Sk. Mohammed Idris vs Life Insurance Corporation Of ...
2021 Latest Caselaw 3 Ori

                 HIGH COURT OF ORISSA: CUTTACK

                        W.P.(C) No.18071 of 2009

        In the matter of an application under Articles 226 & 227 of
        the Constitution of India.
                                     -----------

        Sk. Mohammed Idris                   ....            Petitioner

                                              Versus

        Life Insurance Corporation of India
        represented through its Chairman,
        Central Office, Yogakshema Jeevan
        Bima Marg, Mumbai and others ....                 Opp. parties

                For Petitioner        ... M/s. U.C. Pattnaik,
                                        Mr. A.J. Mohanty,
                                        Mr. S.D. Mishra and
                                        Mr. S. Patnaik.


                For O.Ps.             ... M/s. P. K. Rath,
                                        Mr. A. Behera,
                                        Mr. S. Rath and
                                        Mr. S. Dash.

                            JUDGMENT

PRESENT:

THE HONOURABLE JUSTICE BISWANATH RATH

Date of Hearing :21.12.2020 | Date of Judgment : 04.01.2021

Biswanath Rath, J. This writ petition involves a challenge to

Annexure-8, an order passed by the Disciplinary Authority

involving an enquiry initiated against the petitioner-employee,

Annexure-10 involving an order of the Appellate Authority,

Annexure-12, an order of the Chairman appearing to be a

decision in Second Appeal at the instance of the petitioner,

the delinquent and Annexure-13, an order of the

Establishment for recovery of Rs.1,03,529/- but however, @

Rs.5,000/- per month from the salary of the petitioner, the

delinquent with effect from November, 2009.

2. Background involving the case is that the

petitioner working as Assistant Administrative Officer in the

Bhadrak Branch of Life Insurance Corporation of India (for

short "LIC" of India) was allotted duties and responsibilities of

keeping the cash boxes of the Branch in the Iron Safe inside

the Strong Room under lock and key at the end of the day

after transaction of the Branch is over and also to remove the

cash boxes from the Iron Safe at the beginning of Office hours

by placing the cash boxes with Cashier in cash counters till

the end of the working hours. The Iron Safe of the Branch is

normally operated by two Officers of the Branch ; one the

petitioner being the holder of the Key No.1 and the other

Officer, namely, Sri N.C. Das being the holder of Key No.2. As

per routine procedure, the cash boxes are kept and removed

in presence of both the key holders and also require taking

help of the sub-staff for the purpose of carrying the cash

boxes to places involved. Petitioner claimed that the Branch

at Bhadrak was operating in a rented building and after

construction of its own building, the process of shifting

started on 15.05.2004. The Iron Safe in the Branch contained

three movable cash boxes and the Iron Safe is located inside

the chamber of the Branch Manager at the first floor of the

Branch. The cash counters are located in the ground floor of

the building. It is stated on 15.05.2004, petitioner and other

Officer being the key holder of Key No.1 and Key No.2

respectively opened the Iron Safe for shifting of boxes to the

cash counter using their respective keys and removed two

cash boxes and one daily wager namely, Sri Subash Nayak

assigned for the job carried the two cash boxes in each hand

accompanying the petitioner to the cash counters where those

two boxes were delivered at counter no.2 and counter no.4. In

the meantime, the other Officer was standing near the Iron

Safe. After delivery of two boxes the petitioner and above

named daily wager came back to the Strong Room and then

removed the third cash box as well as one packet containing

few loose notes. In the same process, after removing the third

cash box, petitioner asked the said daily wager to wait till the

Iron Safe and Strong Room were locked and started the

process of locking the Iron Safe as well as the Strong Room by

himself and by the other Officer. It is also disclosed here that

after locking the Iron Safe and the Strong Room, when the

petitioner looked back he found the said sub-staff was not

available there and he had gone away with the cash box along

with the packet containing loose notes. Upon finding the daily

wager he asked the daily wager as to why he left the Strong

Room without petitioner's knowledge, to which the daily

wager replied him that he had already delivered the same at

the desired counter. It is at this point of time, petitioner went

to counter no.4 and asked about receipt of second cash box

but he was responded by the cashier saying that he had

received only the first cash box and not received the second

cash box. Petitioner immediately moved to the Office Gate and

asked the Security to close the Gate and not to either allow

entry of any person or exit of any person. Petitioner along

with others searched the Office premises and outside the

boundary but they failed to trace the third box accounted for

a sum of Rs.2,07,057.43p. An F.I.R. was immediately lodged.

