ORDER
L. Narasimha Reddy, J.
1. The petitioner was appointed as an Agent of the Life Insurance Corporation of India (LIC) at its Sethupally branch, in Khammam district, in the year 1990. He claims to have undertaken the agency by giving up his other business activities. He states that he reached number one position in the division. The petitioner states that having regard the business undertaken by him in the LIC, he was given the Zonal Managers Club Membership. He states that at the time when he was about to get the membership of Chairman's Club, the 3rd respondent i.e., the Branch Manager, developed grudge and has invented causes to harm him.
2. It is stated that the petitioner was invited to attend the Warangal Division Round Table for Agents (for short 'WDRT') on 21-7-2000. According to the norms of the LIC, the petitioner was entitled to travel in II Class A/c. by train and for reimbursement of the same. It is his case that when he wanted to purchase a ticket of II class A/c., from Khammam to Warangal, he was informed that only II class ordinary tickets are available and by purchasing the same he can enter the II A/c. coach and pay the difference to the Ticket Collector. Accordingly, he purchased the general ticket for Rs. 44/-and paid the difference amount of Rs. 125/- to the Ticket Collector in the II class A/c. coach. The petitioner was issued a Certificate/ Voucher to that effect. Having attended the WDRT on 21-7-2000, he returned to Khammam on 22-7-2000 by travelling in the ordinary II class. He submitted the TA bill on 22-7-2000 itself claiming II A/c fare from Khammam to Warangal and II class ordinary fare from Warangal to Khammam. The same has been passed and payment was made.
3. On 18-5-2001, the petitioner was issued a show-cause notice where he was required to explain about the false claim of travelling expenses while attending the WDRT on 21-7-2000. The petitioner submitted his explanation on 1-6-2001. Since the same was not properly received, he sent it once again on 13-7-2001. It was one year later i.e., on 31-7-2002 that the petitioner was issued Charge Sheet-cum-Show Cause Notice. The contents of the earlier notice dated 18-5-2001 were repeated, and he was directed to show cause as to why his agency should not be terminated. The petitioner submitted his explanation on 12-8-2002. Thereafter, the respondents passed orders dated 24-8-2002 terminating the agency of the petitioner under Regulation 16(1)(b) of the LIC of India (Agents) Regulations, 1972. The petitioner challenges the same in this writ petition. Several contentions, such as, violation of principles of natural justice, failure to frame charges, infliction of punishment without holding enquiry, falsity of allegations, etc., are raised.
4. In the counter-affidavit filed by the respondents, the facts as regards appointment of the petitioner as Agent, his achievements in the business, his attending the WDRT on 21-7-2000 and his entitlement to receive the II Class A/c. fares are not disputed. It is stated that on a complaint received by them, they got the matter verified from the Chief Booking Supervisor, Khammam, who in his letter dated 20-2-2001, alleged to have informed that the ticket numbers furnished by the petitioner do not relate to his travel. On the allegation made by the petitioner that no specific charges were framed, much less enquiry was held, the respondents contend that the Charge Sheet-cum-Show Cause Notice conforms to the requirements in this regard. As regards failure to hold the enquiry, the justification pleaded by the respondents is that since the petitioner did not come forward withany valid material, they did not propose to conduct the enquiry.
5. Sri T.P. Acharya, learned Counsel for the petitioner, submits that the action of the respondents in terminating the agency of the petitioner is illegal, arbitrary and violative of principles of natural justice. He submits that the entitlement of the petitioner to claim the II class A/c. fare and the factum of the petitioner attending the WDRT are not in dispute. According to him, though the petitioner was entitled to claim II A/c. charges for onward and return journey, the petitioner claimed II A/c. charges only for onward journey and claimed ordinary II class charges for the return journey, which shows that he did not want to make any false claim. He contends that the show cause notice itself was on the basis of pre-determined notions and the conclusions, which were already arrived at. The so-called Charge Sheet-cum-Show Cause Notice did not contain even a single charge, much less, the basis of allegation in support of the charge. It is also his case that when the respondents wanted to inflict the punishment of termination, it was incumbent upon them to conduct a departmental enquiry and termination of the agency without conducting the enquiry was unsustainable in law. He also submits that terminating the agency of the petitioner and depriving him of the earnings to the tune of about Rs. 45,000/- per month, on the basis of such a frivolous and unfounded allegations were shockingly disproportionate and cannot be sustained under any circumstances.
