T. Sivadasan v. Life Insurance Corporation of India and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **MONDAY, THE 11TH DAY OF DECEMBER 2017/20TH AGRAHAYANA, 1939** **WP(C).No. 17786 of 2014 (W) ----------------------------** **PETITIONER:** ## **-----------** **T.SIVADASAN, ASSISTANT BRANCH MANAGER, LIFE INSURANCE CORPORATION OF INDIA, KUNNAMKULAM BRANCH, THRISSUR DISTRICT.** **BY SRI.K.RAMAKUMAR (SENIOR ADVOCATE) ADVS.SRI.S.M.PRASANTH SRI.M.MANOJKUMAR (CHELAKKADAN) SMT.ASHA BABU SMT.AMMU CHARLES** ## **RESPONDENT(S):** **--------------** **1. THE LIFE INSURANCE CORPORATION OF INDIA, CENTRAL OFFICE, YOGASHEMA, JEEVAN BHIMA MARG., MUMBAI - 400 021, REPRESENTED BY ITS MANAGING DIRECTOR.** **2. THE ZONAL MANAGER (DISCIPLINARY AUTHORITY), LIFE INSURANCE CORPORATION OF INDIA, SOUTHERN ZONAL OFFICE, LIC BUILDING, ANNA SALAI, P.B.NO.2450, CHENNAI - 600 002.** **3. THE SENIOR DIVISIONAL MANAGER, LIFE CORPORATION OF INDIA, DIVISIONAL OFFICE, THRISSUR, THRISSUR DISTRICT, PIN - 680 001.** **BY SRI.S.EASWARAN, SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27-11-2017, THE COURT ON 11-12-2017 DELIVERED THE FOLLOWING:** **mbr/** ## **WP(C).No. 17786 of 2014 (W) ----------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** |**EXHIBIT P1.**|**TRUE**||**COPY OF CHARGE - SHEET DATED 08.02.2012**| |---|---|---|---| ||**ISSUED BY R2.**||| |**EXHIBIT P2.**|**TRUE**||**COPY OF ORDER DATED 26.09.2005 ISSUED BY**| ||**R2.**||| |**EXHIBIT P3.**|**TRUE**||**COPY OF PROCEEDINGS DATED 11.03.2006 ISSUED**| ||**BY R1.**||| |**EXHIBIT P4.**|**TRUE**||**COPY OF SHOW CAUSE NOTICE DATED 10.07.2007**| ||**ISSUED BY R2.**||| |**EXHIBIT P5.**|**TRUE**||**COPY OF REPRESENTATION DATED 20.07.2007**| ||**SUBMITTED BY THE PETITIONER.**||| |**RESPONDENTS' **|**EXHIBITS**<br>**:**||| |**EXHIBIT R3A:**|**COPY**||**OF THE FINAL ORDER DATED 12.7.2014 ISSUED**| ||**BY THE ZONAL MANAGER.**||| ||||**//TRUE COPY//**| ||||**P.S. TO JUDGE**| |**mbr/**|||| **A.MUHAMED MUSTAQUE, J.** ========================= **W.P.(C).No.17786/2014 “C.R.”** ~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 11[th] day of December, 2017 ## **W.P.(C).No.17786/2014 “C.R.”** ## **J U D G M E N T** 1. The petitioner is an employee of the Life Insurance Corporation of India (“LIC” for short). He has been punished in the departmental proceedings. The penalty imposed on him is reduction in basic pay by four stages and recovery of loss by Rs.50,637.18. On same set of allegations, a criminal case was also registered against him. He was convicted by the criminal court. The disciplinary authority further imposed a punishment of removal from service consequent upon conviction in criminal case. The petitioner challenges imposition of penalty of removal from service. According to him, an employee cannot be penalised twice on the same cause of action or on the same set of facts. 2. The petitioner approached this court when he was served with a show cause notice proposing imposition of penalty ``` WPC 17786/2014 ``` ## **-:2:-** of removal from service. This writ petition is pending from the year 2014 onwards. Along with I.A.No.5980/2017 filed by the third respondent, the final order of imposition of penalty has been produced. This order is dated 12.7.2014. Though, there is no challenge against the final order by way of an amendment of the writ petition, nevertheless, the petitioner having challenged the showcause notice, the failure to challenge the final order does not assume much importance in this case as he challenges the very authority of imposing such punishment proposed in the show cause notice. The case of the petitioner is that an employee cannot be punished twice on the same cause of action. 3. The learned Senior Counsel for the petitioner argued that the employer had the option to wait till the outcome of the criminal case to impose penalty in departmental proceedings. Having not exercised such option and having chosen to impose penalty initially in departmental proceedings without awaiting the outcome in the criminal case, the employer is estopped from imposing penalty for ``` WPC 17786/2014 ``` ## **-:3:-** the second time. It is also argued that such action of the employer is violative of Articles 14 and 21 of the Constitution of India. He also relied on the following judgments: i. **Ranganathan v. Assistant Commandant, C.I.S.F. Unit [2015 (2) KLT 429]** **ii. Nand Kumar Verma v. State of Jharkhand and Others [(2012) 3 SCC 580]** **iii. Union of India and Another v. Tulsiram Patel [(1985) 3 SCC 398].