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Hirendra Nath Bakshi Vs. Life Insurance Corporation of India and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberMatter No. 206 of 1973 and Appeal No. 114 of 1974
Judge
Reported inAIR1976Cal88
ActsLife Insurance Corporation Act, 1956 - Section 49; ;Life Insurance Corporation (Staff) Regulations, 1960 - Regulations 39, 39(2), 39(3) and 48; ;Constitution of India - Articles 13 and 226
AppellantHirendra Nath Bakshi
RespondentLife Insurance Corporation of India and ors.
Appellant AdvocateAnindya Mitter, ;P.K. Mullick, ;P.K. Ray and ;Paritosh Mullick, Advs.
Respondent AdvocateSubrata Roy Choudhury and ;Jatin Ghosh, Advs.
DispositionAppeal dismissed
Cases ReferredSukhdev Singh v. Bhagatram
Excerpt:
- salil kumar datta, j.1. this is an appeal against the judgment and order of s.c. ghosh, j. discharging the rule issued on the petitioner's application under article 226 of the constitution. the relevant facts according to the petitioner are as follows :2. the petitioner at the material time was working as the assistant branch manager (development) of the life insurance corporation of india (hereinafter referred to as the corporation) attached to the city branch no. 2. by an order dated march 14, 1969 the petitioner was placed under suspension by the zonal manager, eastern zone of the corporation, respondent no. 2 as, it was stated, a disciplinary proceeding against the petitioner was contemplated. on april 30, 1969 the petitioner was served with a charge-sheet containing four specific.....
Judgment:

Salil Kumar Datta, J.

1. This is an appeal against the judgment and order of S.C. Ghosh, J. discharging the Rule issued on the petitioner's application under Article 226 of the Constitution. The relevant facts according to the petitioner are as follows :

2. The petitioner at the material time was working as the Assistant Branch Manager (Development) of the Life Insurance Corporation of India (hereinafter referred to as the Corporation) attached to the City Branch No. 2. By an order dated March 14, 1969 the petitioner was placed under suspension by the Zonal Manager, Eastern Zone of the Corporation, Respondent No. 2 as, it was stated, a disciplinary proceeding against the petitioner was contemplated. On April 30, 1969 the petitioner was served with a charge-sheet containing four specific charges, all relating to defalcation of money. We are concerned really here with the charge No. 1 as the petitioner had been acquitted of all other charges. The charge No. 1 is to the following effect :

'That an unadjusted amount of Rupees 1323.10 P. was lying in deposit in the account of Policy No. 9313237 on the life of Shri S.R. Jauhar. A cheque bearing No. OC/19-216 160 dated November 1, 1966 was drawn on the State Bank of India by the Life Insurance Corporation in favour of said Sri S. R. Jauhar for Rs. 1323.20 P. towards the refund of the said amount that was lying in deposit as above. You without any letter of authority from the said policy holder, Shri S. R. Jauhar, managed to get delivery of the said cheque and fraudulently got it encashed on 4th November, 1966 through your bank account with the West Bengal Provincial Cooperative Bank Ltd., Calcutta and did not even pay the amount to the above-named policy holder.'

3. The petitioner was directed to state if he admitted that he was guilty of all or any of the charges and if not, he was required to put in written statement of defence and/or explanation with such documents in support of his defence within 15 days from the date of the charge-sheet. The petitioner was directed to state further if he desired to be heard in person or to cite any witnesses in which case their names, designations and addresses were to be furnished indicating the nature of their evidence.

4. The fact relating to the aforesaid charge was stated to have come to light from the internal audit made by the internal auditor of the Eastern Zone of the Corporation wherein it was found that the signature purported to be of Jauhar appearing on the back of the said cheque did not tally with his signature appearing in the proposal form. Jauhar was accordingly written on January 20, 1969 to confirm the receipt of the refund by the said cheque. The Divisional Manager (P. R. S.) also made an inquiry of Sri S. R. Jauhar as to whether he applied for the refund of the amount and whether he duly received the cheque and if so if he encashed the cheque and also the manner of encashing the same. Before Jauhar's reply was received, it appears that the disciplinary proceeding bad already started while Jauhar by his letter of May 29, 1969 denied that he had ever applied for refund or was intimated about the refund. He further said therein that he never received the cheque in question.

5. The petitioner by his letter dated May 12, 1969 asked for inspection of the documents and as also for extension of time to submit his defence. The petitioner was informed that he would not be given all the documents on the basis of which charges had been framed. He was given extension of time till May 31, 1969 to file his reply to the chargesheet. Thereafter, by his letter dated May 28, 1969 the petitioner replied to the chargesheet denying the allegations. In respect of charge No. 1, it was stated that there was a letter of authority delivered to the department of the Corporation for receiving the cheque by the petitioner on behalf of Jauhar which would be evident from its records. About the encashment of the cheque it was staled as follows :

'It is true that I got the cheque encashed through my bank account and it is also equally true that the amount was paid by me to the policy holder, Jauhar. You would, therefore, appreciate that T had no intention to defraud anybody............'

