IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.03.2011 CORAM: THE HONOURABLE MR.JUSTICE VINOD K.SHARMA W.P.No.37796 of 2002 I.Kamalanathan .. Petitioner/Petitioner Vs. 1. The Chairman Life Insurance Corporation of India, Central Office, Yogakshema, Jeevvan Bhima Mary, P.B.No.19953, Mumbai – 400 021. 2. The Senior Divisional Manager, Chennai Divisional Office-I, Life Insurance Corporation of India, Chennai – 600 002. .. Respondents/Respondents Writ petition is filed under Article 226 of Constitution of India for the issuance of a writ of Certiorari, calling for records from the respondents relating to the impugned order dated 08.09.2000 of the current in charge and Managing Director of LIC and quash the same. For Petitioner : Mr.R.Rajaram For Respondents : Mr.V.Parthiban O R D E R The petitioner joined as Sub-staff with the Life Insurance Corporation of India, in the year 1969. The petitioner was, thereafter, promoted as Record Clerk in the year 1980 and as Assistant on 01.07.1987. 2. While the petitioner was working as Cashier in Tambaram Branch, he was issued a charge memo dated 04.09.1995 by the Senior Divisional Manager, Madras Divisional Office. The petitioner submitted reply to the charge memo. Being not satisfied with the reply, the respondents appointed M/s. Vasanthi Kumar, Manager (OP), Madras Division – 1 as Enquiry Officer and Mr.N.Ranganna A.O (P&GS) https://hcservices.ecourts.gov.in/hcservices/ Madras Division -1 as the Presenting Officer. The Enquiry Officer held that the charge against the petitioner in substance was as follows: "Agents commission was paid in cash to certain agents on different dates when the charge-sheeted employee was a cashier in the Branch. The said agents have not received the Commission in these cases. Hence the charge sheet states that payments were made to other than agents thereby causing loss to the Corporation to the tune of Rs.36,108/-" On appreciation of evidence, the Enquiry Officer held the petitioner guilty of the charge. The finding of negligence against the petitioner was based on the fact, that he had failed to act as per the Accounts Manual provisions, because, in case he had followed the procedure, cash payment could not have been made to the wrong persons. 3. The case of the petitioner in the affidavit is that the respondent Corporation examined 11 agents, Senior Assistant, Sales Department Thiru P.Narayanan, Smt.Kokila, H.C.A., and Sri S.Ganapathy, Ex.A.A.D. (Accounts) as witnesses. Sri P.Narayanan, Smt.Kokila and S.Ganapathy were examined to prove the procedure followed for payment of commission to the agents. 4. The further case of the petitioner is that agent is required to be present in person before preparation of bills and vouchers for payment of commission whether in cash or by cheque. Under the manual for commission being paid in cash, the concerned agent is also required to make personal request. The procedure proved before the Enquiry Officer showed that Assistant, who prepared the bill, the Passing Officer, who passed the bill and the Officer, who authorized payment of cash by recording "Pay Cash", were to satisfy themselves about the identity of the agent concerned before passing the payment. 5. From the evidence, it was proved before the Enquiry Officer that Thiru P.Narayanan had identified every agent during the period in question, before cash payment was authorised by the Passing Officer. It was, after sanctioning of the payment, that the papers are handed over to the agent for collecting cash payment from the cash counter. It was in view of authorization to pay cash, that the petitioner made payment to the persons, who were carrying vouchers, by tallying signatures with the vouchers. 6. It was proved that no identity card was issued to the agent in Tambaram Branch, therefore, the petitioner had no option, but to accept voucher for payment, if the signature at the back of the voucher tallied with the person presenting the voucher. https://hcservices.ecourts.gov.in/hcservices/ 7. The case of the petitioner further is that according to the Accounts Manual provisions, the cash payments are made, when the amount does not exceed Rs.750/- in gross and that the commission was to be paid to the agent only when it was to be received by him, in person and the agent should have an identity card issued by the branch. In the alternative, he is required to be identified by an employee of the branch. 8. It is the case of the petitioner that evidence of Kokila, Narayanan and Ganapathy clearly proved that identification of agent was done at every stage and that the agent was identified by Thiru Narayanan. The case projected by the petitioner, therefore, was that it was not the duty of Cashier to identify the agent. The contention of learned counsel was that the finding of the Enquiry Officer, on the face of it, was perverse and outcome of misleading of Accounts Manual provisions. 9. The negligence of the petitioner was attributed by the Enquiry Officer on presumption, which would be clear from the finding, recorded by the Enquiry Officer, which reads as under: "Since the office does not issue identity card to agents, it has to be noted that the agents should be identified by an employee. In this case, no such identification has taken place. We may presume that in this event, a cashier in his role as an employee of the office has identified the agent and handed over the cash." 10. The petitioner also challenged the evidence of 11 agents, who deposed that they had not received any payment, on the ground that they had not appeared in the branch office, and it was also not explained by the Officials concerned as to how the bills were passed for payment in cash. Therefore, the fault, if any, lay with the processing branch, not with the cashier, who was said to have been made a scapegoat. 11. Though it was mentioned in the charge that 27 wrong payments were made without proper identification, but only 11 vouchers were produced. Out of which, two agents admitted having received the payment. Similarly, on the charge of payment to wrong persons, though allegations were with regard to 25 payments, only 6 vouchers were produced. Finally, the stand taken was that there was no complaint from the agents with regard to non receipt of payment. The case of the petitioner also was that there was no previous allegations against the petitioner. 