IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 3036 of 2001(J)
1. DR.K.RADHAKRISHNAN NAIR
... Petitioner
Vs
1. CHAIRMAN,M.D.,ORIENITAL INSURANCE CO.LTD
... Respondent
For Petitioner :SRI.P.R.VENKETESH
For Respondent :SRI.MGK.MENON
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :07/12/2009
O R D E R
S.SIRI JAGAN, J.
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O.P.No. 3036 of 2001
==================
Dated this the 7th day of December, 2009
J U D G M E N T
The petitioner is an Administrative Officer (Legal) of the Oriental
Insurance Company Ltd. In this original petition, he is challenging
disciplinary proceedings against him, which resulted in imposition of
the punishment of reduction of basic pay by four stages in the time
scale on him. Disciplinary proceedings were initiated by issuing Ext.P1
memo of charges. The memo of of charges related to the settlement of
claims in motor accident claims on the recommendation of the
petitioner, which according to the respondents, could not have been
settled. The allegation was that the petitioner did not have the
financial authority to do so, since the amount was beyond the limits
prescribed for the petitioner to exercise such discretion. Despite Ext.P2
written statement of defence, an enquiry was conducted and the
enquiry officer submitted Ext.P3 enquiry report, in which, he found the
petitioner guilty of four charges. Show cause notice was issued to the
petitioner for imposition of punishment, to which also, the petitioner
submitted objections. However, by Ext.P6 order, the punishment of
reduction in basic pay by four stages in the time scale was imposed on
the petitioner. The petitioner’s appeal against that punishment was
dismissed by Ext.P8. The petitioner submitted a memorial before the
o.p.3036/01 2
Chairman and by Ext.P10 order that was also rejected. The petitioner
has filed this original petition challenging Exts.P6, P8 and P10 orders,
seeking the following reliefs:
“a) To call for the records leading to Exhibits P6, P8 and P10 order and
issue a writ in the nature of certiorari or any other appropriate writ
order or direction.
b) To declare that the petitioner is entitled to get the period during
which he was placed under suspension ie. from 23.5.1996 to
30.7.1998 treated as on duty and also for consequential benefits
including seniority, promotions and arrears of salary etc.
c) To issue a writ in the nature of mandamus or any other
appropriate writ order or direction commanding the respondents 1
to 3 to grant all consequential benefits based on the prayer (a) and
(b) to the petitioner including seniority, promotions and arrears of
salary etc.”
2. The petitioner does not have any case that the enquiry was
conducted in violation of principles of natural justice or procedural
formalities laid down by the rules. The only contention is that the
findings of the enquiry officer and that of the disciplinary authority are
perverse and against the evidence adduced in the enquiry. He takes
me through the enquiry report, his objections to the same filed before
the disciplinary authority and the order of the disciplinary authority.
3. He points out that even after the enquiry officer found that
there is no evidence to show that the petitioner has exceeded the
financial authority, in Ext.P6 order, the disciplinary authority has found
him guilty of that misconduct also, without issuing any notice to the
o.p.3036/01 3
petitioner to show cause why the disciplinary authority should not
differ from the findings of the enquiry officer. He would further submit
that the findings in respect of the four charges were also perverse. He
points out that his recommendations were approved by the manager
and the manager was not preceded against. According to him, in so far
as there is no allegation that his recommendations for settlement of
the cases were not actuated by any other motives, the mere act of
recommending for settlement of the cases would not constitute any
misconduct simply because the enquiry officer and the disciplinary
authority were of opinion that the cases should not have been settled.
4. A counter affidavit has been filed by the respondents. The
senior counsel appearing for the respondents would oppose the
contentions of the petitioner. According to him, the enquiry officer has
specifically found the petitioner guilty of four misconducts. He points
out that this Court cannot sit in appeal over the findings of the enquiry
officer and the disciplinary authority. This Court can only look into
whether the disciplinary proceedings have been conducted strictly in
accordance with the procedure prescribed and the principles of natural
justice. In so far as the petitioner has no case that the procedure and
the principles of natural justice have not been followed, this Court
cannot re-appreciate the evidence adduced before the enquiry officer
o.p.3036/01 4
and come to the conclusion other than that of the enquiry officer and
the disciplinary authority. He submits that the enquiry officer and the
disciplinary authority have given reasons for their conclusion, which
are not in any way perverse, without which finding, this Court cannot
interfere with the findings of the enquiry officer or that of the
disciplinary authority.