6. The petitioner objected to the use of the word 'fraudulently' in the charge-sheet and stated that if there was any complaint from Jauhar about non-receipt of the amount he would like to have a copy of such letter to explain the matter further. The petitioner denied other charges and in his final submission wanted a personal interview with the Zonal Manager and complained that he did not receive a fair deal as a Class I Officer. The petitioner accordingly submitted that the chargesheet as also the suspension order should be withdrawn forthwith.

7. The Zonal Manager appointed one Mr. N. Balasubramaniam the inquiry officer to inquire and report into the charges framed against the petitioner. By his letter dated July 4, 1969 the inquiry officer asked the petitioner to be present at the inquiry to be held at the office of the Corporation on August 23, 1969. The petitioner was informed that he would be given opportunity to tender evidence in respect of the charges against him and also to file a written statement if he wished to do so and examine himself if necessary. The inquiry officer also informed the petitioner that if he wanted to produce any witness or witnesses and/or to file any documentary evidence in respect of the defence the inquiry officer should be informed of the same and such witnesses as might be decided would be called at the expense of the petitioner. In reply, the petitioner wrote to the inquiry officer on August 8, 1969 stating that he was determined to file a suit against the Corporation and others for setting aside the order of suspension, for damages for one lakh of rupees and for injunction restraining the Corporation and its officers from proceeding with the inquiry, and, for that purpose a notice under Section 80 of the Code of Civil Procedure had already been served. It was stated that the charges levelled against him were false and malicious and were unreasonable restrictions contravening Articles 14, 19, 21, 309 to 311 of the Constitution and should be so decided by this Hon'ble Court. Without prejudice to his contentions he asked for certain documents and manuals and stated further that he would inform the inquiry officer about his witnesses or documents after inspection of the same. The petitioner was informed on August 14, 1969 that it would not be possible to supply the manuals asked for but copies of other documents would be supplied which were in fact admittedly supplied to the petitioner on August 21, 1969 except some documents which were not properly specified or had no existence.

8. At the first silting of the inquiry on August 23, 1969 the petitioner made further requisitions of documents and refused to participate in the inquiry. The inquiry was adjourned to September 4, 1969, when the petitioner asked for an adjournment and the case was accordingly adjourned to September 19, 1969. On that date also the petitioner informed the inquiry officer that as the suit has already been filed against the Corporation the inquiry should be adjourned. It may be mentioned here that the petitioner did in fact file a suit in this Court on September 17, 1969 against the Corporation, the inquiry officer and other for setting aside the suspension order and for damages. The inquiry was adjourned to October 6, 1969. On that date the petitioner prayed for an adjournment as the petitioner had moved an application in the said suit for an interlocutory order of injunction restraining the Corporation from proceeding with the inquiry. As he requested the inquiry officer not to hold the inquiry on that date, in view of the above, the inquiry was adjourned to October 13, 1969. It may be mentioned here that no interim order of injunction was passed on the said application filed by the petitioner though on October 10, 1969, this court gave liberty to the Corporation to proceed with the inquiry but not to pass any final order till the disposal of the application. On the next adjourned date that is October 13, 1969 the petitioner submitted a medical certificate praying for an adjournment till his recovery while agreeing to abide by the order of the inquiry officer if he wanted to proceed with the inquiry. The inquiry proceeding was thereafter held on December 1, 1969 when M.R. Ghosh the presenting officer on behalf of the Corporation was examined. On December 2, 1969 Ghosh was cross-examined in part by the petitioner and thereafter the proceeding was adjourned to December 18, 1969 and then to January 15, 1970 on the petitioner's prayer The inquiry was fixed for January 21. 1970 and ultimately refixed to April 13. 1970 at the request of the petitioner. Thereafter the inquiry was again fixed on April 27, 1970, thereafter to 15th May, 1970 when the petitioner further cross-examined Ghosh. The inquiry fixed for 18th May, 1970 was adjourned at the request of the petitioner. It appears that by order of the Zonal Manager dated July 29, 1970 N. Guha an officer of the Corporation was appointed the inquiry officer in place of Balasubramaniam who was transferred from Calcutta. On October 19. 1970 the inquiry commenced and Ghosh was further cross-examined. Again on November, 1970 Ghosh was thoroughly cross-examined by the petitioner and it was pointed out to us that about 194 questions were put to Ghosh by the petitioner. The cross-examination was not concluded.

9. On the next day of inquiry on November 6, 1970 in view of the fact that cross-examination of Ghosh would take a long time the inquiry officer decided to take evidence of Jauhar in the meantime as he became then available, Jauhar appeared on November 16, 1970 but the petitioner objected to his examination stating that he could not accept the cross-examination of another witness till he had finished cross-examination of Ghosh. The petitioner also asked for adjournment till November 30, 1970 as his application in the High Court which appeared in the peremptory list was going to be taken up on that day.