6. Sri D.V. Sitarama Murthy, the learned Standing Counsel for the respondents, submits that though the petitioner was entitled to claim II Class A/c. charges, making a false claim even for that amount constitute an act of gross misconduct. The learned Counsel states that the trust and confidence are the basis for appointmentor continuance of an agent and once that was at stake, triviality of the amount involved is inconsequential. On failure to conduct the enquiry and violation of principles of natural justice, he states that since no contradictory material was forthcoming from the petitioner, the respondents have no alternative, but to take the steps culminating in the passing of the impugned order. The learned Counsel relied upon several judgments of the Hon'ble Supreme Court in support of his contention that the interference by the High Court in disciplinary matters is rare and limited.
7. The adjudication of the disputes in this writ petition involves consideration of various facets of procedural and substantive aspects. The procedural aspects of the matter cover the contentions as regards violation of principles of natural justice, failure to frame charges and infliction of punishment without conducting enquiry. The substantive aspects cover the issues, such as, scope of interference by the High Court in the disciplinary matters and proportionality of the punishment inflicted on the petitioner.
8. Inasmuch as appointment of the petitioner as an Agent in the year 1990, the factum of his having attended the WDRT at Warangal on 21-7-2000, his entitlement to receive the travelling allowance equivalent to II Class A/c. Fare, etc., are not disputed, the area of factual controversy gets reduced substantially. As against the entitlement to receive the II Class A/c. fares for onward and return journey, the petitioner submitted bill for II A/c. fare for onward journey and ordinary II class fare for return journey. Once again, there is no dispute as to the claim of the petitioner for Rs. 44/-, which is the fare from Warangal to Khammam, by ordinary II class. In effect, the controversy relates to claim of Rs. 125/- being the difference between ordinary fare andII A/c. fare for the onward journey. The bill submitted by the petitioner was passed and he was paid the amount. It was on the basis of an anonymous complaint dated 2-9-2000. that the respondents started verifying the matter. They claim to have received a letter from the Chief Booking Supervisor, Khammam dated 20-2-2001, which is to the effect that the ticket numbers furnished by the petitioner did not relate to the travel undertaken by him. On the basis of this letter the petitioner was issued a show cause notice dated 18-5-2001. After referring to the bill submitted by the petitioner and the anonymous letter, the show-cause notice dated 18-5-2001 reads as under:
'We have evidence to prove that the ticket Nos. 05487668 for Rs. 160/- and 05449308 for Rs. 44/-towards onward and return journey performed by you on 21-7-2000 do not pertain to the journey as declared by you in your above TE bill.
Thus, you have made a false claim for travelling expenses vide above TE bill. Therefore you have acted in a manner detrimental and prejudicial to the interest of the corporation. Your action in making a false claim for travelling expenses makes you liable for disciplinary action under Regulation 16(1) of the Agents Regulation, 1972.'
9. It is true that in departmental enquiries, tentative conclusions are to be arrived at and the delinquent employees are to be required to show-cause as to why necessary action should not be taken against them. In such cases, the tentativeness of the conclusion should be evident from the language employed. Even where a departmental enquiry is conducted, the language employed in the show-cause notice has to suggest that the conclusions arrived at are only tentative and are open to be varied if sufficient material is placed. In the show-cause notice dated 18-5-2001, the petitioner was not required dispel the doubt entertained by the respondents as regardsthe genuinely of the claim. The conclusion arrived at by them as regards falsity of claim was treated as final and the petitioner was required only to explain as to why disciplinary action should not be initiated against him for the 'false claim' made by him.