5. I have considered the rival contentions in detail.
6. The enquiry officer has narrated the articles of charges in
Ext.P3 report, which are as follows:
“K.Radhakrishnan Nair while functioning as Administrative Officer (Legal)
MTPCO, Cochin during the years 1992-1994 committed misconduct
mentioned under:
1. He with a malafide intension compromised the following Motor
claims at MACT in violation of the policy conditions and contrary to
the legal opinion of Panel Advocate by misusing his official
position:-
a) O.P.No.4036/90 – Cl.No.441702/1/B/MV/200/92 for Rs.47,500/-
b) O.P.No.1614/92 – Cl.No.440205/5/MV/93/152 for Rs.18,000/-
c) He had with a malafide intension changed the office file of O.P
No.4036/90 – Cl.No.441702/1/B/MV/200/92 in order to camouflage
his misdemeanour, hence tampered with the office record.
2. He got the Cl.No.O.P(M.V.)/2184/92 and 2188/92 compromised for
Rs.47,500/- and Rs.23,000/- for the minor injuries sustained by
him and his wife respectively by misusing his official position and
influence at MTPCO, Cochin.
3. He compromised following claims at MACT, Clandestinely without
informing the higher authority and by exceeding his financial
authority:-
a) O.Ps.Nos.737/93 – 743/93 at MACT, Perumbavoor for Rs.38,000/-
o.p.3036/01 5
Rs.28,500/- Rs.41,500/- Rs.42,500/-, Rs.42,500/-, Rs.35,000/-
and Rs.32,000/- respectively.
b) O.P Nos.646/93, 647/93, 648/93, 649/93 and 661/93 at MACT
Ernakulam for Rs.30,000/-, Rs.37,500/- Rs.32,500/- Rs.22,500/-
and Rs.32,500/- respectively.
4. He compromised the following claims without obtaining the
supporting documents/flouting the procedure/in excess of his
financial authority.
A- O.P(MV) 187/91 MACT, Perumbavoor Rs.68,000/-
B-O.P(MV). 1168/92 -do- Rs.60,000/-
C-O.P(MV). 149/92 --do- Rs.82,500/-
D-O.P(MV). 107/91 -do- Rs.27,500/-
E-O.P(MV). 4157/90 -do- Rs.50,000/-
F-O.P(MV). 36/92 MACT, Ernakulam Rs.65,000/-
G-O.P(MV). 1445/92 MACT, Perumbavoor Rs.2,90,000/-
H-O.P(MV). 1140/92 MACT Perumbavoor Rs.27,000/-
In regard to MACT, Ernakulam, Case No.O.P(MV).No.1377/91 the
claim which should not have been settled out of Court was settled by him
for Rs.34,000/- which is beyond his financial authority and causing
wrongful loss to the Company. He tampered the remarks of the then AAO
(Legal), Sri.K.Jayaram, by deleting the word ‘not fit’ and adding once
again the word ‘fit’ prefixing (for settlement).
He by his above acts has failed to maintain absolute integrity
exhibited conduct which is unbecoming of Public Servant and acted in a
manner prejudicial to the interest of the Company thereby violated Rule 3
(i)(i)(iii) and 4(1) and (5) of the General Insurance (CDA) Rules 1975.”
As is clear from the same, the same relates to 25 motor accident
claims. The allegation was that in all the 25 motor accident claims, the
petitioner recommended settling of the cases wrongly. But the enquiry
officer found the petitioner guilty only of charge Nos.1(a), 4(F), 4(H)
and 5. In respect of charge No.1(a), the enquiry officer entered the
following findings:
“Charge No.1 (a): O.P NO.1614/92 – Claim No.440205/5/MV/93/152
o.p.3036/01 6
(Refer Statement of imputation of Misconduct etc.).
File in respect of the above MACT case has been marked through PW5 as
Exhibit No. P9 on 7.7.1997 while taking evidence in Chennai.
As pointed out by the Charged Officer by his Question No.1 in respect of
the above case in his Cross Examination of PW5 and admitted by PW5 the
Learners’ Licence possessed by the Rider Mr.Anilkumar M.J. Is in the file.
Licence No. is 2389/87 dated 12.09.1991 is valid for the period from
12.09.1991 to 11.03.1992 and then renewed the same for the period
from 13.07.1992 to 12.01.1993. it is therefore seen that there was no
licence at the material time i.e. 12.07.1992 either Learners’ or otherwise.
