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G. Ramanujam Vs. the Zonal Manager, Life Insurance Corporation and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtChennai High Court
Decided On
Reported in(1968)2MLJ21
AppellantG. Ramanujam
RespondentThe Zonal Manager, Life Insurance Corporation and anr.
Cases ReferredMafatlal Bant v. Divisional Controller
Excerpt:
- .....on. thirdly he submitted that the enquiry officer relied on a confessional statement made by steno natarajan in an enquiry conducted against him without giving an opportunity to the petitioner to cross-examine the steno natarajan. mr. v.k. thiruvenkatachari, learned counsel for the life insurance corporation of india, took a preliminary objection to the maintainability of the writ petition on the ground that an order of dismissal by the life insurance corporation of india, is not liable to be interfered with in writ proceedings.4. in order to appreciate the contentions of the counsel, the material facts may be set out. the zonal officer wrote a confidential letter to the divisional manager, life insurance corporation of india, mathurai, enclosing c. r. 7 and c, r. 8 forms and also.....
Judgment:
ORDER

P.S. Kailasam, J.

1. The petition is filed by the Assistant Branch Manager of the Life Insurance Corporation of India, for the issue of a writ of certiorari calling for the records connected with the order of the Zonal Manager, Life Insurance Corporation of India, Madras, dated 29th April, 1965, dismissing the petitioner from service as confirmed by the order of the Chairman, Life Insurance Corporation of India, Bombay, dated 3rd December, 1965.

2. The petitioner joined the New India Assurance as organiser in the year 1955 and was absorbed in the said Corporation as a Development Officer when the Corporation was established in 1956. He was promoted as Class I officer in September, 1962. The petitioner was served with a chrarge memo containing two charges on 20th November, 1964. He filed a written statement to the charge memo on 3rd December, 1964, denying the charges. On 16th December, 1964, Sri S.T.V. Chari, was appointed as Enquiry Officer. On 12th January, 1965, the Divisional Manager framed an additional charge and an enquiry was conducted between 18th to 24th January, 1965. On 5th April, 1965, a show cause notice was issued to the petitioner to which the petitioner sent his rely on 15th April, 1965. The Zonal Manager dismissed the petitioner by his order dated 29th April, 1965, and an appeal to the Chairman was also rejected on 3rd December, 1965.

3. Mr. Mohan Kumaramangalam, learned Counsel for the petitioner, submitted that the proceedings of the Corporation are vitiated by the fact the principles of natural justice Were not observed in the enquiry conducted against the petitioner. Secondly, he submitted that the authorities relied on a letter written by the Accounts Officer Natarajan as substantive evidence, without affording an opportunity to the petitioner to question about the letter relied on. Thirdly he submitted that the Enquiry Officer relied on a confessional statement made by steno Natarajan in an enquiry conducted against him without giving an opportunity to the petitioner to cross-examine the steno Natarajan. Mr. V.K. Thiruvenkatachari, learned Counsel for the Life Insurance Corporation of India, took a preliminary objection to the maintainability of the writ petition on the ground that an order of dismissal by the Life Insurance Corporation of India, is not liable to be interfered with in writ proceedings.

4. In order to appreciate the contentions of the Counsel, the material facts may be set out. The Zonal Officer wrote a confidential letter to the Divisional Manager, Life Insurance Corporation of India, Mathurai, enclosing C. R. 7 and C, R. 8 forms and also the proforma, for lapsed details. The Divisional Manager was asked to submit the particulars for deciding the question of confirmation of the petitioner as an Assistant Manager. The Divisional Manager was asked to send the report in a cover marked ' Secret to be opened by the addressee only.' This letter was received at the office of the Divisional Manager. Contrary to the instructions, a letter was sent from the divisional office to the petitioner requiring the petitioner to furnish the details called for by the Zonal Officer. The petitioner came to Mathurai and collected the information from the branch office and sent the data sheets to the Divisional Manager, Life Insurance Corporation of India, Mathurai. It was subsequently found that the figures furnished regarding the number of policies that lapsed, were not correct. By a letter dated 30th June, 1964; the petitioner was asked to explain the difference in figures given by him and the figures that were reported by the branch office. The petitioner replied on 5th July, 1964. He stated that on receipt of the letter from the divisional office on 19th July, 1963, he went to the office of the Divisional Manager, Mathurai on 25th July, 1963, and collected the information and furnished the figures that were given to him by the branch office to the Divisional Office and returned to Tirunelveli.