10. Issuance of show-cause notice is an important step in the direction of compliance with the principles of natural justice. It is not the factum of issuance of notice, but the exercise to be undertaken in pursuance of the show cause notice, that constitutes the compliance with the principles of natural justice. If a conclusion is already arrived at without hearing the affected party, a show cause notice referring to the conclusions so arrived at would not, in any way, extenuate the illegality, which has already taken place in reaching a conclusion without hearing the affected party. If the respondents entertained any doubt as to the genuinely of claim of the petitioner, if they were in possession of any material, such as, anonymous letter, letter received from the Railways, etc., they ought to have furnished the same to the petitioner and called for his explanation. In such event, the petitioner would have had an opportunity to contradict the contents of the same and put-forth his own case. If on going through the same, he had no material, the petitioner would not be in a position to contradict them. Even that could add legality to the exercise. Withholding the entire material, arriving at a conclusion and directing the petitioner to show-cause as to why he should not be punished, does not constitute any semblance of compliance of principles of natural justice. Even if a little margin is to be allowed as to employing proper expression in the notice dated 18-5-2001, it can, at the best, fit into a stage after holding the departmental enquiry. It cannot constitute a first step, even if the relevant factors are stretched to their breaking point
11. The petitioner offered his explanation to the show-cause notice dated 18-5-2001. He has not only denied the imputation made against him, but also had furnished the relevant facts. After receiving the same, the respondents issued a Charge Sheet-cum-Show Cause Notice dated 31-7-2002. Except for rearrangement of sentences, this charge sheet is nothing but the repetition of the show-cause notice dated 18-5-2001. There is not even a casual reference to the show cause notice dated 18-5-2001 and the explanation thereto, submitted by the petitioner. Though, it is not advisable to extract the documents in their entirety, in the judgments, having regard to the importance of the issue involved, this Court feels that it is necessary extract the Charge Sheet-cum-Show Cause Notice dated 31-7-2002:
'CHARGE SHEET-CUM-SHOW-CAUSE NOTICE
Whereas you are working as an Agent under Code no.7-68F in LIC of India, Branch office, Sathupally.
That you have claimed II A/c fare of Rs. 160/-vide ticket No. 05487668 for the journey undertaken by you from Khammam to Warangal on 21-7-2000 by Golconda Express to attend the WDRT session held at Warangal on 21-7-2000.
That we have evidence to prove that the ticket numbers 05487668 for Rs. 160/- and 05449308 for Rs. 44/-towards onward and return journey performed by you on 21-7-2000 to attend the WDRT session do not pertain to the journey as declared by you in your TE bill dated 22-7-2000 and thus you have claimed II A/c fare for onward journey from Khammam to Warangal on 21-7-2000 though you did not travel by II A/c. Chair Car.
Whereas the considering the facts, I am satisfied that by your aforesaid actions you have acted in a manner prejudicial to the interest of the Corporation and violated the provisions of regulation 16 of AgentsRegulations, 1972 and for good and sufficient reasons I propose termination of your agency under Regulation 16(1)(b) of LIC of India (Agents) Regulations, 1972.
However, before proceeding further in the matter, I hereby direct you to show cause within a period of 15 days from the date of receipt of this notice as to why your agency should not be terminated in terms of Regulation 16(1)(b) of LIC of India (Agents) Regulations, 1972. If no reply is received within the stipulated time or the reply received is not satisfactory, action will be taken as per LIC of India (Agents) Regulations, 1972, without any further reference to you.
Dated at Warangal on the 31st day of July, 2002.'
It is evident from the above that no charge worth its name was framed in it. The purport of this notice is that the 2nd respondent was satisfied about the violation of the provisions by the petitioner. Here also, what was required of the petitioner was to show cause as to why his agency should not be terminated. There is nothing to suggest that the petitioner was permitted to rebut the accusation made against him.
