Allahabad High Court

Vishnu Kumar Verma vs The Oriental Insurance Company ... on 1 September, 2017

Bench: Sudhir Agarwal, Virendra Kumar-Ii




HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. - 3
 

 
Case :- SERVICE BENCH No. - 990 of 2001
 
Petitioner :- Vishnu Kumar Verma
 
Respondent :- The Oriental Insurance Company Limited Through C.M.D.
 
Counsel for Petitioner :- Manik Sinha,Ashutosh Misra,Gaurav Saxena,Girish Chandra Verma,Jushi Saxena,Lalla Chauhan,Neeraj Kumar Saxena,P.K. Jaiswal,Rajni Saxena,Rishi Saxena,Satyendra Srivastava,Seena Saxena,Sushil Kumar Verma,Vivekanand Tripathi
 
Counsel for Respondent :- C.S.C.,Aseem Chandra,Umesh Chandra,Vashu Deo Mishra
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Virendra Kumar-II,J.

1. The writ petition is restored to its original number vide order of date passed on Recall Application No. 91043 of 2015.

2. Heard Sri Ashutosh Mishra, Advocate for petitioner and Sri Vasudev Mishra, Advocate of respondent-Insurance Company.

3. The writ petition is directed against punishment order dated 23.06.1998 whereby punishment of reduction to basic pay in petitioner's cadre was imposed by Disciplinary Authority, i.e., Assistant General Manager, Oriental Insurance Company Limited (hereinafter referred to as the Disciplinary Authority") and appellate order dated 25.08.1999 passed by General Manager of Insurance Company rejecting petitioner's appeal.

4. Two grounds have been raised to challenge the order of punishment. Firstly, that petitioner was not allowed to take Defence Assistant by a person of his choice whom he nominated as Defence Assistant but was rejected and inquiry proceeded ex parte and secondly, that charge levelled against petitioner was not such so as to justify major penalty.

5. Before considering above submissions it would be appropriate to have a brief factual matrix giving rise to present writ petition.

6. Petitioner was working as Development Officer posted at Divisional Office, Faizabad of Oriental Insurance Company (hereinafter referred to as the "Employer-OIC"). A charge sheet dated 25.10.1995 was served upon petitioner containing Article of Charge in Annexure-VII to the writ petition as under:

"(1) On 27.9.95 at about 1.00 p.m. Sri V.K. Verma entered the cabin of Sri R.M. Gupta Divl. Manager DO Faizabad and closed the door. Sri Verma had heated arguments and pressurised Sh Gupta to give him the credit of the business of M/s Durga Bansal Fertilizers and and during the course of the coversation he misbehaved with Sh Gupta and also threatened him saying that:

"Tumne Abhi Tak Hamari Sharafat Dekhi Hai, Ab Battamiji Bhi Dekhoge. Main Am Tumse Sadhe Panch Baje Ke Baad Baat Karunga."

Then Km. Vibha Srivastava, Steno entered the cabin of Sh Gupta for some official work. Sh Verma asked her to leave the cabin and on her refusal Sh Verma pressurized her to lave the cabin. After some time when Sh Tripathi AAO entered the cabin of Sh Gupta for some official work Shri V.K. Verma misbehaved with him also. At around 1.30 p.m. Sh Verma left the cabin of Sh Gupta Divl Manager after threatening Sh Gupta as well as Sh Tripathi.

(2) On 27.9.95 at around 2.00 p.m. Sh V K Verma Dev. Officer had a physical fight with Sh Tripathi AAO and created a scene near the parking place in the DO premises and vitiated the office atmosphere.

Shri Verma by his above acts exhibited conduct which is unbecoming of a public servant, acted in a manner prejudicial to the interest of the Company, exhibited wilful insubordination and behaviour which is riotious, disorderly and indecent in the premises of the DO, committed acts which are subversive of discipline & good behaviour as per / in terms of Rule 3(1)(iii) 4(5)(6) (12) (20) of General Insurance (CDA) Rules, 1975."