5. Three charges were framed against the petitioner which may be extracted in full:

1. That while you functioning an Assistant Branch Manager (Development). Tirunelveli called at Madurai Branch Unit No. 1 on 25th July, 1963, to collect some information regarding your lapses and not finding the Branch Manager requested the Assistant in the Development section of the Branch to give the figures required and in doing this you have done so deliberately with a view to influence the Assistant of the Branch Office not to give the correct figures with regard to lapses but such figures which would be favourable to you and which will not be an impediment for securing your confirmation as Assistant Branch Manager (Development).'

2. And you are also charged for acting in a high handed manner ignoring the usual procedure in regard to collection of data from the office through proper channel. ' And thereby committed an act detrimental to the interests of the Corporation.'

3. That while you functioning as Assistant Branch Manager in 1963 connived with others to see that wrong information with regard to the lapses is given in the data sheet sent to the Zonal Office for considering you confirmation as Assistant Branch Manager (Development), and in doing so, you have committed a serious misconduct and acted in a way detrimental to the interests of the Corporation. The Enquiry Officer acquitted the petitioner of the first charge, but found him guilty of charges 2 and 3. It is unnecessary to discuss the merits regarding charges 2 and 3, as the submission on behalf of the petitioner is that the principles of natural justice had not been observed by the Enquiry Officer. The procedure adopted in the enquiry is stated by the Enquiry Officer in his report. The Divisional Manager framed charges against Sri R. Natarajan, G. Ramanujam, the petitioner and one P. R. Rajagopalan of Tirunelveli. An additional charge was also framed against them and the Divisional Manager was directed to enquire into the additional charge also. At the enquiry, the Corporation was represented by Sri S. R. Iyer, Assistant Zonal Officer. Mr. Iyer, presented the case in respect of each charge-sheeted persons by reading a prepared statement. Copies of written Statement were read out by Mr. Iyer. Exhibits were filed by him. The proceedings of the Enquiry Officer disclosed that the petitioner as well as the three other persons charged and Mr. S. R. Iyer had signed every page of the evidence. The Enquiry Officer did not follow the normal procedure of examining the prosecution witnesses and allowing the petitioner or other persons to cross-examine those witnesses, followed by an opportunity to the petitioner to explain his case and examine defence witnesses. The Enquiry Officer Mr. M. R. Aiyar, questioned the petitioner and the other persons charged regarding the various allegations and recorded their answer. The enquiry was conducted on the 18th and 19th January, 1965, and is recorded inpages from 125 to 229 of the typed sets of documents filed by the Counsel, for the respondent.

6. The case for the Life Insurance Corporation of India against the petitioner is 'briefly as follows:

The petitioner came to Madurai and without seeing the officer, who wrote to him the demi official letter calling for the completed forms contacted the assistant, Thirumalai and collected the data and took them to the divisional office where the proforma figures were manipulated by the steno Natarajan for the purpose of giving lapsed figures to the advantage of the petitioner. It is admitted that the lapsed figures, which were subsequently found to be not correct, are in the handwriting of the steno Natarajan. The statement of the steno Natarajan in the enquiry conducted against him was that he erased totally all the entries' in the columns (d) (i) and (d) (ii) of the profoma. Steno Natarajan also admitted that he did manipulate the lapsed figures. The Enquiry Officer was of the view that the Steno Natarajan would not have altered the figures except with a view to oblige the petitioner and that the petitioner could have been definitely aware of the revision of the figures by steno Natarajan. The steno Natarajan was not examined as a prosecution witness in the enquiry against the petitioner. The statement, which is relied on by the Enquiry Officer against the petitioner was made by steno Natarajan in the enquiry against steno Natarajan in which he made the confession. After the confession was made by steno Natarajan when the enquiry against the petitioner was recommenced on 24th January, 1965, the Enquiry Officer has recorded as follows:Mr. Ramanujam, after your examination, which lasted till day before yesterday, I have been conducting an enquiry into the charges framed by the Divisional Manager against Mr. Natarajan and in the course of the enquiry yesterday, Shri Natarajan made a certain deposition. In the light of that deposition, I felt I should recall you for further examination in connection with the charges against you and it was for this reason that I telephoned to you yesterday, asking you to attend the enquiry today.