12. Framing of charges constitutes an important step in the disciplinary proceedings. In a way, it is the gist of the various acts and omissions on the part of the employee, which constitute misconduct defined under the relevant Service Regulations. The charges, in turn, are supplemented by the narrations, usually called as 'basis of allegations'. Framing of charges, supplemented by basis of allegations, has a definite purpose to serve. Usually charges are framed on the basis of the material available with the employer. Once the same is put to the concerned employee, he will have an opportunity to put-forth his explanation dealing with each and every aspect. Instances are not lackingwhere the whole disciplinary proceedings were set-aside on the ground that the charges are vague. (See K. David Wilson v. Secretary To Government, Law Department, : 2001(5)ALD406 ). The consequences flowing from cases where charges are not framed at all hardly need any emphasis. No charge can be culled out from the Charge Sheet-cum-Show Cause Notice impugned in this writ petition.
13. In the order of termination, the 2nd respondent has treated paragraphs 2 and 3 of the Charge Sheet-cum-Show Cause Notice as charges. The relevant portion of the order reads as under:
'Whereas the charges mentioned in the Charge Sheet-cum-Show Cause Notice vide Para Nos. 2 and 3 are very specific.'
The paragraphs identified by the 2nd respondent can hardly be treated as charges. While the 2nd Para refers to the factum of the petitioner claiming the travelling allowance, the 3rd Para refers to the finding recorded by him. The petitioner categorically stated in his explanation as well as his affidavit that at the relevant point of time he was drawing an amount of Rs. 45,000/- per month on an average on account of his business. To do away with such a source of income of the petitioner as well as his status as member of the Zonal Officers Club, much more than a mere unilateral assertion and that too treating the same as final; was needed.
14. More important than the two aspects referred to above is the failure on the part of the 2nd respondent in holding the enquiry. He understood the reply given by the petitioner as the one of denial. He treated it as not acceptable on the ground that it vague and not clear. The reply of the petitioner was found unsatisfactory. That being the situation, it was incumbent upon the 2nd respondent to conduct or orderan enquiry. Not a word is stated in the impugned order as to why the departmental or disciplinary enquiry was not undertaken. That lapse is sought to be justified by stating in the counter as under:
'It was established that the petitioner's TE Bill contained a false claim. The petitioner was given reasonable opportunity to submit an explanation. Nothing further is contemplated under the Regulations. The order of termination was passed objectively after consideration of all relevant material.'
Such an approach in dealing with the career of the petitioner with so much of income and status attached to it cannot be countenanced in law. It was rather shocking that an Organisation of the magnitude and stature of LIC had dealt with such an important issue and case in such a casual manner.
15. It is, therefore, evident that the respondents have violated all important aspects of procedure and the impugned order is liable to be set-aside on this ground alone.
16. The substantive aspect of the matter, in a way, becomes secondary in this case, having regard to the finding recorded above. However, since the learned Counsel for the respondents has raised an objection as to the power of the High Court to interfere in disciplinary matters, it becomes necessary to deal with the same. Reliance was placed upon the judgment of the Hon'ble Supreme Court in UOI v. Narain Singh, : [2002]3SCR924 . In that case, the respondent, who was working as a Constable in the Border Security Force, was dismissed from service on the charges of disobeying lawful command of the Superior and assaulting his Superior. The writ petition filed by the respondent therein was dismissed by the learned single Judge and on appeal, the Division Bench directed reinstatement, by taking into account threefactors, viz., (a) the place from which the person has come from; (b) his family background; and (c) his service. The Hon'ble Supreme Court held that these factors were totally irrelevant, where charge was proved beyond doubt and when the finding on the charge was not in challenge at all.
