K.J. Thomas v. Life Insurance Corporation of India and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **WEDNESDAY, THE 17TH DAY OF JULY 2013/26TH ASHADHA, 1935** ## **WP(C).No. 27931 of 2010 (N)** **----------------------------------------** ## **PETITIONER(S):** ## **------------------------** **K.J.THOMAS, S/O.THE LATE JOSEPH, AGED 58 YEARS, KOLARAYIL HOUSE, THALAYOLA PARAMBU P.O. KOTTAYAM - 686605.** **BY ADVS.SRI.O.V.RADHAKRISHNAN (SR.) SMT.K.RADHAMANI AMMA SRI.K.RAMACHANDRAN (THYKOODAM)** **RESPONDENT(S):** - **----------------------------** **1. LIFE INSURANCE CORPORATION OF INDIA, REPRESETNED BY ITS CHAIRMAN, CENTRAL OFFICE, YOGAKHEMA P.O. JEEVAN BIMA MARG, MUMBAI-400021.** ## **2. CHAIRMAN,** - **LIFE INSURANCE CORPORATION OF INDIA, CENTRAL, OFFICE YOGAKHEMA P.O., JEEVAN BIMA MARG, MUMBAI-400021** **3. ZONAL MANAGER, LIFE INSURANCE CORPORATION OF INDIA, SOUTHERN ZONAL OFFICE, LIC BUILDING, ANNASALAI P.O., CHENNAI-600002** **4. SENIOR DIVISIONAL MANAGER, LIFE INSURANCE CORPORATION OF INDIA DIVISIONAL OFFICE, NAGAMPADAM P.O., KOTTAYAM -686001.** **R1-4 BY ADV. SRI.S.EASWARAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/02/2013, THE COURT ON 17/07/2013 DELIVERED THE FOLLOWING:** **tss** ## **W.P.(C) NO.27931/2010** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **P1:- COPY OF THE NOTICE DTD 24.9.1998 OF THE 4TH RESPONDENT.** ## **P2:- COPY OF THE REPRESENTATION DTD 7.10.1998 OF THE PETITIONER TO THJE 4TH RESPONDENT.** **P3:- COPY OF THE LETTER DTD 13.10.1998 ADDRESSED TO THE 4TH RESPONDENT.** **P4:- COPY OF THE LETTER DTD 26.1`0.1998 ADDRESSED TO THE 4TH RESPONDENT.** **P5:- COPY OPF THE LETTER DTD. 8.2.1999 ADDRESSED TO THE 4TH RESPONDENT.** ## **P6:- COPY OF THE PROCEEDINGS DTD 20.4.1999 OF THE 4TH RESPONDENT.** **P7:- COPY OF THE ORDER DTD. 4.12.1999 OF THE 3RD RESPONDENT ALONGWITH COVERING LETTER DTD.14.12.99.** **P8:- COPY OF THE ORDER DTD. 10.11.2000 OF THE 2ND RESPONDENT WITH COVERING LETTER DTD. 14.11.2000.** ## **P9:- COPY OF THE SBHOW CAUSE NOTICE DTD. 6.12.2000 OF THE 3RD RESPONDENT WITH COVERING LETTER DTD 8.12.2000.** ## **P10:- COPY OF THE REPRESENTATION DTD. 31.12.2000 OF THE PETITIONER TO THE 3RD RESPONDENT.** **P11:- COPY OF THE SHOW CAUSE NOTICE NO.MKTG/D-1KVR DTD.1.2.2001 OF THE 3RD RESPONDENT.** **P12:- COPY OF THE JUDGMENT IKN OP. NO.6090/2001 DTD. 21.11.20078 OF THIS HONOURABLE COURT.** **P13:- COPY OF THE LETTER DTD. 9.1.2008 OF THE PETITIONER TO THE 4TH RESPONDENT.** **P14:- COPY OF THE LETTER DTD 21.2.2008 OF THE PETITIONER TO THE 4TH RESPONDENT.** **P15:- COPY OF THE LETTER DTD. 23.2.2008 OF THE PETITIONER TO THE 4TH RESPONDENT.** **P16:- COPY OF THE ORDER DTD. 3.4.2008 IN RP. 408/2008 IN OP.6090/2001 OF THIS HONOURABLE COURT.** ## **P17:- COPY OF THE ORDER DTD. 20.4.2008 OF THE SENIOR DIVISIONAL MANAGER/DISCIPLINARY AUTHORITY.** **P18:- COPY OF THE LETTER DTD. 15.5.2008 OF THE PETITIONER TO THE 4TH RESPONDENT.** **tss** ## **W.P.(C) NO.27931/2010** ## **P19:- COPY OF THE LETTER DTD. 16.5.2008 OF THE 4TH RESPONDENT.** **P20:- COPY OF THE WRITTEN STATEMENT DTD. 24.5.2008 OF THE PETITIONER.** ## **P21:- COPY OF THE LETTER DT.D 24.5.2008 OF THE PETITIONER.** **P21(a):- COPY OF THE MINUTES OF THE INQUIRY CONDUCTED ON 24.5.2008 WITH TRANSLATION.** ## **P22:- COPY OF THE LETTER DTD. 28.5.2008 OF THE 4TH RESPONDENT.** **P23:- COPY OF THE LETTER DTD. 30.5.2008 OF THE PETITIONER TO THE 4TH RESPONDENT.** **P24:- COPY OF THE LETTER DTD. 4.6.2008 SUBMIKTTED IN RESPECT OF DOCUMENTS TO THE INQUIRY OFFICER.** **P25:- COPY OF THE LETTER DTD. 4.6.08 OF THE PETITIONER.** **P26:- COPY OF THE MINUTES OF THE INQUIRY PROCEEDING DTD. 4.6.08.** **P27:- COPY OF THE WRITTEN STATEMENT GIVEN BY SMT. A.C.CHINNAMMA DTD. 12.6.2008.** **P28:- COPY OF THE LETTER DTD. 12.6.08 SUBMITTED TO THE INQUIRY OFFICER.** **P29:- COPY OF THE LETTER DT.D 12.6.08 OF THE PETITIONER.** **P30:- COPY OF THE MINUTES OF THE INQUIRY PROCEEDINGS CONDUCTED ON 12.6.2008.** **P31:- COPY OF THE LETTER DTD. 2.7.08 OF THE 4TH RESPONDENT.** **P32:- COPY OF THE LETTER DTD. 8.7.2008 ISSUED BY THE INQUIRY OFFIOCER.** **P33:- COPY OF THE ORDER DTD. 24.6.2008 OF THE SENIOR DIVISIONAL MANAGER/THE DISCIPLINARY AUTHORITY.** **P34:- COPY OF THE LETTER DTD. 11.7.2008 OF THE PETITIONER TO THE 4TH RESPONDENT.** **P35:- COPY OF THE ORDER IN IA. 391/08 IN RP. 408/2008 IN OP. 6090/2001 OF THIS HONOURABLE COURT.