Gauhati High Court
Anjan Kumar Das vs Life Insurance Corporation Of India & 3 ... on 20 December, 2017
Author: Nelson Sailo
Bench: Nelson Sailo
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Writ Petition (C) No.7563 of 2016
Anjan Kumar Das
Son of Surendra Ch. Das, Ex-Record Clerk
S.R. No.333424, R/O Deep Apartment
Lochan Bairagi Road
Silchar, Cachar, Assam
........Petitioner.
-Versus-
1. Life Insurance Corporation of India
Represented by its Managing Director,
LIC of India, Yogakshema Jeevan Bima Marg
P.B. No.19953, Mumbai-21, Maharashtra & 3 Ors.
....... Respondents.
BEFORE THE HON'BLE MR. JUSTICE NELSON SAILO For the Petitioner : Mr. M Khan, Advocate.
For the Respondents : Mr. S. Nath, Advocate.
Date of Hearing : 09.11.2017
Date of Judgment : 20.12.2017
Page 1 of 21
JUDGMENT & ORDER (CAV)
Heard Mr. M Khan, the learned counsel for the petitioner and Mr. S. Nath, the learned counsel appearing for the Life Insurance Corporation of India (LIC) respondents.
2. The case of the petitioner in brief is that he joined service under the LIC as Sepoy (Peon) pursuant to his appointment issued vide letter dated 30.10.1990. The petitioner was initially posted at Dharamanagar Branch of the LIC and thereafter, he served under the Divisional Office located at Silchar while being posted at Haflong. The petitioner was subsequently promoted to the post of Record Clerk.
3. On 5.9.2014 (Annexure-1), the petitioner received a communication from the Senior Divisional Manager, LIC, Silchar Divisional Office, Silchar asking him to submit explanation as to why disciplinary proceeding should not be initiated against him. The reason for the call for explanation was that a letter dated 25.05.2013 addressed to the Zonal Manager, LIC was received from the General Manager, Assam Gramin Vikash Bank, Guwahati, claiming WP (C) No. 7563 of 2016 Page 2 of 21 that LIC Policy No.491165004 subscribed by Sri Pradip Kumar Singh pertaining to Haflong Branch was assigned to their Itkhola Branch, Silchar on 05.06.2008 with original policy bond as collateral security for availing loan by one Sri Samir Deb. The Bank authority inter-alia requested liquidation of surrender value under the policy in favour of the Bank to adjust the outstanding loan. No such record of assignment could be found at Haflong Branch except that the rubber stamp and the stationary utilized were the same as utilized in the Branch. It was also revealed that the policy holder availed policy loan of Rs.2 lakhs on 06.03.2008 against the same policy which he repaid in full on 20.02.2010. The policy holder denied any such assignment of his policy made by him to the above Bank. As it was apparent from the records that the petitioner was allocated the job of assignment at P.S. Department of the Branch from 05.04.2008 with PS Module password allotted on 29.02.2008 for enabling him to perform the jobs of PS Department. Furthermore, it was also revealed that subsequently another attempt of assignment of the same policy to Allahabad Bank, Karimganj Branch on the strength of duplicate policy bond was detected and thwarted on August, 2010. Therefore, it was traced that fake assignment papers, fake assignment registration number, signatures on behalf of the LIC were almost identical in nature as in the case of Assam Gramin Vikash Bank and on being interrogated, the petitioner had confessed to the Branch WP (C) No. 7563 of 2016 Page 3 of 21 authority about his involvement in preparation of the duplicate policy bond, forged letter of assignment, fake registration of assignment etc. by using the office stationary and that he had admitted his guilt by submitting a letter of confession dated 19.08.2010. Thus, an explanation was called from him asking him to submit the same within a peiod of 10 days from the date of receipt of the letter.