Consequent upon theft of cash from the Branch of the LIC,

the Disciplinary Authority, vide letter dated 21.06.2005

initiated a disciplinary proceeding followed with issuing

charge-sheet against the petitioner. Charges were framed

under two counts. First charge involving the petitioner is that

the petitioner did not accompany the daily wager all along in

shifting of all the three cash boxes and plastic bag containing

loose notes from the Iron Safe to the cash counter, which led

to theft of the third cash box containing a sum of

Rs.2,07,057.43p. and thus the petitioner has failed to

maintain absolute integrity and devotion to the duty. The

second charge the petitioner faced is that he failed to serve

the Corporation honestly and faithfully thereby violating the

provisions of Regulations 21 and 24 read with Regulation

39(1) of the LIC of India Staff Regulation, 1960 (in short "the

Regulation, 1960"). Petitioner submitted his response to the

charges on 01.07.2005. The Disciplinary Authority being not

satisfied with the response of the petitioner initiated

disciplinary proceeding. Enquiry Officer being appointed, the

matter was enquired into. Finally the Enquiry Officer after

observing involvement of the petitioner submitted his report

on 31.10.2005. On the copy of the enquiry report along with

forwarding letter being served on the petitioner, he was asked

to submit his response, which the petitioner submitted, vide

Annexure-5. Vide letter dated 19.10.2006, the Disciplinary

Authority called upon the petitioner to show cause as to why

he should not be held guilty of the charges and the proposed

penalty of Censure and recovery of Rs.1,03,529/- be not

imposed on him. After the petitioner submitted his response,

vide Annexure-7 to the notice involving Annexure-6,

Disciplinary Authority in conclusion of the departmental

enquiry, finding the petitioner guilty of charge No.2 imposed

on the petitioner the penalty of Censure and recovery of

Rs.1,03,529/- being 50% of the total loss of Rs.2,07,057.43p

in terms of Regulations 39 (1) (a) and 39 (1) (c) of the

Regulation, 1960, as finds place at Annexure-8 to the writ

petition.

3. Being aggrieved, petitioner preferred an Appeal

under Regulation 40 of the Regulation, 1960, inter alia,

contained that he is no way connected with the charges

framed. Considering the claim of the petitioner contesting the

order passed by the Disciplinary Authority, the Appellate

Authority, vide order dated 24.05.2008 rejected the Appeal

finding no scope for interfering with the order passed by the

Disciplinary Authority.

4. Petitioner being aggrieved by the order of the

Appellate Authority, vide Annexure-10 preferred a Memorial

under Regulation 49 of the Regulation, 1960 before the

Chairman, opposite party no.2, who has been pleased to

reject the Memorial of the petitioner.

5. Assailing the orders passed by the different

authorities indicated hereinabove, petitioner preferred the

present writ petition on the premises that the Strong Room

and the Iron Safe are all locked inside the Chambers of the

Branch Manager. Clause-4 of the Manual in operation

provides under the heading 'safety of cash and keeping of safe

keys' that the authorized person holding the keys shall keep

the cash box containing cash safely locked in the Iron Safe at

the close of business of each working day and hand over the

same to the Cashier every morning. There was no permanent

sub-staff in the Bhadrak Branch and daily wagers have been

engaged to carry the cash boxes as per the order of the

Branch Head. It is contended that on 15.05.2004 the only

daily wager present in the Office was Sri Subash Nayak as all

other daily wagers were engaged by the Branch Manager for

shifting of Office, furnitures etc. from the old building to the

new building, and therefore, the Cashier of the Branch never

accompanied the holder of the keys to the Iron Safe, for

which, the petitioner was compelled to accompany the said

daily wager to the cash counter at the time of delivery of first

two cash boxes leaving the other key holder near the Iron

Safe. After removal of the third cash box and the plastic bag

containing loose notes, the petitioner instructed the daily

wager to remain standing till locking of the Iron Safe as well

as the Strong Room is over. Petitioner alleged that it is at this

stage he surprisingly did not find the daily wager and the

daily wager had already left the place carrying the third box.