** **P36:- COPY OF THE INQUIRY REPORT DTD. 29.7.08 OF THE ENQUIRY OFFICER. P37:- COPY OF THE SHOW CAUSE NOTICE DTD. 4.8.2008 OF THE 4TH RESPONDENT. P38:- COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER ON 11.87.08. P39:- COPY OF THE ORDER OF THE DISCIPLINARY AUTHORITY DTD. 14.8.08.** ## **tss** ## **W.P.(C) NO.27931/2010** ## **P40:- COPY OF THE PROCEEDINGS DTD. 15.7.08 ALONG WITH DEPOSITION OF SRI.JAYAKUMARAN THAMPI AND SRI.V.P.MOHANAN SUPPLIED TO THE PETITIONER.** ## **P41:- COPY OF THE DEPOSITIONS OF SRI.P.RADHAKRISHNAN ON 28.7.08.** **P42:- COPY OF THE APPEAL PETITION DTD. 12.11.2008 EXCLUDING THE ANNEXURES.** **P43:- COPY OF THE ORDER NO.MKTG./D-I/AD DTD.21.7.2009 OF THE 3RD RESPONDENT.** **P44:- COPY OF THE MEMORIAL DTD. 5.10.2009 OF THE PETITIONER TO THE 2ND RESPONDENT.** **P45:- COPY OF THE ORDER NO.MKTG/A/14(SPL)SZ) DTD.8.5.2010 OF THE 2ND RESPONDENT.** ## **P46:- COPY OF THE ORDER DT.DF 17.9.2003 IN OP. 381/1999 OF THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM.** ## **P47:- COPY OF THE ORDER DTR.D 14.5.2004 IN APPEAL NO.916/2003 AND IA 1288/2003 IN A.NO.916/2003 OF THE KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION THIRUVANANTHAPURAM.** ## **RESPONDENTS EXHIBITS** ## **NIL** ## **TRUE COPY** ## **P.A. TO JUDGE** **tss** ## **A.M.SHAFFIQUE, J** *** * * * * * * * * * * * *** W.P.C.No.27931 of 2010 ---------------------------------------Dated this the 17[th] day of July 2013 ## **J U D G M E N T** The writ petition is filed challenging Ext.P39 order dated 14/08/2008 by which the agency of the petitioner was terminated by the Life Insurance Corporation of India (for short 'LIC'). The facts as stated in the writ petition would disclose that on the basis of a show cause notice dated 24/09/1998 under Rule 16 of the Life Insurance Corporation of India (Agents) Rules 1972 (hereinafter referred as 'the Rules'), his agency was terminated. The said proceedings came to be finalised in appeal as well. Petitioner filed O.P.No.6090 of 2001 and by judgment dated 21/11/2007 at Ext.P12 this court having set aside the order of termination directed enquiry proceedings to be commenced afresh after affording sufficient opportunity to the petitioner to adduce evidence in support of his claim. 2 W.P.C.No.27931 of 2010 2. Pursuant to Ext.P12 judgment, the enquiry proceedings continued and finally Ext.P37 show cause notice was issued proposing termination of the agency and calling for explanation against the proposed penalty. The enquiry report is Ext.P36 and show cause notice is Ext.P37. Petitioner submitted Ext.P38 explanation which resulted in Ext.P39 order. He preferred an appeal before the appellate authority which came to be rejected as per Ext.P43 order dated 21/7/2009. Against Ext.P43 petitioner filed a review under Regulation 24 of the Regulations before the 2[nd] respondent as Ext.44 which was also came to be rejected as per Ext.P45. However, while confirming the termination of agency, the forfeiture of renewal commission was withdrawn. 3. The main contention urged by the petitioner is that while conducting disciplinary proceedings the respondents have not complied with the directions issued as per Ext.P12 judgment and that the disciplinary enquiry is W.P.C.No.27931 of 2010 3 held in gross violation of the principles of natural justice. According to the petitioner, his agency should have been excluded before proceeding with enquiry in terms of Ext.P4 judgment. He was not given an opportunity to have defence assistance which amounts to violation of natural justice. Petitioner has given a list of three witnesses and a list of three documents in the custody of LIC, Divisional Office, Kottayam by Ext.P21 letter dated 24/5/2008. According to the petitioner these three documents are very vital to prove his innocence and to that extent also the enquiry is vitiated for violation of the principles of natural justice. It is further contended that the manager has not adduced any evidence to prove the charge against him and no opportunity was given to the petitioner to adduce any evidence. That apart it is contended that the main witness one Shaji K.Joseph had stated that he had withdrawn his complaint. Petitioner furnished a list of seven witnesses and he had given up official witnesses 5 to 7. It is said that the W.P.C.No.27931 of 2010 4 enquiry officer had examined these witnesses and came to the finding that the charges alleged against the petitioner were proved. 