Udaya Shankar.K.R. Vs United India Insurance Co.Ltd.

UDAYA SHANKAR K. R. S/O. LATE K. N. RAMA RAO, AGE: 59 YEARS, FORMER ASSISTANT MANAGER, UNITED INDIA INSURANCE CO. LTD., NOW UNEMPLOYED, PRESENTLY RESIDING AT C/O. G. N. RAO, SRI. LAXMI NARASIMHA NILAYA, PAMPANAGAR, GANGAVATHI -583227, KOPPAL DISTRICT.

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…PETITIONER

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(BY SRI HARSH DESAI, AND SMT. V. P. VADAVI, ADVOCATES)

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AND:

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VISHAL
NINGAPPA
PATTIHAL

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Digitally signed by VISHALNINGAPPA PATTIHAL Location: High Court ofKarnataka Dharwad BenchDate: 2025.02.19 10:32:39+0530

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UNITED INDIA INSURANCE CO. LTD., REGISTERED AND HEAD OFFICE AT NO.24, WHITES ROAD, CHENNAI -600 014, TAMIL NADU, BY ITS CHIEF MANAGING DIRECTOR.

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THE REGIONAL MANAGER AND DISCIPLINARY AUTHORITY, REGIONAL OFFICE, UNITED INDIA INSURANCE CO. LTD., NO.3, ENKAY COMPLEX, 1^ST FLOOR, KESHWAPUR, HUBBALLI-580 023

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…RESPONDENTS

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(BY SRI S. K. KAYAKAMATH, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA IS PRAYING TO ISSUE A WRIT OF CERTIORARI QUASHING THE ORDER BEARING NO. 2016-19:23:2017 DATED 09.06.2017 PASSED BY RESPONDENT NO.1 AS PER ANNEXURE-P AND ORDER BEARING NO. HO:HRM:1DD:A-2:2017-18 DATED 18.06.2018 PASSED BY RESPONDENT NO.1 AS PER ANNEXURE-R, AND DIRECT THE RESPONDENTS TO REINSTATE THE PETITIONER WITH ALL THE BENEFITS. ISSUE SUCH OTHER WRIT/ORDER/DIRECTION AS DEEMED FIT, IN THE INTEREST OF JUSTICE.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE M.NAGAPRASANNA)

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The petitioner is before this Court calling in

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question an order by which the disciplinary authority imposes penalty of removal from service and the order of the Appellate Authority that confirms the penalty imposed dismissal from service.

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Heard the learned counsel Sri.Harsh Desai on behalf of Sri.V.P.Vadavi appearing for petitioner and learned counsel Sri.S.K.Kayakamath appearing for respondent.

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Facts in brief germane are as follows:

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The petitioner joins the service of the respondent-

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United India Insurance Company Limited (hereinafter

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referred to as “the Company” for short) on 01.12.1986 as a Development Officer and his claim of the petitioner that he was promoted to the cadre of Assistant Administrative Officer in the year 2001 and further to the cadre of Assistant Manager. At the relevant point in time he was working as a Branch Manager at Gangavati Branch in the Company and leaves the branch on his further transfer. It transpires that owing to certain omissions and commissions of the petitioner at the time when he was working as a Branch Manager at Gangavati Branch, disciplinary proceedings come to be initiated against him on receipt of certain complaints at the hands of the agents of the company.

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The petitioner was proceeded with

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departmentally and pursuant to the departmental enquiries so conducted the petitioner was imposed with a penalty of removal from service. The petitioner prefers an appeal as obtaining under the regulations and the appeal comes to be rejected and petitioner is before this Court calling in

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question both the orders of Disciplinary Authority and the Appellate Authority.

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Learned counsel Sri.Harsha Desai appearing for the petitioner would take this Court through the documents appended to the petition and project certain grounds to buttress submission that the proceedings are illegal and contrary to law.

