1. We have heard Shri Umesh Vats for the petitioner. Shri S. Srivastava appears for United India Insurance Company Ltd.
2. The petitioner is aggrieved by the order dated 4.4.2006 passed by the Deputy General Manager, United India Insurance Company Ltd, Regional Office, Lucknow, as Disciplinary Authority imposing penalty of reduction in basic pay by ten steps in the time scale applicable to the petitioner in terms of Rule 23 (e) of General Insurance (CA) Rules 1975.
3. The petitioner was serving as Assistant Administrative Officer (D), Branch Office, Deoria under Divisional Office, Gorakhpur of the Insurance Company. He was served with a charge sheet for having failed to maintain absolute integrity, devotion of duty and acting grossly negligently in a manner, which was prejudicial to the interest of the company. In the imputation of misconduct in support of the charge it was alleged that Shri S.N. Sonkar was working as AAO (D), and on 20.09.2000, he issued motor cover note No. 100877 antedating the same as 18.9.2000, to vehicle No. UP-52/C-2808, which had already met with an accident on 20.9.2000 at 00.30 hrs., in order to bring the date of accident within the period of insurance, with malafide intention of granting undue pecuniary benefit to the insured and thus saddled the Company with an undue potential OD liability of Rs. 74, 345.45 and a potential TP liability of Rs. 18.35 lakhs.
4. After receiving the reply of the petitioner to the Memorandum of Charge dated 14.10.2003, on 21.11.2003, denying the charges, the Disciplinary Authority decided by office order dated 30.12.2003 to conduct an oral enquiry and appointed Shri S.N. Srivastava, Deputy Manager. DO-II Kanpur and Shri Harnam Kunwar, Administrative Officer, Regional Office, Lucknow as Enquiry Officer and Presenting Officer, respectively.
5. The petitioner was served with copies of the documents including the office copy of the motor cover note No.100877; cover note numbers as per list; copy of the relevant money receipt; ACS-2 September 2000; attendance register of Shri S.N. Sonkar; motor OD claim file; motor TP case report; statement of Shri S.N. Sonkar and investigation report of Shri Gautam Adhikari, Advocate along with certified copy of FIR. The dates were fixed for regular hearing on 15.3.2004; 2.4.2004 and thereafter on 18.6.2004, on all these dates the enquiry was postponed. On 16.7.2004 Shri Paritosh Kumar MW1, who had investigated the case, was examined. On 6.9.2004 Shri A.P. Sharma, the then Divisional Manager, Divisional Office, Gorakhpur was examined. He denied of having allowed to issue cover note books to the agents. Shri Sanjay Kumar Jha MW5 was the vigilance officer. He presented the listed documents and asserted that the petitioner was using four motor cover note books simultaneously on 18.9.2000 to 20.9.2000 against the norms of the company. The cover note No. 100877 was issued on 18.9.2000, at 5 pm. The carbon copy of cover note appeared to be inserted later on. He should have deposited the cover note in the branch office on 18.9.2000 itself. Shri Sonkar-the petitioner accepted in his statement that he did not inspect the truck at the time of insurance. The truck met with an accident in the night of 19/20.9.2000 in West Bengal, hence inspection of vehicle by the agent on 18.9.2000 at 5 p.m. was not possible. The cover note was issued after the accident. The earlier cover note No. 100876 was cancelled without giving any reason. The explanation that there was overwriting of the period of insurance in the cover note No. 100876 was not accepted. The insured through this cover note was not a regular client. It was not renewal by the company with the break of more than one month. The impression of engine no., chassis no. was not taken.
6. The enquiry officer allowed the defence assistant to present DW1 Shri Rudal Prasad; DW2 Shri Rajesh Kumar, Sales Manager, Trend Automobiles Deoria, to prove the defence that there was no practice to trace engine number and chassis number in the proposal form which was started only 4-5 months before the date. The petitioner was instructed by the then Branch Manager to visit Pawan Automobiles. The petitioner visited Pawan Automobiles and on his return he informed that a fresh cover note was being issued in the current date on 18.9.2000 at 5 p.m. Due to shortage of some amount he had instructed the agent concerned Ms. Asha Devi to deposit the total amount on the next morning on 19.10.2000. No reason of cancellation was mentioned in the cover note by the marketing staff. Shri Rudal Prasad, Sub Staff claimed that local marketing staff deposit cash premium same day but sometime due to practice premium was deposited after 2-3 days. DW2 Rajesh Kumar, Sales Manager, Trend Automobiles stated that the then Branch Manager had several times issued cover note book. Sometimes he used to deposit the premium in the office and some time he used to send it through United India Branch office staff. On 18.9.2000 at 4 p.m. he heard the petitioner, who was instructed by Branch Manager to visit Pawan Automobiles to collect the premium.