4. Counter affidavit is filed supporting the stand taken by the disciplinary authority. It is contended that the disciplinary enquiry was conducted in accordance with the prescribed procedure and after giving sufficient opportunity to the petitioner to substantiate his contentions. According to the respondents the petitioner had participated in the enquiry proceedings and all the documents produced by him were allowed to be marked. In respect of three documents produced by the petitioner they were internal documents which were not liable to be produced in an enquiry proceedings nor in any further proceedings and therefore the enquiry officer had rightly rejected the request of the petitioner for production of these documents. It is further submitted that after the proceedings of the enquiry and its closure it was decided to reopen the enquiry and the W.P.C.No.27931 of 2010 5 petitioner was given an opportunity to cross-examine witnesses 5 to 7 who were officers of the Corporation. But the petitioner by letter dated 12/07/2008 refused to participate in the reopened enquiry stating that he is not interested in participating and cross-examination of the witnesses. It is stated by the respondents that Ext.P40 proceedings was necessitated on account of the fact that by order dated 24/6/2008 the disciplinary authority namely the Senior Divisional Manager had directed for reopening of the enquiry on account of the petitioner's complaint and that he was denied the opportunity to cross-examine the witnesses and acting on such complaint, orders were passed directing the enquiry proceedings to be reopened. LIC approached this Court seeking extension of time as the time for enquiry was about to be over. When the application was taken up for consideration, the petitioner's counsel informed the Court that he is not interested in cross-examining witnesses 5 to 7. Hence it is contended that it was not proper on the part of W.P.C.No.27931 of 2010 6 the petitioner to contend so as he has voluntarily refused to participate in the enquiry. In regard to the allegations it is contended that the misconduct against the petitioner stands proved and therefore he is entitled for the punishment imposed. Though the disciplinary authority had directed forfeiture of renewal commission the same was modified by the higher authority. 5. Learned counsel for the petitioner relied upon the following judgments. i) **Anand Narain Shukla v. State of Madhyapradesh** _[AIR 1979 SC 1923]_ . The proposition relied upon is that without reinstating the appellant it would have been difficult to start a fresh enquiry against the said person. That was a case where the appellant was an Office Superintendent in the Agricultural Department. He was found guilty in the enquiry and he was reverted to the lower rank. In a writ petition filed challenging the order of reversion the same came to be allowed holding that the W.P.C.No.27931 of 2010 7 enquiry was not proper and legal. He was reinstated in the original post of Office Superintendent. But shortly after, he was put under suspension and fresh proceedings commenced. Again he was reverted which was challenged by a fresh writ petition which came to be dismissed. The contention urged was that since the appellant was reinstated, no second enquiry on the very same charges could be held. This contention was found to be not correct and the Supreme Court has held that the order of reinstatement does not bring about any distinction in that regard. This judgment cannot be an authority for the proposition that an agency requires to be reinstated before initiating a fresh enquiry as directed by Ext.P12 judgment. ii) Another judgment relied upon is **Om Prakash Gupta v. State of U.P.** _[AIR 1955 SC 600]_ . That was a case in which a suit was filed for recovering arrears of salary on the basis that dismissal was illegal. It was contended that the order of suspension could only end with a valid W.P.C.No.27931 of 2010 8 order of dismissal. Supreme Court held that when an order of dismissal by way of penalty had been passed against the appellant the order of suspension lapses and the subsequent declaration by the Supreme Court that the order of dismissal was illegal could not revive the order of suspension which did not exist. The contention urged is that in the present case is that when the order of termination of agency was set aside by this Court as per Ext.P12 judgment, necessarily the petitioner was entitled for revival of the agency. I do not think that the factual circumstances arising in **Om Prakash Gupta** (Supra) has any application to the facts of this case. iii) Another judgment relied upon is **H.L.Mehra v. Union of India** _[AIR 1974 SC 1281]_ . That was a case where the question considered was whether the appellant was entitled to full pay and allowances as he was not under suspension during enquiry, which does not apply to the facts stated herein. W.P.C.No.27931 of 2010 9 iv) **Delhi Transport Corporation v. D.T.C. Mazdoor Congress** _[1991 Suppl (1) SCC 600]_ is relied upon to contend for the position that in the absence of a specific provision in a statute or rules made thereunder for showing cause against action proposed to be taken against an individual which affects the right of that individual, the duty to give reasonable opportunity to him will be implied from the nature of the functions to be performed by the authority which has the power to take punitive or damaging action. Paragraph 202 was specifically referred which reads as under: _**“202.** Thus on a conspectus of the catena of cases decided by this Court the only conclusion that follows is that Regulation 9(b) which confers powers on the authority to terminate the services of a permanent and confirmed employee by issuing a notice terminating the services or by making payment in lieu of notice without assigning any reasons in the order and without giving any opportunity of hearing to the employee_ W.P.C.No.27931 of 2010 10 _before passing the impugned order is wholly arbitrary, uncanalised and unrestricted violating principles of natural justice as well as Article 14 of the Constitution. It has also been held consistently by this Court that the government carries on various trades and business activity through the instrumentality of the State such as Government Company or Public Corporations. Such Government Company or Public Corporation being State instrumentalities are State within the meaning of Article 12 of the Constitution and as such they are subject to the observance of fundamental rights embodied in Part III as well as to conform to the directive principles in Part IV of the Constitution. In other words the Service Regulations or Rules framed by them are to be tested by the touchstone of Article 14 of Constitution. Furthermore, the procedure prescribed by their Rules or Regulations must be reasonable, fair and just and not arbitrary, fanciful and unjust. Regulation 9(b), therefore, confers unbridled, uncanalised and arbitrary power on the_ W.P.C.No.27931 of 2010 11 _authority to terminate the services of a permanent employee without recording any reasons and without conforming to the principles of natural justice. There is no guideline in the Regulations or in the Act, as to when or in which cases and circumstances this power of termination by giving notice or pay in lieu of notice can be exercised. It is now well settled that the ‘audi alteram partem’ rule which in essence, enforces the equality clause in Article 14 of the Constitution is applicable not only to quasijudicial orders but to administrative orders affecting prejudicially the party-in-question unless the application of the rule has been expressly excluded by the Act or Regulation or Rule which is not the case here. Rules of natural justice do not supplant but supplement the Rules and Regulations. Moreover, the Rule of Law which permeates our Constitution demands that it has to be observed both substantially and procedurally. Considering from all aspects Regulation 9(b) is illegal and void as it is arbitrary,_ W.P.C.No.27931 of 2010 12 _discriminatory and without any guidelines for exercise of the power. Rule of law posits that the power is to be exercised in a manner which is just, fair and reasonable and not in an unreasonable, capricious or arbitrary manner leaving room for discrimination. Regulation 9(b) does not expressly exclude the application of the ‘audi alteram partem’ rule and as such the order of termination of service of a permanent employee cannot be passed by simply issuing a month’s notice under Regulation 9(b) or pay in lieu thereof without recording any reason in the order and without giving any hearing to the employee to controvert the allegation on the basis of which the purported order is made.”_ v) Another judgment relied upon is **Basudeo Tiwary v. Sidokanhu University** [1998(8) SCC 194] reference is made to paragraphs 8 and 9 which reads as under: _**“8.