*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 24th May, 2011.
+ W.P.(C) No.2429/2011 & CM No.5190/2011 (for direction)
% P.K. SHARMA ..... Petitioner
Through: Mr. N. Prabhakar & Mr. K.K.
Sharma, Advocates.
Versus
THE ORIENTAL INSURANCE COMPANY LTD.
..... Respondent
Through: Ms. Manjusha Wadhwa & Ms.
Angana Goswami, Advocates.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may No.
be allowed to see the judgment?
2. To be referred to the reporter or not? No.
3. Whether the judgment should be reported No.
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The petitioner, while working as a Development Officer with the respondent was on 16th January, 2003 charged with having exhibited dishonesty, negligence, lack of integrity and having acted in a manner W.P.(C) No.2429/2011 Page 1 of 8 prejudicial to the interest of respondent. Departmental inquiry proceedings were commenced against the petitioner. The petitioner preferred W.P.(C) No.2121/2004 in this Court impugning the said charge sheet. Rule was issued in the said writ petition but no stay was granted. The Disciplinary Authority of the respondent by an order dated 15 th July, 2005 dismissed the petitioner from the service of the respondent. The departmental appeal provided under the General Insurance (Conduct, Discipline and Appeal) Rules, 1975 preferred by the petitioner was also dismissed on 20 th December, 2005.
2. Impugning the said orders dated 15th July, 2005 and 20th December, 2005 after more than five years therefrom, the present writ petition has been filed. The only explanation in the writ petition for the long delay is that the petitioner had on 30th March/June, 2006 preferred a memorial to the respondent and on 24th April, 2008 withdrew W.P.(C) No.2121/2004 with liberty to challenge the order of dismissal if the memorial was dismissed; the memorial was dismissed on 16th March, 2009; the counsel for the petitioner states that the dismissal was however communicated to the petitioner on 19th W.P.(C) No.2429/2011 Page 2 of 8 May, 2009. The writ petition has been filed after nearly two years therefrom also.
3. The writ petition came up before this Court first on 18 th April, 2011 when finding the same to be highly belated it was inquired from the counsel for the petitioner as to why the writ petition should not be dismissed on the ground of acquiescence, waiver and laches alone. The counsel for the petitioner had then sought time to file additional affidavit.
4. Though no additional affidavit is on record but the counsel for the petitioner states that an application under Section 5 of the Limitation Act has been filed. A copy of the same has been handed over in the Court and is taken on record. The petitioner therein has stated that even after knowledge on 19th May, 2009 of dismissal of the memorial, representations were made to the Chairman-cum-Managing Director of the respondent on 22nd July, 2009, 12th January, 2010 and 18th February, 2011 and after receiving no response, ultimately the present writ petition has been filed.
5. The question which arises is whether a petitioner merely by continuing to make representations, delay the filing of a writ petition by as W.P.(C) No.2429/2011 Page 3 of 8 long as five years as in the present case. It has been held in Karnataka Power Corporation Ltd. Vs. K. Thangappan (2006) 4 SCC 322 that mere making of representations cannot justify a belated approach.
6. I had in fact on 19th April, 2011 enquired from the counsel for the petitioner as to whether there is any provision in the Rules of the respondent of preferring a memorial or representation to the respondent or its Chairman cum Managing Director or any power in the respondent or any of its officer, notwithstanding the order of the Disciplinary Authority and dismissal of the departmental appeal provided for in the Rules, to entertain such representation/memorial. No answer to the said query has been forthcoming. However I find that Rule 40 of the Rules aforesaid does indeed provide for a memorial to the Chairman-cum-Managing Director within six months of the date of receipt of order of Appellate Authority. There is no provision however for any further representation.
7. The memorial preferred by the petitioner remained pending for three years. The petitioner did not show any anxiety to have the same disposed of. A memorial is in the nature of a representation. It was not mandatory for the W.P.(C) No.2429/2011 Page 4 of 8 petitioner to prefer the same. The petitioner even without preferring the memorial could have impugned the orders of Disciplinary Authority and Appellate Authority, as done now. A person who is without job cannot be expected to wait for a long period to seek redressal of his grievances. The petitioner, notwithstanding no order on his memorial was satisfied with waiting for its outcome after howsoever much time. The petitioner even after knowledge of rejection of his memorial did not show any urgency and continued to make representations which could not have served any purpose. The only inference which can be drawn from the conduct of the petitioner is that the petitioner has been pursuing his vocation either in the insurance business which has now been open to the private sector also or elsewhere and has preferred this writ petition by way of a wager. The writ petitions preferred by such litigants cannot be permitted to clog this Court when time is already scarce for dealing with deserving and hard cases. The writ petition is thus liable to be dismissed on this ground alone. W.P.(C) No.2429/2011 Page 5 of 8
8. However to satisfy the judicial conscience, I have also perused the orders of the Disciplinary Authority and of the Appellate Authority impugned in this writ petition.
9. The Disciplinary Authority on the basis of the report of the Inquiry Officer has found the petitioner guilty of wrongfully retaining cash received from various clients and using Third Party cheques to cover up the issuance of cover notes and altering the period of the insurance on cover note resulting in huge Third Party liability on the respondent insurance Company in a motor accident case. The Appellate Authority considered the pleas of the petitioner, (a) that the alteration on the cover note had been done by somebody else ; (b) that the charge sheet had been issued long after the incident impairing his defence; (c) that the charge sheet had been issued by an officer of rank below his Appointing Authority; (d) that the responsibility for accepting a Third Party Cheque was on cashier and not on him who was performing marketing functions only; and, (e) that the cover note was issued by the agent who was liable therefor, and held (i) that the Cover Note Control Register is not proof of receipt of premium; (ii) that alterations W.P.(C) No.2429/2011 Page 6 of 8 were signed in the copy misleading the accepting officer to believe that original is also attested; (iii) that the delay in initiating the proceedings was due to late discovery of misconduct; (iv) that the charge sheet and the penalty orders were issued by the appropriate authority; (v) that comments of the petitioner to the inquiry report were invited and a reply dated 11th February, 2004 furnished by the petitioner; (vi) that it was not pointed out by the petitioner that the cheque was a third party cheque; (vii) that the Development Officer is issued the cover note and is accountable for the same. The Appellate Authority also held that it has been established that the cover note was issued to the petitioner and the alterations in the copies were in the handwriting of the petitioner and no alterations were made in the original and the particulars of the third party cheque mentioned in the cover note were in the handwriting of the petitioner misleading the office into believing that the cheque was received against the cover notes.
10. I find that the findings of the Disciplinary Authority and the Appellate Authority are factual in nature. This Court is not to sit in appeal over such factual findings. Else, no fault is found in the procedure adopted in the W.P.(C) No.2429/2011 Page 7 of 8 disciplinary proceedings and the petitioner has been given sufficient opportunity and hearing. The legal position in this regard has been recently reiterated in State Bank of Bikaner & Jaipur Vs. Nemi Chand Nalwaya (2011) 4 SCC 584.
11. Similarly, the Chairman-cum-Managing Director of the respondent, in order dated 16th March, 2009 rejecting the memorial also held that the cheque number of the Third Party was mentioned in the cover note in the handwriting of the petitioner misleading the officer and cashier to believe that the cheque was from the insured; that the cover note was issued from cover note book of the petitioner and the petitioner had failed to establish that he has deposited in the office the cash premium that was collected from the insured.
12. Thus, on merits also, the petitioner has not made out any case. The writ petition is dismissed. No order as to costs.
RAJIV SAHAI ENDLAW (JUDGE) MAY 24, 2011/bs..
W.P.(C) No.2429/2011 Page 8 of 8