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Learned counsel would submit that all the complaints of the agents that are made in the year 2015 are of the incidents that have happened five or six years earlier to said complaint. Therefore the delay in initiating proceedings of incidents that have happened five or six years ago has vitiated the proceedings. The second submissions the learned counsel is that, the three persons were involved in the alleged episode of misconduct, two of them are imposed with penalty, petitioner removal from service. The other stoppage of increments and on the third no disciplinary proceedings were even initiated. He would submit that since all the three were involved in the same

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transaction, parity in penalty ought to have been maintained. The third submission is that since all the three were involved. A joint enquiry has obtaining under the regulations was necessary to be conducted. This non conduct of a joint enquiry as vitiated the proceedings. Learned counsel further contend that not one person who has taken insurance from the hands of the petitioner has complained of any alleged act of misappropriation or otherwise. It is the agent who has complained and would submit that the penalty of removal from service is grossly harsh and excessive. He would seek quashment of the penalty and consequential leaves on the aforesaid score.

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Per contra learned counsel for the Insurance Sri.S.K.Kayakmath would submit that agent has complained. It comes to the knowledge of the Company only when the agent complaint it may be incident of six years or seven years, but the complaint comes about only in the year 2015 and when the Company got knowledge of what the transactions of the petitioner are immediately

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Departmental Enquiry is initiated. Therefore there is no delay in the case at hand. He would contend that even otherwise it has not caused any prejudice to the petitioner as procedure stipulated under the discipline and appeal regulations have been completely followed, he would seek dismissal of the petition.

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I have given my anxious consideration to the submissions made by the respective learned counsel appearing for the parties and perused the material on record.

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The dates of joining of the petitioner and his promotion to the higher echelon of office is not in dispute they are matter of record. The agent for the first time complains on 10.08.2015. The complaint reads as follows:

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“Dear sir,

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As I am working as agent since, with UIIC and I want to put some information and problems by one and your officer Mr. Udayashankar was A.O. Hospet and now working as Branch Manager at Gangavati under Hubli Region.

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1. He has changed agency from my agency to his dummy agents for several policies.

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a. 3 Motor tipper policies belongs to M/s V.S.Lad & Sons

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b. Motor Policies of M/s Harekrishna Metalics Hire Buyer

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c. Fire policies belongs to M/s India Sugar Refinery

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d. Fire policies belongs to M/s K.K.Farms & Sister Concare

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2. I brought 4.25 lakh premium from M/S V.S.Lad and Son Soundar in 2008 by issuing 6 cover notes for dumpares. But not issued policy from Hospet. But he issued policies from Bellari Office by putting dummy agency name till date I never received commission and he enjoyed commission 4 years.

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3. He use to issue letter unnecessary to me even though I having cover note authorization.

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4. Unhealthy connotation with my existing clients by all de tariff discounts as he wish and disturbed my clients.

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5. He has taken cash Rs. 124000/from me in 2007 and he issued cheques as follows:

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DATE AMOUNT CHEQUES A. 15-02-2007 80000 284026 B. 24-06-2008 31182 800207 C. 25-06-2008 13202 800194

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RS. 124384

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Other than above mentioned subjects he made so many agency changes and illegal things

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in the office. His main intension is not to dealing agents, He wants money either way (any other) This information is submitting to the best of my knowledge I request you to kindly take necessary action regarding the above subject.”

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The contents of the complaint are in unequivocal. They are incidents that have happened in the year 2007 to 2010 and the complaint is registered in the year 2015. Another complaint comes about by another agent on 17.12.2015 again for the same period. The transaction in the subject complaint is between 2006 to 2009. Therefore the complaints that were registered in the year 2015 are of incidents that have happened between 2006 to 2009. This is the tenure of the complaint itself.

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On the basis of the said complaint, charge sheet was issued to the petitioner against the petitioner on 07.04.2016 and the enquiry officer holds the petitioner guilty of the allegations and disciplinary authority imposes penalty of removal from service against the petitioner. The enquiry officer holds the petitioner guilty of few of the allegations and exonerates on few of the allegations. The

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disciplinary authority imposes a penalty of removal from service against the petitioner. The petitioner is said to have filed an appeal against the said order which comes to be rejected.