Driving vehicle without possessing a valid Driving Licence is in violation to
the policy conditions.
The Charged Officer is a well qualified person entrusted with the duty of
processing Legal files to protect the interest of the Company.
For the sake of argument it could be argued that the case was settled
(there is no case by the Charged officer) by the Manager Mr.C.M.Kora on
the basis of the submission by PW7 & PW8, the charged Officer could not
escape from the responsibility of properly guiding and assisting the
Manager.
There is no case by the Charged Officer that the settlement was a
“Mistake of Omission”. Hence there is no other alternate but to conclude
that the settlement in this case was as a result of “Mistake of
Commission” committed by the Charged officer.
Thus charge by the Disciplinary Authority that the Charged Officer has
compromised the case in violation of the policy condition is “PROVED”
beyond doubt.
However, the Company’s interest was protected by filing “Affidavit” and
getting Compromise award cancelled.’
7. In reply to the show cause notice issued by the enquiry
authority, the petitioner gave the following reply in respect of the
findings on that charge:
“Charge No.1 a O.P.No.1614/92 MACT Ernakulam
This is the only case in which the enquiry officer has subscribed a view
that the charge is proved. However, he has also concluded that the
company’s interest was protected by filing affidavit and gettingo.p.3036/01 7
compromise award cancelled. This case was disposed of after a regular
trial on 2nd August, 1997. I was under the impression that the presenting
officer would have disclosed the factum of this disposal. A photocopy of
the Award is now enclosed. It can be seen that a sum of Rs.18,800/-
(Eighteen thousand eight hundred) with 12% interest was awarded
against the Oriental Insurance Co. Ltd. which stands duly paid without
filing any appeal. Earlier compromise was for Rs.18000/- without any
interest.
Comparing the two awards it can be seen that compromised amount was
much less only. At any stretch of imagination it is therefore unjust to
brand the honest attempt of the above compromise as a misconduct.
The satisfaction of the above award dated 2.8.97 will prove my
contentions in my written statement dated 22nd July 96 and in my
argument note dated 23rd January, 98.
The finding of the Enquiry Officer is a non-speaking one. He has gone
wrong in not considering and not assessing the legal evidence. He has
also failed to deal with the questions of law and fact.
The settlement of this case was in the year 1993. Learner’s licence was
then considered as a duly valid licence. As in the case of permanent
licence if he had a leaner licence though expired later at the material time
of the accident liability is there on the insurer and it does not amount to
any violations.
In the year 1996 only an authoritative decision was pronounced by the
Supreme Court holding that the Learner’s licence was not a duly valid
licence. Please see New India Assurance Co. v. M.M.Tambe, 1996 ACJ
253.
In the circumstance, is it just to ignore the case law on the subject ? A
legal officer of the company either qualified or not, experienced or not,
has to necessarily acknowledge consider and adopt the law declared by
the courts. It is pertinent to note that, no circular was also issued to the
department to disown liability in the case of learner’s licence.
Only after the pronouncement of the Supreme Court in the year 1996
confirming the above (1996 ACJ 253) the lower courts have started
following the same.
Even statutory provisions of the Motor Vehicles Act, 1988 such as S.149
(2) a (11) or section 3 does not give any positive reference that Learners
Licences are not duly valid licences.
Therefore the enquiry officer ought to have critically examined and found
that the stand taken by me is nothing but a bonafide one. It is difficult too.p.3036/01 8
forecast in the year 93 the development of the year 96.
There is neither mistake of commission nor omission. Being fraction of his
imagination your honour may be kind enough to ignore it.
It is humbly submitted and prayed that I may be exonerated absolutely
from the above part of his perverse finding.”
8. In respect of 4(F), the findings of the enquiry officer are as
follows:
IV (f) O.P (MV)No.36/92 of MACT Ernakulam
The charge is that serious irregularities were committed in settling the
claim by the charged Officer. It was settled without verification of Driving
Licence of the accused driver in the accident.
The case file in this case has been marked as Exhibit No.P-14 on
8.7.1997 through Mr.Abdul Kader (PW5).
The charged officer made a comment on page No.2 of the Investigation
Report that “it is difficult to prove otherwise and there is no case for not
having the DL. In the particular circumstance it would be better to settle
the case.”
The Charged officer in his argument note writes “According to the
Presenting Officer despite the case is compromised by the Manager, being
legal officer a duty is vested to guide the manager with valid reason not
to go in for settlements.”