** Several contentions have been addressed by learned counsel on either side. However, for the purpose of disposal of this appeal, it is suffice to consider only one_ W.P.C.No.27931 of 2010 13 _aspect of the matter and that is, whether the appellant had been given an opportunity of being heard before terminating his services and in the absence of the same, whether such termination is valid. The High Court took the view that the appointment of the appellant made by the Syndicate of the University by its resolution dated 24-1-1986 is illegal and on that basis took the view that the termination of the services was in order but did not examine the aspect with which we are concerned in the present case as to the non-observance of the rule of audi alteram partem._ _**9.** The law is settled that non-arbitrariness is an essential facet of Article 14 pervading the entire realm of State action governed by Article 14. It has come to be established, as a further corollary, that the audi alteram partem facet of natural justice is also a requirement of Article 14, for natural justice is the antithesis of arbitrariness. In the sphere of public employment, it is well settled that any action taken by the_ W.P.C.No.27931 of 2010 14 _employer against an employee must be fair, just and reasonable which are the components of fair treatment. The conferment of absolute power to terminate the services of an employee is an antithesis to fair, just and reasonable treatment. This aspect was exhaustively considered by a Constitution Bench of this Court in Delhi Transport Corpn. v. D.T.C. Mazdoor Congress.”_ 6. On the other hand, the Learned counsel for the respondents relied upon the judgment of the Supreme Court in **State of Punjab and Others v. Dr.Harbhajan Singh Greasy** [(1996) 9 SCC 322] especially paragraph 3 which reads as under: _**“3.** It is seen that the Enquiry Officer’s report is based on the alleged admission made by the respondent. But, unfortunately, the Enquiry Officer has not taken his admission in writing. Subsequently, the respondent has denied having made any admission. As against the denial of the delinquent, we have_ W.P.C.No.27931 of 2010 15 _only the statement of the Enquiry Officer which is not supported by any statement in writing taken from the respondent. Under those circumstances, High Court may be justified in setting aside the order of dismissal. It is now a well-settled law that when the enquiry was found to be faulty, it could not be proper to direct reinstatement with consequential benefits. Matter requires to be remitted to the disciplinary authority to follow the procedure from the stage at which the fault was pointed out and to take action according to law. Pending enquiry, the delinquent must be deemed to be under suspension. The consequential benefits would depend upon the result of the enquiry and order passed thereon. The High Court had committed illegality in omitting to give the said direction. Since the respondent had retired from service, now no useful purpose will be served in directing to conduct enquiry afresh. However, the respondent is not entitled to the back wages as he avoided responsibility as a doctor to treat the flood_ W.P.C.No.27931 of 2010 16 _victims and that was cause for the suspension.”_ 7. Heard learned counsel appearing on either side. The scope of judicial review in matters relating to disciplinary enquiry is well settled. This is an enquiry conducted by the Insurance Company in terms of the Rules. The matter complained of in the show cause notice reads as under: _“1. That you had rendered a cheque No.21427 to L.I.C of India, Vaikom Branch on 23/10/1996 for Rs.29,041.50 drawn on Vadayar Service Co-operative Bank from Account No 2822 of one of your relatives. The cheque was remitted to the Branch for revival of policy No.78065269 of Sri.Shaji Joseph K. This cheque was submitted by you in the Branch with your special request for revival of the above policy._ _Sri.Shaji Joseph, life assured of the above policy had lodged a complaint dated 15-6-98 against you which stated that_ W.P.C.No.27931 of 2010 17 _(i) Since inception of the policy quarterly premium at the rate of Rs.1954/was handed over to you in cash, but no receipt from LIC of India was given to him for the 21 instalments of premium._ _(ii) You have mislead him and submitted some papers saying that a loan can be arranged from LIC of India._ _(iii) You had paid him Rs.20200/- by cash in November 96 as survival benefit due on the above policy No.780605269._ _(iv) Even though he had not undergone medical examination for revival, a medical report and health declaration were submitted at the time of revival of policy in