10. Thereafter the enquiry was adjourned to April 2, 1971 on account of the Corporation or its witness Ghosh when Jauhar was produced as witness to give evidence. In his evidence he denied that the signature on the back of the disputed cheque was his. He also stated that the contents of his letter of May 29, 1969 were true. When the petitioner wanted to cross-examine Jauhar, he refused to be cross-examined by the petitioner. This was placed on record by the petitioner by his letter of April 5, 1971. The inquiry officer by his letter of April 19, 1970 called upon the petitioner to forward to him the questions he proposed to put before Jauhar at the time of cross-examination so that the matter can be considered by him. As to further cross-examination of Ghosh it was stated by the inquiry officer as follows:

'I would like to inform you that on perusal of the entire proceeding so far held, I am of opinion that no further proceedings are necessary and on the basis of the materials already collected by me, I am now in a position to draw up my final report and accordingly I submit to-day my inquiry report to the Zonal Manager.'

11. In the inquiry report of April 19, 1973 the inquiry officer, after narrating the events during the inquiry, held that in respect of count No. 1 of the chargesheet there were following charges according to allegations :

(1) Jauhar did not give any authority to the petitioner to take delivery of the disputed cheque from the Corporation; (2) the petitioner managed to get the delivery of the cheque from the Corporation; (3) the petitioner fraudulently got the cheque encashed through his bank account; (4) Even thereafter, the petitioner did not pay the amount to Jauhar, the policy holder. The inquiry officer was of opinion that the question of the petitioner being guilty of any offence under charge 1 did not arise and he was not guilty of offence under charge 2. As to allegations on charge 3 considering all facts, the inquiry officer found the petitioner guilty in 'fraudulently getting the cheque encashed on 4th November, 1966.' Regarding charge 4, no consolidated receipt for payments of the amount of the cheque was produced nor was there any confirmation from Jauhar. 'In absence of either of the two', the petitioner was found 'guilty in misappropriating the proceeds of the cheque',

12. The report was accordingly submitted and the petitioner by his letter of April 26, 1971 to the inquiry officer stated that the inquiry report, if adverse, would be wholly illegal inter alia for the following reasons : (1) The proceeding was abruptly terminated though it was recorded in the proceeding of April 2, 1971 that the inquiry was adjourned to subsequent date to be communicated later. (2) The petitioner was not allowed to complete the cross-examination of Ghosh. (3) Jauhar was interposed as a witness in the midst of cross-examination and the petitioner was not allowed to cross-examine Jauhar. (4) The petitioner was not allowed to produce or examine any witness including himself in his defence nor called upon to make any submission or advance any arguments on the basis of evidence adduced or otherwise. The petitioner further stated that as the inquiry officer had already formed his opinion and was in a position to draw up his final report and in fact filed his final report there was no further scope for cross-examination of Jauhar.

13. The inquiry officer by his letter of September 14, 1971 informed the petitioner that he had reconsidered the matter, obviously on his own, and had decided to give him an opportunity to cross-examine Jauhar fixing September 24, 1971 for the purpose and the petitioner was asked to be present at the inquiry. In reply, the petitioner by his letter of September 22, 1971 stated that the inquiry officer was functus officio on submission of his report. He also made an inquiry if there was any fresh mandate from the Zonal Manager to hold the inquiry afresh. On September 25, 1971 the Zonal Manager passed the following order :

Order

Shri N. Guha, Assistant Secretary (Mortgage), Zonal Office, Calcutta who has been appointed by me as an inquiry officer vice Shri N. Balasubramaniam to enquire into the charges framed against Sri H.N. Bakshi in terms of the charge-sheet dated 30th September, 1969 issued to him as per my order dated 29th July, 1970; has since submitted his final report.

I have considered the same inquiry report as submitted by Shri N. Guha and in order to give opportunity to the accused employee to inspect the documents and/or to plead his case with respect to this document and/or examine any witness, I, in the exercise of the powers conferred upon me in terms of Special Regulation 39 of the Life Insurance Corporation of India (Staff) Regulations, 1960 hereby direct N. Guha the inquiry officer to make further inquiries and submit his further report in that behalf.' This letter was forwarded on October 20, 1971. The petitioner in reply by his letter of November 29, 1971 reiterated his previous objection and stated that the inquiry was without authority of law or jurisdiction not contemplated by the Staff Regulations. Further, the inquiry officer having already formed his opinion, the proposed inquiry would be an empty formality.

14. The Zonal Manager by his letter of December 6/15, 1971 informed the petitioner that the disciplinary authority had power to direct the inquiry officer to make further inquiry and to submit his report affording reasonable opportunity to the petitioner to defend himself against charges. If this opportunity was not availed of, the inquiry would proceed in his absence.