The views of the presenting officer is correct and acceptable.
The Charged officer could not escape from his responsibility when he has
encouraged the Manager to settle the claim instead of discouraging him.
The charged officer has sought protection under the Circular marked as
Exhibit No.D-3.
Under the head verification of Driving Licence eventuality (d) reads:
“Police Authorities might seize the driving licence and later on return the
same to the driver without noting the particulars and also had not
prosecuted the driver. The insurance company also does not get any
response from the owner to produce the driving licence for verification.”
In the instant case the protection sought is not available in as much as:
o.p.3036/01 9
(1) Police authorities did not seize the D/L.
(2) No attempt was made by the Insurance Company to verify
the D/L by obtaining it from the owner or Driver except that an ordinary
letter was addressed to the insured.
As such the Charged Officer is wrong in recommending the claim for
settlement which ultimately resulted in settlement of the claim and loss to
the Company. The claim should not have been settled and atleast sought
the protection available to the insurance Company under section 95 of the
Motor Vehicle Act 1939.
The presenting Officer submits in his argument note “But at any rate
settling the case by compromise is not appropriate. Here
Mr.Radhakrishnan Nair supported the decision taken by the Manager in
haste. The theory adopted by Mr.K.Radhakrishnan Nair BOSE IS
CORRECT is not at all appreciated and hence he has committed
CONTRIBUTORY NEGLIGENCE in the disposal of this case, though
FORTUNATELY the entire blame cannot be put on the Charged Officer.”
The view expressed by the Presenting Officer is acceptable without doubt.
The presenting officer submits that the entire blame could not be put on
the Charged officer as the claim was settled by the Manager of MTPCO.
However, as already explained above, the Charged officer should not
have recommended settlement of the claim at all. Hence there is no other
alternative but to conclude that the charges levelled against the Charged
officer is “PARTLY PROVED” in as much as he has recommended a claim
which otherwise should not have been recommended.”
The petitioner’s reply to the same before the disciplinary authority is
as follows:
“OP (MV) 36/92 MACT Ernakulam
Findings of the enquiry officer are:
(a) There is contributory negligence only on the charged officer as the
claim was settled by the Manager of the MTP Co.
(b) He has no other alternative but to conclude that the charges
levelled against the charged officer is ‘partly proved’ in as much as he has
recommended a claim which otherwise should not have been
recommended.
o.p.3036/01 10
As submitted earlier, ‘partly proved’ charges are nothing but ‘Not proved’
charges in the eye of law and facts.
As admitted by the presenting officer and proved by the charged officer
the claim was settled by the manager of the M.T.P. CO. Enquiry officer
has also found the same. It is true that I have written my opinion on the
investigation report such as it would base better to settle the case. This
is generally done when a report is gone through.
There is no evidence to prove by the presenting officer that the Manager
who settled the case solely relied on my writing.
In the absence of such a positive reference any where or atleast in the
note for satisfaction of the award it is unjust and baseless to find that I
have encouraged settlement. I do not think that it is possible also. PW5
Abdul Kader had clearly confirmed that Manager Mr.Korah himself has
settled mostly big cases (See his Cross -QA- 67). Finding that protection
under the circular Ext.No.D3 is not available is also baseless and
incorrect.
Circular envisages that it will be advisable to presume that the driver was
holding valid licence as normally courts have been deciding the cases
based on such presumption in the following eventualities.
(1) When the police had not prosecuted the driver.
(2) When the Insurance Company also does not get any response from
the owner or the driver to produce the DL for verification.
In the instant case both eventualities have been there. It is an
undisputed fact that the police had not prosecuted the driver and Enquiry
officer himself has found that a letter was addressed to the insured
asking for DL verification.
Disregarding the same he found that no attempt was made by the
insurer.
Therefore the above finding is without any valid reason and is against the
truth.
As provided in the last para of Ext.D3, it will be extremely difficult for the
Insurers to prove the contention, particularly when the police does not
prosecute the driver on this count of not holding valid licence.
Presenting officer had no case that the insurance company is in no way
liable for compensation.
o.p.3036/01 11
In the circumstances, the finding that an innocent but valid personal
remark was aimed to encourage the manger is a mere suspicion and
presumption. A bonafide expression of a dealing officer can never be
branded as as misconduct. When the main charge is held as not proved
the individual existence of those alleged partly proved facts are absolutely
questionable in any sense.”