which signature of the life assured does not appear to be genuine._ _2. By your above actions you have forced the policy to remain in the lapsed condition for more than five years. Also you have paid Rs.20200/- by cah to the policy holder in lieu of survival benefit of a policy._ _3. Moreover, cheque leaves from the same bank account with serial No.21422,_ W.P.C.No.27931 of 2010 18 _21423 have been used to remit arrears for premia for two other policies pertaining to customers who have taken policies through your agency._ _4. From the above, I understand that you have entered into unauthorised cash transactions by remitting premia through third party cheques and misappropriated the money received from policy holders fraudulently and thus acted in a manner prejudicial to the interest of the Corporation as well as policy holders and also violated provisions under Rule 8(3)(b)(c) & 8(4) of the Life Insurance Corporation of India (Agents) Rules 1972.”_ 8. It cannot be disputed that the allegations are serious in nature. Agents appointed by the LIC are subject to the rules framed which inter alia permits the LIC to conduct enquiry in the matter. Therefore, if the enquiry has been conducted in accordance with the procedure prescribed and complying with the principles of natural justice, the scope of judicial review is very limited unless the W.P.C.No.27931 of 2010 19 petitioner is able to point out that the order passed is so perverse or irrational or that the punishment imposed is grossly disproportionate to the proved charges. 9. The main contention urged by the learned counsel for the petitioner is that the enquiry was conducted without reinstating him as an agent. In fact, the petitioner is not an employee of LIC. He is only an agent whose appointment is made subject to the terms of a contract and he is bound by the rules framed for the Agency. The nature of obligations as far as an agent is concerned is similar to any other agent who works only at the pleasure of the Principal. Once the agency is terminated, there is an automatic cessation of office. This is not a case where, similar to appointment of Government servants where a reinstatement in service is required for conducting a disciplinary enquiry. In fact, there is no necessity to even suspend the operations as once the show cause notice is issued unless he is relieved from the charges he cannot function as an agent of LIC. Such being W.P.C.No.27931 of 2010 20 the position, the argument that in the absence of a reinstatement of agency, the respondents could not have been proceeded further by way of disciplinary proceedings is unsustainable. The judgment relied upon does not apply to the facts of this case. 10. The second objection raised is violation of natural justice. According to the petitioner, he was not given an opportunity to engage a defence person and though he had called upon the respondents to furnish three documents, the said request was rejected and three witnesses were examined behind his back. It is argued that though witnesses were cited by him, when he expressed his intention not to examine those witness, it was not fair on the part of the LIC to examine those witnesses. 11. First of all, according to the respondent there is no procedure to engage an assistant for defending the proceeding during enquiry. The rules does not permit appointment of any person to assist the petitioner. Hence I W.P.C.No.27931 of 2010 21 do not think failure to permit a defence assistant can be a reason to set aside the proceedings. 12. Further, it is evident from the counter affidavit filed by the respondents that at one stage of the proceedings, the petitioner himself informed the LIC enquiry officer that he does not intend to participate in the enquiry. Ext. P34 is relied upon by the respondents which is a letter issued by the petitioner to the Senior Divisional Manager stating that the respondent has no authority to continue the enquiry beyond 03/07/2008 unless a fresh/extension of time is ordered by the High Court and that he will not be attending the illegal enquiry fixed by the enquiry officer on 15/07/2008. It seems that by Ext.P35 this Court had granted extension of time by one month as per order dated 15/07/2008. In the enquiry report at Ext.P36, it could be seen that letters were sent to the petitioner as well as to witnesses 5 to 7 to appear on 15/07/2008. Ext.P34 is the reply in which the petitioner had expressed his intention not W.P.C.No.27931 of 2010 22 