Smt. Kamlesh Aggarwal vs Union Of India (Uoi) And Anr.
2002 Latest Caselaw 1653 Del

JUDGMENT

Manmohan Sarin, J.

1. The above three writ petitions entail common facts and questions of law for consideration and are, therefore, being disposed of by this common judgment.

2. Petitioner Smt. Kamlesh Aggarwal widow of late Shri K.K. Aggarwal, had been given the agency by the National Savings organisations in respect of Mahila Pradhan Kshetriya Bachat Yojna (CW No. 3510/2001). She had also been appointed the authorised agent for the Public Provident Fund Scheme (CW No. 5448/2001). Petitioner additionally had the agency under standardised agency system for the sale of National Savings Certificates and for obtaining deposits in the Post Office Time Deposit Scheme (CW.No. 5464/2001).

3. Petitioner is aggrieved by three similar orders all dated 2.8.2000, passed by respondent No. 2 terminating the above agencies of the petitioner. The main grievance of the petitioner is that the said terminations have been done either without any notice or an opportunity being given to the petitioner to explain her case. Besides the termination was not a termination simplicitor, rather the termination carried a stigma as a result of which the petitioner is debarred from seeking any other agencies under the respondents. The petitioner accordingly in CW No. 3510/2001 had prayed inter alia for quashing of the order dated 2.8.2000, terminating the petitioner's agency for Mahila Pradhan Kshetriya Bachat Yojna. Petitioner also seeks a mandamus to the respondents to permit the petitioners to carry on the agency as per its original term up to 4.2.2003. A writ of mandamus is also sought for release of the commission claimed to be due to the tune of Rs. 2,31,132/-.

4. In CW No. 5448/2001, petitioner similarly seeks quashing of the order dated 2.8.2000, terminating the petitioners agency for the Public Provident Fund scheme. A writ of mandamus is also sought for continuance of the petitioners agency up to 31.12.2002 i.e. the original term. Petitioner also seeks directions for release of the commission amount claimed to be due amounting to Rs. 1,33,000/- (Rupees one lac thirty three thousand only).

5. Lastly, in CW No. 5464/2001, petitioner seeks quashing of order of termination of SAS agency No. RD1599 dated 2.8.2000. A writ of mandamus is sought to permit the petitioners to carry on the agency business as per the renewed agreement valid up to 25.7.2002. This relief has, in any case, become infructuous.

6. Learned counsel for the petitioner Mr. Raj Kishore Gutpa in support of the writ petitions and in assailing the orders of termination dated 2.8.2002, which are on similar lines, urged that it was not a case of termination simplicitor. The respondents have rather acted on the basis of an FIR, which was registered against the petitioner. Respondents inferred and arrived at adverse findings based on the said FIR without seeking the petitioner's explanation or any participation of the petitioner in the enquiry made by them. He submits that neither any show cause notice was issued to the petitioner nor any clarification sought from petitioner.

7. Learned counsel for the petitioner, while crystallizing his submissions submitted that the petitioner had with great care and devotion developed the agency work since 1980. The time and effort spent by the petitioner is sought to be brought to naught on the basis of certain false complaints lodged by some of the disgruntled depositors. Mr. Gupta stated that in the year 1996, the petitioner had also been appointed the agent for a concern M/s Sheffield Tools Limited and Dynamic Tools Limited. The complaint against the petitioner is that the petitioner had diverted the funds given by the depositors and meant for the Mahila Pradhan Kshetriya Bachat Yojna or PPF as deposits with the aforesaid two private companies, where higher returns were promised.

7. It is urged by the complainants that the petitioner ignoring the benefits of the depositors for the sake of an increased commission itself and the higher returns as promised, diverted the deposits offered for the Government schemes, to the said two private companies. This ultimately entailed the loss and wasting away of the deposits of honest depositors of the public. Mr. Raj Kishore Gupta describes the complaint as a motivated one and vengeful action on the part of some of the disgruntled depositors, whose monies were not returned by the said two companies. He submits that there was no commonality in either the requirement for the amounts or the returns, under the government schemes as compared with the deposits for the two private companies. Counsel submits that under the terms of the agency, the petitioner was not debarred from working as an agent of any other organization or companies. He submits that the allegation of diversion of funds of the depositors to the private company was wholly false. It is urged that surprisingly there was a stupendous growth in the deposits collected by the petitioner under the agency agreements during the period when she is alleged to have diverted the funds. These had in fact grown manifold. If indeed the petitioner was practicing deception, this would not have been so. He submits that the deposits under the agencies were for small amounts to be collected from the depositors every month while this was not the position for the deposits required for the two private companies. The pre-mature termination of the subsisting agency, which was for a fixed term, has subjected the petitioner to avoidable loss and resulted in her being deprived of her means of livelihood. Counsel submits that respondents even in CW No. 5448/2001, which required one month notice for termination, had issued the termination notice without giving any prior show cause notice and making the termination effective one month later. Learned counsel further submits that the track record of the petitioner from 1980, when she had applied for agency and its repeated renewals established the devotion and commitment of the petitioner to successful working and operation of the agencies.

8. Learned counsel for the petitioner relied on Sohrabji v. Oriental Govt. S.L. Assurance Co. reported at AIR (31) 1944 Bombay 166, in support of his contention that a notice of reasonable time, prior to termination of employment was a very valuable right. Learned counsel also relied on J.K. Sayani v. Bright Brothers Pvt. Ltd. that in case of premature termination of the agency, the effected party is entitled to reasonable compensation.

