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Judgment
Rule. Rule is made returnable forthwith with the consent of the parties and is taken up for final disposal. Learned Counsel appearing for the Respondent waives notice on behalf of the Respondent.
Heard learned counsel for the respective parties.
The Petitioner has invoked the writ jurisdiction of this Court seeking to quash and set aside the communication dated 18th October 2019, issued by the Respondent to the Petitioner and to grant family pension on compassionate ground to the Petitioner.
The facts essential to determine the question that arises before this Court, can be summarized thus:-
The Petitioner joined the service of Respondent-Company on 19th February 1986, as a Development Officer. He contends that his career was totally unblemished and he was promoted as an Administrative Officer, however, he was relieved from the services of the Respondent on 16th November 2010. The Respondent had initiated disciplinary action against the Petitioner for siphoning of cash premium to the tune of Rs.27,27,327/- collected by him for issuing Public Liability Non-Industrial Risk Insurance Policies and Special Contingency Policies. A Memorandum dated 2nd February 2010 was issued to the Petitioner by the Respondent in terms of the New India Assurance Company Limited (Conduct, Discipline and Appeal) Rules, 2003, (for short the ‘Rules’). Concluding the inquiry, a report dated 8th October 2010 was submitted by the Inquiry Officer to the Disciplinary Authority with the findings that the charges as framed against the Petitioner are proved. The Inquiry Report was perused by the Disciplinary Authority, after affording an opportunity to the Petitioner to make a representation against the findings of the Inquiry Officer and upon going through the Inquiry Report and the representation of the Petitioner, the Disciplinary Authority concurring with the findings of the Inquiry Officer and considering the gravity of the misconduct, vide its order dated 16th November 2010, imposed a penalty of removal from the service of the Company in addition to a direction to recover a balance amount of Rs.3,27,327/- misappropriated by him in terms of the aforesaid Rules
Aggrieved by the aforesaid order, the Petitioner approached the Appellate Authority. Vide an order dated 28th April 2011, the Appellate Authority on an overall consideration of the facts and circumstances of the case and taking a lenient view of the matter, reduced the penalty of removal from services to that of “Compulsory Retirement” in terms of the aforesaid Rules in particular Rule 23(g).
On behalf of the Petitioner, primarily it was contended that the Respondent erred in not scrutinizing the application of the Petitioner dated 9th October 2019, wherein he has specifically mentioned that he is entitled for the benefit of the Compassionate Pension Allowance on humanitarian grounds and that he is facing difficulty due to compulsory retirement from the employment. It is also contended that the Respondent has not applied its mind while rejecting the application of the Petitioner since the same is expressly illegal and contrary to the General Insurance (Employees’) Pension Scheme, 1995 (for short ‘the said Scheme’).
The Respondent has filed a reply affidavit and learned counsel for the Respondent, in terms of the reply has countered the submissions of the Petitioner by drawing our attention to the misconduct of the Petitioner, set out by the Office Order dated 16th November 2010 and concurrently confirmed by the Appellate Authority vide its order dated 28th April 2011. The irregularities amounting to misconduct are as under:-
1.Siphoning off Company's cash premium to the tune of Rs.27,27,327/-collected by him for issuing Public Liability Non-Industrial Risk Insurance Policies and Special Contingency Policies.
Entering data in GENISYS System, under his own User ID and User ID of other staff members and generated the cash receipts and policies without taking the acceptance approval from the Competent Authorities at Divisional Office/Regional Office, thereby flouted the underwriting guidelines / norms of the Company.
Generating and delivering the original Cash Collection Receipts and original Policies to the insureds / their representatives and subsequently cancelled the cash collections on the same day under his own User ID / other staff member's User ID and in the process made pecuniary gain for himself with malafide intention and ulterior motive.
Issuing his own cheques of ICICI Bank Ltd., D. N. Road and Central Bank of India, Fort Branch and also third party cheques of M/s. Sadguru Enterprises drawn on Canara Bank, Chembur Branch, in lieu of the cash premium collected by him, which were subsequently dishonoured by the bank thereby causing financial loss to the company and pecuniary gain to himself.
Issuing Special Contingency Policy to M/s. R. S. Entertainment Pvt. Ltd. In spite of receipt of cash premium from the insured, Mr. Shyamnaval R. Mishra issued third party cheque of his own firm M/s. Sadguru Enterprises drawn on Canara Bank Ltd., Chembur Branch for Rs.12,570/-. Subsequently Mr. Shyamnaval R. Mishra cancelled the said cheque collection on the same day. Mr. Shyamnaval R. Mishra flouted all the guidelines and laid down norms of the Company with malafide intention and ulterior motive.
Affixing already used policy stamps for short period Public Liability Non-industrial Risk Policies & Special Contingency policies, thereby causing loss of revenue to the State Government.
The learned counsel for the Respondent was at pains to point out that the rules of natural justice were followed to the hilt while the Departmental Inquiry and the subsequent Appellate proceeding against the Petitioner was conducted. He was given adequate opportunity to defend himself. The penalty of removal of the Petitioner from the service of the company was commensurate to the gravity of misconduct. However, only taking a lenient view, the Appellate Authority reduced the punishment of ‘removal’ to ‘compulsory retirement’. Lastly it was contended that the petition does not make out any exigency or a pressing need of the Petitioner to avail of the compassionate pension allowances as on the date of filing of the petition. Moreover, the representation for compassionate allowance was made after almost 8 ½ years after the order of the Appellate Authority. The representation was rejected on 18th October 2019 and the Petitioner has sought interference ½ of this Court only 3 years later by way of the present petition. The learned counsel for the Respondent concluded, by submitting that under these circumstances no interference is warranted by this Court.