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The issue now would be whether the entire proceedings are vitiated by delay. The afore-narrated dates and events are not in dispute, the first complaint quoted supra made on 10.08.2015 the incidents that have occurred between 2007 and 2008 the second complaint made on 17.12.2015 the incidents that have occurred between 2006 and 2010. Therefore, the incidents are of 5 to 8 years vintage at the time when the complaint comes to be made against the petitioner. Therefore, if any person aggrieved it would have been the insured. No insured has complied, it is the agent. Therefore, I have no hesitation to hold the entire proceedings are vitiated on account of delay inter alia .

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Learned counsel Shri S.K. Kayakamath would

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submit that as and when they got the information, about the involvement of the petitioner in the alleged acts, they

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have instituted the proceedings and has not caused any prejudice is noted only to be rejected, as delay in initiating departmental enquiry undoubtedly causes prejudice, whether it can become a matter to quash the proceedings need not detain this Court for long or delve deep into the matter. The Apex Court in the case of STATE OF ANDHRA PRADESH VS. N. RADHAKISHAN¹ has held as follows:

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“18. In State of Punjab v. Chaman Lal Goyal [(1995) 2 SCC 570 : 1995 SCC (L&S) 541 : (1995) 29 ATC 546] State of Punjab was aggrieved by the order of the High Court of Punjab and Haryana quashing memo of charges against Goyal and also the order appointing Enquiry Officer to inquire into those charges. In this case the incident, which was the subject-matter of charge, happened in December 1986 and in early January 1987, when Goyal was working as Superintendent of Nabha High Security Jail. It was only on 9-7-1992 that memo of charges was issued to Goyal. He submitted his explanation on 4-1-1993 denying the charges. Enquiry Officer was appointed on 20-7-1993 and soon thereafter Goyal filed writ petition in the High Court on 24-8-1993. The High Court quashed the memo of charges on the principal ground of delay of five and a half years in serving the memo of charges, for which there was no acceptable explanation. This Court examined the factual position as to how the delay occurred and if Goyal had been prejudiced in any way on account of delay. This Court relied on the principles laid down in A.R. Antulay v. R.S. Nayak [(1992) 1 SCC 225 : 1992 SCC (Cri) 93] and

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1 1998 (4) SCC 154

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said that though that case pertained to criminal prosecution the principles enunciated therein were broadly applicable to the plea of delay in taking the disciplinary proceedings as well. Referring to decision in A.R. Antulay case [(1992) 1 SCC 225 : 1992 SCC (Cri) 93] this Court said: (SCC p. 576, para 11)

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“In paragraph 86 of the judgment, this Court mentioned the propositions emerging from the several decisions considered therein and observed that ‘ultimately the court has to balance and weigh the several relevant factors — balancing test or balancing process — and determine in each case whether the right to speedy trial has been denied in a given case’. It has also been held that, ordinarily speaking, where the court comes to the conclusion that right to speedy trial of the accused has been infringed, the charges, or the conviction, as the case may be, will be quashed. At the same time, it has been observed that that is not the only course open to the court and that in a given case, the nature of the offence and other circumstances may be such that quashing of the proceedings may not be in the interest of justice. In such a case, it has been observed, it is open to the court to make such other appropriate order as it finds just and equitable in the circumstance of the case.”

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In that case this Court said that it was more appropriate and in the interest of justice as well as in the interest of administration that the enquiry which had proceeded to a large extent be allowed to be completed. At the same time the Court directed that Goyal should be considered forthwith for promotion without reference to and without taking into consideration the charges or the pendency of the enquiry, if he is found fit for promotion.

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19. It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in

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concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the court has to take into consideration all the relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether the delay has vitiated the disciplinary proceedings the court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much the disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take their course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse considerations.”

