# National Insurance Co. Ltd v. The Presiding Officer Central Govt. and another

- **Citation:** (2003) 2 ILRA 463
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-08-04
- **Case number:** Civil Misc. Writ Petition No.4637 of 1998
- **Bench:** Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/national-insurance-co-ltd-v-the-presiding-officer-central-govt-and-another-40123
- **Pages:** 4

## Headnote

Constitution
of
India-Article
226-
General Insurance (Conduct, discipline &
appeals) Rules, 1975- Service Law-
Removal from Service with direction of
full back-wages-Against award petition
filed-question-Burden to prove lies on
whom?

Held- Burden to prove lies on the party
who
envoke
jurisdiction
of
court-
Petition partly allowed with 50% of the
back wages from the date of reference to
the
date
of
retirement
with
10%
Interest.

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INDIAN LAW REPORTS ALLAHABAD SERIES [2003
464
Held- Para 10 & 14
Case law:
1979 (39) FLR 70
1996 (74) 2004
1984 (49) FLR 38

## Text

2 All] National Insurance Co. Ltd. V. The Presiding Officer Central Govt. and another
463
or Order XVIII of the First Schedule to
the Code of Civil Procedure, 1908."

14. All this would show that the
labour court did not exercise powers
vested in it and if any party was not able
to produce the documents, which could
have been filed, the labour court ought to
have summon those documents for
adjudication of the industrial dispute.

15. The recording of reason is a
factor constituting an essential component
of the principles of natural justice in the
eyes of law. It is one of the basic principle
of Constitution that the administrative
authorities have been empowered and
caste the duty to decide an act judicially
and it is for this reason that the
administrative authority is required to
give reasons in its order, so that it may not
act arbitrary. Since no reason has been
assigned, as such the order cannot be
sustained.

16. No reasons have been given by
the labour court in accepting the statement
of respondent no.2 that he had completed
240 days of service in one calendar year,
when the same was denied by the
employer that he had worked only 172
days.

17. Admittedly, the respondent no.2
was only engaged as a part time daily
worker in exigency of work by the Bank.
He was not working on any post and as
such the labour court has committed an
error of law in awarding reinstatement
instead of compensation. The findings of
the labour court are perverse and cannot
be sustained.

18. For the reasons stated above, the
writ petition succeeds and is allowed. The
impugned award dated 3.7.1997 in so far
as reinstatement is concerned, is quashed.
The petitioner is directed to pay wages for
six months at the rate of last drawn wages
with
10%
per
annum
interest
to
respondent no.2. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.08.2003

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No.4637 of 1998

National Insurance Company Ltd.

 ...Petitioner
Versus
The
Presiding
Officer,
Central
Government Industrial Tribunal, Kanpur
and another

 ...Respondents

Counsel for the Petitioner:
Sri A.K. Gupta
Smt. Sarita Singh
Sri Satish Chaturvedi

Counsel for the Respondents:
Sri K.P. Agrawal
Km. Suman Sirohi
Sri U.N. Sharma
S.C.

Constitution
of
India-Article
226-
General Insurance (Conduct, discipline &
appeals) Rules, 1975- Service Law-
Removal from Service with direction of
full back-wages-Against award petition
filed-question-Burden to prove lies on
whom?

Held- Burden to prove lies on the party
who
envoke
jurisdiction
of
court-
Petition partly allowed with 50% of the
back wages from the date of reference to
the
date
of
retirement
with
10%
Interest.

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INDIAN LAW REPORTS ALLAHABAD SERIES [2003
464
Held- Para 10 & 14
Case law:
1979 (39) FLR 70
1996 (74) 2004
1984 (49) FLR 38

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. Heard the counsel for the parties
and perused the record.

2. This writ petition has been filed
challenging the validity and correctness of
the award dated 13.5.1997 passed by the
Central Government Industrial Tribunal
cum labour court, Kanpur. By the
impugned award, C.G.I.T. has held that
the
order
of
removal
of
the
workman/respondent no.2 dated 4.6.1986
was quashed and that the workman is
entitled for reinstatement in service with
back wages from the date of reference.