** 4. Per contra, the learned Standing Counsel for the LIC, after adverting to the Regulation 39(4) of the Life Insurance Corporation of India (Staff) Regulations, 1960 (hereinafter referred to as the “Regulations”), argued that when power is conferred on LIC to impose such punishment, it is within the competence of the LIC to impose second punishment based on the conviction on criminal charges. He relied upon the judgment of the Hon'ble Supreme Court in the **State of Haryana v. Balwant Singh [(2003) 3 SCC 362]** in support of the said argument **.** 5. The second penalty imposed on the petitioner is relying upon Regulation 39(4) of the Staff Regulations. It is ``` WPC 17786/2014 ``` ## **-:4:-** ## appropriate to refer relevant Regulation, which reads as follows: ## “ **Penalties** : 39.(1)Without prejudice to the provisions of other regulations, [any one or more of]* the following penalties for good and sufficient reasons, and as hereinafter provided, be imposed [by the disciplinary authority specified in Schedule-I]* on an employee who commits breach of regulations of the Corporation, or who display negligence, inefficiency or indolence or who knowingly does anything detrimental to the interest of the Corporation, or conflicting with the instructions or who commits a breach of discipline, or is guilty of any other act prejudicial to good conduct-- - (a) Censure; - *(b) Withholding of one or more increments either permanently or for a specified period; - (c) recovery from pay or such other amount as may be due to him of the whole or part of any pecuniary loss caused to the Corporation by negligence or breach of order; - (d) reduction to a lower service, or post, or to a lower time scale, or to a lower stage in a time-scale; - (e) compulsory retirement; - (f) removal from service which shall not be a disqualification for future employment; - (g) dismissal. *(2) 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 I ``` WPC 17786/2014 ``` ## **-:5:-** 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 the 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. (4) Notwithstanding anything contained in sub-regulations (1) and (2) above-- (i) where a penalty is imposed on an employee on the grounds of conduct which had led to a conviction on a criminal charge; or (ii) where the authority concerned is satisfied, for reasons to be recorded in writing, that it is not reasonably practicable to follow the procedure prescribed in this regulation; or []** Notified in Gazette of India. Part-III Sec.4 dated 7.8.1971. *Notified in Gazette of India, Part-III Sec.4 dated 7.8.1971. *(iii) where an employee has abandoned his post, the disciplinary authority may consider the circumstances of the case and pass such orders thereon as it deems fit. *Explanations: 1. For the purpose of this regulation, an employee shall be deemed to have abandoned his post if he absents himself from duty without leave or overstays his leave for a continuous period of ninety days without any intimation therefor in writing. ## **`WPC 17786/2014`** ## **-:6:-** 2. All communications under this regulation and copies of orders passed thereunder may be delivered personally to the employee if he is attending office; otherwise they shall be sent by registered post to the address noted in the service record. Where such communications or copies of orders cannot be served on him personally or by registered post, copies thereof shall be affixed on the notice board of the office in which the employee is employed, and on such affixing such communications and orders shall be deemed to have been properly served on him.” ## 6. The Regulation as above would clearly indicate that the employer has the power to impose a punishment on an employee on the grounds of conduct which had led to the conviction on criminal charges. The Regulation 39(4) begins with a non-abstantive clause, means to refer that, notwithstanding the punishment imposed under the departmental proceedings, if the conduct had led to the conviction on criminal charges, the employer has every power to impose the penalty. Thus, when an employee suffers a penalty in departmental proceedings, he is aware that he is likely to suffer further penalty based on the conviction on criminal charges. When service Regulation provides measures to impose such penalty, it has to be understood that the punishment imposed in departmental ``` WPC 17786/2014 ``` ## **-:7:-** proceedings is tentative and subject to the outcome on criminal charges. 