Petitioner claimed that he could only come to know from the

Cashier that the daily wager had not handed over the third

cash box to him and he had only received the plastic bag

containing loose notes from the daily wager. It is also asserted

that the petitioner even asked the Security to close the door

and not allow any entry or exit till the search is over. By

calling the Police he also got the daily wager arrested

involving the F.I.R. and there has already been submission of

charge-sheet against the daily wager under the provision of

Section 406 of the I.P.C. In the circumstance, the petitioner

claimed that he cannot be held responsible for loss of cash, if

any.

6. Sri U.C.Pattnaik, learned counsel for the petitioner

on reiteration of the facts involved herein in his plea

submitted that for the clear disclosure by the petitioner that

the third cash box and the packet containing loose notes

since were already handed over to the daily wager and for the

clear disclosure by the petitioner that after the petitioner

locking the Iron Safe as well as the Strong Room found the

daily wager already left the place with the cash box, further

there is also admission by the petitioner that he could only

come to know from the person attached to the cash counter

that the third box did not reach him, further on the basis of

the F.I.R. at the instance of the Institution said daily wager

since is facing trial under Section 406 of the I.P.C., the

petitioner could not have been held responsible for the loss of

the amount involved herein. Sri Pattnaik, learned counsel

also referring to the plea of the petitioner before the Enquiry

Officer and the contents of the enquiry report contended that

there has been no proper enquiry before coming to hold the

petitioner guilty. Sri Patnaik also contended that even though

the petitioner raised all these grounds before the Appellate

Authority as well as the highest Authority of the Institution,

i.e. the Chairman, everybody failed to appreciate the grounds

raised by the petitioner, and therefore, claimed all the

impugned orders involved herein should be interfered with

and set aside.

7. Sri P.K. Rath, learned counsel for the Insurance

Company, on the other hand, taking this Court to the

findings of the Enquiry Officer, the findings of the

Disciplinary Authority, the First Appellate Authority and the

Second Appellate Authority in his opposition to the claim of

the petitioner submitted that for the concurrent findings of

fact by all the three Authorities involved in a disciplinary

proceeding issue, there is no scope for interfering with any of

the impugned orders. Sri Rath, learned counsel further

contended that looking to the concurrent findings on the facts

holding the petitioner and the 2nd key holder responsible for

loss of a sum of Rs.2,07,057.43p and the Authority having

punished the petitioner only with penalty of Censure and

recovery of 50%, the punishment so awarded by the

Disciplinary Authority against the petitioner appears to be

very lenient requiring no interference by this Court. Sri Rath,

learned counsel referring to the enquiry report, the findings of

the disciplinary authority also contended that there is even

otherwise also no merit in the claim of the petitioner.

8. Looking to the charge sheet, this Court finds, the

petitioner faced the following charges :

"THAT on 15.05.04 at about 11.25 AM, you opened the safe as the holder of the Key No.1 for shifting of the Cash Boxes from the safe to the cash counter of Bhadrak BO in presence of Shri NC Das, AAO, SR No.335025, the holder of the Key No.2 and one Daily Wager, Sri Subhas Nayak. You, on the above said date, did not accompany the aforesaid daily wager all along the shifting of all the three cash boxes and plastic bag containing loose notes from the safe to the Cash Counter. You, at the time of shifting of the third Cash Box and the plastic bag containing the loose notes, did not accompany the daily wager which led to the theft of the third Cash Box containing cash amounting to Rs.2,07,057.43. Thus, you had shown gross negligence and lack of diligence in discharging your duties which caused financial

loss to the Corporation to the tune of Rs.2,07,057.43."