A portion of steno Natarajan's confession in the enquiry against him was read out to the petitioner. After the statement was read out, the steno Natarajan was asked whether the petitioner was with him throughout. The steno Natarajan answered that the petitioner was with him when the incident of the 25th July, 1963, took place. Steno Natarajan further stated that the Assistant Divisional Manager, Subbiah, was also present till the end of this process which ended at 5 P.M. on 23th July, 1963. Then the Enquiry Officer, put the confessional statement of steno Natarajan to the petitioner and asked for his explanation. The Enquiry Officer stated to the petitioner that according to the steno Natarajan, the petitioner discussed the matter with the Assistant Divisional Manager, Subbiah, in his room and that steno Natarajan was sent for by the Assistant Divisional Manager, Subbiah, and the petitioner found that the lopsed figures were unfavourable to the petitioner and all these matters were discussed and at the instigation of Subbiah in the petitioner's presence, steno Natarajan was asked to correct the figures, which he did. In reply, the petitioner, stated that he had deposed in detail previously and he did not want to add anything further. He reiterated that he came to the Branch Office and showed the letter arid the proforma and the assistant furnished figures and he took the forms to the Divisional Office at about 4.00 P.M. and met the Assistant Divisional Manager and according to his instructions, he handed over the proforma to steno Natarajan. The procedure in accepting the confessional statement of R. Natarajan made in the enquiry against him as substantive evidence in the enquiry against the petitioner is questioned. Further it is submitted that the petitioner was not given an opportunity to cross examine the steno Natarajan-It is clear from the proceedings that steno Natarajan was present during the enquiry; But the petitioner was not asked whether he would like to cross-examine steno Natarajan. As already stated, the procedure of examining the prosecution witnesses, cross-examining them and giving an opportunity to the petitioner to adduce defence evidence was not followed. But the whole proceedings were conducted by the Enquiry Officer and Mr. Iyer putting questions to the various persons including the petitioner. It may be noted that according to the confession of steno Natarajan, Subbiah, Assistant Divisional Manager was present, and that it was deeded that the figures should be altered to suit the requirements of the 'petitioner. In the enquiry report relating to the petitioner the presence of Subbiah is not mentioned at all. But in the report relating to steno Natarajan, the presence of Subbiah is not accepted.

7. Another circumstances, which is submitted as violative of the principles of natural justice, is the reliance by the Enquiry Officer on the statement of R. Natarajan, the Assistant Divisional Manager, Accountant in his letter dated 15th February, 1965, that the statement of the petitioner that the Accountant asked him to see steno-Natarajan and hand over the forms to him for further attention is not correct. This denial was, made by Natarajan or the accounts branch by his letter dated 15th February, 1965, after the enquiry against the petitioner was closed. The petitioner had no opportunity to explain this circumstance against him.