12. The contention of the learned counsel for the petitioner was that in spite of the fact that the charges were proved against the petitioner and the report of the Enquiry Officer showed the petitioner to be guilty of negligence, without any intention to have undue advantage, the competent authority passed an order of extreme https://hcservices.ecourts.gov.in/hcservices/ punishment of dismissal from service. The appeal filed by the petitioner against the order of dismissal was also dismissed by the appellate authority on 25.10.1999. Further, it was on the memorial filed by the petitioner, that the Chairman, LIC set aside the order of dismissal, and imposed punishment of reduction in basic pay to the minimum scale. The review application, thereafter, filed by the petitioner was also rejected. The order passed by the Chairman, LIC on the memorial reads as under: "With reference to your letter dated 07.01.2002 (received by the Office on 07.05.2002) addressed to the Chairman, we wish to state that your Memorial dated 22.11.1999 to the Chairman was considered by him and taking a lenient view the penalty of 'Dismissal from service' and 'Recovery of loss of Rs.36,108/-' imposed on you by the Disciplinary Authority was modified into one of 'Reduction in basic pay to the minimum of scale' while retaining the penalty of 'Recovery of loss of Rs.36,108/-'. In this connection, it may please be noted that once the Memorial is disposed off by the Chairman, there is no further provision under the LIC of India (Staff) Regulations, 1960 to re-open the case for re-consideration of the Memorial. As such, you have exhausted all the remedies available to you under the aforesaid (Staff) Regulations. You are advised to desist from sending further communications to us on the aforesaid matter." 13. Learned counsel for the petitioner has challenged the impugned order primarily on the ground that the charge against the petitioner was only for negligence of duty, therefore, it was incumbent upon the authority to first establish duties / obligations of the petitioner. In absence of such proof, charge of negligence could not be sustained. The contention of the learned counsel for the petitioner, therefore, was that the evidence led before the Enquiry Officer, left no manner of doubt that it was not the duty of the petitioner to verify the identity, as the vouchers for payment were passed by the Officer of the different department, who handed over the vouchers to the persons concerned with a positive order to pay cash. In the absence of any complaint by the person that the payment was made to the wrong person, it was not possible to hold the petitioner to be guilty of negligence. 14. In the present case, persons, who manually pass the bill and prepare vouchers for payment, were cited as witnesses against the petitioner, who, during the evidence, had admitted the fact that identification of agent was to be carried out before vouchers were prepared. It was also not proved on record that any identity cards were issued to the agents. Therefore, the petitioner rightly compared the signature on the voucher with that of persons, receiving the payment. There was no allegation that signatures of the person receiving the payment and that in the voucher were different. https://hcservices.ecourts.gov.in/hcservices/ 15. Learned counsel appearing on behalf of the respondents opposed the writ by contending that disciplinary proceeding against the petitioner were conducted in accordance with law, wherein, the petitioner was given full opportunity to cross-examine the witnesses. It was also the contention of the learned counsel for the respondents that the Enquiry Officer did not find that the act of the petitioner was not deliberate and intentional, but the Enquiry Officer rightly found that the petitioner had violated the Accounts Manual in releasing the payment. The stand taken by the respondents with regard to non production of documentary evidence was that some of the vouchers were destroyed, thus, could not be produced, and that the petitioner cannot take any benefit of that. Finally, it was contended that justice had been done by the Chairman in reducing the punishment awarded to the petitioner. 16. Learned counsel for the respondents was right in contending that the Enquiry Officer did not record any finding that there was no intentional act on the part of the cashier to make payment to the wrong persons, as contended by the learned counsel for the petitioner. Enquiry Officer, in fact, found the petitioner guilty of charges. 17. Learned counsel for the petitioner was right in contending that in order to establish negligence, it was incumbent upon the Presenting Officer, to, first establish the duties and obligations. In the case in hand, though reference was made to Accounts Manual, but no evidence was led to show the duties and obligations of the petitioner. Once it was not disputed that payment was made in pursuance to the sanction by the competent authority and was paid to the persons, who were in possession of vouchers, having been issued by the authorities, it could not be said that the petitioner was guilty of negligence, as held by the Enquiry Officer. Finding of the Enquiry Officer was, therefore, perverse having been passed only on presumption without any positive evidence. 18. The Enquiry Officer has, further, ignored the material aspect that necessary document, in proof of allegations was not produced on the ground that those were destroyed. In absence of positive evidence, the finding recorded by the Enquiry Officer cannot be sustained in law and consequently, impugned order also cannot be sustained, as report of the Enquiry Officer is based on no evidence. 19. This Court, in the case of P.Karuppiah vs. The Deputy Registrar of Co-operative Societies, Periyakulam, (1989 Writ Law Reporter 272), has been pleased to lay down as under: "Negligence in this context presupposes existence of specific duties and obligations and breach thereof. If the duties and obligations are not specifically defined and delineated, one could not pin down the culpability of https://hcservices.ecourts.gov.in/hcservices/ breach thereof on the person concerned. This aspect could not be a matter of presumptions and assumptions but necessarily must be a matter of concrete materials." The judgment fully supports the contention raised by the learned counsel for the petitioner. 20. For the reasons stated, the writ petition is allowed. The impugned order of punishment is quashed. The petitioner shall be entitled to all consequential benefits, arising from this order. No costs. ar Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1. The Chairman Life Insurance Corporation of India, Central Office, Yogakshema, Jeevvan Bhima Mary, P.B.No.19953, Mumbai – 400 021. 2. The Senior Divisional Manager, Chennai Divisional Office-I, Life Insurance Corporation of India, Chennai – 600 002. + 1 cc to Mr. R. Rajaram, Advocate SR No.17527 + 1 cc to Mr. V. Parthiban, Advocate SR No.17578 Order in W.P. No. 37796 of 2002 PUR(CO) SR/24.3.2011 https://hcservices.ecourts.gov.in/hcservices/