15. The petitioner by his letter of December 26, 1971 reiterated that the disciplinary authority had no power to authorise further inquiry and even the inquiry held by Guha was invalid though the petitioner participated in the inquiry without prejudice to his right. The inquiry officer fixed February 4, 1972 for further inquiry when Jauhar was present but the petitioner was absent. The Zonal Manager thereafter informed the petitioner by his letter of April 1972 that he had accepted the findings of the inquiry officer In respect of Charge No. 1 in regard to the encashment of the cheque and also of the misappropriation of the proceeds thereof. The Zonal Manager further informed the petitioner that he proposed to dismiss him from service and he was asked to submit cause to the same. The petitioner showed cause to the same by his letter of April 20, 1972 reiterating his objections and stated that he was not offered any reasonable opportunity to adduce evidence in support of his defence or to cross-examine witnesses while Jauhar did never say in his evidence that signature in the cheque was without his authority. For all these reasons, it was submitted that the Zonal Manager had no reasonable basis 10 concur with the findings of the inquiry officer. The petitioner also stated about several irregularities in procedure in the inquiry which was terminated abruptly without affording him opportunity to complete his cross-examination of Ghosh, witness of the Corporation. Further, there was no legal sanction for further inquiry to cure the lacuna in earlier inquiry. By order dated June 24, 1972 the Zonal Manager recorded that the representation of the petitioner was not at all satisfactory and he accordingly dismissed the petitioner from service with immediate effect.

16. Thereafter on service of demand of justice the petitioner on the aforesaid allegations and contentions moved this Court by an application under Article 226(1) of the Constitution for a writ in the nature of certiorari for quashing the order of dismissal and other earlier orders as also the connected proceeding and also for a writ in the nature of mandamus forbearing the respondent from giving effect to the order of dismissal. On this application a Rule was issued on March 28, 1973 in terms of the prayer.

17. The Rule was opposed by the Corporation and others and an affidavit-in-opposition was filed on their behalf affirmed on 10th May, 1973 by Harish Chandra Pal, Corporation's Administrative Officer and its Constituent Attorney. It was stated therein that no writ was available for alleged breach of any provisions of the Staff Regulations. Further, alternative remedy was availed of by the petitioner by institution of suit No. 2690 of 1969 for the redress of his grievances. It was further stated that the inquiry was held in accordance with the provisions of Regulation 39 and there was no failure in observance of the principles of natural justice. The petitioner took obstructionist policy throughout the inquiry and declined to participate in the further inquiry directed to be held by the Zonal Manager. It was stated that all reasonable opportunities were given to the petitioner to support his defence which however was not availed of. The petitioner in these circumastances was not entitled to any relief.

18. The petitioner filed his affidavit-in-reply affirmed on May 17, 1973 contending that he had the due authority and/or the ratification of Jauhar to encash the cheque through his account and the amount under the cheque was paid to him and the receipt in respect thereof was mislaid. It may be mentioned here that the petitioner in his affidavit-in-reply annexed a copy of the affidavit of Jauhar who was the defendant No. 1 in the said suit. In his affidavit which was affirmed on 3-12-1969 Jauhar denied that he ever gave authority to the petitioner to encash the cheque through petitioner's account or that he received the sum against the cheque for urgent necessity as alleged. These allegations according to him were absurd.

19. The learned Judge by his judgment dated December 17, 1973 held that apart from Regulation 39 in particular Sub-clause (2) there was no principle of natural justice which was required to be followed by the Corporation. It was further held that the power to remit for holding further inquiry was implicit in the disciplinary authority and the defect in the proceeding was cured by the disciplinary authority by directing further inquiry which was however not availed of by the petitioner. It was further held that the petitioner did not supply names of witnesses to the inquiry officer and could not complain violation of the principles of natural justice on this account. The Court was also of the opinion that the petitioner took an obstructionist policy throughout the inquiry proceedings and that adequate opportunity was given to the petitioner to show cause against the charges levelled against him. For all these reasons, the application was not maintainable at law and the Rule was discharged.

20. The present appeal is against this decision.

21. Mr. Mitra and later on Mr. Mullick, learned Advocates on behalf of the petitioner appellant contended that the proceeding before the Inquiry Officer was vitiated by several fatal infirmities. It was submitted that there was no material before the Corporation for initiation of the disciplinary proceeding against the petitioner. The complaint about the delivery of the cheque and its encashment was made by Jauhar only by his letter of May 29, 1969 while the petitioner was suspended on March 14, 1969 and the charge sheet was issued to him on April 30, 1969. All these would indicate that the Corporation had no complaint or material for initiation of such proceeding, which, according to the petitioner, was for the collateral purpose of removing him from service by any means.

