Pension; Dipak Kumar Lahiri Vs. National Insurance Company [Calcutta High Court, 19-05-2016]

General Insurance (Employees’) Pension Scheme, 1995 – Paragraphs 44 and 47 – General Insurance (Conduct, Discipline & Appeal) Rules, 1975 – Rule 26 – Permanent withdrawal of pension – Imposing major penalty of  – Recovery of Pecuniary loss caused to the Corporation or a Company – Paragraph 47 of the Scheme, 1995 provided for passing an order only for recovery of any pecuniary loss of the corporation or company, as the case may be, from the pension of a person. There was no scope for the statutory authority of the respondent no.1, to pass a cryptic order of penalty for “withdrawal of pension” before arriving at a conclusion that “withdrawal of pension” was required for recovery of the pecuniary loss of the respondent no.1.  Therefore, the order cannot be sustained.


IN THE HIGH COURT AT CALCUTTA

Constitutional Writ Jurisdiction Original Side

The Hon’ble Justice Debasish Kar Gupta
And
The Hon’ble Justice Md. Mumtaz Khan

Judgment on: 19/05/2016

APO 237 of 2013

Dipak Kumar Lahiri @ D. K. Lahiri
Versus
National Insurance Company Limited & Ors.

For the appellant : Mr. Pratik Dhar, Sr. Adv., Mr. Ritwik Pattanayak, Mr. Debanshu Ghorai, Mr. Samir Halder; For the respondent : Mr. Dipak Kumar Ghosh, Sr. Adv., Mr. Ranajay Dey.

Debasish Kar Gupta , J. :

This appeal is directed against a judgment dated May 14, 2010 passed in the matter of Dipak Kumar Lahiri vs. National Insurance Company Limited & Ors. (in re: W.P. No.1708 of 2006). By virtue of the impugned judgment the above writ application was dismissed on contest.

The subject matter of challenge in the above writ application was an order dated October 31, 2005, passed by the respondent no.5 against the appellant under the

General Insurance (Employees’) Pension Scheme, 1995

in exercise of the powers conferred under

Rule 26 of the General Insurance (Conduct, Discipline & Appeal) Rules, 1975

as amended up to date (hereinafter referred to as the said Rules, 1975) read with paragraphs 44 and 47 of the General Insurance (Employees’) Pension Scheme, 1995 as amended up to date (hereinafter referred to as the said Scheme, 1995) imposing major penalty of “permanent withdrawal of pension” against the appellant, an administrative officer (retired). The appellant preferred a statutory appeal dated January 11, 2006 against the above order. The above appeal was dismissed by the respondent no.3 by an order dated January 22, 2007.

The above order dated October 31, 2005 was passed in connection with a proceeding initiated against the appellant on the basis of a memorandum dated October 3, 2002 issued by the respondent no.5 proposing to hold enquiry against the appellant under Rule 25 of the said Rules, 1975 read with paragraphs 44 and 47 of the said Scheme, 1995. The substance of the imputation of misconduct in respect of which the enquiry was proposed to be held was that while functioning as Administrative Officer, at Divisional Office-IX, Kolkata, during the period 1999-2000, the appellant had committed the following misconduct:-

(i) While working in the Motor Department of the respondent no.1, the appellant committed fraud by preparing six Motor Claims Disbursement Vouchers without obtaining the approval from the competent authority, without involving department assistant and without ensuring the existence of a claim filed in favour of the recipient of the amount preparing, checking and mentioning as “Approved by CA” in all the six Motor Claim Disbursement Vouchers favouring person, no way connected with the insured, whereas against the same claim number, the actual insured had separately been reimbursed the claim amount as per procedure.

(ii) The appellant being the cheque signature authority had signed all the aforesaid cheques as one of the signatory favouring a person not being insured. Due to the wrongful actions of the appellant six double payments were made causing wrongful loss to the respondent no.1 to the tune of Rs.2,29,672/-.

Let it be recorded at the very outset that no submission is made by Mr. Pratik Dhar, learned Senior Advocate, appearing on behalf of the appellant so far as the propriety of concurrence of the respondent no.5 with the views of the enquiry officer was concerned to the extent that the charges levelled against the appellant had been sustained in full.

According to Mr. Dhar, the major “penalty of permanent withholding of pension” of the appellant was passed by the respondent no.5 without jurisdiction as also arbitrarily while exercising the powers conferred under paragraphs 44 and 47 of the said Scheme, 1995 by him.

It is the second contention of Mr. Dhar that the pre-condition of consultation with the Board of the respondent no.1 before passing the final order dated October 31, 2005, as provided in the provisions of first proviso to paragraph 47 of the said Scheme, 1995, was not complied with. It is also submitted by Mr. Dhar that the impugned judgment is liable to be set aside for non-consideration of the aforesaid grievances of the appellant in accordance with law.

Reliance is placed by Mr. Dhar on the decisions of

Kollol Kumar Dutta vs. Union of India, reported in 2014 SCC Online Gau 39

State of Gujarat & Anr. vs. Justice R.A. Mehta (Retired) & Ors., reported in (2013) 3 SCC 1

Ram Tawakya Singh vs. State of Bihar & Ors., reported in (2013) 16 SCC 206

State of Rajasthan & Ors. vs. Mahendra Nath Sharma, reported in (2015) 9 SCC 540

Pepsu Road Transport Corporation, Patiala, vs. Mangal Singal & Ors., reported in (2011) 11 SCC 702

Commissioner of Central Excise, New Delhi, vs. Hari Chand Sri Gopal & Ors., reported in (2011) 1 SCC 236

Nautam Prakash DGSVC, VADTAL. & Ors. vs. K.K. Thakkar & Ors., reported in (2006) 5 SCC 330

and

Indian Banks’ Association, Bombay & Ors. vs. Devkala Consultancy Service & Ors., reported in (2004) 11 SCC 1

in support of his above submissions.

On the other hand it is submitted by Mr. Dipak Kumar Ghosh, learned Advocate appearing on behalf of the respondents, that the appellant was found guilty of the charge of commission of grave misconduct as framed under memorandum dated October 3, 2002. According to him, paragraph 42 of the said Scheme, 1995 empowered the respondent no.5 to withhold or withdraw pension of the appellant or a part thereof, whether permanently or for a specified period, in the event the appellant had been found guilty of grave misconduct. According to Mr. Ghosh, the order of penalty of “withdrawal of pension” of the appellant was not passed by the respondent no.5 without jurisdiction.

Drawing our attention towards the averment made in paragraph 44 of the affidavit-in-opposition affirmed on behalf of the respondents, it is submitted by him that the above order of the respondent no.5 was ratified by the Board of the respondent no.5 in its 297th meeting dated March 31, 2000 in compliance of the provisions of first proviso to paragraph 47 of the said Scheme, 1995.

Reliance is place by Mr. Ghosh on the decisions of