7. Petitioner proposed name of one Sri P.C. Saxena, Senior Assistant Regional Office, Lucknow to have assistance as his Defence Assistant. Said request was rejected by Deputy Manager of Employer-OIC on the ground that Sri P.C. Saxena was already working as Defence Assistant in more than two disciplinary inquiries and, therefore, cannot be allowed to represent as Defence Assistant to petitioner. However, petitioner insisted for same Defence Assistant vide letter dated 03.09.1996 and till he is made available requested to defer inquiry vide letter dated 03.09.1996. This was again denied by Disciplinary Authority and petitioner was advised to file reply to charge sheet. Petitioner instead of submitting any reply for participating inquiry, filed Writ Petition No. 1381 (S/S) of 1997 in which no interim order was passed still petitioner requested Inquiry Officer to keep disciplinary proceeding in abeyance till writ petition is decided but said request was also turned down. Since petitioner did not participate in inquiry and continued to make efforts to have it deferred, inquiry was conducted ex parte and Inquiry Officer submitted report dated 30.06.1997 holding charges proved. Petitioner was held guilty. Inquiry report was accepted by disciplinary authority and copy thereof was supplied to petitioner to make representation and thereafter punishment order was passed on 23.06.1998 imposing punishment of reduction in basic pay to lowest scale in time scale of pay applicable to cadre in which petitioner was working. His appeal was rejected by Appellate Authority, i.e., General Manager of Employer-OIC vide order dated 25.08.1999. Thereafter petitioner submitted a memorial before Chairman-cum-Managing Director of Employer-OIC which has also been rejected vide order dated 02.08.2000.

8. The complaint of counsel for petitioner is that non providing Defence Assistant of choice amounts to denial of adequate opportunity of defence.

9. Provision with regard to Defence Assistant is contained in Rule 25(6) and (6A) of General Insurance (Conduct, Discipline and Appeal) Rules, 1975 (hereinafter referred to as the "Rules, 1975"). Relevant provision reads as under:

"25(6) The employee may take the assistance of any other employee but may not engage a legal practitioner.

(6A) No employee while on duty shall act as Defence Assistant in any disciplinary proceedings conducted outside the Regional Office area where he is posted; nor shall he act as Defence Assistant in more than 2 cases at a time. It is further provided that no TA/DA shall be payable to an employee who acts as Defence Assistant in breach of this Rule."

10. The argument of learned counsel for petitioner is that Rule 25(6A) bars an employee to accept request of acting as Defence Assistant in more than two cases at a time but there is no such bar on delinquent employee in opting for Defence Assistant, a person who has already accepted to function as Defence Assistant in two or more cases. The submission is thoroughly misconceived. Bar under Rule 25(6A) is that no person shall act as Defence Assistant at a time in more than two cases. Admittedly petitioner proposed Sri P.C. Saxena after obtaining consent from Sri Saxena. This consent of Sri Saxena itself was illegal and contrary to rules since Sri Saxena was acting as Defence Assistant in more than two proceedings at the same time and, therefore, was prevented from acting as Defence Assistant under Rule 25(6A). That be so, it cannot be said that any valid request was made by petitioner for appointment of Defence Assistant to Sri P.C. Saxena. It was always open to petitioner to make request for nominating any other person as Defence Assistant but that was not done and instead petitioner made a continuous strange request that inquiry should be deferred till Sri P.C. Saxena is available which shows that conduct of petitioner was not bona fide and he was trying to prolong disciplinary proceeding for no valid reason. The submission, therefore, that proceedings are vitiated on account of non providing of Defence Assistant of his choise is rejected.

11. Now coming to second aspect of the matter that punishment is not commensurating to charge, here also we do not find any substance in submission. Charge is quite serious in which petitioner is not only misbehaved but entered in altercation with an other employee. This charge has been found proved against petitioner.

12. Interference with punishment, imposed by disciplinary authority after considering gravity of charge, is not a routine matter but limited to the case where punishment is such so as to shock the conscience and only then Court may interfere and not otherwise.

13. In Ranjit Thakur Vs Union of India and others, (1987) 4 SCC 611, Court held:

"judicial review generally speaking, is not directed against a decision, but is directed against the "decision making process". The question of the choice and quantum of punishment is within the jurisdiction and discretion of the competent authority. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. If one can say that punishment imposed is wholly irrational and perverse it is a recognised ground of judicial review." (emphasis added)

14. This judgment was explained in Union of India Vs R.K. Sharma, 2001 (9) SCC 492, and Court said:

"in Ranjit Thakur, the charge was ridiculous, the punishment was harsh and disproportionate and it was on such gross facts that this Court had held that the punishment was so strikingly disproportionate that it called for interference; and the said observations in Ranjit Thakur are not to be taken to mean that a court can, while exercising the power of judicial review, interfere with the punishment merely because it considers the punishment to be disproportionate. It was held that only in extreme cases, which on their face, show perversity or irrationality, there could be judicial review and merely on compassionate grounds, courts should not interfere." (emphasis added)

15. Both the aforesaid judgments have been noticed and reiterated in Union of India and others Vs Bodupalli Gopalaswami, (2011) 13 SCC 553.