22. From the narration of events, which we have set out above in some detail in view of the constant reference made to it by the petitioner, it would appear that the Internal Auditor discovered in January 1969 that the signature on the reverse of the disputed cheque purported to be Juhar's, endorsing that the amount under the cheque was to be paid to the petitioner did not tally with his signature in the proposal form in the custody of the Corporation. The endorsement required to be made by the recipient on the reverse of the cheque is not a mere endorsement of the instrument but is also treated under its terms as contained in rubber stamp writings affixed on the reverse of all such cheques, as a receipt or acknowledgement of the payment of the amount covered by the cheque and no separate receipt is required. If therefore the Internal Auditor was satisfied that the signatures purported to be of Jauhar in the cheque was not his and the cheque, which was crossed, was encashed on endorsement purported to be Jauhar's through the banking account of the petitioner as the cheque itself indicated containing signature of the petitioner thereon, there was, in our opinion, sufficient materials for taking steps against the petitioner in contemplation of disciplinary proceeding and later on for initiating the disciplinary proceeding, even without any complaint from Jauhar.

23. It was next contended that there was gross violation of the principles of natural justice in the inquiry proceeding in that Jauhar, a principal witness of the Corporation was not allowed to be cross-examined by the petitioner. The petitioner was not allowed to adduce documentary evidence or produce witnesses in support of his defence; even he was not allowed to examine himself nor was he allowed to advance his arguments on the basis of evidence adduced. The inquiry proceeding terminated abruptly while the cross-examination of Corporation's presenting witness Ghosh was yet to be completed.

24. Reliance was placed on the decision in State of Uttar Pradesh v. C. S. Sharma, : (1969)ILLJ509SC in which it was held that if a public servant though temporary is charged with criminal misconduct he must be given adequate opportunity to clear his character as enjoined in Sub-rule (1) of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules and Sub-rule (3) which provides for termination of service for any specific fault or on account of unsuitability for service has no application. The allegations of 'fraudulent encashment of cheque' and 'misappropriation of proceeds thereof' in the present case amount to, it is contended, charging the petitioner with serious misconduct.

25. There can be no dispute that the failure to produce Jauhar for cross-examination by the petitioner in the circumstances was a serious infirmity and the same was the position in abruptly terminating the inquiry when cross-examination of Ghosh was in progress. Mr. Roy Choudhury learned Advocate for the Corporation contended on the other hand relying on Haripada v. President, Calcutta Improvement Tribunal, ATR 1970 Cal 154 that the petitioner all through the inquiry took up an obstructionist attitude to delay and frustrate the proceeding as will appear from the constant adjournments of the inquiry proceeding taken by the petitioner and the prolonged cross-examination of Ghosh in which about 194 questions were put to the witness. All this was done with the eye to the other legal remedy which was being pursued at the same time by the petitioner and such conduct goes against the plea that the principle of natural justice was violated. Reference was made to the decision in Kishanlal Agarwalla v. Collector of Land Customs, : AIR1967Cal80 in which the Division Bench observed :

'No natural justice requires that there should be a kind of a formal cross-examination. Formal cross-examination is procedural justice. It is governed by rules of evidence ............... and not a part of natural justice but of legal and statutory justice.' Again in the Bench decision in Sovachand Mulchand v. Collector of Central Excise and Customs, : AIR1968Cal174 my learned brother, on a conspectus of the cases, speaking for the Court observed :-- 'The only obligation which the law casts on a domestic tribunal is that they should not act on any information which they may receive unless they put it to the party against whom it is used and give him a fair opportunity to explain it, (what is a fair opportunity must depend on the facts and circumstances of each case; but where such an opportunity has been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in Courts).'

26. The opportunity of meeting a statement against a person, it was held, may be by way of interrogation or by way of comment and criticism of the evidence, statement or record on which the charge is sought to be made and established.

27. On the above propositions of law, it seems obvious that the inquiry officer in the facts of the case committed gross error in procedure in terminating the inquiry abruptly when cross-examination of the presenting witness for the prosecution, though prolonged, was in progress. The same is the position in regard to Jauhar as he was examined by the Corporation to support the charges while the petitioner was deprived of the opportunity to establish his defence by the cross-examination of the witness. The position is also the same in respect of the petitioner's allegations that he was not given opportunity to advance his arguments on materials adduced, in view of the abrupt termination of the inquiry. Something however has to be stated about the petitioner's allegations that he was not given opportunity to adduce his evidence or to examine himself and his witnesses, Such an opportunity was not asked for by the petitioner when he filed his written explanation of May 28, 1969 to the chargesheet. Again in reply to the letter of the inquiry officer of July 4, 1969, the petitioner by his letter of August 8, 1969 informed the inquiry officer that filing of documents or production of witnesses in support of defence would be intimated after he had received the documents and allowed inspection of papers as requisitioned.

