P.K. Sharma vs The Oriental Insurance Company ...
2011 Latest Caselaw 2781 Del

          *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

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

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

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

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.

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

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

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..