4. The petitioner submitted his reply to the explanation letter on 22.09.2014 (Annexure-2) to the Senior Divisional Manager, LIC Silchar Divisional Office, Silchar expressing his shock for having received the confidential letter for the alleged offence said to have been committed about 7 years back while he was posted at Halflong. That since a specific explanation was called from him, he requested that a copy of the three documents which he mentioned in his letter be furnished to him for giving an effective reply. Thereafter, the petitioner did not receive the documents asked by him, he submitted another letter to the Senior Divisional Manager, LIC, Silchar Divisional Office on 14.01.2015 (Annexure-3) requesting the said authority to furnish him the documents as was mentioned in his earlier letter dated 22.09.2014.
WP (C) No. 7563 of 2016 Page 4 of 21
5. Notwithstanding the petitioner's communications, the respondents issued a charge sheet on 12.08.2015 enclosing with it a provisional list of documents, provisional list of witnesses marking them as Annexure-B. The contents of the charge sheet may be reproduced below for ready perusal:-
" You, Sri Anjan Kumar Das, S.R. No.333424, Record Clerk, Silchar Branch Ofice No.2 under Silchar Divisional Office are charged as under:
THAT, during your tenure at Haflong Branch posted at its Policy Servicing Deptt. you were actively involved in a fake assignment of LIC Policy No.491165004 in favour of Assam Gramin Vikash Bank, Itkhola Branch, Silchar in connection with a Demand Loan from the said Bank (Loan A/C No: D/L -489) disbursed in June, 2008 in favour of one Sri Samir Deb. The original Policy Document was deposited to the LICI, Haflong Branch by Sri Pradip Kumar Sinha, the Policyholder & Life Assured, for availing Policy Loan in March, 2008 and misusing your official position, you were instrumental to utilize and deposit the said Policy document to the bank as collateral security for grant of the said loan from Bank, you arranged to manipulate the Forms of Assignment and falsely signed therein on behalf of the Life Assured without his consent and knowledge which tantamount to deliberate fraudulence.
Thus, by your aforementioned acts, you have failed to maintain absolute integrity and devotion to duty and have acted in a manner prejudicial to good conduct and detrimental to the interest of the Corporation , and WP (C) No. 7563 of 2016 Page 5 of 21 have knowingly violated the provisions of Regulations 21 & 24 read with regulation 30(1) of the LIC of India, (Staff) Regulations, 1960 for which any one or more of the penalties specified under Regulation 39 (1) (a) to (g) of the aforesaid (Staff) Regulations, can be imposed upon you.
A provisional list of documents by which and a provisional list of witnesses through whom the aforesaid charges are sought to be sustained are annexed to this Charge Sheet vide Annexure 'A' & 'B' respectively.
However, before proceeding further in the matter, you are hereby directed to state in writing within a period of 15 days from the date of receipt of this Charge Sheet as to whether you admit the charges mentioned above. In case you admit the charges a statement of admission and in the event of your denial of the charges, a statement of denial, together with a provisional list of documents by which and a provisional list of witnesses through whom you propose to defend you case, may be submitted to the undersigned within the period stipulated above.
In case you written statement, as mentioned above, is not received within the stipulated period or it is found to be unsatisfactory, further proceedings shall ensue without any further reference to you.
Dated at Silchar, this 12th day of August, 2015."
6. The petitioner thereafter submitted his reply to the charge sheet on 26.08.2015 (Annexure-5) before the Senior Divisional Manager (Disciplinary authority LIC, Silchar Divisional Office) by stating that the charge sheet was WP (C) No. 7563 of 2016 Page 6 of 21 vague and not specific and without disclosure of necessary details. He also stated that the same was issued belatedly after about 8 years from the year of the alleged occurrence. He also requested for a copy of the documents mentioned therein to enable him made an effective and further reply to the charge sheet.