9. In respect of charge No.4(H), the findings is of the enquiry
officer are as follows:
“IV(h) O.P(M.V).No.1140/92 – MACT Perumbavoor
Charges:
1. Mr.Radhakrishnan Nair compromised the case without obtaining
supporting documents/flouting the procedure/in excess of his Financial
Authority.
2. The insured vehicle was a Private car. On verification of police
records it was found that the vehicle was registered as a Taxi and not a
private car. As there was violation of policy condition this case was not fit
for settlement but case was compromised for Rs.27,000/- and
Shri.Radhakrishnan Nair prepared the NOTE.
The case file has been marked as Exhibit No.P15 on 8.7.1997 through
PW5.
With regard to the first charge a lot of discussions were held in various
cases. In the light of the discussions:-
PW7 and PW8 admits that the Charged officer was invariably accomprnled
(sic) by the Manager and almost all the case are settled by the manager.
The statement of DW-1 is not on confident terms. He being a raw hand
(joined services of the Company in August 1993, and the case was settled
in September 1993) his evidence could be ignored in this case.
With regard to documents, FIR, Wound Certificate, Medical Bills etc. are in
the file.
Hence it is concluded that Charge (1) under IV(h) O.P(M.V.)1140/92
MACT Perumbavoor is “NOT PROVED”.
Now coming to the other charges Copy of the policy is in the file which
shows that the vehicle is covered under the policy as a PRIVATE CAR.
The police documents are in the file which proves that the vehicle was a
o.p.3036/01 12
Tourist Car right at the time of insurance. As such the plea that there is
a misrepresentation of material facts and besides savings on premium
could be accepted. Since the policy is not taken for the purpose for which
the vehicle is registered it could be considered that the claim is not fit for
compromise settlement.
The Charged officer states that he has not prepared the NOTE and that
somebody else has prepared it. Even if the plea is accepted he could not
escape from the responsibility for recommending the case for satisfaction
of the Award.
The Arguments raised by the Charged officer otherwise are irrelevant as
far as the charges referred to above are concerned.
Hence it is held that the charges referred to in IV(h)(2) as above are
“PROVED’.
It is therefore finally concluded that the charges are “PARTLY PROVED”.
The petitioner’s answer to the same before the disciplinary authority is
as follows:
“IV(h) O.P (MV) 1140/92 MACT Perumbavoor
The main charge was held ‘not proved.’ It has been found that this case
was settled by the manager alone with the required documents.
Despite, the enquiry officer wrongly finds that a minor responsibility lies
up on me to guide properly an higher authority. Your honour can see that
it is not at all an acceptable proposition. It is alleged, that I have initialled
the Note which is branded as recommending as well.
The enquiry officer ought not have held had he correctly examined the
statutory provisions and assessed the value of evidence.
Sections 149(2) (a) (1) a & c and 2(b) if correctly interpreted there will
not be any scope for violation.
S. 149(2)(a) (1) a is not attracted the vehicle being registered as a Taxi,
similarly S.149 (2)(a)(1) c is not attracted being the vehicle not a
transport vehicle.
Lastly S.149(2) b is also not attracted since the R.C. Book is a document
necessarily to be verified by the insurer before giving insurance. It is
difficult to contend that the insured did not give the R.C.Book deliberately
for verification being an impossible eventuality.
o.p.3036/01 13
Undoubtedly being a clear case of liability it is unjust to brand my
initialling as a misconduct. This is only a bonafide act for the best
interests of the company. Your honour may kindly appreciate the same
and exonerate me from the charges wrongly concluded by the E.O.”
10. In respect of charge No.5 the findings of the enquiry officer
are as follows:
V. O.P(MV) No.1377/91 MACT Ernakulam
Charges:
1. The claim which should not have been settled out of court was
settled for Rs.34,000/-.
2. Tampered the remarks of the then AAO (Legal) Shri.K.Jayaram by
deleting the words “Not fit” to read as fit for settlement.
3. The Charged Officer settled the claim beyond his financial authority
which should not have been settled out of Court.
Observation/Findings:
The case file is marked as Exhibit No.P16 on 8.7.97 through PW-5.
Presenting officer Submits:
The accident resulting in injury to the petitioner occurred on 11.8.1991.
FIR lodged through Court order only on 4.10.1991.
