IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.10.2008 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN W.P.No.1712 of 2001 K.Govindarajulu .. Petitioner vs. 1. National Insurance Company Ltd., rep. by its Assistant General Manager (Appellate Authority) No.751, Anna Salai, Chennai-2 2. The Deputy Manager (Competent Authority) National Insurance Company Ltd., Chennai .. Respondents This writ petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus to call for the records pertaining to the order dated 29.4.1999 passed by the second respondent and as confirmed by the first respondent by the order dated 22.11.2000 and quash the same and consequently direct the respondents to pay all the monetary benefits that had accrued to the petitioner. For petitioner : Mrs.Rita Chandrasekaran for M/s.Aiyar & Dolia For Respondents : Mr.V.Karthik for R1 and R2 for M/s.T.S.Gopalan & Co., O R D E R Heard the learned counsels appearing for the parties concerned. 2. It has been stated that the petitioner had joined in the respondent Company as a sub-staff, on 16.3.1959. Subsequently, he https://hcservices.ecourts.gov.in/hcservices/ was promoted as a Junior Assistant in the year, 1965. In the month of July, 1984, he was promoted as a Senior Assistant and he had retired from service in the year, 1998, as a Senior Assistant. At the time of his retirement, he was working at Division No.2-46, Moore Street, Chennai. During his employment, the petitioner was holding the post of Union Joint Secretary in General Insurance Employees Union. 3. It has been further stated that the petitioner and his family members are eligible to claim reimbursement of the medical expenses incurred by them. While working as a Senior Assistant, the petitioner was served a memorandum of charges, on 6.1.1998, by the Deputy Manager of the respondent Company alleging that the petitioner had claimed reimbursement of medical bills for a sum of Rs.31,504/-, by submitting nine medical bills during the years 1993, 1994 and 1995, which had been fraudulently obtained from M/s.Nandanam Common Hospital. It has been further alleged that on verification, it was found that the petitioner had failed to maintain absolute integrity and devotion to duty violating Rule 3(1) (i)(ii) and (iii) of the General Insurance (Conduct and Discipline) and Appeal Rules, 1975 and thereby, he had committed misconduct under Rule 4(i) and 5 of the said Rules. 4. It has been further stated that the petitioner had submitted an explanation, on 21.1.1998, denying the charges. However, the petitioner had received a letter, dated 2.2.1998, from the Assistant Manager of the respondent Company stating that a preliminary enquiry would be held, on 10.2.1998. The petitioner had participated in the preliminary enquiry having a union Secretary as the defence Assistant. Thereafter, a regular enquiry was held, on 10.2.1998. In the said enquiry, the respondent had produced Exhibit M.D.10, dated 1.2.1996, which is the letter issued by Doctor T.K.Venkataraman of Nandanam Common Hospital, wherein it was stated that he had issued the certificate at the request of the petitioner to enable him to claim reimbursement of medical expenses incurred on various dates. However, Dr.T.K.Venkataraman, who had issued such a certificate, had not been examined during the enquiry. 5. The petitioner has further submitted that, on 24.1.1998, Dr.T.K.Venkataraman had addressed a letter to him stating that he had been compelled to give a letter, dated 1.2.1996, on account of the pressure exerted by the respondent Company. Thus, it is clear that the respondent Company had decided to victimise the petitioner for his trade union activities. Since the enquiry was mainly based on the letter, dated 1.2.1996, issued by Dr.T.K.Venkataraman without examining him as a witness, the enquiry is void in the eye of law. 6. It has been further submitted that, on 29.1.1998, the petitioner was permitted to retire from service. There is no mention https://hcservices.ecourts.gov.in/hcservices/ about the departmental proceedings pending against the petitioner. Therefore, the respondents have no authority or jurisdiction to proceed with the departmental enquiry, after the petitioner had retired from service, on 29.1.1998. Further, the service regulations of the respondent Company do not provide for the continuation of the departmental proceedings after the retirement of the employee. Therefore, in the absence of such statutory regulations to continue the departmental proceedings, the entire proceedings would stand vitiated. 7. The petitioner has further stated that the respondent Company had paid the benefits due to the petitioner, on 2.6.1999. However, they had deducted a sum of Rs.12,000/-, towards the interest for the housing loan, which is an arbitrary act on the part of the respondents. 