7. The respondents however construing the petitioner's letter dated 26.08.2015 as denial of the charge proceeded with the departmental proceeding by appointing an enquiry officer and a presenting officer vide two separate orders both dated 05.09.2015 (Annexure- 6 and 7) on the same day. A formal institution of the departmental proceeding was then communicated to the petitioner by Manager (Personnel & IR) Divisional Manager, Silchar Divisional Officer (Annexure-8). The appointed Enquiry Officer thereafter vide his letter dated 28.10.2015 (Annexure-9) informed the petitioner that a preliminary hearing would be conducted on 09.11.2015 at 11 a.m. in the Silchar Divisional Premise Office and that the petitioner was asked to be present before him with a list of documents or witnesses that he would like to produce to defend his case. It was also mentioned that he would be entitled to take a co-employee to assist him in his case if he desires with the approval of the Disciplinary Authority. He was further informed that he would be treated as on duty on the day of the enquiry. WP (C) No. 7563 of 2016 Page 7 of 21
8. In response to the said communication, the petitioner requested that he may be allowed to take the assistance of a lawyer since none of his co-employee upon seeing the complicacy of the case were agreeable to assist him in the departmental proceeding in the case of submitting an application on 02.11.2015. However, the respondents rejected his prayer on the stipulated day i.e. 09.11.2015 and the petitioner participated in the preliminary hearing conducted by the Enquiry Officer. In the subsequent hearing conducted on 27.11.2015 (Annexure-11), the petitioner submitted an application to the Enquiry Officer for furnishing him the preliminary enquiry report, copies of the statements made by the witness and other documents which had not been supplied to him. On the same day, the petitioner also submitted another application before the Enquiry Officer stating that one Sri Samir Dev who was the alleged beneficiary of the loan by submitting the LIC police of Sri Pradip Kumar Sinha being a material witness in the case be produced in the enquiry proceeding so that the petitioner would get a chance to cross examine him.
9. Upon conclusion of the hearing, a copy of the proceeding was given to the petitioner wherein it was recorded that the petitioner was to present Sri Samir Dev in the next hearing date to be fixed by the Enquiry Officer. WP (C) No. 7563 of 2016 Page 8 of 21 Having come to learn what was recorded in the proceeding conducted on 27.11.2015, the petitioner submitted an application to the Enquiry Officer on 28.11.2015 (Annexure-13) stating that he had not given any undertaking to produce Samir Dev as a witness in the departmental proceeding and in fact, it was the duty of the prosecution to produce him as an witness so that he could have an opportunity to cross examine him.
10. That subsequently the enquiry officer submitted his enquiry report on 29.12.2015 with a finding that the charge was proved against the petitioner. Accordingly, the petitioner vide communication dated 30.12.2015 (Annexure-
14) was given a copy of the Enquiry Report and asked to submit his reply to the same within a period of 7 days from the date of receipt of the communication. The petitioner thereupon in response to the Enquiry Report submitted his reply to the Senior Divisional Manager (Disciplinary Authority) LIC, Silchar Divisional Office on 14.01.2016 (Annexure-16) stating that Sri Samir Dev whose name was mentioned in the charge sheet was not produced and examined in the enquiry proceedings and the responsibility of producing him was wrongly placed upon him. He further stated that the enquiry conducted was in violation of the rules and procedure and the same should be quashed in the interest of justice.
WP (C) No. 7563 of 2016 Page 9 of 21
11. The respondents through the Disciplinary Authority not accepting the reply of the petitioner issued him a show cause notice on 29.03.2016 (Annexure-17) asking him to show cause within 15 days from the date of receipt of the same as to why a penalty of removal from service which was provisionally proposed should not be imposed upon him. The petitioner in response gave his reply on 12.04.2016 (Annexure-18) reiterating the irregularities committed in the departmental proceeding while denying any role to the charge that was alleged and said to be established against him. The respondent authorities nevertheless through final order dated 28.04.2016 (Annexure-19) imposed upon the petitioner a penalty of removal from service in exercise of the powers provided by in Regulation- 39(i)(f) of the LIC of India (Staff) Regulation, 1960 (Staff Regulation for short).
12. The petitioner being aggrieved filed an appeal under the Staff Regulation before the Appellate Authority on 28.05.2016 (Annexure-20). However, the said appeal not having been disposed by the Appellate Authority, the petitioner approached this Court by filing WP (C) No. 4774 of 2016. The writ petition was disposed vide Order dated 12.08.2016 (Annexure-21) at the motion stage with a direction to the respondent WP (C) No. 7563 of 2016 Page 10 of 21 Appellate Authority to consider and dispose the appeal of the petitioner within a period of six weeks from the date of receipt of the Order.