As per the report to police and the FIR the vehicle involved is KL7/A-
8701. But the charge sheet is against vehicle No.KCF-3570.
As per investigation report also the vehicle involved is KL7/A-8701.
The claim should not have been compromised.
Mr.K.Jayaram has made remarks on the file to say that the claim is not fit
for settlement and the Charged officer altered it to read as fit for
settlement.
The claim was compromised for Rs.34,000/-
By this settlement the Charged Officer committed a serious offence of
o.p.3036/01 14
tampering with the documents and settling the claim misusing his
financial authority. In fact the claim should not have been compromised.
Charged Officer submits:-
(a) it is a fit case:
There is clear cut police charge sheet against KCF 3570. This was due to
the intervention of the Court which will not affect the importance of that
charge. There is no case that it is wrong charge. This was the opinion
expressed by the Manager which is correct also. According to the
Manager and myself the case was fit for compromise and after discussing
with the Manager, only the word “Not” were struck off in order to avoid
unnecessary writing on the front file cover. Mr.Jayaram was freely
admitting that it is a fit case since this offending vehicle was duly charged
by the police, claim form had been submitted by the insured admitting
the accident, there was compliance of 64 VB and driver and owner were
also defended by the Company.
(b) Charged officer has discharged his duty as per rules as instructed
by the Manager. Since the case is compromised by the Manager, question
of exceeding the Financial authority does not arise at all. This was a Court
settlement Uniform practice is adopted in all cases. In the peculiar
circumstances of MTPCO the primary works involved in the cases were
under taken by the dealing officer of the concerned subsidiary. Payment
voucher when passed by the Manager is his written approval of the claim.
It is APPROVED that the claim which should not have been settled out of
Court was settled for Rs.34,000/-
The Charged Officer’s submission that Mr.Jayaram has freely accepted
that it is a fit case for settlement could not be accepted. The Question to
Mr.Jayaram was hypothetical viz.
“Is it a fit case when an offending vehicle is duly charged by the police
and claim form submitted by the insured admitting the accident section
64 VB is complied with and driver and owner were also defended by the
Company”
The reply of Mr.Jayaram could be correct. But here the offending vehicle
itself is on dispute. One cannot believe that the petitioner is mistaken in
reporting to police. The FIR is lodged more than 50 days after the
accident.
The Scouts Investigation Report on Accident Reports:
“In this connection it merits mention that the vehicle reported to have
been involved in the accident was KL7/A 8701 and the registrationo.p.3036/01 15
number recorded in the FIR also was that. Even the complaint lodged by
the injured one month after the accident before the JSMC for directions to
the police to proceed against the offender the vehicle impleaded was KL
7/A-8701 but strangely in the charge sheet the vehicle impleaded was
found to the KCF-3570″.
Copies of the WS filed by the driver, owner etc. are not in the file.
Thus when there was dispute with regard to the involved vehicle it is
natural that the claim should not be compromised. But in the case it is
compromised.
The Charged officer has admitted that he has altered the remarks of
Mr.Jayaram on the file. The reason behind alteration is immaterial.
Hence the charge that the remarks on the file has been tampered is
deemed to be “PROVED”.
The charge that the Charged officer settled the claim beyond his Financial
Authority does not seem to have persuaded by the Presenting Officer.
Moreover the subject has been discussed in detail. hence it is concluded
that the charge is ‘NOT PROVED’.
Thus it is concluded that the charges levelled against the charged Officer
is held ‘PARTLY PROVED.
The reply of the petitioner is as follows:
V. O.P(MV) 1377/91 MACT Ernakulam
The main charge was held ‘not proved’. Despite, the enquiry officer
wrongly concludes that the charge is partly proved As (sic) submitted
earlier, in the eye of law partly proved charges shall be regarded as ‘Not
proved’. After having found that the case was compromised by the
manager he finds fault with me for carrying out his instruction, to correct
the remarks on the file as ‘Fit case’ Enquiry officer further finds that the
reason behind alteration is immaterial.
The above finding is not only perverse and is against the facts. It is the
pious duty of the enquiry officer to examine and assess the evidence
whether there is any malafide attempt. He ought to have considered the
reasons that have brought in evidence by me – such as(1) KCF 3570 was duly chargesheeted.
(2) Insured had admitted the accident, claim Form duly filled and
given, S.64 V B completed.
o.p.3036/01 16
(3) Company already taken defense of owner and driver.
(4) police charge could not be challenged.