9. Mr. Jayant Bhushan, learned counsel for the respondent, refuting the submissions made on behalf of the petitioner, submitted that the action had been taken by the respondents bonafide and in accordance with the provisions of the agency agreement. Respondent had validly exercised their right of terminating the agencies. He submits that the petitioner was arrested on 14.7.2000 and was remanded to judicial custody on 2.8.2000. Petitioner was released on bail on 16.1.2001. The work of agency is required to be carried out by the agent personally. The absence of the petitioner on account of her arrest and being in judicial custody itself was a sufficient ground for termination of the agency. A complaint under Sections 420/406/34 IPC bearing FIR No. 281/2000 has been registered. The depositors claim to have made the deposit on the advice, motivation and personal guarantee of the petitioner. The said company M/s. Sheffield Tools Ltd. and M/s. Dynamic Tools Ltd. had failed to repay the amounts and the office bearers of the said company have dis-appeared from the city. The termination order, as passed by the respondents, also records certain other breaches of the agency terms inasmuch as unauthorised persons other than petitioner were permitted to receive cash from investors and sign the cards in her place. Non return of pass books of account holders, inter alia are mentioned as breaches of the agency agreement terms. It is in these facts that the respondents, who had after examining the matter reached the conclusion that the petitioner's conduct as the agent of the respondent for the various schemes was detrimental to the interest of the public and the investors, as also to the image and well being of the schemes. Mr. Bhushan submits that the respondents have terminated the agency in accordance with the agreement terms. Wherever notice was required to be given, was duly given and in other cases, where there was right to terminate with immediate effect, the termination was so done.

10. Mr. Jayant Bhushan, learned counsel for the respondent in summing up his arguments, submitted that the respondents have acted in accordance with the contractual terms and given the requisite notice for the time period, wherever warranted under the terms of the agency. As for the plea of termination having been affected without notice and an opportunity of hearing, learned counsel relied on Shiv Sagar Tiwari v. Union of India and Ors. reported at (1997) 1 Supreme Court Cases to urge that natural justice was no unruly horse, no lurking land mine and its unnatural expansion, without reference to realities was not warranted. Learned counsel submitted that when on admitted facts, there was only one conclusion possible, the Court may not compel the observance of natural justice. Learned counsel further relied in R.S. Das v. Union of India and Ors. reported at 1986 (Supp) Supreme Court Cases 617 to submit that rules of natural justice were not absolutely rigid and in the interest of administrative efficiency and expedition, it could be excluded in an appropriate case. Learned counsel further submitted that in that instant case, keeping in mind the interest of small depositors and public at large, the Government had acted bonafide and in public interest by termination of agencies of ensure confidence being maintained in these schemes. The termination was in exercise of contractual rights.

11. I find considerable merit in the submission of Mr. Jayant Bhushan. The petitioner who was arrested on 14.7.2000 and after being in custody was released on bail on 16.1.2001. In my view since the work of the agency is required to be carried out personally or under personal supervision, the absence and no availability of petitioner for such a long period, itself was a sufficient reason to terminate. Besides specific complaints had been made by depositors, alleging cheating and diversion of funds to the two private concerns culminating in the registration of FIR and framing of charge sheet under Section 406/420 IPC. The respondents had also conducted an enquiry through the Dy. Regional Director and other concerned officials which revealed diversion of investment and other breaches in the operation of agencies as recorded in the termination orders. In these facts and circumstances the decision of the respondents to terminate the agencies cannot be assailed as arbitrary, mala fide or unconscionable. Besides it was an exercise of contractual rights under the agency agreements.

In judicial review, the Court is not concerned with the correctness or merit of the decision taken but with the decision making process. The respondents cannot be faulted with, if in the background of these facts and especially the detention of the petitioner for a period of nearly 5 to 6 months, they reached a conclusion that continuation of the petitioner as an agent would be detrimental to the working of the schemes and image of the Government and maintaining pubic confidence in the schemes.

12. After the matter had been argued at some length by both the counsel, learned counsel for the petitioner, Mr. Raj Kishore Gupta, mentioned that the petitioner be permitted to withdraw these writ petitions, as any observation made here in might prejudice the petitioner in criminal trial.

13. Learned counsel for the respondent, Mr. Jayant Bhusha, opposes the request at this belated stage and states that in these circumstances, the Court should not permit the petitions to be dismissed as withdrawn, as it would unnecessarily encourage further litigation in the civil forum. As the matter has been argued at length, I would rather dispose of the petitions on merits.

14. In view of the foregoing discussion, the writ petitions have no merit and are liable to be dismissed and are dismissed. It is, however, made clear that any observation made herein will not in any manner, prejudice the petitioner's defense in criminal trial as the observations are not intended to be determinative of the merits either of the allegations made by the complaint/depositors or of the criminal charges being faced by the petitioner.

Learned counsel for the petitioner, Mr. Gupta, submits that the respondents owe to the petitioner a sum of Rs. 5,42,326.77 (Rupees Five lacs forty two thousand three hundred twenty six and paise seventy seven only) on account of the commission due for the deposits already made in the respect of the two agencies, namely, Mahila Pradhan Kshetriya Bachat Yogna and the Public Provident Fund scheme. Learned counsel for the respondent submitted that as per his instructions, nothing was due. Learned counsel for the petitioner had handed over a chart and details to the respondent's counsel. Let the same be treated as a representation. The respondents shall examine the said representation and communicate their decision thereon within four weeks from today. IN case petitioner has any grievance with regard to the same, she would be at liberty to seek appropriate remedy as available in civil forum.

15. The writ petitions are dismissed with the above directions.