17. In disciplinary proceedings, the relevant Regulations confer power upon the concerned agency to conduct enquiry and impose punishment. Courts have consistently accorded semblance of freedom to such authorities. The reason is that such authorities are better suited to record findings as to the acts or misconduct and also to weigh the pros and cons in inflicting punishment. The whole exercise has been treated as administrative in nature. Judicial review into such matters has been rather cautious. In many a case, contentions were put forward to treat this cautious approach of the Courts as almost a taboo, though self-imposed. On almost equal occasions, it has been clarified that disciplinary actions are certainly amenable to judicial review, but the Court would not act as an appellate authority. A consistent effort has always been made to strike a perfect balance in according freedom to the concerned agencies and at the same time in retaining the power to scrutinise such an exercise, may be in a limited scale.
18. The known and recognised fields of review in this regard are (a) the decision making process; in centra-distinction to decision itself; and (b) the proportionality of the punishment. Reference in this context may be made to the judgment of the Hon'ble Supreme Court in Apparel Export Promotion Council v. A.K. Chopra : (1999)ILLJ962SC , B.C. Chaturvedhi v. Union of India, : (1996)ILLJ1231SC , Chief Constable of The North Wales Police v. Evans, (1982) 3 All ER 141 HL.
19. The discussion undertaken in this case with regard to procedural aspect, was only about the decision making process. Hence, it is very much within the scope of judicial review.
20. Even if the enquiry can be said to have taken place strictly in accordance with the known principles of law, an examination as to the proportionality of the punishment inflicted on the petitioner, deserves consideration. As observed in the preceding paragraphs, the Court cannot sit as an appellate authority in considering the question of quantum of punishment. However, where the Court comes to the conclusion that the penalty imposed is either impermissible or such that it shocks the conscience of the High Court, it can certainly mould the relief in an appropriate manner. This proposition was reiterated by the Supreme Court in Apparel Export Promotion Council Case (supra) in negative terms as under:--
'Even insofar as imposition of penalty or punishment is concerned, unless the punishment or penalty is imposed by the disciplinary or departmental appellate authority is either impermissible or such that it shocks the conscience of the High Court, it should not normally substitute its own opinion and impose such other punishment or penalty.'
In B.C. Chaturvedhi case (supra), the same proposition is expressed in affirmative terms:
'If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief.....'
21. An important principle, which had a bearing on the subject-matter of this case is proportionality.' One of the facets of this principle, in the words of Lord Clyde in De Freitas v. Permanent Secretary ofMinistry of Agriculture, Fisheries, Lands and Housing, 1999 (1) AC 69, is whether 'the means used to impair the right or freedom (of a citizen), are no more than is necessary to accomplish the objective' This principle has been applied while testing the legislative administration or quasi-judicial acts of the State. It has almost been firmly established in the Indian Context also. The Judgment of the Hon'ble Supreme Court in Om Kumar v. UOI, 2001 (2) SCC 386, has dealt with and applied the principle in its entirety.
22. The concept of proportionality operates with greater vigour in the realm of punishments than other fields of law. The extensive classification of offences and prescription of different punishments and fines for them, in retrospect, is nothing but an effort to ensure that the punishment is proportionate to and commensurate with the crime. Proportionality is fairly embedded even in the matter of self defence, in that, the acts of self defence are expected to be proportionate to the evil apprehended. (See Section 99 of IPC).
23. Every act or omission cannot constitute a crime and every crime does not attract capital punishment. Similarly, in Service Law, every act or omission cannot constitute misconduct and every misconduct cannot result in severe punishment of termination. Even where misconducts are defined and classified and punishments are provided for, the authority empowered to inflict the punishment has to asses many factors, before he inflicts the ultimate punishment. It is too difficult to standardise the pattern in this regard. Attempts were made from time to time, by Courts as well as social scientists to drive home the point. While some insisted that the exercise in this regard should be just and reasonable, others expected it to be fair and equitable. Justice learned Hand, in a larger context, said that the exercise comprises typicaltemper as well as faith called 'the spirit of moderation'. By their very nature, these concepts are not amenable to any definition. Any attempt to define them would only end up in description. These concepts apply to every possible exercise of power, including the one, of inflicting the punishments.