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Subsequent to said judgment, the Apex Court again in the case of P.V. MAHADEVAN VS. M.D. TAMIL NADU

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HOUSING BOARD² has held as follows:

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“10. Section 118 specifically provides for submission of the abstracts of the accounts at the end of every year and Section 119 relates to annual audit of accounts. These two statutory provisions have not been complied with at all. In the instant case the transaction took place in the year 1990. The expenditure ought to have been considered in the accounts of the succeeding year. In the instant case the audit report was ultimately released in 1994-95. The explanation offered for the delay in finalising the audit account cannot stand scrutiny in view of the above two provisions of the Tamil Nadu Act 17 of 1961. It is now stated that the appellant has retired from service. There is also no acceptable explanation on the side of the respondent explaining the inordinate delay in initiating departmental disciplinary proceedings. Mr R. Venkataramani, learned Senior Counsel is appearing for the respondent. His submission that the period from the date of commission of the irregularities by the appellant to the date on which it came to the knowledge of the Housing Board cannot be reckoned for the purpose of ascertaining whether there was any delay on the part of the Board in initiating disciplinary proceedings against the appellant has no merit and force. The stand now taken by the respondent in this Court in the counter-affidavit is not convincing and is only an afterthought to give some explanation for the delay.

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11. Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental

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2 2005 (6) SCC 636

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proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer.”

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The Apex Court yet again in the case of SECRETARY MINISTRY OF DEFENCE AND OTHERS VS. PRABHASH

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CHANDRA MIRDHA³ has held as follows:

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“8. The law does not permit quashing of chargesheet in a routine manner. In case the delinquent employee has any grievance in respect of the charge-sheet he must raise the issue by filing a representation and wait for the decision of the disciplinary authority thereon. In case the chargesheet is challenged before a court/tribunal on the ground of delay in initiation of disciplinary

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3 (2012) 11 SCC 565

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proceedings or delay in concluding the proceedings, the court/tribunal may quash the charge-sheet after considering the gravity of the charge and all relevant factors involved in the case weighing all the facts both for and against the delinquent employee and must reach the conclusion which is just and proper in the circumstance. (Vide State of M.P. v. Bani Singh [1990 Supp SCC 738 : 1991 SCC (L&S) 638 : (1991) 16 ATC 514] , State of Punjab v. Chaman Lal Goyal [(1995) 2 SCC 570 : 1995 SCC (L&S) 541 : (1995) 29 ATC 546] , Registrar, Coop. Societies v. Sachindra Nath Pandey [(1995) 3 SCC 134 : 1995 SCC (L&S) 648 : (1995) 29 ATC 538] , Union of India v. Ashok Kacker [1995 Supp (1) SCC 180 : 1995 SCC (L&S) 374 : (1995) 29 ATC 145] , Prohibition & Excise Deptt. v. L. Srinivasan [(1996) 3 SCC 157 : 1996 SCC (L&S) 686 : (1996) 33 ATC 745] , State of A.P. v. N. Radhakishan [(1998) 4 SCC 154 : 1998 SCC (L&S) 1044 : AIR 1998 SC 1833] , Food Corporation of India v. V.P. Bhatia [(1998) 9 SCC 131 : 1998 SCC (L&S) 466] , Supt. of Police v. T. Natarajan [1999 SCC (L&S) 646] , M.V. Bijlani v. Union of India [(2006) 5 SCC 88 : 2006 SCC (L&S) 919 : AIR 2006 SC 3475] , P.D. Agrawal v. SBI [(2006) 8 SCC 776 : (2007) 1 SCC (L&S) 43] and Govt. of A.P. v. V. Appala Swamy [(2007) 14 SCC 49 : (2009) 1 SCC (L&S) 440] .)”

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The Apex Court in the aforesaid judgments holds that delay can be taken note of to quash the proceedings as delay would undoubtedly cause prejudice to the employee. In the case at hand, as observed herein above, the delay is not a year or two, but of 7 to 8 years, incidents being complained

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of that too by the agents in the year 2015. Therefore, this would be the circumstance enough to quash the impugned orders.