8. The Supreme Court has laid down in State of Mysore v. Shivabasappa : (1964)ILLJ24SC , that the Domestic Tribunals exercising quasi-judicial functions are not Courts and therefore, they are not bound to follow the procedure prescribed for trial of actions in Court, nor are they bound by a strict rules of evidence. They are at liberty to obtain all information material for the points from all sources, but should not act on any information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity to explain it. What is the fair opportunity must depend on the facts and circumstances of each case. Generally the procedure followed is that the petitioner would have an opportunity to adduce all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence and that he should be given an opportunity of cross-examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them. The Supreme Court held that though normally the examination of the witness will in its entirety take place before the party charged, who will have full opportunity of cross-examining him, the enquiry will not be vitiated if the statement given by the witness previously behind the back of the party is put to him and admitted in evidence and a copy thereof is given to the party and he is given an opportunity to cross-examine him. It was held that it was unnecessary that the witness should be made to repeat word by word, and sentence by sentence what all he stated previously. The requirement of natural justice would be fulfilled, if the petitioner is given an opportunity to explain the case against him, to adduce evidence in support of his case and to cross-examine the witness deposing against him. The view expressed by the Supreme Court cited supra has been reaffirmed in Kesoram Cotton Mills v. Gangddhar : (1963)IILLJ371SC , and in Khardah & Co. v. Its Workmen : (1963)IILLJ452SC , in dealing with an enquiry before the Industrial Tribunal. The Supreme Court after stating that the enquiry should be conducted in the manner stated in State of Mysore v. Shivdbasappa : (1964)ILLJ24SC , observed that the minimum that is expected where witnesses are not examined from the very beginning at the inquiry in the presence of the person charged is that the person charged should be given a copy of the statements made by the witnesses which are to be used at the inquiry Well in advance before the inquiry begins. In Khardah & Co. v. Its Workmen : (1963)IILLJ452SC , the Supreme Court dealing with the case of workmen under the Industrial Disputes Act expressed its opinion that it is desirable that all witnesses on whose testimony the management relies in support of its charge against the workmen should be examined in his presence. The decisions in Kesoram Cotton Mills v. Gangadhar : (1963)IILLJ371SC , and Khardah & Co. v. Its Workmen : (1963)IILLJ452SC , were rendered with regard to the disputes under the Industrial Disputes Act. In the case of domestic enquiry by an institution like the Life Insurance Corporation of India, the decision of the Supreme Court in State of Mysore v. Shivabasappa : (1964)ILLJ24SC , would be applicable and the principles of natural justice could be said to have been observed, if the petitioner was given an opportunity of cross-examining the witnesses examined by the opposite side and an opportunity to examine his own witnesses and to explain the case against him.

9. It has to be determined whether on the facts of the case, a fair opportunity was given to the petitioner. The material on which the petitioner is found guilty, is the confessional statement made by the steno-Natarajan and the denial by the accounts Natarajan. So far as the confessional statement of steno-Natarajan is concerned, though the confessional statement made by the steno-Natarajan was put to the petitioner, it is not tested by cross-examination. The entire proceedings, were conducted by the Enquiry Officer and the petitioner as well as others Were only answering the questions put to them and the petitioner was not made aware that he would be entitled to cross-examine steno-Natarajan on the confession he had made and on which the Life Insurance Corporation of India wants to rely for proving the charges. It may also be noted that steno-Natarajan has mentioned about the presence of Subbiah during the transaction and no reference is made about the presence of accounts Natarajan in the Enquiry Officer's report. In the circumstances I am not satisfied that a reasonable opportunity was given to the petitioner to cross-examine the steno-Natarajan on the material on which reliance is placed upon by the Corporation. Further, the Corporation has undoubtedly relied on the denial of the accounts Natarajan that he did not tell the petitioner to see steno-Natarajan and hand over the forms to him for further attention. On the basis of this denial. The statement of the petitioner is rejected. This denial was obtained only after the enquiry was completed and reliance should not have been placed on this denial without giving an opportunity to the petitioner to explain it. On a consideration of the facts of the case, I am not satisfied that the petitioner was given a reasonable opportunity to defend all the charges framed against him-I must also record that the Enquiry Officer conducted the enquiry without any prejudice and was anxious to give a fair opportunity to the petitioner to explain the case against him. But by observing the procedure which he did, he had unwittingly denied the petitioner a fair opportunity to defend himself.

10. The order of dismissal is therefore, set aside. The Life Insurance Corporation. is at liberty to frame fresh charges and conduct a fresh enquiry against the petitioner.