It also appears as per the petitioner's own

submission, petitioner was provided opportunity of showing

cause at the time of submission of charge sheet which he has

also availed submitting his response vide Annexure-3.

So far as the enquiry is concerned, there is no

allegation in the writ petition at all that petitioner has not

been provided with opportunity of participation. Further on

the enquiry report being provided, petitioner was asked for

submitting his response. In response to which, the petitioner

also submitted a response, vide Annexure-5. Before

imposition of penalty, petitioner has been provided with an

opportunity of showing cause, vide Annexure-6, to which the

petitioner responded vide Annexure-7. Reading all his

submissions and the stand before the Enquiry Officer, it is

observed that the petitioner had the only stand that after

opening of the Strong Room, the cash box and the packet

containing loose notes were taken out, both were handed over

to the daily wager and he asked the daily wager to wait for

him with the cash box and the packet till he completes the

locking process but however when the petitioner completed

the locking process and turns back, he found the daily wager

was missing with the cash box as well as the packet

containing loose notes. Further on attending cash counter he

was told by the Cashier that the cash box did not reach him

except the Cashier has been handed over with the packet

containing loose notes. In the enquiry, there is a clear finding

that there is missing of cash to the tune of Rs.2,07,057.43

through the third cash box. The fact that petitioner did not

accompany the daily wager to the cash box has also been

established. Thus petitioner failed in establishing that it is

only the daily wager who should be held responsible for

missing of the money. For the responsibility lying on the

petitioner to establish his case in the enquiry and he having

failed to establish the same, further for the observation in the

enquiry report having concurred by the Disciplinary Authority

then also by the First Appellate Authority and also the Second

Appellate Authority, this Court finds, for involvement of

concurrent finding of facts by so many Authorities, this Court

has no scope for interfering with such findings. Further

looking to the nature of allegation and holding the petitioner

guilty on such serious allegation involving missing of huge

cash, it is also a clear case of the employee failed to maintain

his integrity and responsibility during discharge of

employment and there is establishment of a serious charge

warranting no sympathy on such person, particularly keeping

in view the involvement of a financial Institution. This Court

looking to the gravity of offence involved here and examining

the punishment imposed on the petitioner also finds for

petitioner being punished with word of "Censure" and 50%

recovery of amount stolen, the Authorities themselves have

taken a very lenient view requiring no further indulgence.

9. This Court here takes note of some judgments on

Judicial Review involving Disciplinary orders:-

i) AIR 1967 SC 295 : (Barium Chemicals Ltd. and anr.

Vs. Company Law Board and Others) - Law is fairly settled that if the action or decision remains perverse or is such that no reasonable body or person, property in front of court come to, or has been arrived at by the authority misdirecting itself by adopting a wrong approach or has been influenced by irrelevant or extraneous matters, the court would be justified in interfering with the same.

ii) AIR 1988 SC 1737 : (State of U.P. and others Vs. Renusagar Power Co. and others) - It is held that exercise of administrative power will be set aside if there is a manifest error in the exercise of power or exercise of power is manifestly arbitrary. This decision has also been endorsed by Hon'ble apex Court in AIR 2003 SC 1843 : (Indian Railway Construction Co. Vs. Ajay Kumar)

iii) (1997) 3 SCC 657 : (Rae Bareli Kshetriya Gramin Bank Vs. Bhola Nath Singh and others) - Hon'ble apex Court has even gone to the extent saying the High Court in proceedings u/A.226 of Constitution of India does not act as appellate authority and has only the jurisdiction to correct error of law or

procedural error clearly to manifest injustice or violation of natural justice.

iv) (2006) 5 SCC 673 : (State of U.P. Vs. Raj Kishore Yadav), wherein at paragraph-4 the Hon'ble apex Court held that the High Court has limited scope of interference in the administrative action of the State in exercise of extra ordinary jurisdiction under Article 226 of the Constitution of India, and therefore, the findings recorded by the enquiry officer and the consequent order of punishment of dismissal from service should not be disturbed.