13. However, it turned out that the Appellate Authority in fact had disposed the appeal of the petitioner vide order dated 11.07.2016 (Annexure-22) rejecting his appeal which was only furnished to the petitioner belatedly. The petitioner being aggrieved with the rejection of his appeal is once again before this Court through the present writ petition.
14. Mr. M. Khan appearing for the petitioner submits that the petitioner has challenged his removal from service firstly on the ground that the departmental proceedings was drawn up against the petitioner belatedly i.e., after more than 7 years from the alleged occurrence of the incident. He submits that although the respondents were aware of the allegations in the year 2013, they have only taken necessary action by implicating the petitioner only in the year 2014 when an explanation was called from him for reasons best known to them. Secondly, he submits that the petitioner was not given and the list of witnesses when explanation was called from him vide communication dated 05.09.2014 and the enclosures of the charge sheet dated 12.08.2015 as well. Although the petitioner repeatedly asked for the documents, the same was not given to him and therefore, he was WP (C) No. 7563 of 2016 Page 11 of 21 deprived of the opportunity to make an effective reply to the allegations and charge pressed against him. Thirdly, Mr. Khan submits that the respondent authorities failed to produce Sri Samir Dev who was said to be the alleged beneficiary of loan through the policy of Sri Pradip Kumar Sinha during the departmental proceedings. The respondents in fact arbitrarily imposed the responsibility of producing the said person upon the petitioner in the departmental proceeding. Lastly, he submits that the charge against him was said to be proved based upon the findings and report of the Forensic Laboratory Report (Truth Lab, Hyderabad). Although the Chairman of the Laboratory concerned communicated that expert who gave his opinion could be summoned to prove the findings, the respondent authorities without any reason arbitrarily decided not to examine him in the enquiry proceedings.
15. Mr. M Khan in support of his statements relies upon the decision of this Court rendered in the case of Jiten Borah Vs. Union of India & Ors 2012(5) GLT 347. He submits that this Court by relying upon the decision of the Apex Court i.e., LIC of India Vs. Ram Pal Singh, (2010) 4 SCC 491 held that non-examination of the handwriting expert as witnesses when the entire foundation of holding the charge established against the delinquent employee would vitiate the departmental proceedings. In fact, the Apex Court in the case of Ram Pal Singh (supra) had held that mere admission of WP (C) No. 7563 of 2016 Page 12 of 21 documents in evidence does not amount to its proof. In other words, mere marking of exhibits on a document does not amount to proof unless due process if followed in accordance with law. At the most, such documents may amount to admission of its contents but not its truth and therefore, the mere fact that the documents were exhibited in the enquiry would not mean that the contents stood proved.
16. Mr. M Khan further refers to the decision of the Court rendered in the case of Kirti Nath Vs. Assam Khadi Industries Board 2013(3) GLT 332 to contend that duty is cast upon the respondents to establish the charge against the petitioner in order to impose him with a penalty of removal from service. Merely because an effective defence could not be put up by the petitioner, the respondents cannot take advantage of a weak defence. Mr. M Khan submits that considering the failure on the part of the respondents to conform with the basic standard procedure to be followed in a departmental proceedings, the impugned order of removal from services of the petitioner is unsustainable and the same should be set aside and the writ petitioner be reinstated with all the consequential benefits.
17. Mr. S Nath appearing for the respondents LIC by referring the affidavit-in-opposition filed by the respondents on 24.05.2017 at the outset WP (C) No. 7563 of 2016 Page 13 of 21 submits that against the order of removal from service and the rejection of the appeal by the Appellate Authority, the petitioner could have preferred a Memorial before the Chairman of the LIC within the stipulated time as per the provision of the Staff Regulation. The petitioner having not exhausted such remedy, the writ petition is therefore not maintainable and the same should be dismissed ever on this ground alone.