8. It has been further stated that, on 8.9.1998, the enquiry officer had submitted his report holding that the charges against the petitioner were proved. The said report was furnished to the petitioner by the competent authority, the second respondent, on 3.11.1998. The petitioner was called upon to submit his explanation to the said report, within a period of 10 days. On receipt of the report, the petitioner had submitted his explanation. Not being satisfied with the explanation submitted by the petitioner, the competent authority, the Deputy Manager of the respondent Company, by his order, dated 29.4.1999, had imposed a penalty of reduction in the basic pay of the petitioner, by two stages, from the salary drawn on the date of his retirement and had also ordered recovery of Rs.31,504/-. The order further read that the petitioner could prefer an appeal to the appellate authority, the first respondent herein, within a period of three months from the date of receipt of the order. 9. Aggrieved by the said order, dated 29.4.1999, the petitioner has preferred the appeal to the appellate authority, on 29.7.1999. By an order, dated 22.11.2000, the appellate authority had confirmed the order, dated 29.4.1999, passed by the competent authority. Aggrieved by the said orders, the petitioner has filed this present writ petition, under Article 226 of the Constitution of India. 10. In the counter affidavit filed on behalf of the respondents, the allegations made by the petitioner had been denied. 11. It has been stated that the respondent, the National Insurance Company Limited, is a Government of India undertaking. The terms and conditions of the employment of the staff falling under the category of workmen, are codified. The General Insurance Employees' Pension Scheme is one of the schemes applicable to the staff of the respondent Insurance Company. The age of retirement for https://hcservices.ecourts.gov.in/hcservices/ an employee of the respondent Company is 60 years. Section 45 of the Scheme provides that an employee, who has retired on attaining the age of superannation or otherwise and against whom any departmental or judicial proceedings are instituted or where the departmental proceedings are continued, a provisional pension, equal to the maximum pension which would have been admissible to him would be allowed, subject to certain conditions. Section 47 of the Pension Rules empowers the competent authority to withhold or withdraw the pension or a part thereof, whether permanently or for a specified period and an order of recovery from the pension of the whole or a part of the pecuniary loss to the Corporation or a Company, if in any departmental or judicial proceedings the pensioner is found guilty of grave misconduct or negligence during the period of his service. It also provides that the departmental proceedings, if instituted while the employee was in service, shall, after the retirement of the employee, be deemed to be proceedings under this Rule and shall be continued and concluded by the authority by which they were commenced, in the same manner as if the employee had continued in service. 12. A combined reading of the provisions would make it clear that if a departmental or judicial proceedings have been instituted before the retirement of an employee, they can be continued in the manner as if the employee had continued in service. 13. It has been further stated that during the year, 1996, there were certain anonymous complaints stating that the employees of the Government Insurance Companies, including the respondent Company, were making false claims of medical reimbursement. In the month of January, 1996, a joint investigation was made by one of the Officers of the respondent Company and two officers of United India Insurance Company. In the course of such investigation, it was found that the petitioner had submitted certain false bills from M/s.Nandanam Common Hospital, without getting treatment from the said Hospital. 14. It has been further stated that, on 1.2.1996, Dr.T.K.Venkataraman, who is in-charge of the Hospital, had given a letter stating that he did not treat the petitioner and his family members and that he had certified the bills only to oblige the petitioner. On 10.9.1997, the investigation report had been received, showing the misconduct committed by the petitioner. On 2.1.1998, the Vigilance Department of the respondent Insurance Company had conveyed the decision to initiate the disciplinary action against the petitioner, who was due to retire, on 30.1.1998. Accordingly, on 6.1.1998, a charge sheet was issued to the petitioner, charging him with the misconduct of having made false claims of medical reimbursement. Thereafter, the petitioner had retired from service, on 30.1.1998, on his attaining the age of https://hcservices.ecourts.gov.in/hcservices/ superannuation. However, in view of the provisions of the Pension Regulations, the disciplinary proceedings initiated against the petitioner was continued even after his retirement. Since the petitioner had no satisfactory explanation, he was asked to appear for an enquiry. In the enquiry, the petitioner was represented by one N.D.Sundaresan. The enquiry was conducted on various dates in the month of