28. The petitioner on receipt of the information that the inquiry report had been filed on April 19, 1971, complained in his letter of April 26, 1971 that he was not allowed to produce evidence or examine witnesses in support of his defence. The petitioner should have written much earlier and in proper time for the opportunity to file documents and to adduce his evidence in support of defence for which he was reminded, and there is no ostensible reason for not doing the same in proper time. On an over all consideration of the attending circumstances, we feel that the inquiry leading to the inquiry report of April 19, 1971 was not conducted fairly for the reason that it was concluded abruptly and Jauhar was not allowed to be cross-examined though his evidence in examination-in-chief might have been relied upon and also the petitioner was not heard on the materials. There were thus reasonable grounds for grievance on the part of the petitioner that there was in the circumstances violation of the principles of natural justice, although it is also to be said that the petitioner was largely responsible for the prolongation of the inquiry and was more keen to pursue his suit than to complete the inquiry. The matter however did not rest there. The inquiry officer offered an opportunity to the petitioner, obviously on his own, to cross-examine Jauhar by his letter of September 14, 1971. This offer was of no consequence as after submission of the report of the inquiry, the inquiry officer had become functus officio as rightly contended and there was no scope in law for him to hold further inquiry acting on his own without any mandate from the disciplinary authority.

29. The Zonal Manager by his order of September 25. 1971 directed the Inquiry Officer to make further inquiry and submit his further report in order to give the petitioner opportunity to inspect the documents and/or to plead his case with reference to these documents and/or to cross-examine the witness. The petitioner on being informed of the order, declined to participate in the proposed further inquiry, primarily on the ground that such inquiry was not warranted in law and would be an empty ceremony as the inquiry officer who had become functus officio had already formed his opinion against the petitioner.

30. Reliance was placed on the decision of the Court of Appeal in Re. Godden 1971-3 All ER 20 in which a Chief Inspector of Kent Police was found by Dr. B to be unfit for police duty as he was suffering from a mental disorder of the paranoid type. The Inspector's own psychiatrist found him normal psychiatrically and in good mental and physical health. The authority however for the purpose of retiring him on ground that the disablement might be permanent, sought to refer the matter under Police Pensions Regulations to the same Dr. B but the applicant Inspector refused to appear before him. It was held by Denning. M. R. that an order of prohibition should issue prohibiting Dr. B. from determining the question as he had already formed his opinion adverse to the applicant. It was accordingly submitted that apart from the legal validity of the proposed further inquiry, the inquiry officer having once formed an opinion against the petitioner, he was not competent in law to hold such further inquiry.

31. That the inquiry officer was biased against the petitioner was also sought to be established by his intervention in course of the inquiry with reference to questions numbering questions 23, 45, 54, 55, 64. 66 put to the witness. We have examined the questions and find that intervention was justified as the questions were irrelevant or unnecessary and merely because the questions were disallowed, it could not be said that the inquiry officer was biased against the petitioner. On the other hand, the inquiry officer was otherwise free from bias as would be evident from the acquittal of the petitioner from all charges except charges (3) and (4) of Count 1 of the chargesheet. Further the inquiry officer in his report had given ample and sufficient reasons for his conclusion on a bona fide fair approach. The lapses he committed in the inquiry was more for his failure to comprehend that inquiry could not be abruptly terminated and Jauhar was liable to cross-examination than for any other reason or bias against the petitioner, and there is no suggestion that he had any personal animus against the petitioner.

32. We are also unable to hold that the proposition in the decision in Re: Godden (1971) 3 All ER 20 has application to the case before us. In that case, the doctor had once examined the applicant and found him suffering from ailment of the paranoid type. He was again required to examine the applicant for the same purpose, so to say on the same material. In the present case, however, fresh evidence and further materials were to be adduced for further consideration of the inquiry officer for which there was no scope in the above case, the principles whereof accordingly have no application.

33. The formidable objection however relates to the question as to whether the further inquiry directed to be held by the inquiry officer has the legal warrant. The relevant provisions for inquiry are contained in Regulation 39 of the (Staff) Regulations 1960 of the Life Insurance Corporation of India framed under Section 49 of the Life Insurance Corporation Act. Sub-regulation (1) of Regulation 39 provides for penalties (a) to (g) mentioned therein and penalty (g) is dismissal with which we are concerned. Sub-Regulations (2) and (3) provide as follows:

'(2) No employee shall be dismissed ............ by an authority subordinate to that by which he was appointed and no order imposing on an employee any of the penalties specified in Clauses (b) to (g) of sub-regulation (1) supra, shall be passed by the disciplinary authority specified in Schedule 1 without the charge or charges being communicated to him in writing and without his having been given a reasonable opportunity of defending himself against such charge or charges and of showing cause against action proposed to be taken against him.

(3) The disciplinary authority empowered to impose any of the penalties (b), (c), (d), (e), (f) or (g) may itself enquire into such of the charges as are not admitted, or if it considers it necessary so to do, appoint a board of enquiry or an enquiry officer for the purpose.'

According to the petitioner, sub-regulation (3) does not provide for remitting the case for further inquiry. Provisions for remitting a case for further inquiry have been made in Regulation 48 which is as follows:

'48 (1) Notwithstanding anything contained in these regulations, the Corporation may, on its own motion or otherwise, after calling for the records of the case, review any order which is made or is appealable under these regulations, and

(a) ........................