7. On the questions put by the presenting officer the petitioner asserted that on instructions of the Branch Manager, he had visited Pawan Automobiles and had found that cover note No. 100876 was already issued on 16.9.2000, irrespective of the fact that there was break in insurance and therefore he immediately cancelled the cover note issued by Asha Devi. Under the instructions of Branch Manager he was compelled and forced to sign cover notes. The physical verification of the vehicle was done by the then Branch Manager and that he had simply followed the instructions. The cover note was issued in the name of Ms. Asha Devi. He had not pre-inspected the vehicle physically when he had issued the cover note on 18.9.2000.
8. In the enquiry report the enquiry officer concluded as follows:-
"CONCLUSION
On analyzing management witnesses, their cross examination, management documents, defense witnesses, defense documents, written arguments, (brief) by presenting officer and memorandum to employee I conclude that the charges framed in the MEMORANDUM No. LRO: RDA:OR:23:2003 Dt. 14/10/03 stands PROVED in totality."
9. The petitioner was given a show cause notice on 6.2.2006 with a copy of the enquiry report dated 23.12.2005. He submitted his reply on 22.2.2006. The Disciplinary Authority, in the impugned order imposing punishment of reduction in basic pay by 10 steps in the time scale, observed that he had independently perused the memorandum of charge, reply, inquiry report, enquiry proceedings, and the representation of the petitioner. The points raised by the petitioner were not acceptable, as the petitioner as a responsible and prudent officer, ought to have pre-inspected the said vehicle when there was break in insurance, as per existing rules of the company, which he failed to do so. Further it was found from the enquiry proceeding that he admitted his criminal lapse on his part. The charge of antedating the cover note was established. His act exposed the company to a potential liability of Rs. 74, 345.45 and a potential TP liability of Rs. 18.35 lakhs and thus, the punishment as aforesaid was imposed.
10. The appellate authority in rejecting the appeal observed that the petitioner was given reasonable and adequate opportunity not only to rebut the charge, but also put up his side of defence. The enquiry was conducted as per procedure and that the penalty is commensurate with the gravity of the misconduct. There was thus no reason to interfere with the order.
11. Shri Umesh Vats submits that the petitioner has been a sincere employee of the company for 22 years. The vehicle in question was financed to M/s Pawan Automobiles and was covered by the cover note issued on 16.9.2000 by authorised agent Ms. Asha Devi. He submits that M/s Asha Devi is ister of the owner of M/s Pawan Automobiles. She used to sign cover notes issued by the branch directly to her, and received by her. On 18.9.2000, the petitioner had received instructions from the Branch Manager to attend office of M/s Pawan Automobiles. When he reached there, he found that cover note No. 100876 was already issued on 16.9.2000, but no premium was deposited. The petitioner cancelled the cover note. A fresh cover note No. 100877 was issued on 18.9.2000. The petitioner also instructed the authorised agent to deposit the premium on 19.9.2000. The premium was deposited in office on 20.9.2000. In the meantime the vehicle met accident in the night of 19/20.9.2000.
12. Shri Umesh Vats submits that the charge was not proved. The petitioner did not antedate the cover note. It was already issued on 18.9.2000, on the presumption that the premium will be deposited on 19.9.2000. The premium was collected by the authorized agent but she could not deposit it, in time for which the petitioner cannot be faulted. The gap between the insurance of cover note and deposit of premium was not unusual. In normal practice the cover note is issued, and the premium collected from the insurer is deposited after a gap of two days. In this case the petitioner was not at fault and thus he could not be penalised. The authorized agent Ms. Asha Devi is a close relative of the proprietor of M/s Pawan Automobiles. She commanded respect in the branch office. The cover note was issued with her name directly by the branch. She was receiving cover note through cover note control register directly. The non-deposit of premium by the agent cannot be attributed to the petitioner. He submits that in any case the punishment awarded is grossly disproportionate to the charge and that no third party liability has been fastened on the company so far.
13. Shri Parmatma Rai appearing for the insurance company submits that the charge was fully established. The petitioner was given full and adequate opportunity to defend himself. He could not prove, as to how he was using four cover notes. The subject cover note was antedated after the vehicle had met with the accident. He submits that the court should be slow to interfere with the findings of fact recorded by the disciplinary authorities, accepted by the appellate authority, on the questions of fact, which constitute the allegations of the charge of misconduct.
14. It is not denied that the petitioner was given all the documents relied upon by the company in support of the allegations in proof of the charge of antedating the cover note of the renewal of insurance of a vehicle, which had actually met with accident on the previous night. The company produced witnesses to prove the allegations. All the documents were duly proved. The petitioner was given defence- assistance and was given full opportunity to defend himself. He was allowed opportunity to cross-examine the witnesses of the company and to lead his own evidence. The disciplinary authority agreed with the enquiry officer, after considering the petitioner's defence that the cover note was antedated. The premium was deposited a day after the vehicle met with the accident. The petitioner as an officer of the company committed misconduct, in jeopardizing the interest of the company.
