the company. He has thus committed misconducts as per/in violation of the Rules 3,4(1), (5) of the General insurance CDA Rules, 1975. Thus the covernote No.212443 was not issued at 1 PM on 30.11.87 but it was issued after the accident. Owing to the insurance cover granted in a backdate by Shri Choudhary, our company has been exposed to unwarranted litigation and liability to the extent of Rs.12,60,000/- Rs.15,000/- has already been awarded against out company towards 'No fault liability'.
5. He had temporarily misappropriated the amount of premium to the extent of Rs.2310/-
mentioned as under
(a) Shri Choudhary issued covernote No.962273 on 18.4.90 covering RSJ-9455 TDV Bus for the period from 18.4.90 to 17.4.91 and he collected Rs.5960/-
towards premium from the party but deposited only Rs.5300/- in the office vide coll. No.00271 dated 19.4.90 when the insured brought this matter in the knowledge of Branch Manager then Shri Choudhary deposited the balance amount of Rs.660/- in the office vide collection No.2238 dated 14.9.90. Thus he temporarily misappropriated the amount of Rs.660/- for a period of about 6 months.
6. In the carbon copy of covernote No.962147 and 962148 the amount of premium was shown as 2114/- each while on the original copy of covernotes the amount of premium was shown as 2939/- each. He has also admitted this fact in his statement dated 23.08.90. Shri Choudhary has deposited the balance (D.B. SAW/213/2013 has been filed in this matter. Please refer the same for further orders) (Downloaded on 08/11/2024 at 11:31:11 PM) [2024:RJ-JD:44776] (5 of 12) [CW-4505/1998] premium of Rs.825/- each total Rs.1650/- vide collection no.02236 and 02237 dated 14.9.90 in the office.
8. Navigating the Court through the inquiry report dated 18.02.1997, Mr. Bhandari learned counsel for the delinquent officer argued that the inquiry officer has not proceeded in accordance with law and in spite of request for providing original cover notes or certified copy thereof, the respondents did not provide the same to the delinquent officer, hence, his right to defend has been severely impaired. He added that the entire proceedings have been conducted on the basis of photo-stat copies of the cover note and therefore, the proceedings were vitiated.
9. While informing that cover notes in question were issued on 21.07.1989, 10.06.1987 and 30.11.1987 and the allegation with regard to misappropriation of the amount of premium relates to the year 1990-1991, whereas the disciplinary inquiry came to be instituted against the delinquent officer in February, 1992, and a supplementary charge-sheet was issued after eight years, learned counsel argued that the disciplinary proceedings in essence have commenced after eight years i.e. on service of supplementary charge-sheet and therefore, the same is liable to be quashed or set aside on the ground of delay.
10. Assailing the impugned order of disciplinary authority dated 31.03.1998, learned counsel argued that the disciplinary authority has not given its finding qua each of the charges and has cursorily brushed aside the representation that was made by the delinquent officer in relation to the finding of the inquiry officer and therefore, the order impugned deserves to be quashed and set aside.
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11. It was also argued that the respondent - Insurance Company was supposed to pay TA/DA to the Defence Assistant, as per the provisions of Rules of 1975, but the same was not paid. He contended that due to non-payment, the delinquent officer could not defend his case properly. He argued that the disciplinary proceedings, in absence of proper defence at the instance of the delinquent officer, has been vitiated.
12. In support of his contentions, learned counsel for the delinquent officer relied upon the judgments as infra:-
(i) Arun Prakash vs. State of Rajasthan & Anr., reported in 2006 (1) RDD 445 (Raj).
(ii) G. Vallikumari vs. Andhra Education Society & Ors., reported in (2010) 1 SCC (L&S) 406, Para No.19.
(iii) Bilaspur Raipur Kshetriya Gramin Bank & Anr.
vs. Madanlal Tandon, reported in (2015) 2 SCC (L&S) 817.