(b) ........................

(c) remit the case to the authority which made the order or to any other authority directing such further action or inquiry as it considers proper in the circumstances of the case; or

(d) ........................'

34. Strongly relying on this provision, it has been contended that remitting a case for further inquiry has been expressly provided in Regulation 48 only, in circumstances mentioned therein. In view of the express provision, there can be no implicit power of remit under the Regulations as has been contended and held in the judgment under appeal. It has been further contended referring to other service rules, that in Corporation's Staff Regulations, there is no power conferred on the disciplinary authority to reconsider the findings of the inquiry officer and to come to a finding different from that of the inquiry officer. Where it was intended to confer such power on the disciplinary authority, it was expressly provided under the relevant rules, such rules were the subject-matter of consideration in K.R. Deb v. Collector of Central Excise, : (1971)ILLJ427SC , relied on by the Corporation and the trial Court. In view of the provisions therein whereby the disciplinary authority was invested with the power to record its findings on each charge on consideration of the record of the inquiry by the inquiry officer, it was held that the disciplinary authority can direct further inquiry in respect of that matter when there was a defect in the inquiry though it cannot direct fresh inquiry. Accordingly, it was contended, the Zonal Manager as the disciplinary authority could not direct, in absence of specific provisions, a further inquiry which was intended obviously to cure the lacuna of the inquiry held by the inquiry officer.

35. It is without doubt correct to say that in many statutory service rules, there are provisions for inquiry by the disciplinary authority itself and such authority has been conferred power to appoint an inquiry officer to record its findings on each charge after holding the inquiry according to the rules. These rules again further provide that the disciplinary authority has to come to its own findings on each charge and he may disagree with the findings of the inquiry officer and come to different findings. It is only in the context of these provisions, it is contended, as the disciplinary authority has to record its own findings on each charge, that a remit has been provided for to the inquiry officer for further inquiry. In the staff Regulations, it is further contended, the disciplinary authority is not required to come to its own finding on charges on the findings of the inquiry officer and accordingly as the findings of the inquiry officer are binding and conclusive on the disciplinary authority, there is no scope for a remit of the case for further inquiry by him. There is also no express or implied provisions for such remit to cure lacuna in the inquiry held by the inquiry officer.

36. We are unable to accept the contentions so raised. On an interpretation of the Regulation 39 (3), it appears to us that the disciplinary authority 'may itself enquire into such charges' or 'if it considers necessary so to do, appoint a board of enquiry or an enquiry officer for the purpose'. To enquire or inquire mean to make investigation i.e. to examine systematically in detail and it can never mean that conclusions of the investigation would have any binding force or be conclusive. The power to arrive at a final and binding conclusion on allegations of misconduct against a public servant or employees of any concern, is in essence quasi-judicial and such quasi-judicial power cannot be delegated except where there are specific express or even implied provisions to that effect. No such delegation of power in the nature of things has been conferred expressly or impliedly on the inquiry officer under the Corporation's Staff Regulations and it cannot be held that the findings of the inquiry officer are binding and conclusive on the Disciplinary Authority in such proceedings. On the other hand, even though there is no such express provision, it is implicit that the Disciplinary Authority has powers under the Staff Regulations to arrive at its own findings on the report of the inquiry officer.

37. Regulation 48 contemplates a review of an order which is made or is appealable and its operation can take place only when there is in existence an order, whether appealable or otherwise. This regulation can therefore have no application in cases like the one before us where no order was in existence at the relevant time.

38. If therefore, the Disciplinary Authority in considering the inquiry report, finds there has been an error in procedure violating the provisions of the regulation 39 (2) which provides that reasonable opportunity should be given to the employee to defend himself against the charge or charges, it is only implicit that it should have the power to direct further inquiry so that such reasonable opportunity is given to the employee to clear himself from the charges. The Supreme Court in the above case prohibited fresh inquiry as being not provided in the relevant Rule 15 of the Rules but held that :

'.....................it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence.' It is thus clear, even though there was no provision for further inquiry, the Court felt such power was implicit in the relevant rules and the same is the position, in our view, in respect of the (Staff) Regulations, 1960. The distinction between K.R. Deb's case : (1971)ILLJ427SC and the case before us on the ground that the finding of the inquiry officer is binding on disciplinary authority in the case before us which was not so in the other case as sought to be made with great emphasis by Mr. Mullick on behalf of the petitioner, is not sustainable for reasons already indicated by us.

39. The contention on bias in the inquiry officer against the petitioner also loses its force when we find that the findings of the inquiry officer is not binding on the disciplinary authority. On the contrary, the Zonal Manager as the disciplinary authority is free to come to his own findings on the existing and further materials on record and findings thereon by the inquiry officer. The petitioner declined to participate in the further inquiry at his peril and after doing so, he cannot be heard to complain that the principles of natural justice was violated by the Corporation authorities.