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The second submission of the learned counsel appearing for the petitioner is that, the respondents have not maintained parity in penalty. The said submission also merits acceptance, as the complaint and the defence of the petitioner if read in tandem an would clearly indicate that there were three persons involved in the transaction, one the petitioner, the other two persons, one the Senior Officer and a Senior Assistant, they were cohorts in allegation with the petitioner. Therefore, if the petitioner was preceded with departmentally, as well as the Senior Officer, parity in penalty ought to have been maintained. It is an undisputed fact that the Senior Assistant is imposed with stoppage of two increments as a penalty, and the petitioner is chosen to for imposition of extreme penalty of removal from service. Against the Senior Officer who is admittedly a part of the transaction, no departmental enquiry even is instituted.

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Therefore, the submission of the learned counsel appearing for the petitioner would merit acceptance that parity in penalty is not maintained. The issue whether parity in penalty should be maintained or otherwise, again need not detain this Court for longer delve deep into the matter. The Apex Court in the case of RAJENDRA YADAV VS. STATE

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OF MADHYA PRADESH⁴ has held as follows:

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“9. The doctrine of equality applies to all who are equally placed; even among persons who are found guilty. The persons who have been found guilty can also claim equality of treatment, if they can establish discrimination while imposing punishment when all of them are involved in the same incident. Parity among co-delinquents has also to be maintained when punishment is being imposed. Punishment should not be disproportionate while comparing the involvement of co-delinquents who are parties to the same transaction or incident. The disciplinary authority cannot impose punishment which is disproportionate i.e. lesser punishment for serious offences and stringent punishment for lesser offences.

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10. The principle stated above is seen applied in a few judgments of this Court. The earliest one is DG of Police v. G. Dasayan [(1998) 2 SCC 407 : 1998 SCC (L&S) 557] wherein one Dasayan, a police constable, along with two other constables and one Head Constable were charged for the same acts of misconduct. The disciplinary authority exonerated

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4 2013 (3) SCC 73

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two other constables, but imposed the punishment of dismissal from service on Dasayan and that of compulsory retirement on the Head Constable. This Court, in order to meet the ends of justice, substituted the order of compulsory retirement in place of the order of dismissal from service on Dasayan, applying the principle of parity in punishment among co-delinquents. This Court held that it may, otherwise, violate Article 14 of the Constitution of India.

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11. In Shaileshkumar Harshadbhai Shah case [(2006) 6 SCC 548 : 2006 SCC (L&S) 1486] the workman was dismissed from service for proved misconduct. However, few other workmen, against whom there were identical allegations, were allowed to avail of the benefit of voluntary retirement scheme. In such circumstances, this Court directed that the workman also be treated on the same footing and be given the benefit of voluntary retirement from service from the month on which the others were given the benefit.

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12. We are of the view that the principle laid down in the abovementioned judgments would also apply to the facts of the present case. We have already indicated that the action of the disciplinary authority imposing a comparatively lighter punishment on the co-delinquent Arjun Pathak and at the same time, harsher punishment on the appellant cannot be permitted in law, since they were all involved in the same incident. Consequently, we are inclined to allow the appeal by setting aside the punishment of dismissal from service imposed on the appellant and order that he be reinstated in service forthwith. The appellant is, therefore, to be reinstated from the date on which Arjun Pathak was reinstated and be given all consequential benefits as were given to Arjun Pathak. Ordered accordingly. However, there will be no order as to costs.”

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The Apex Court was following an earlier judgment in the case of DIRECTOR GENERAL OF POLICE AND OTHERS Vs. G. DASAYAN⁵ where the Apex Court considers the fact that, if two employees are involved in the same transaction and against one the major penalty is imposed and the other a minor penalty, it would undoubtedly become arbitrary, as there is no parity in penalty. This Court, on this issue would have directed imposition of penalty of withholding of increments as is directed against Senior Officer, but the proceedings are vitiated by delay in its entirety. In that light, the petition deserves to succeed. For the aforesaid reasons, the following:

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ORDER

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(i) The petition allowed.

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(ii) The order dated 09.06.2017 passed by respondent No.1 vide Annexure-P and the order dated 18.06.2018 passed by

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5 1998 (2) SCC 407

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