18. Mr. S Nath further submits that the departmental proceedings initiated and completed against the writ petitioner was in due conformity with the Staff Regulation and that the petitioner was afforded all reasonable opportunity to present his case during the proceedings. The communication dated 05.09.2014 issued to the petitioner to explain as to why he should not be held responsible for the misuse of the LIC policy of Sri Pradip Kumar Sinha was only an opportunity given to the petitioner with an open mind to enable him to submit his explanation in the matter. It was not a charge sheet but only a letter issued to him at the very preliminary stage asking for his explanation in the matter before a decision could be taken as to whether or not a formal proceedings should be initiated against him. The petitioner instead of giving a reply to the said letter as was asked from him demanded various documents vide his letter dated 22.09.2014 and 14.01.2015 including some documents which were non-existent with a view to derail WP (C) No. 7563 of 2016 Page 14 of 21 and mislead the authorities. He did not even submit a reply regarding his role in the matter and completely tried to avoid the matter. Nevertheless, a charge sheet was issued to the petitioner on 12.08.2015 with clear and specific charge against him while asking him to put in writing as to whether he admitted or denied the charge and to provide supporting evidence or witnessed if any in his defence. The petitioner again in inspite of submitting an appropriate reply submitted a letter dated 26.08.2015 asking for documents mentioned in the charge sheet as well as raising other issues which were irrelevant to the proceedings. Therefore, the Disciplinary Authority had no alternative but to construe the non-compliance of the petitioner in giving an appropriate reply to the charge sheet as a denial of charge by him. Accordingly, a departmental enquiry was instituted by appointing an enquiry officer as well as a presenting officer. While, informing the petitioner that he could avail the services of a co-employee of his choice as defense assistant during then, the petitioner was furnished with all the relevant documents which were to be relied upon during the enquiry proceedings by the establishment. The petitioner as a token of receipt of such documents on 09.11.2015 gave his signature on the body of such documents. Inspite of being given the opportunity to avail the assistance of a co-employee, the petitioner requested for engagement of a lawyer which WP (C) No. 7563 of 2016 Page 15 of 21 however was turned down by the Disciplinary Authority since the same was not permissible under the rules and regulation followed by the organization.
19. Mr. S Nath further submits that the petitioner vide his letter dated 27.11.2015 requested for a copy of the preliminary enquiry report and copies of the statements of witnesses. In this regard, he submits that report referred to by the petitioner was only a preliminary investigation report which was conducted at the very beginning to examine the records of the Branch in view of the letters received from Assam Gramin Vikash Bank which otherwise had no direct bearing on the disciplinary proceedings. Rather, the records and documents collected through the said investigation were placed before the petitioner during the enquiry proceedings. Mr. S Nath further submits that in so far as the request of the petitioner to produce Sri Pradip Kumar Sinha, the policy holder of the LIC No. 491165004 in the enquiry is concerned, Sri Pradip Kumar Sinha only being a bonafide policy holder of the respondent LIC whose policy was fraudulently assigned to the Assam Gramin Vikash Bank, Itkhola Branch there was no reason to produce him in the enquiry proceeding. In fact, resentment sent by him to the Corporation vide his e-mail dated 22.05.2012 was supplied to the petitioner alongwith the charge sheet. The charge only being limited to the involvement of the petitioner in the fraudulent activity upon the aforesaid LIC policy, the WP (C) No. 7563 of 2016 Page 16 of 21 presence of Sri Pradip Kumar Sinha, an outsider in the departmental proceedings was neither relevant nor essential in a case of internal fraud such as the enquiry concluded. In fact, the petitioner during the entire enquiry proceedings did not ask for production of any one of the official of the Itkhola Branch for his cross examination. He was allowed sufficient time even after expiry of 7 days time to submit his reply to the Presenting Officer's brief. However, the petitioner vide his letter dated 15.12.2015 only requested for extra time of 7 days to submit his reply. Although an extra time of 7 days was given to him, the petitioner submitted his written brief only on 28.12.2015. Yet the Enquiry Officer accepted the same and each and every contention of the petitioner mentioned therein was duly considered by the Enquiry Officer to arrive at his findings. Mr. S Nath therefore submits that the entire enquiry was conducted impartially and independently by the Enquiry Officer while scrupulously following the rules and procedures laid down in this regard. He thus submits that under the facts and circumstances, the petitioner cannot have any legitimate grievance and the writ petition should be dismissed.