11. The preliminary objection raised by Mr. V. K. Thiruvenkatachari that a proceeding by way of writ petition is not available against an order of dismissal passed by a body like the Life Insurance Corporation of India may also be considered. He referred to Halsbury's Laws of England, Third Edition, Vol. 25, page 519, para. 991 and submitted that the dismissal of a servant even if it is otherwise than in accordance with the procedure in his contract of service is in effect termination of contract and the servant cannot claim that the contract had not been validly terminated and his remedy is only by way of damages. He also referred to two English decisions reported in Francis v. Municipal Councillors (1962) 3 All E.R. 633, and Vidyodaya University of Ceylon and Ors. v. Silva (1964) 3 All E.R. 865. In Francis v. Municipal Councillors (1962) 3 All E.R. 633, the Privy Council held that a declaration to the effect that the contract of service still subsisted would rarely be made and would not be made in the absence of special circumstance because of the principle that the Courts Would not grant specific performance of contracts of service. The Court distinguished the case of a Vine v. National Doek Labour Board (1956) 1 All E.R. 1, on the ground that the circumstance in Vine's case (1956) 1 All E.R. 1 was very special where the dismissal was shown to have been without proper authority and the labourer should have the benefit of the declaration that he was still in the employment of the National Dock Board. In Vidyodaya. University of Ceylon v. Silva (1964) 3 All E.R. 865, the Privy Council held that the contract of employment made by the University with the teachers did not involve more than ordinary contract between the master and the servant and that the procedure by a writ of certiorari was not available. The English decisions relied on by the learned Counsel for the respondents would not advance his contention for the Supreme Court as well as the Madras High Court have uniformly held that a writ would be available against breach of any of the statutory provisions by a public body. The only case of Indian High Courts, which is in favour of the respondents, in Ram Babn v. Divisional Manager L.I.C. : AIR1961All502 . The Court held that an employee of the Life Insurance Corporation could not maintain a writ of certiorari, a relationship between the employee and the Corporation was one of master and servant and the general law of master and servant applies to the case. This decision cannot be held to be good law in View of the subsequent pronouncement of the Supreme Court in State of Uttar Pradesh v. Babu Rdm : 1961CriLJ773 . It has been held that the rules made under a statute must be treated for all purposes of construction or obligation exactly as if they were in the Act, and are to be judicially noticed for all purposes of construction or obligation. In Life Insurance Corporation v. Sunil Kumar Mukherjee (1964) I L.L.J. 482, the Supreme Court dealing with the case of Life Insurance Corporation of India held that where the services of such employees were terminated on the ground that their performance was found poor by the committee specially appointed for the purpose without any enquiry or without giving any opportunity to the concerned employee, the orders must be held invalid.

12. The Madras High Court in T. C. M. Pillay v. Indian Institute of Technology I.L.R. (1965) Mad. 24, has held that the dismissal of an Assistant Professor of Metallurgy in the Indian Institute of Technology without observing the mandatory procedure prescribed! under the statute would be a nullity and table to be interfered with in a writ petition under Article 226 of the Constitution of India. In V. Ramiah v. The State Bank of India W.A. No. 180 of 1963, the Court has held that an order of dismissal by the State Bank is liable to be interfered in writ proceedings. This Court has held that a writ is available against the Acts of Life Insurance Corporation in Narayanaswamy Naidu v. Krishnamurthy : AIR1958Mad343 in writ Petition No. 53 of 1959.

13. Recently the Supreme Court has laid down that the Courts can interfere with the orders of dismissal by the Road Transport Corporation in Mafatlal Bant v. Divisional Controller, State Transport, Mehsana : (1966)ILLJ437SC , and in D.L. Board, Calcutta v, Jaffar Inam : 1966CriLJ189 . In the face of the over-whelming authorities the preliminary objection raised on behalf of the respondent that the dismissal of the petitioner by the Life Insurance Corporation is not amenable to the writ jurisdiction of this Court, will have to be rejected.

14. In the result, the writ petition is allowed. The Life Insurance Corporation of India is at liberty to frame fresh charges and conduct an enquiry and proceed according to law. There will be no order as to costs.


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