If the reasons were duly considered by him he could have easily
concluded that the noting of the charged officer on the file cover as ‘fit
case’ is nothing but a bonafide act just to identify the file. It is also
submitted that a usage of the word tampering is surely a misnomer and
misfit in the circumstance.
By any stretch of imagination it is impossible to brand the above noting
as a misconduct.
For the above reasons I humbly request your goodself to reconsider the
findings that are adverse in nature with an open mind. Since there is no
pith and substance for his wrong conclusion I must be honourably
acquitted from all the allegations and charges.”
11. The enquiry officer has specifically found that the petitioner
is not guilty of the allegation that the petitioner has exceeded his
financial authority in recommending the cases for settlement.
However, in Ext.P6 order, the disciplinary authority has found as
follows:
“Hence it can be construed that the MACT Court award settlements
made by Sh Nair were definitely for an higher amount exceeding his
financial authority. Further more Sh Nair being a responsible officer of the
Company should have applied his mind judiciously before recommending
the claim amount to his superiors.”
It is admitted before me that before entering such a finding contrary to
the finding of the enquiry officer, the disciplinary authority has not
issued any notice to the petitioner to show cause why the disciplinary
authority should not differ from the findings of the enquiry officer. It is
settled law that without such an opportunity to the delinquent the
o.p.3036/01 17
disciplinary authority cannot differ from the findings of the enquiry
officer. As such, the finding in Ext.P6 that the petitioner has exceeded
his financial authority in settling cases is clearly perverse and
unsustainable.
12. As far as charge No.1(a) is concerned, it is clear that the
petitioner’s recommendation was approved by the manager also and in
fact, as is clear from the reply filed by the petitioner, ultimately the
case was decided on merits and the amount awarded was Rs.18,800/-,
whereas the petitioner recommended the settling of the case for
Rs.18,000/-. There is no case for the respondents that in giving such a
recommendation, the petitioner was actuated by any motive other
than the interest of the insurance company. Apart from that, it is
admitted before me that the manager who has agreed with the
recommendation of the petitioner has not been proceeded against. At
the most, the opinion of the petitioner may have been wrong. That
cannot constitute a misconduct as such.
13. The same reason would hold good for the findings in
respect of other charges also. No arguments have been advanced
before me that in making those recommendations, the petitioner was
actuated by any other motives than the interest of the insurance
company. In this connection, it must also be noted that out of 25
o.p.3036/01 18
cases, in respect of which the petitioner has been proceeded against,
the enquiry officer himself found him not guilty in respect of 21 claims.
Whether a claim is fit to be settled is a matter of opinion. Opinions
may differ from one person to another. Simply because opinion of the
enquiry officer and the disciplinary authorities’ opinion do not tally with
those of the petitioner and his superior officer, the action of the
petitioner does not constitute a misconduct unless the action is
actuated by considerations other than the best interests of the
insurance company. Here there is no such allegation. It cannot also be
held that no reasonable person would make such recommendation. In
fact I am of opinion that the officers who bona fide give such
recommendations for settling motor accident claims cannot be
proceeded against for misconduct only for the reason that the enquiry
officer and the disciplinary authority do not agree with the
recommendation, since if such proceedings are sustained, no officer
would come forward to give a recommendation for settling any matter
in respect of motor accident claims for fear of they also be proceeded
against. In fact in such a situation, Section 89 of the CPC would come
redundant at least in the case of motor accident claims where
insurance companies are involved. I do not think that the insurance
company should resort to such methods to stifle the successful
o.p.3036/01 19
implementation of alternate dispute redressal mechanisms which are
statutorily recognised. As such, I am of opinion that the misconducts
stated to have been proved against the petitioner cannot be regarded
as misconducts at all. Therefore, the entire disciplinary proceedings
against the petitioner are unsustainable on that ground. Accordingly,
Exts.P6, P8 and P10 are quashed. The petitioner would be entitled to
all service benefits as if no disciplinary proceedings have been initiated
against the petitioner. The competent authority shall pass orders
restoring all service benefits including promotions, which were denied
to the petitioner based on the disciplinary action, within two months
from the date of receipt of a certified copy of this judgment.
The original petition is disposed of as above.
Sd/-
sdk+ S.SIRI JAGAN, JUDGE
///True copy///
P.A. to Judge
S.SIRI JAGAN, J.
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O.P.No. 3036 of 2001-J
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J U D G M E N T
7th December, 2009