to participate in the enquiry fixed by the officer on 15/07/2008. But, in the meantime, an application was filed before the High Court for extension of time which was allowed on 15/07/2008. In the report, the Enquiry officer has stated that the enquiry was adjourned from 15/07/2008 to 28/7/2008 and witnesses 6 and 7 were present on 15/07/2008 and they were examined. The 5[th] witness was examined on 28/7/2008. Therefore, it is evident that the petitioner did not participate in the enquiry after 15/07/2008 despite the fact that the High Court has extended the time for conducting the enquiry. Hence it is not open for the petitioner to complain that no opportunity was granted to him to cross-examine the witnesses. 13. Another contention urged by the petitioner is that witnesses 5 to 7 were cited by him; but the petitioner having not chosen to examine them it was not open for the LIC to examine those witnesses. Ext.P29 is the said letter dated 12/06/2008. In the said letter the petitioner complained that W.P.C.No.27931 of 2010 23 in the absence of documents it will be futile to examine witnesses 5, 6 and 7 from the list of witnesses and therefore he is dropping them. It is also stated that he is not intending to examine witness No.2 and witness No.1 and the documents produced by him are sufficient as proof of his defence. 14. Though the petitioner had informed the enquiry officer that he does not intend to examine certain persons, unless the enquiry officer dispenses with their presence petitioner is under obligation to participate in the enquiry. Enquiry officer is a fact finding authority. There is no prescribed procedure to be followed under the rules. Statements of various persons are taken. Only if any person intends to cross-examine a witness, an opportunity is given. All the witnesses cited by the petitioner were examined. Though he had requested to drop three LIC officers, the enquiry officer had examined them. There is no illegality or irregularity in such a procedure as the enquiry officer has W.P.C.No.27931 of 2010 24 not passed any order stating that they will not be examined. It is open for LIC to examine any person from their office to prove the charges and witnesses 5 to 7 can only be termed as such persons. If the petitioner wanted to cross-examine those witnesses he could have availed such a remedy by seeking an opportunity to cross-examine those witnesses. He did not do so. Therefore it cannot be contended that the petitioner was not given an opportunity to adduce evidence. 15. Next contention is regarding the non-production of three documents which the petitioner had requested for. The following are the documents which he had requested for as per Ext.P21. i) Copy of the recommendation letter sent by Senior Divisional Manager to the Zonal Manager Chennai to revive Policy no.780605269 on the life of Sri.Shaji Joseph K. as a special case. ii) The copy of the decision taken by the Zonal Manager, allowing the revival of the above policy as a W.P.C.No.27931 of 2010 25 special case. iii) The copy of the report made by the then Branch Manager, LIC of India, Vaikom to the Senior Divisional Manager, Kottayam forming the base of the charge sheet issued to me on 24/09/1998. 16. By Ext.P24 petitioner produced various documents and document Nos.18,19 and 20 are the documents which he had called for. By Ext.P25 dated 04/06/2008 he had requested for summoning witnesses 5, 6 and 7. In Ext.P28 letter dated 12/06/2008, it is stated that according to his firm conviction, documents Nos.18 and 19 are not in existence and that the recommendation of revival of policy No.780605269 of Sri.Shaji Joseph K. was only to threaten the complainant and to trap the petitioner. The reason for not giving document Nos.18, 19 and 20 stated in the enquiry report is that they are official documents. The question is whether non-production of those documents has caused any prejudice to the petitioner in any manner. The allegation in W.P.C.No.27931 of 2010 26 the charge sheet is that the petitioner had issued a cheque for Rs.29,041.50/- to LIC of India as revival of policy No.780605269 of Shri.Shaji Joseph K. with a request to revive the policy. This cheque was dated 23/10/1996. Mr.Shaji Joseph had given a complaint dated 15/06/1998 stating that though he had paid quarterly premium at the rate of Rs.1954/- to the petitioner he has not given any receipt for the 21 installments of premium. The petitioner had paid Rs.20,200/- by cash in November 1996 