Appreciating the rival submissions at bar, the question that falls for consideration before us is, whether in the facts of the given case and in the light of the misconduct committed by the Petitioner, he is entitled for the discretionary relief of grant of compassionate allowance. At the outset, it is pertinent to note that the the Departmental Inquiry and the findings of the Inquiry Officer substantiate the acts of misconduct qua the Petitioner. These acts of omission and commission which are enumerated herein above are acts designed to seek personal gains from the employer. They can be construed as acts of dishonesty towards the employer aimed at enriching the Petitioner to the prejudice of the employer. We find force in the submission of the learned counsel for the Respondent that during the Departmental Inquiry as well as at the Appellate stage, the Petitioner was granted reasonable opportunities of representing his cause and even otherwise there is no allegation of non-observance of the rules of natural justice in the petition. Para 32 of Chapter V of the said Scheme is as under:
“32.Compassionate Allowance:- (1) An employee who is dismissed or removed or compulsorily retired or terminated from service shall forfeit his pension :
Provided that the authority competent to dismiss or remove or compulsorily retire or terminate him from service may, if -
(i)such dismissal, removal, compulsory retirement or termination is on or after the 1st day of November, 1993 and
(ii)the case is deserving a special consideration, sanction a compassionate allowance not exceeding two-thirds of pension which would have been admissible to him on the basis of qualifying service rendered upto the date of his dismissal, removal, compulsory retirement or termination.
(2)The compassionate allowance sanctioned under the proviso to sub-paragraph (1) shall not be less than the amount of minimum pension payable under paragraph 35 of this scheme.”
Thus, it is seen that the said provision applies to an employee who is either dismissed or removed or compulsorily retired or terminated from service. It further stipulates that although in due course such an employee shall forfeit his pension, it is only if his case deserves a ‘special consideration’, the employer (Respondent) may sanction a compassionate allowance which is quantified in para 32. Thus, it is seen that the sanction or forfeiture of compassionate allowance is a discretionary relief and not a matter of right of the Petitioner. A perusal of the reply of the Respondent dated 18th October 2019, in response to the request of the Petitioner for grant of compassionate allowance clearly sets out that such discretion is not exercised by the Respondent for reasons which are set out in the order dated 28th April 2011, passed by the Appellate Authority of the Respondent. The learned counsel for the Respondent has relied on a judgment of the Apex Court in the case of Mahinder Dutt Sharma vs. Union of India and Others1, more particularly paragraph 13 therein, to fortify his submissions that the misconduct of the Petitioner was an act of dishonesty towards the Respondent aimed at enriching himself to the prejudice of the Respondent and indulging in personal profiteering. It would not be out of place to reproduce para 13, which reads as under:-
“13.In our considered view, the determination of a claim based under Rule 41 of the Pension Rules, 1972, will necessarily have to be sieved through an evaluation based on a series of distinct considerations, some of which are illustratively being expressed hereunder:-
(i)Was the act of the delinquent, which resulted in the infliction of the punishment of dismissal or removal from service, an act of moral turpitude? An act of moral turpitude, is an act which has an inherent quality of baseness, vileness or depravity with respect to a concerned person’s duty towards another, or to the society in general. In criminal law, the phrase is used generally to describe a conduct which is contrary to community standards of justice, honesty and good morals. Any debauched, degenerate or evil behaviour would fall in this classification.
(ii)Was the act of the delinquent, which resulted in the infliction of the punishment of dismissal or removal from service, an act of dishonesty towards his employer? Such an action of dishonesty would emerge from a behaviour which is untrustworthy, deceitful and insincere, resulting in prejudice to the interest of the employer. This could emerge from an unscrupulous, untrustworthy and crooked behaviour, which aims at cheating the employer. Such an act may or may not be aimed at personal gains. It may be aimed at benefiting a third party, to the prejudice of the employer.
(iii)Was the act of the delinquent, which resulted in the infliction of the punishment of dismissal or removal from service, an act designed for personal gains, from the employer? This would involve acts of corruption, fraud or personal profiteering, through impermissible means by misusing the responsibility bestowed in an employee by an employer. And would include, acts of double dealing or racketeering, or the like. Such an act may or may not be aimed at causing loss to the employer. The benefit of the delinquent, could be at the peril and prejudice of a third party.
(iv)Was the act of the delinquent, which resulted in the infliction of the punishment of dismissal or removal from service, aimed at deliberately harming a third party interest? Situations hereunder would emerge out of acts of disservice causing damage, loss, prejudice or even anguish to third parties, on account of misuse of the employee’s authority to control, regulate or administer activities of third parties. Actions of dealing with similar issues differently, or in an iniquitous manner, by adopting double standards or by foul play, would fall in this category.
(v)Was the act of the delinquent, which resulted in the infliction of the punishment of dismissal or removal from service, otherwise unacceptable, for the conferment of the benefits flowing out of Rule 41 of the Pension Rules, 1972? Illustratively, any action which is considered as depraved, perverted, wicked, treacherous or the like, as would disentitle an employee for such compassionate consideration.”
In the light of the aforesaid facts, circumstances and submissions and the guiding principles of the Hon’ble Apex Court, we have no hesitation in observing that the misconduct of the Petitioner falls squarely within the illustrative parameters set out by the Hon’ble Apex Court in the aforesaid judgment which would effectively disentitle the Petitioner from claiming the discretionary relief as provided for by para 32 of the said Scheme. In view thereof, the Petition deserves to be rejected.
In the wake of the aforesaid discussion, Writ Petition is dismissed. Rule is discharged.
Footnotes
- 1.2014, AIR SCW 2458