February, March and April, 1998. Three witnesses were examined during the enquiry. The petitioner had fully participated in the enquiry proceedings. After the enquiry had been duly conducted, the enquiry officer had submitted a report, on 28.9.1998, holding that the charges against the petitioner were proved. On 3.11.1998, the petitioner was furnished with a copy of the report and he was asked to make his representation against the findings in the enquiry report. On 27.1.1999, the petitioner had submitted his reply. On 29.4.1999, orders were passed, holding that the petitioner had obtained a false bill to claim medical reimbursement, under the Company's Medical Scheme and that the misconduct committed by the petitioner is of a serious nature, highly detrimental to the interest of the Company and therefore, he was awarded the punishment of reduction in basic pay, by two stages, from the salary drawn on the date of retirement and recovery of Rs.31,504/- from the petitioner. Against the order of punishment, the petitioner had preferred an appeal, on 22.11.2000. The appellate authority had passed an order, dated 22.11.2000, rejecting the appeal. Aggrieved by the said order, the petitioner has preferred the present writ petition before this Court. 15. The learned counsel appearing for the petitioner had submitted that the impugned order of the second respondent, dated 29.4.1999 and the order of the first respondent, dated 22.11.2000, are arbitrary, unreasonable and contrary to law. 16. The learned counsel appearing for the petitioner had further submitted that the respondent ought to have seen that the enquiry officer had erred in placing reliance on the letter, dated 1.2.1996, issued by Dr.T.K.Venkataraman, even though he was not examined during the enquiry. The said order, which had been marked as Exhibit M.D.10, said to have been issued by Dr.T.K.Venkataraman, cannot be relied on, since he had stated that it was issued under coercion. In such circumstances, the entire enquiry stands vitiated. 17. The learned counsel appearing for the petitioner had further submitted that though the onus was on the respondent Insurance Company to prove that the petitioner had produced false bills, the respondent Company had not discharged the onus of proof in the manner known to law. Except Exhibit M.D.10, produced by the respondent Company, no satisfactory evidence had been made available for the enquiry officer to come to the conclusion that the charges against the petitioner stood proved. The principles of natural https://hcservices.ecourts.gov.in/hcservices/ justice have been violated during the enquiry proceedings and therefore, the enquiry proceedings cannot be held to be valid. 18. The learned counsel appearing for the petitioner had further submitted that the respondent ought to have taken into account the fact that the petitioner was allowed to retire from service, on 29.1.1998. Thereafter, the respondent did not have the authority or jurisdiction to proceed against the petitioner, departmentally, by conducting an enquiry against him for the alleged charges. Therefore, the impugned order passed by the second respondent holding that the petitioner was guilty of misconduct, based on the charges levelled against him, is illegal and unsustainable in law. The first respondent appellate authority had merely confirmed the order passed by the second respondent, without giving sufficient reasons for confirming the order of the second respondent. The order of the appellate authority is a non speaking order and therefore, it is liable to be set aside. Further, the second respondent competent authority ought to have seen that the petitioner was imposed by two punishments for the charges levelled against him. It would amount to double jeopardy and therefore, the impugned orders are invalid in law. In the month of January, 1998, his retirement benefits had not been settled in full and therefore, a direction has to be ordered by this Court as prayed for in the writ petition. 19. Per contra, the learned counsel appearing for the respondents had submitted that the writ petition filed by the petitioner is devoid of merits. The petitioner had committed a serious misconduct by producing false bills to claim medical reimbursement, under the Employees Medical Scheme of the respondent Company. The enquiry officer had conducted the enquiry in a fair and proper manner. The petitioner had been given sufficient opportunity to putforth his case. The enquiry officer had given his findings not only based on Exhibit M.D.10, which is a letter, dated 1.2.1996, issued by Dr. T.K.Venkataraman, showing that the petitioner was guilty of the misconduct, but also on the other evidence available on record. The enquiry officer has given cogent reasons for his findings. There is no victimisation by the respondent Company, as alleged by the petitioner. 