24. What then is the spirit of Moderation? In the words of Justice Learned Hand -
'It is the temper which does not press a partisan advantage to its bitter end, which can understand and will respect the other side, which feels a unity between all citizens-real and not the factitious product of propaganda-which recognizes their common fate and their common aspirations-in a word, which has faith in the sacredness of the individual.'
25. He did not leave the matter by referring to the attributes of the concept. In his inimitable style, he posed himself the question and gave the answer as to how these noble aspects are to be fostered. He said --
'If you ask me how such a temper and such a faith are bred and fostered, I cannot answer. They are the last flowers of civilization, delicate and easily overrun by the weeds of our sinful human nature; we may even now be witnessing their uprooting and disappearance until in the progress of the ages their seeds can once more find some friendly soil. But I am satisfied that they must have the vigour within themselves to withstand the winds and weather of an indifferent and ruthless world; and that it is idle to seek shelter for them in a Courtroom. Men must take that temper and that faith with them into the field, into the market place, into the factory, into the council-room, into their homes; they cannot be imposed; they must be lived. Words will not express them; arguments will not clarify them: decisions will not maintain them.'
26. A general impression prevails cutting across various societies that the concepts, such as, justice, fairplay, reasonableness, moderation, etc., are to be administered by the Courts and they do not constitute part of the common life. Such an approach would be similar to the one expecting health to prevail in hospitals alone.
27. If we examine the facts of the present case with this background, the following things emerge:
(a) The petitioner was working as an Agent with an income of Rs. 45,000/- per month and a Membership in the Zonal Officers Club;
(b) The petitioner attended WDRT Conference at Warangal on 21-7-2000;
(c) He was entitled to be paid Travelling Allowance at II Class A/c. Fare;
(d) He claimed II A/c fare for onward journey and ordinary II class fare for the return journey and the same was allowed to him; and
(e) On suspicion that the numbers of the tickets furnished by the petitioner did not tally, his agency was terminated, without conducting enquiry.
28. By any standard, termination of agency with such financial and social implications on the suspicion with regard to the amount, which the petitioner was admittedly entitled to, cannot be sustained on the touchstone of law or reason. The method in which the proceedings were conducted, the timing at which one after the other notices came to be issued and the triviality of the issues chosen to inflict the fatal blow on the petitioner would cumulatively tend to convince the Court that the allegation of the petitioner that the whole exercise was resorted with a view to strip him of the coveted position, cannot bebrushed aside. It is rather unimaginable that an agent, who fetched the business of crores of rupees to the LIC, is meted out with such a treatment on so trivial a charge.
29. The instance of punishment being shocking the conscience of the Court or being disproportionate are too difficult to be defined. They can be understood only with reference to certain instances. The present case provides the best example for both the categories. The plea of the respondents that the agency is based on trust and confidence and instance of dishonesty involving even trivial amounts cannot be tolerated is too spacious to be accepted. It is not understandable as to how the question of trust and confidence are involved in this case at all. In his explanation, the petitioner graphically explained the manner in which he travelled. No discussion was undertaken about it. The incriminating material in the possession of the 2nd respondent was not made available to the petitioner. No enquiry was held. The very fact that the petitioner claimed a II A/c fare for one way journey and non-A/c fare for the return journey demonstrates that he did not intend to make any false claims. In fact the petitioner was entitled to travel and claim A/c. fares for both the journeys. It was not as if he has chosen the costiliest mode of transport. By any standard, the one chosen by the petitioner was the cheapest in the given set of circumstances.
30. Viewed from any angle, the impugned order dated 24-8-2002 issued by the 2nd respondent cannot be sustained and the same is set aside. The writ petition is accordingly allowed with all consequential benefits. No costs.