40. The petitioner was charged for fraudulent encashment of the cheque through his banking account and such encashment was admitted by the petitioner. His defence was that he did not want thereby to defraud Jauhar and the amount under the cheque, it was claimed, was in fact paid to him. In course of argument it was conceded that in the peculiar circumstances then prevailing, he was obliged to sign the names of Jauhar on the reverse of the cheque, as he had to help Jauhar with some amount he urgently needed. Whatever be the intention which may be material in respect of criminal misconduct, signing of another's name in a negotiable instrument, knowing fully that such forged endorsement and signatures would be acted upon, was per se a serious offence unbecoming of a responsible officer like the petitioner who was a Class I Officer of the Corporation and constituted in our view substantial misdemeanour. Both the learned counsel for the petitioner were at pains to emphasise that there was nothing unbecoming or illegal in signing the name of another person in negotiable instrument. It was further stated that the amount was paid to Jauhar and he did never put any claim for the amount. It was stated that Jauhar gave a receipt which was mislaid and might lie in other policy bags of Jauhar which the Corporation all through deliberately failed to produce. The policy bags were not produced but that hardly mattered for, in view of the admission made, there could be no dispute about the encashment of the cheque by the petitioner. The printed writings on the reverse of the cheque also indicated that the endorsement was to be treated as receipt and no separate receipt was necessary. Accordingly receipt from Jauhar for payment of amount of the cheque, which however was denied by Jauhar in his affidavit in the suit, as we have earlier indicated, would not mend matters in so far as the records of the Corporation are concerned which was patent by writings on the reverse of the cheque which the petitioner, a Class I Officer endorsed and signed.

41. As to signing another's name in the endorsement by a different person, we were referred to Chella Ballayya v. Kanuparthi, ILR 40 Mad 1171 = (AIR 1918 Mad 24) in which a person put the mark of the marksman in a negotiable instrument with his authority and it was held to a valid execution. In Commissioner of Agricultural Income-tax West Bengal v. Keshab Chandra, : [1950]18ITR569(SC) , the Court referred to the common law doctrine that where a person authorises another to sign for him, the signature of that person so signing is the signature of the person authorising it but there may be cases in which a statute may require personal signature. The Court held that if a statute requires personal signature of a person, which includes a mark, the signature or mark must be that of the man himself. It was submitted that the Section 27 of the Negotiable Instruments Act does not prohibit execution of such instrument through duly authorised agent acting in the principal's own name. The provision does not warrant signing the name of principal by the agent simpliciter but what it means is that the agent duly authorised can act in the name of the principal and such authority obviously has to be disclosed in some manner. It is not the case of the petitioner, as will appear from his written explanation of May 28, 1969, that he had the authority to encash the cheque on behalf of Jauhar or that such authority was ever disclosed to the Corporation so as to bind it thereby.

42. In State of Orissa v. Bidyabhusan, : (1963)ILLJ239SC the Supreme Court observed :

'............ if the order may be supported on any finding as to substantial misdemeanour for which punishment can be lawfully imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The Court has no jurisdiction if the findings of the inquiry officer or the Tribunal prima facie make out a case of misdemeanour, to direct the authority to reconsider that order because in respect of some of the findings but not all it appears that there had been violation of the rules of natural justice.'

In the case before us, there is unequivocal admission of the encashment of the cheque by the petitioner by himself signing the name of the recipient of the cheque and endorsing the same in his favour without his authority. The word 'fraudulent' means characterised by 'fraud' and 'fraud' means the using of false representation to obtain an unjust advantage to which a person is not otherwise entitled. Absence of intention to defraud might be an extenuating factor in penal law where 'fraudulent act' is associated with the element to defraud but the word has not the same import in parlance other than penal and must be given its full effect in the usual course.

43. We have seen that the petitioner declined to avail himself of the opportunity to cross-examine Corporation's witnesses as also to examine his witness. Accordingly there was no failure of natural justice in the disciplinary proceeding as the petitioner was given all reasonable opportunity of defending himself against the charges. Further, on his admission, the petitioner was guilty of substantial misdemeanour and on the authority of Bidyabhusan's case, : (1963)ILLJ239SC there is no scope for interfering with the impugned orders finding the petitioner guilty of the relevant charge and ordering his dismissal from Corporation's service.

44. The learned Judge on the law as prevailing at the time also held that no writ lay against the Corporation for breach of any of the provisions of the (Staff) Regulations, 1960. In view of the recent decision in Sukhdev Singh v. Bhagatram, : (1975)ILLJ399SC , holding that the regulations framed by the Corporation have the force of law, a writ will undoubtedly lie to remedy a breach of such regulations. But in view of our decision as indicated above, no question of issuance of any writ arises in this case.

45. For all these reasons, as all contentions raised by the petitioner appellant fail, this appeal is dismissed and all interim orders, if any, are vacated. In the circumstances there will be no order for costs hi the appeal.

Sankar Prasad Mitra, C.J.

46. I agree.


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