20. I have considered the submissions advanced by the rival parties through their respective counsel and I have also perused the materials on record including the departmental enquiry record produced by WP (C) No. 7563 of 2016 Page 17 of 21 Mr. S Nath. From a perusal of the records, it can be seen that the petitioner was supplied with the relevant records which was considered during the enquiry proceedings. The petitioner in fact as a token of his acknowledgement had appended a signature on the document received by him. The admitted position as per the Staff Regulation is that there is no bar in conducting a departmental enquiry against the employee of the Corporation for an incident which had occurred as far back as 7 or 8 years. Therefore what needs to be considered is as to whether there has been a free and fair enquiry proceedings as per the established norms. The petitioner apparently was given reasonable opportunity to present his case against the charge of his involvement in manipulation of form of assignment of the LIC policy of Sri Pradip Kumar Sinha. The manipulation alleged to have been done by the petitioner in the form of assignment was sent for forensic laboratory expert opinion at Truth Laboratory in Hyderabad. The expert opinion was consequently sent back to the respondent authorities on 21.05.2015 with a finding that the signatures which appeared in the form of assignment and surrender value quotation besides others in connection with the LIC policy of Sri Pradip Kumar Singha matched with that of the petitioner's handwriting. Based upon such findings, the charge against the petitioner was found to be proved by the Enquiry Officer. The Apex Court in the case of SBI Vs. Bidyut Kumar Mitra and Ors. 2011 (2) SCC 316 held that WP (C) No. 7563 of 2016 Page 18 of 21 non supply of documents by itself would not vitiate the enquiry proceedings automatically unless the delinquent employee can establish the fact that prejudice was caused to him. The preliminary enquiry report admittedly was only to see the involvement of the petitioner so that an enquiry could be made and it was not relied upon by the Enquiry Officer. In the case of UP State Road Corporation & Ors. Vs. Musi Ram & Ors. (1999) 3 SCC , the Apex Court also held that when documents although mentioned in the charge sheet are neither relevant to the charge or referred to or relied upon by the authorities, non-supply of such documents would not vitiate the proceedings. Therefore non-supply of the preliminary report would not vitiate the enquiry proceeding against the petitioner. While this Court is not embarking upon the task of comparing the handwriting of the petitioner with those said to have been allegedly forged, it may be worthwhile to notice that the Apex Court in the case of Lalit Popli Vs. Canara Bank & Ors. (2003)3 SCC 583 opined that irrespective of an opinion of an handwriting expert, Court can compare the admitted writing with the disputed writing and come to its own independent conclusion. Such exercise of comparison is permissible under section 73 of the Evidence Act. Ordinarily Section 45 and 73 of the Evidence Act are complementary to each other. The evidence of the handwriting expert need not be invariably corroborated. It is for the Court to decide whether to accept such an uncorroborated evidence or not. The WP (C) No. 7563 of 2016 Page 19 of 21 standard of proof in a disciplinary proceeding is that of preponderance of probability and not proof beyond doubt. Therefore, presence of some materials on record to arrive at the conclusion would be sufficient to come a conclusion as to whether the delinquent has committed the mistake or otherwise. A further observation was made that the High Court while exercising jurisdiction under Article 226 of the Constitution of India does not act as appellate authority. Its jurisdiction is only confined to examine as to whether the disciplinary authority had come to its conclusion based on the materials available on record and after giving the delinquent employee an opportunity of hearing by observing the principles of natural justice.
21. It may also be noticed that although the writ petitioner has questioned the sustainability of the decision of the respondents in removing him from service pursuant to the findings of the Enquiry Officer, the petitioner has however not made any challenge to the expert opinion in his writ petition. There is also no material on record to show that the petitioner requested the examination of the person who tendered his opinion upon the alleged signature of the LIC policy holder as well. That being the position, and upon due consideration of the facts and circumstances of the case in its entirety, the writ petition is found to have no merit and the same is dismissed.
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22. No cost.
JUDGE Nivedita WP (C) No. 7563 of 2016 Page 21 of 21