15. We asked Shri Umesh Vats as to why Ms. Asha Devi the agent of the company and sister of proprietor of Pawan Automobile-the owner of the truck was not examined in defence to prove that she had collected the premium on 18.9.2000. He could not give any reason as to why the main witness, who could have proved that she had issued the cover note on 18.9.2000, and had collected the money was not examined in defence. We further find that the disciplinary authority rightly disbelieved the petitioner that the cover note was directly issued to Ms. Asha Devi by the Branch Manager; and that, he had after cancelling the cover note issued on 16.9.2000, issued a fresh cover note on 18.9.2000. No reason was given by the petitioner as to why the premium collected was deposited in cash and as to why the premium was retained by Ms. Asha Devi for two days from 18.9.2000 to 20.9.2000.
16. We find that the Disciplinary Authority and Appellate Authority have applied their mind and considered the enquiry report before awarding the punishment. The Court in exercise of his powers of judicial review does not ordinarily interfere with the findings of fact arrived at after assessment of evidence. The Court does not ordinarily reverse such findings unless it is established that the findings have been recorded without any material to justify the allegations; are wholly perverse or that there is any plea of malafide which has been established against the enquiry officer or the disciplinary authority.
17. The judicial review in the disciplinary matter is confined to the observance of the procedures prescribed under the statutory rules, and adherence to the principle of natural justice with the additional test of any prejudice caused to the petitioner by breach of such procedures.
18. In State of Orissa vs. Murlidhar Jena AIR 1963 SC 404; State of AP vs. S. Sree Rama Rao AIR 1963 SC 1723; State of Madras vs. G. Sundaram AIR 1965 SC 1103; State of AP vs. Chitra Ventaka Rao (1975) 2 SCC 557, and State of UP vs.Man Mohan Nath Sinha (2009) 8 SCC 310, the Supreme Court held:-
"14. The scope of judicial review in dealing with departmental enquiries came up for consideration before this Court in State of A.P. v. Chitra Venkata Rao5 and this Court held:
"21. ..........The High Court is not a Court of Appeal under Article 226 over the decision of the authorities holding a departmental enquiry against a public servant. The Court is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Second, where there is some evidence which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court to review the evidence and to arrive at an independent finding on the evidence. The High Court may interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is also wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion. The departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there is some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226.
23. The jurisdiction to issue a writ of certiorari under Article 226 is a supervisory jurisdiction. The Court exercises it not as an Appellate Court. The findings of fact reached by an inferior court or Tribunal as a result of the appreciation of evidence are not re-opened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by a Tribunal, a writ can be issued if it is shown that in recording the said finding the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Again if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. A finding of fact recorded by the Tribunal cannot be challenged on the ground that the relevant and material evidence adduced before the Tribunal is insufficient or inadequate to sustain a finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal. See Syed Yakoob v. K. S. Radhakrishnan 6 .
24. The High Court in the present case assessed the entire evidence and came to its own conclusion. The High Court was not justified to do so. Apart from the aspect that the High Court does not correct a finding of fact on the ground that the evidence is not sufficient or adequate, the evidence in the present case which was considered by the Tribunal cannot be scanned by the High Court to justify the conclusion that there is no evidence which would justify the finding of the Tribunal that the respondent did not make the journey. The Tribunal gave reasons for its conclusions. It is not possible for the High Court to say that no reasonable person could have arrived at these conclusions. The High Court reviewed the evidence, re-assessed the evidence and then rejected the evidence as no evidence. That is precisely what the High Court in exercising jurisdiction to issue a writ of certiorari should not do.
15. The legal position is well settled that the power of judicial review is not directed against the decision but is confined to the decision-making process. The court does not sit in judgment on merits of the decision. It is not open to the High Court to reappreciate and reapprise the evidence led before the inquiry officer and examine the findings recorded by the inquiry officer as a court of appeal and reach its own conclusions. In the instant case, the High Court fell into grave error in scanning the evidence as if it was a court of appeal. The approach of the High Court in consideration of the matter suffers from manifest error and, in our thoughtful consideration, the matter requires fresh consideration by the High Court in accordance with law. On this short ground, we send the matter back to the High Court."
19. We further find that the charge touching the integrity of the petitioner was serious in nature. On the proof of the charge of misconduct, of antedating the cover note of insurance, to give benefit to the owner of the vehicle, which had met an accident, he was awarded a lighter punishment by bringing him down in the basic pay by ten times in the time scale. No other point was pressed.
20. The writ petition is dismissed.