13. Mr. Vyas, learned counsel for the Insurance Company submitted that the argument on behalf of the delinquent officer that the disciplinary proceedings were instituted belatedly, is untenable in law. He contended that though the disciplinary inquiry had commenced in the year 1992, immediately when the respondent - Insurance Company came to know about the irregularities or misconduct in preparing or manipulating the cover notes. He added that the respondent - Insurance Company came to learn about the discrepancies only when it received claim petition filed by various claimants. He argued that there was no (D.B. SAW/213/2013 has been filed in this matter. Please refer the same for further orders) (Downloaded on 08/11/2024 at 11:31:11 PM) [2024:RJ-JD:44776] (7 of 12) [CW-4505/1998] delay in instituting the disciplinary proceedings against the delinquent officer.
14. Learned counsel for the respondent submitted that true it is, that the supplementary charge-sheet was issued during the pendency of the inquiry (after 6-7 years), but the same was nothing but framing of categorical and clear charges and in substance the allegations remained the same, as were given in the memorandum of charges, sent with the notice dated 24.02.1992. He, therefore, submitted that there is no delay, as claimed by the delinquent officer.
15. Responding to Mr. Bhandari's contention that the disciplinary authority is required to record its finding qua each of the charges, Mr. Vyas, learned counsel navigated the Court through the order of the disciplinary authority and submitted that he has dealt with each of the charges and evidence separately and has concurred with the findings recorded by the disciplinary authority with cogent reasons.
16. Mr. Vyas submitted that the disciplinary authority has examined the complete record including the inquiry report dated 18.02.1997 and simply because the order is brief and the conclusions have been summarized in one paragraph, it cannot be said that the disciplinary authority has not recorded its finding qua each of the charges.
17. He also argued that the ground that TA/DA has not been paid to the Defence Assistant of the delinquent officer is untenable, because, it cannot be said that delinquent officer's right to defend got infringed merely due to non-payment of TA/DA.
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18. Learned counsel for the respondents in relation to non- payment of TA/DA argued that rule 25(6A) of the Rules of 1975 has been amended and TA/DA would be payable only when the Defence Assistant hails from a different region.
19. Rule 25(6A) of the Rules of 1975 reads thus:-
"No employee while on duty shall act as Defence Assistant in any disciplinary proceeding conducted outside the regional office are where he is posted; nor shall be act as Defence Assistant in more than two cases at a time. An employee acting as Defence Assistant in breach of this rule shall not be entitled to any TA/DA in connection with the disciplinary proceedings."
20. Heard learned counsel for the parties and perused the record.
21. So far as argument on behalf of delinquent officer with regard to delay is concerned, the same has no substance, as the charge-sheet was firstly served upon the delinquent officer on 24.02.1992, well within three years of issuance of the subject cover notes by the delinquent officer.
22. Simply because a supplementary charge-sheet came to be issued, it cannot be said that the disciplinary proceedings are bad in the eye of law on account of delay. Supplementary charge-sheet in essence is nothing, but re-framing of the charges, which were served upon the delinquent officer vide notice dated 24.02.1992.
23. The basic contention of delinquent officer in challenging the order dated 31.03.1998 passed by disciplinary authority has been that the disciplinary authority has not recorded its finding qua each of the charges and in this regard, Mr. Bhandari learned (D.B. SAW/213/2013 has been filed in this matter. Please refer the same for further orders) (Downloaded on 08/11/2024 at 11:31:11 PM) [2024:RJ-JD:44776] (9 of 12) [CW-4505/1998] counsel has placed strong reliance upon the judgment of this Court in the case of Arun Prakash (supra).
24. So far as the judgment in the case of Arun Prakash (supra) is concerned, this Court has held that the disciplinary authority is required to record its finding in relation to each of the charges. Such position of law is settled, but if the facts of the case at hands, more particularly the order impugned dated 31.03.1998 is taken into account, one would find that the disciplinary authority has recorded its finding qua all the charges, maybe, in one paragraph.
25. A perusal of the impugned order shows that the disciplinary authority has not only examined the record and inquiry report in detail, but has applied its mind qua each of the charges.