20. The learned counsel appearing for the respondents had further submitted that the proceedings against the petitioner had been instituted while he was in service, based on the charges levelled against him and the enquiry had been continued after his retirement, on 30.1.1998. Such a procedure is contemplated, under Section 45 of the General Insurance Employees' Pension Scheme and Section 47 of the Pension Rules. https://hcservices.ecourts.gov.in/hcservices/ 21. The learned counsel appearing for the respondents had further submitted that Section 45 provides for payment of provisional pension and Section 47 deals with recovery of pecuniary loss caused to the Corporation or a Company. 22. The learned counsel appearing for the respondents had referred the sections 45 and 47 of the General Conditions, which read as follows: 45. Provisional pension: (1) An employee who has retired on attaining the age of superannaution or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued, a provisional pension equal to the maximum pension which would have been admissible to him, would be allowed subject to adjustment against final retirement benefits sanctioned to him, upon conclusion of the proceedings but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or the pension is reduced or withheld etc., either permanently or for a specified period. (2) in such cases the gratuity shall not be paid to such an employee until the conclusion of the proceedings against him. The gratuity shall be paid to him on conclusion of the proceedings subject to the decision of the proceedings. Any recoveries to be made from an employee shall be adjusted against the amount of gratuity payable. Explanation: In this chapter, (a) The expression serious crime includes a crime involving an offense under the Official Secrets Act, 1923 (1923); (b) The expression "grave misconduct" includes the communication or disclosure of any secret, official code or password or any sketch, plan, model, article, note, document or information such as is mentioned in section 5 of the Official Secrets Act, 1923 (19 of 1923) (which was obtained while holding office in the Corporation or the Company concerned) so as to prejudicially affect the interests of the general public or the security of the State. 47. Recovery of Pecuniary loss caused to the https://hcservices.ecourts.gov.in/hcservices/ Corporation or a Company: (1) The Competent Authority may withhold or withdraw a pension or a part thereof, whether permanently or for a specified period, and order recovery from pension of the whole or part of any pecuniary loss caused to the Corporation or a Company if in any departmental or judicial proceedings the pensioner is found guilty of grave misconduct or negligence during the period of his service: Provided that the Board of the Corporation or a Company shall be consulted before any final orders are passed: Provided further that departmental proceedings, if instituted while the employee was in service, shall, after the retirement of the employee, be deemed to be proceedings under this paragraph and shall be continued and concluded by the authority by which they were commenced in the same manner as if the employee had continued in service: Provided also that no departmental or judicial proceedings, if not initiated while the employee was in service, shall be instituted in respect of a cause of action which arose or in respect of an event which took place more than four years before such institution. (2) Where the competent authority orders recovery of the pecuniary loss from the pension the recovery shall not ordinarily be made at a rate exceeding one-third of pension admissible on the date of retirement of the employee: Provided that where a part of pension is withheld or withdrawn, the amount of pension drawn by a pensioner shall not be less than the minimum pension payable under this scheme. 23. Referring to sections 45 and 47 of the General Conditions, the learned counsel appearing for the respondents had submitted that, while reading Sections 45 and 47 of the General Conditions Rules applicable to the petitioner, it is clear that the proceedings can be instituted against an employee, who had committed misconduct and had caused loss to the Corporation or a Company, based on an enquiry which had been continued even after his retirement from service. https://hcservices.ecourts.gov.in/hcservices/ 24. The learned counsel appearing for the respondents had submitted that in the present case, charges were framed and a charge memo had been issued, on 6.1.1998, alleging that the petitioner had committed misconduct of having made a false claim of medical reimbursement. Even though the petitioner had retired from service, on 30.1.1998, on his reaching the age of superannation, the disciplinary proceedings initiated against the petitioner had been continued, in view of the provisions in the Pension Regulations. 