as survival benefit due on policy No.780605269 to Shri.Shaji Joseph.K. Still further a medical report and health declaration were submitted at the time of revival of policy in which the signature of the life assured was not genuine. The complaint against him is that he permitted the policy to remain in the lapsed condition for more than five years and he paid Rs.20,200/- to the policy holder as survival benefit of the policy. Cheque leaves of the same bank have been used to remit arrears of premium for two other policies. In fact, W.P.C.No.27931 of 2010 27 the complaint given by Shri.Shaji Joseph was withdrawn by him as per Ext.P3 dated 13/10/1998. The enquiry commenced based on the complaint of Shri.Shaji Joseph. In the enquiry report the enquiry officer has stated that the statement given by Shri.Shaji Joseph withdrawing the complaint against the petitioner was not credible. The other witness Smt.A.Chinnamma was the wife of the petitioner. It is proved that Shri.Shaji Joseph had given the complaint after convincing himself that only the first premium was received at the branch office. The enquiry officer relied upon the statement of the witnesses 5, 6 and 7 who were LIC officers. Witness No.5 Shri.Radhakrishnan gave a statement that Shri.Shaji Joseph had given a complaint against the petitioner and that attempts were made by the petitioner to revive the policy by giving a third party cheque. Witness No.6 also gave statement regarding the complaint by Shri.Shaji Joseph and that a third party cheque was issued by the petitioner for reviving the policy. Witness No.7 W.P.C.No.27931 of 2010 28 Shri.Jayakumaran also gave a statement regarding the complaint of Shri.Shaji Joseph and that only the first premium was paid under the policy and that Shri.Shaji Joseph had informed him that all premium were paid in cash on due dates to Shri.K.J.Thomas. It was after convincing about the allegation that Shri.Shaji Joseph had preferred the complaint, the disciplinary authority at Ext.P39 had taken note of the contentions aforesaid and formed an opinion that the complaint against the petitioner was genuine. The documents called upon to be produced by the LIC were only documents relating to revival of the policy which has nothing to do with the manipulation done by the petitioner. Petitioner does not have a case that he did not issue a third party cheque for reviving the policy. Under what circumstances the petitioner had given the third party cheque to LIC is not known. This apparently is a matter which is having very serious consequences and in that view of the matter, I do not think that the respondents had W.P.C.No.27931 of 2010 29 committed any illegality in conducting the enquiry or terminating the agency. In **State Bank of India v. Hemant Kumar** _[2011 (11) SCC 355]_ the Supreme Court had occasion to consider the issue regarding the procedure to be followed in a domestic enquiry. 17. Having regard to the fact that the respondents have complied with the procedural formalities for completing the enquiry, I do not think that sufficient materials are not available to invoke the jurisdiction of this Court for exercising the power of judicial review. As already indicated the punishment had been reduced to termination of agency without forfeiture of renewal commission. An agent who does not act in accordance with the terms of the agency cannot be permitted to continue. Apparently there had been a complaint which was found to be correct. Merely for the reason that the complainant had later withdrawn the complaint does not mean that the complaint is not in existence and any agent who does not comply with the rules W.P.C.No.27931 of 2010 30 of the agency has no right to continue once it is found by the enquiry officer that the complaint originally given by Shri.Shaji Joseph was genuine and the same was proved. The fact that he had withdrawn the said complaint will not enable the petitioner to claim any benefit. It is for the respondent Corporation to see whether such withdrawal of the complaint would result in dropping of the proceedings. The respondent Corporation, having considered the matter in detail and having formed an opinion that the petitioner is guilty of the charges levelled against him, the petitioner cannot escape the findings in the disciplinary proceedings. In the result, the writ petition is dismissed. (sd/-) ## **(A.M.SHAFFIQUE, JUDGE)** jsr W.P.C.No.27931 of 2010 31 W.P.C.No.27931 of 2010 32 W.P.C.No.27931 of 2010 33