26. The Regional Manager of the Insurance Company being disciplinary authority is not an expert in law and adjudicatory process. It cannot be expected of him to record its own finding while dealing with each of the evidence as is expected of a person from legal background. He is supposed to go through the record and give his own conclusion, which in the present case he has done. Simply because the order of the disciplinary authority is short, it cannot be said that it has been passed in slip-shod manner.
27. This Court hardly finds any substance in the arguments made on behalf of the delinquent officer that on account of non- payment of TA/DA to the Defence Assistant, delinquent officer's right to defend his case, has been marred and the disciplinary proceedings are liable to be quashed.
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28. In the opinion of this Court, if the payment as required under the Rules of 1975 has not been made to the Defence Assistant, it was incumbent upon the delinquent officer or such Defence Assistant to claim such amount and if the same has not been paid, they can avail the remedy available under law, but for such reason the disciplinary proceedings cannot be annulled.
29. On perusal of the judgment in the case of Bilaspur Raipur Kshetriya Gramin Bank (supra), cited by Mr. Bhandari contending that the respondents did not provide original certified copy of the documents, this Court is of the opinion that in the judgment ibid, no documents were supplied to the delinquent officer at all, whereas in the present case, photo-stat of the documents had been supplied to the delinquent officer. In the opinion of this Court, non-furnishing of copies of documents at all and furnishing of photo-stat copies of the documents are entirely two different things.
30. In the case like the present one, when the allegations are that of issuing dubious or manipulated cover notes, it cannot be expected from the Insurance Company to produce or supply original cover notes or its certified copies, as the same either lies with the insured or remains in the Motor Accident Claims Tribunal. If the delinquent officer wanted, he could have obtained the same or could have produced any other cogent evidence to rebut the case of the respondent - Insurance Company.
31. It is settled position of law that in the matters of disciplinary proceedings, the High Court in exercise of its supervisory jurisdiction should neither appreciate the evidence as an Appellate Authority nor should it substitute its own findings. However, (D.B. SAW/213/2013 has been filed in this matter. Please refer the same for further orders) (Downloaded on 08/11/2024 at 11:31:11 PM) [2024:RJ-JD:44776] (11 of 12) [CW-4505/1998] considering that the remedy of appeal could not be availed by the delinquent officer (as according to him, the Appellate Authority and the disciplinary authority were the same), this Court deemed it appropriate to go through the inquiry report so as to ward off possibility of any injustice meted out to the delinquent officer.
32. That apart, having regard to the fact that disciplinary authority has not dilated upon the findings in detail, this Court went through the inquiry report dated 18.02.1997 in a bid to prima-facie satisfy itself about the correctness of the findings.
33. On perusal of the inquiry report, this Court finds that not only sufficient opportunity of hearing was granted to the delinquent officer, but also the inquiry officer has dealt in detail, the reply, documents and defence evidence put forth by the delinquent officer.
34. The essence of allegation against the delinquent officer was that he had either manipulated the cover notes or has left the date and time of the cover notes blank so as to give undue advantage to the insured. The record reveals that because of the manipulated cover notes issued by the delinquent officer, the respondent - Insurance Company had to bear the burden of 22 lacs back in the year 1992.
35. This Court neither finds any infirmity, illegality or procedural irregularity in the inquiry conducted by the respondents nor does it find perversity in the findings.
36. The disciplinary proceedings are to be decided on the basis of preponderance and probabilities of the evidence unlike criminal case, where the prosecution is required to prove each charge beyond reasonable doubt.
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37. If the charges against the delinquent officer are considered, they are grave in nature. The findings recorded by the inquiry officer qua each of the charges is based upon cogent material and they are infallible. Each of the charges levelled against the delinquent officer which stand proved are sufficient enough to justify the punishment of dismissal.
38. Viewed from any angle, this Court does not find any merit in the present writ petition, for which it is, hereby, dismissed.
(DINESH MEHTA),J 2-Mak/-
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