7. _Nemo debet bis vexari pro una et eadem causa_ meaning that no one shall be vexed twice for the same offence more than once. In **Union of India and Another v. P.D.Yadav [(2002) 1 SCC 405]** , the Apex Court, after adverting to the above maxim and Article 20(2) of the Constitution, was of the view that application of the principle of double jeopardy does not arise when the proceedings are initiated on the same set of facts under two different Regulations. That was a case where an army personnel was punished under General Court Martial invoking Section 71 of the Army Act, 1950 and, thereafter, by invoking Regulation 16(a) of the Navy (Pension) Regulations, 1964 an order for forfeiture of pension was imposed. Though, both the actions emanate from the same set of allegations, taking note of the nature of the power derived from a different source, the Apex Court was of the view that the principles of double jeopardy do not arise in such case. In **Union of India and Others v.** ``` WPC 17786/2014 ``` ## **-:8:-** **Sunil Kumar Sarkar [(2001) 3 SCC 414]** also a similar view was taken. The judgment relied on by the learned Standing Counsel for the LIC has no relevance in the case in hand as the fact situation therein clearly shows that the second penalty was imposed on a new set of facts; the first set of facts was on negligence in driving and the second set of facts was based on the award of MACT which had resulted in loss to the employer. 8. The Madras High Court in **District Revenue Officer, The Revenue Divisional Officer and The Registrar, Tamil Nadu Administrative Tribunal [MANU/TN/0737/2009]** had also considered an issue based on principles of double jeopardy and held that second penalty of dismissal on same cause of action for which the employee was already punished is illegal. As rightly argued by the learned Senior Counsel for the petitioner, that is the correct proposition of law. The principles of double jeopardy equally would apply in departmental proceedings. If an employee has to suffer penalty twice; one based on departmental proceedings and, the other is based on the ``` WPC 17786/2014 ``` ## **-:9:-** conviction in criminal proceedings; certainly, the principles of double jeopardy apply, if the first of such penalty is the final penalty imposed on the delinquent employee. 9. However, when necessary enabling power is provided under service Regulations, the punishment already suffered in departmental proceedings will have to be treated as tentative subject to the outcome on criminal charges. Regulation 39(4) confers power on the disciplinary authority to impose the penalty based on criminal charges. That power makes it clear that original penalty imposed on petitioner was subject to any proceedings pending on criminal charges. Thus, the disciplinary authority reserved its power to invoke higher penalty depending upon the outcome on criminal charges. The petitioner is presumed to have knowledge of his own service Regulation. If the punishment imposed in the criminal case is not final, on acquittal in appeal or revision, the penalty so imposed based on the conviction in criminal charge will extinguish and the original penalty will stand restored. In such circumstances, the petitioner will be ``` WPC 17786/2014 ``` ## **-:10:-** entitled to all consequential service benefits in accordance with law including salary for the period during which he was kept out of service. 10.In conclusion, this court has to hold that when service Regulation provides as such to impose the penalty on the same set of facts based on the conviction by a criminal court, the employer has every power to impose such penalty. The writ petition, therefore, fails and is accordingly, dismissed. No costs. Sd/- ## **A.MUHAMED MUSTAQUE, JUDGE** ms