25. The learned counsel appearing for the respondents had submitted that since the enquiry had been conducted in a fair and proper manner, following the principles of natural justice, the claim of the petitioner that the enquiry is vitiated cannot be sustained. Both the competent authority as well as the appellate authority have applied their minds before passing the impugned orders, confirming the punishment imposed on the petitioner. The order of the first respondent appellate authority, confirming the order passed by the second respondent, is in accordance with law and therefore, it cannot be said that the impugned orders are arbitrary, illegal and void. 26. The learned counsel appearing for the petitioner had relied on the following decisions in support of his contentions: 26.1. In BHAGIRATHI JENA Vs. BOARD OF DIRECTORS, O.S.F.C. ((1999) 3 SCC 666), the Supreme Court had held that in the absence of a specific provision in the regulation governing the service conditions of an employee for deducting any amount from the provident fund consequent to any misconduct determined in the departmental enquiry nor for the continuance of a departmental enquiry after his superannuation, there would be no authority for continuing the departmental enquiry even for the purpose of imposing reduction in the retiral benefits payable to the employee. In the absence of such an authority, it must be held that the enquiry had lapsed and the employee was entitled to full retiral benefits. 26.2. In UCO BANK Vs. RAJINDER LAL CAPOOR ((2007) 6 SCC 694), the Supreme Court has held that the employee having been allowed to superannuate, only a proceeding, inter alia, for withholding of his pension, under the Pension Regulations, could have been initiated against him. Discipline and Appeal Regulations were not attracted. Consequently, the charge-sheet, the enquiry report and the orders of punishment passed by the disciplinary authority and the appellate authority must be held to be illegal and without jurisdiction. It has also been held that an order of dismissal or removal from service can be passed only when an employee is in service. If a person is not in employment, the question of terminating his services would not ordinarily arise unless there exists a specific rule in that behalf. https://hcservices.ecourts.gov.in/hcservices/ 26.3. In UCO BANK Vs. RAJINDER LAL CAPOOR (2008) 2 SCC (L&S) 263), the Supreme Court had held that when a show cause notice has been issued to the employee, while he was in service, but a charge sheet had been issued after his retirement, the disciplinary proceedings cannot be deemed to be pending against him when he had retired from service. The disciplinary proceedings are initiated from the time the charge sheet is served and not from the stage of the preliminary enquiry. The legal fiction of deemed pendency of the disciplinary proceedings from the stage of the issuing of the show cause notice operates when he had retired. 27. The learned counsel appearing for the respondents had relied on the decision of the Supreme Court in U.P.STATE SUGAR CORPN. LTD., Vs. K.S.TANDON ((2008-II-LLJ-854 (SC)), wherein, it was held held that in a case involving a minor penalty, which does not require a lengthy enquiry procedure, the employer will be justified in continuing the proceedings against the employee, if it had been initiated before his retirement. 28. In view of the submissions made by the learned counsels appearing for the parties concerned and the decisions cited before this Court and on a perusal of the records available, this Court is of the considered view that the petitioner has not shown sufficient cause or reason to interfere with the impugned proceedings of the respondents insofar as it imposes on the petitioner the punishment of reduction in his basic pay. 29. It has not been shown by the petitioner as to how the enquiry conducted by the respondent Corporation, based on the charges levelled against the petitioner, were contrary to the principles of natural justice. Even though the letter of Dr.T.K.Venkataraman, dated 1.2.1996, marked as Exhibit M.D.10, had been relied on by the enquiry officer to come to his conclusions, it cannot be said that the findings have been given without considering any other evidence that was available before the enquiry officer. 30. It is also seen that the petitioner had been given sufficient opportunity to defend himself against the charges levelled against him during the enquiry proceedings. The concept of principles of natural justice cannot be strictly applied as a straightjacket formula in all circumstances and in all situations. It can neither be like an unruly horse nor like a run-away train sans control or direction. It should rather be, atleast to a reasonable extent, flexible and elastic to suit the varying exigencies of the situation providing the healing touch needed in the application of the law and in serving the ends of justice. It has to be applied differently in different circumstances. Once it is found that the principles of natural justice had been substantially https://hcservices.ecourts.gov.in/hcservices/ complied with by the enquiry officer during the enquiry proceedings, such proceedings cannot be said to be vitiated merely on the ground that some of the aspects have not been fully dealt with.