16. In Prem Nath Bali Vs Registrar, High Court of Delhi and others, AIR 2016 SC 101, question arose, 'whether punishment of compulsory retirement was excessive, unjust and does not commensurate with the charge proved against delinquent employee. Court said:

"once the charges leveled against the delinquent employee are proved then it is for the appointing authority to decide as to what punishment should be imposed on the delinquent employee as per the Rules. The appointing authority, keeping in view the nature and gravity of the charges, findings of the inquiry officer, entire service record of the delinquent employee and all relevant factors relating to the delinquent, exercised its discretion and then imposed the punishment as provided in the Rules.

Once such discretion is exercised by the appointing authority in inflicting the punishment (whether minor or major) then the Courts are slow to interfere in the quantum of punishment and only in rare and appropriate case substitutes the punishment.

Such power is exercised when the Court finds that the delinquent employee is able to prove that the punishment inflicted on him is wholly unreasonable, arbitrary and disproportionate to the gravity of the proved charges thereby shocking the conscious of the Court or when it is found to be in contravention of the Rules."

(emphasis added)

17. The above observations are reiterated in Commissioner of Police and others Vs Sat Narayan Kaushik, AIR 2016 SC 1464. In the matter of punishment it is always relevant, to consider the position, delinquent employee was holding, what was nature of his duties, degree of trust, integrity etc. maintained by such person and other relevant factors.

18. In the matter of a member of disciplined force, who left campus without prior permission, proceeded to the market, consumed liquor and quarreled with the civilians, it was held that punishment of dismissal cannot be said to be disproportionate or excessive. In Union of India and others Vs Diler Singh, (2016) 13 SCC 71, Court held:

"when a member of the disciplined force deviates to such an extent from the discipline and behaves in an untoward manner which is not conceived of, it was difficult to hold that the punishment of dismissal as was imposed was disproportionate and shocking to the judicial conscience."

19. In Divisional Controller, N.E.K.R.T.C. Vs. H. Amaresh, 2006 SCC 187, dealing with the question of quantum of punishment, Court held:

"misappropriation of the funds by the delinquent employee was only Rs. 360.95 but it is not question of quantum of money misappropriated by delinquent employee but it is a question of loss of confidence and the basic aptitude of lack of integrity on the part of such person. Court said "This Court in a catena of judgments held that the loss of confidence as the primary factor and not the amount of money misappropriated and that the sympathy or generosity cannot be a factor which is impermissible in law. When an employee is found guilty of pilferage or of misappropriating a Corporation's funds, there is nothing wrong in the Corporation losing confidence or faith in such an employee and awarding punishment of dismissal. In such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering therefore with the quantum of punishment." (emphasis added)

20. In Divisional Controller, KSRTC (NWKRTC) Vs. A.T. Mane, (2005) 3 SCC 254, the amount found to be in possession of unaccounted money was only Rs. 93/-, but dealing with the question of quantum of punishment, Court said:

"............ question of quantum of punishment, one should bear in mind the fact that it is not the amount of money misappropriated that becomes a primary factor for awarding punishment, on the contrary, it is the loss of confidence which is the primary factor to be taken into consideration. In our opinion, when a person is found guilty of misappropriating corporation's fund, there is nothing wrong in the corporation losing confidence or faith in such a person and awarding a punishment of dismissal." (emphasis added)

21. In Niranjan Hemchandra Sashittal and another Vs State of Maharashtra, (2013) 4 SCC 642, Court in para 25 of judgment said:

"In the present day scenario, corruption has been treated to have the potentiality of corroding the marrows of the economy. There are cases where the amount is small and in certain cases, it is extremely high. The gravity of the offence in such a case, is not to be adjudged on the bedrock of the quantum of bribe. An attitude to abuse the official position to extend favour in lieu of benefit is a crime against the collective and an anathema to the basic tenet of democracy, for it erodes the faith of the people in the system. It creates an incurable concavity in the Rule of Law.........." (emphasis added)