v) (2015) 3 SCC 101 : (General Manager (Operation), State Bank of India Vs. R. Periyasamy), wherein at paragrtaphs-9 and 12, the Hon'ble apex Court held as follows:

"9. It is not really necessary to deal with the judgment of the learned Single Judge since that has merged with the judgment of the Division Bench. However, some observations are necessary. The learned Single Judge committed an error in approaching the issue by asking whether the findings have been arrived on acceptable evidence or not and coming to the conclusion that there was no acceptable evidence, and that in any case the evidence was not sufficient. In doing so, the learned Single Judge lost sight of the fact that the permissible enquiry was whether there is no evidence on which the enquiry officer could have arrived at the findings or whether there was any perversity in the findings. Whether the evidence was acceptable or not, was a wrong question, unless it raised a question of admissibility. Also, the learned Single Judge was not entitled to go into the question of the adequacy of evidence and come to the conclusion that the evidence was not sufficient to hold the respondent guilty.

12. On the question of shortage of money, the Division Bench merely upheld the findings of the learned Single Judge that there was no clinching evidence in support of the charges. The Division Bench approved the findings of the Single Judge that the inquiry report that the shortage of cash occurred only between 16.11.1985 and 05.04.1986, when the respondent was a joint custodian, was based on surmise and conjecture. The Division

Bench did not care to advert to the evidence. That evidence rightly relied on by the enquiry officer which established that the shortage did occur between 16.11.1985 and 05.04.1986. In fact the inquiring officer has given cogent reasons for rendering the findings that the shortage could not have occurred after 05.04.1986 upto the discovery of 15.04.1986, when two acting cashiers had functioned. Moreover, the observation that there is no clinching evidence in support of the charges is another way of saying that the evidence is insufficient or inadequate, which is not permissible. It bears repetition that sufficiency or adequacy of evidence is not the ground on which the findings of facts may be set- aside by the High Court under Article 226. The justification offered by the Division Bench that the learned Single Judge had to undertake the exercise of analysing the findings of the enquiry officer because the appellants had deprived the respondent of his livelihood is wholly untenable. A transgression of jurisdiction cannot be justified on the ground of consequences, as has been done. Moreover, the reliance by the Division Bench on Mathura Prasad Vs. Union of India & Ors.[12] is entirely misplaced, since that case arose in an entirely different set of circumstances. We also find it difficult to understand the justification offered by the Division Bench that there was no failure on the part of the respondent to observe utmost devotion to duty because the case was not one of misappropriation but only of a shortage of money. The Division Bench has itself stated the main reason why its order cannot be upheld in the following words, "on re-appreciation of the entire material placed on record, we do not find any reason to interfere with the well considered and merited order passed by the learned Single Judge."

vi) (2015) 2 SCC 610 : (Union of India and others Vs. P. Gunasekaran), wherein at paragraph-12, the Hon'ble apex Court held as follows:

"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge no. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its

powers under Article 226/227 of the Constitution of India, shall not venture into re- appreciation of the evidence. The High Court can only see whether:

a. the enquiry is held by a competent authority;

b. the enquiry is held according to the procedure prescribed in that behalf;

c. there is violation of the principles of natural justice in conducting the proceedings;

d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

g. the disciplinary authority had erroneously failed to admit the admissible and material evidence;

           h.    the disciplinary authority had erroneously
                 admitted    inadmissible   evidence which
                 influenced the finding;

           i.    the finding of fact is based on no evidence."

10. For the claim of the petitioner opposed to law of

the land discussed hereinabove and for there involved a

proven case of lose of money in a Financial Institution, this

Court finds, there is no substantial ground to interfere with

either of the impugned orders. As a consequence, the writ

petition stands dismissed having no merit. For the dismissal

of the writ petition, the interim order dated 30.11.2009,

passed in Misc. Case No.15620 of 2009 stands vacated. In the

circumstance, however there is no order as to cost.

.......................................... BISWANATH RATH, J.

Orissa High Court, Cuttack.

Dated the 4th January, 2021/KCBisoi, AR-cum-Sr. Secy.