Vimal Pratap Singh vs United India Insurance Com. Ltd. ...
2021 Latest Caselaw 2014 Chatt

                                    1

                                                                       NAFR
            HIGH COURT OF CHHATTISGARH, BILASPUR
                 Writ Petition (S) No.827 of 2012
    Vimal Pratap Singh, son of Late Ved Prakash Raj, aged
    about 44 years, residence of village Chorbatti Khurud,
    Post Ganiyari, District Bilaspur, Chhattisgarh
                                                          ­­­­ Petitioner
                              Versus
  1. United India Insurance Company Limited, Through Chairman
     Cum Managing Director, United India Insurance Co.Ltd.
     Head Office, 24, Whites Road, Chennai.
  2. Assistant General Manager, Appellate Authority, United
     India Insurance Co. Ltd. Head Office, 24, Whites Road,
     Chennai.
  3. Regional Manager, Disciplinary Authority, Regional
     Office, Paryavas Bhawan, Block­2, IInd Floor, Area
     Hills, Bhopal.
                                                      ­­­­ Respondents

For Petitioner : Mr.Anil Tripathi, Advocate For Respondents : None present though served

Hon'ble Shri Justice Sanjay K. Agrawal Order on Board 26.8.2021

1. Proceedings of this matter have been taken­up through

video conferencing.

2. The petitioners calls in question legality, validity and

correctness of the order dated 2.6.2005 (Annexure P­1)

by which the appellate authority has dismissed the

appeal preferred by the petitioner affirming the order

of the disciplinary authority dated 26.7.2004 (Annexure

P­6) inflicting penalty of removal from service which

shall not be a disqualification for future employment.

3. Mr.Anil Tripathi, learned counsel for the petitioner,

would submit that Rule 37(2) of the General Insurance

(Conduct, Discipline and Appeal) Rules, 1975

(hereinafter called as 'Rules of 1975') has not been

complied with and by unreasoned and non­speaking order

the appeal preferred by the petitioner under Rule 37(2)

of the Rules of 1975 has been dismissed, which is liable

to be set­aside and the matter be remitted to the

appellate authority for consideration afresh in

accordance with Rule 37(2) of the Rules of 1975 on its

own merit.

4. None present for the respondents though served.

5. I have heard learned counsel for the petitioner,

considered his submissions made herienabove and also

went through the records with utmost circumspection.

6. Appeal was preferred by the petitioner under Rule 37 of

the Rules 1975 which provides the manner of

consideration of appeal which states as under:­

"37. Consideration of Appeals :­

(1) In the case of an appeal against an order of suspension, the appellate authority shall consider whether in the light of the provisions of Rule 20 and having regard to the circumstances of the case the order of suspension is justified or not and confirm or revoked the order accordingly.

(2) In the case of an appeal against an order imposing any of the penalties specified in Rule 23, the appellate authority shall consider :­

(a) whether the procedure prescribed in these Rules has been complied with, and if not, whether such non­compliance has resulted in failure of justice;

(b) whether the findings are justified; and

(c) whether the penalty imposed is excessive, adequate, or inadequate, and pass orders :­

(i) setting aside, reducing, confirming or enhancing the penalty; or (ii) remitting the case to the authority which imposed the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case.

Provided that :­

(i) the appellate authority shall not impose any enhanced penalty which neither such authority nor the authority which made the order appealed against is competent in the case to impose;

(ii) no order imposing an enhanced penalty shall be passed unless the appellant is given an opportunity of making any representation which he may wish to make against such enhanced penalty ; and

(iii) if the enhanced penalty which the appellate authority proposes to impose is one of the penalties in clause (b) to (h)of Rule 23, and an inquiry under the said rule has not already been held in the case, the appellate authority shall itself hold such inquiry or direct that such inquiry be held and thereafter on consideration of the proceedings of such inquiry and after giving the appellant an opportunity of making any representation which he may wish to make against such penalty, pass such orders as it may deem fit.

3) All appeals should be disposed of as expeditiously as possible and in any event not later than 6 months from the date of receipt of the appeal by the appellate authority."

7. A careful perusal of the aforesaid Rules would show that

the appellate authority is required to record the

finding that whether the procedure has been followed in

conducting enquiry and whether the findings are

justified or not, whether the penalty is proper or

excessive and thereafter the finding has to be recorded.

8. A careful perusal of the impugned order would show that

the appellate authority has firstly recorded the finding

that the petitioner has not raised any point warranting

favourable consideration and thereafter held that the

proper procedure has been followed, the findings are

justified and the penalty imposed is adequate, but there

is no consideration to record such a finding that

enquiry was conducted as per prescribed procedure and

the findings of the enquiry are justified and the

penalty imposed is adequate. For record such a finding,

entire oral and documentary evidence has to be

considered and thereafter finding has to be recorded. By

merely reproducing the words and phrases of Rule 37(2)

of the Rules of 1975 the appellate authority cannot

perform his duty as a quasi­judicial authority. It has

to be considered strictly in accordance with the

material available on record and then finding has to be

recorded that proper procedure has been followed in

enquiry, the findings of the enquiry are justified and

the penalty imposed is adequate.

9. It is well settled position of law that the appellate

authority in disciplinary proceeding acts in quasi­

judicial capacity and order passed has to be reasoned

one and showing application of mind to the question

raised by the appellant and if it is not done, the

appellate order is vitiated. (See Divisional Forest

Officer, Kothagudem and others v. Madhusudhan Rao1).

10. The Supreme Court reiterated this principle of law

by observing that an appellate authority by deciding

statutory appeal is not only required to give hearing to

the Government servant, but pass a reasoned order

dealing with the contention raised in the appeal. (See

Deokinandan Sharma v. Union of India and others2).

11. Even if the appellate order is in agreement with

that of the disciplinary authority it may not be

speaking order, but the authority passing the same must

show that there had been proper application of mind in

compliance with the requirement of law while exercising

his jurisdiction particularly when the rules required

application of mind on several factors and several

contentions had been raised and he was bound to assign

reasons so as to enable the Court reviewing its decision

to ascertain as to whether he had applied his mind to

the relevant factors which the rule required to do. (See

Narinder Mohan Arya v. United India Insurance Co. Ltd.

and others3).

12. Reverting to the facts of the present case in the

light of the aforesaid provisions and the judgments

(supra), it is quite vivid that appeal preferred by the 1 (2008) 3 SCC 469 2 (2001) 5 SCC 340 3 (2006) 4 SCC 713

petitioner has not been considered by the appellate

authority in the light of Rule 37(2) of the Rules of

1975 and dismissed the same by unreasoned and non­

speaking order, which ought to have been considered by

the appellate authority in the light of Rule 37(2) of

the Rules of 1975.

13. As a fallout and consequence of the aforesaid

discussion, the impugned order dated 2.6.2005 (Annexure

P­1) passed by appellate authority is hereby set­aside.

Appeal filed by the petitioner herein is restored to the

file of appellate authority. The appellate authority is

directed to consider the appeal of the petitioner in

accordance with Rule 37(2) of the Rules of 1975 within

60 days from the date of receipt of a copy of this order

and will decide the same after hearing the petitioner

and other side and pass a reasoned and speaking order,

strictly in accordance with law. The petitioner is at

liberty to file additional submission before the

appellate authority.

14. The writ petition is allowed to the extent

indicated hereinabove. No order as to cost(s).

Sd/­

(Sanjay K.Agrawal) Judge

B/­