22. In Rajasthan State TPT Corporation and another Vs. Bajrang Lal, (2014) 4 SCC 693, Court said:

" in cases involving corruption-there cannot be any other punishment than dismissal. Any sympathy shown in such cases is totally uncalled for and opposed to public interest. The amount misappropriated may be small or large; it is the act of misappropriation that is relevant." (emphasis added)

23. Considering the misconduct of petitioner which has been found proved in the case in hand, it can be said that petitioner has shown a conduct of unbecoming a Bank employee and, therefore, punishment imposed upon petitioner cannot be said to be excessive or disproportionate to the charge found proved against him.

24. No other point has been argued.

25. Writ petition is accordingly dismissed. Interim order, if any, stands vacated.

Order Date :- 01.09.2017

Case :- SERVICE BENCH No. - 990 of 2001

Petitioner :- Vishnu Kumar Verma

Respondent :- The Oriental Insurance Company Limited Through C.M.D.

Counsel for Petitioner :- Manik Sinha,Ashutosh Misra,Gaurav Saxena,Girish Chandra Verma,Jushi Saxena,Lalla Chauhan,Neeraj Kumar Saxena,P.K. Jaiswal,Rajni Saxena,Rishi Saxena,Satyendra Srivastava,Seena Saxena,Sushil Kumar Verma,Vivekanand Tripathi

Counsel for Respondent :- C.S.C.,Aseem Chandra,Umesh Chandra,Vashu Deo Mishra

(C.M. Application No. 70122 of 2017)

Hon'ble Sudhir Agarwal,J.

Hon'ble Virendra Kumar-II,J.

1. Heard.

2. Delay in filing recall application is explained satisfactorily. It is hereby condoned. The application is accordingly allowed.

Order Date :- 01.09.2017

Case :- SERVICE BENCH No. - 990 of 2001

Petitioner :- Vishnu Kumar Verma

Respondent :- The Oriental Insurance Company Limited Through C.M.D.

Counsel for Respondent :- C.S.C.,Aseem Chandra,Umesh Chandra,Vashu Deo Mishra

(C.M. Application No. 70124 of 2017)

Hon'ble Sudhir Agarwal,J.

Hon'ble Virendra Kumar-II,J.

1. This is an application for recall of the order dated 13.04.2016, whereby another Recall Application No. 91043 of 2015, seeking recall of order dated 14.10.2014 dismissing writ petition, was rejected.

2. We have gone through the affidavit filed in support of this application. The cause shown is sufficient. The order dated 13.04.2016 is recalled and the application is restored to its original number. This application is, accordingly, allowed.

Order Date :- 01.09.2017

Case :- SERVICE BENCH No. - 990 of 2001

Petitioner :- Vishnu Kumar Verma

Respondent :- The Oriental Insurance Company Limited Through C.M.D.

Counsel for Respondent :- C.S.C.,Aseem Chandra,Umesh Chandra,Vashu Deo Mishra

(C.M. Application No. 91040 of 2015)

Hon'ble Sudhir Agarwal,J.

Hon'ble Virendra Kumar-II,J.

1. Application is restored to its original number vide order of date passed on Application No. 70124 of 2017

2. Heard.

3. Delay in filing recall application is explained satisfactorily. It is hereby condoned. The application is accordingly allowed.

Order Date :- 01.09.2017

Case :- SERVICE BENCH No. - 990 of 2001

Petitioner :- Vishnu Kumar Verma

Respondent :- The Oriental Insurance Company Limited Through C.M.D.

Counsel for Respondent :- C.S.C.,Aseem Chandra,Umesh Chandra,Vashu Deo Mishra

(C.M. Application No. 91043 of 2015)

Hon'ble Sudhir Agarwal,J.

Hon'ble Virendra Kumar-II,J.

1. The application is restored to its original number vide order of date passed on Application No. 70124 of 2017.

2. This is an application for recall of the order dated 14.10.2014, whereby the writ petition was dismissed.

3. We have gone through the affidavit filed in support of this application. The cause shown for absence of learned counsel for the petitioner, when the case was called in the revised list, is sufficient. The order dated 14.10.2014 is recalled and the writ petition is restored to its original number. The application is, accordingly, allowed.

Order Date :- 01.09.2017