3. The petitioner is an Insurance
Company in which respondent no.2 was
working as Inspector Grade-II. He was
charge
sheeted
for
the
following
misconducts:-

(a) Failure to maintain absolute integrity
thus committed breach of Rule 3 of the
General Insurance (Conduct, Discipline
and Appeal) Rules, 1975.
(b) Dishonesty in connection with the
business of the Company.
(c) Acting in a manner prejudicial to the
interest of the Company.
(d) Willful
insubordination
or
disobedience of lawful and reasonable
order of his superior.

4. The brief facts of the case are that
respondent no.2 was authorized to accept
the premium from the parties and to issue
the
certificate
in
insurance.
The
workman/respondent
no.2
issued
certificate
of
Insurance
No.111/
6302089/029863/12303/India
dated
20.11.1980 for comprehensive insurance
in respect of Tractor bearing Engine
No.35696 Escort 335 Model 1980,
belonging to one Kabiruddin son of Late
Abdul Majeed resident of village and post
Ahmadpur Asrauli, District Allahabad. He
did not deposit the premium receipts of
the aforesaid insurance documents issued
by him. He thus collected Rs.700/- in cash
as premium from the aforesaid insurer.
The Branch Officer/Company was thus
completely unaware about the aforesaid
risk. As per General Insurance (Conduct,
Disciplinary and Appeal) Rule, 1975, no
insurance document can be issued to any
party without prior receipt. Respondent
no.2, who received the amount, was
required to deposit the office copy or
copy of certificate of Insurance as well as
the amount with the branch office on the
very date of the receipt of premium or
latest by the following working day.

5. When the aforesaid facts came to
the notice of the Officers of petitioner's
company, respondent no.2 was directed
vide
letter
no.111/HSS/Vig/82
dated
13.3.1982 to return all used/unused
certificates of insurance and cover notes
lying with him, but inspite of clear
directions, he did not do so.

6. The respondent no.2 was charge
sheeted and after domestic enquiry,
charges levelled against him were found
proved.
The
Disciplinary
Authority
looking into seriousness of charges
proved against respondent no.2 passed the
penalty order removing him from service.
Aggrieved by the order, respondent no.2
filed an appeal against the order of
removal-dated
4.6.1986,
which
was
dismissed by the appellate authority.
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2 All] National Insurance Co. Ltd. V. The Presiding Officer Central Govt. and another
465
Thereafter, he submitted a memorial on
5.6.1989 before the Chairman cum
Managing Director of Insurance Company
and the competent authority under Rule
40 of the General Insurance (Conduct,
Discipline and Appeal) Rules, 1975
rejected the memorial of respondent no.2
dated 5.6.1989 and upheld the decision of
the removal passed by the competent
authority.
Aggrieved,
the
workman/respondent
no.2
raised
an
industrial dispute after six years, which
was referred by the State Government
after six years, which was referred by the
State Government for adjudication before
the C.G.I.T. Kanpur, by making following
reference:-

"Whether action of the management
of the Regional Manager, National
Insurance Co. Ltd. Allahabad in removing
Sri Anant Ram Saxena son of Late Sri
Badri Prasad Saxena, Inspector Grade-II
from the service vide order dated 4.6.1986
was just and legal? If not, to what relief is
the workman concerned entitled to?"

7. On the pleadings of the parties, a
preliminary issue regarding fairness and
propriety of the domestic enquiry was
framed. By finding dated 7.11.1996
C.G.I.T. Kanpur held that the enquiry was
not fair and proper and the management
was given an opportunity to prove
misconduct on merits.

8. Several dates were fixed by the
labour court, but the management failed
to adduce any evidence on 4.12.1996,
21.1.1997, 21.2.1997 and 26.3.1997.
Ultimately, the management was debarred
from giving evidence and the arguments
were heard on 28.4.1997.

9. By the impugned award, the
labour court held that the burden of
proving the misconduct as given in the
charge sheet rests with the management.
It has further held that the management
has failed to adduce evidence and as such
the charges have not been proved.
Consequently, the order of removal of
respondent
no.2
from
service-dated
4.6.1986 is bad in law. C.G.I.T. Kanpur
further held that the workman/respondent
no.2 is entitled for reinstatement in
service with back wages from the date of
reference because of belated claim.

10. The counsel for the petitioner
submits that the burden to prove the case
lies on the workman and the C.G.I.T. has
committed illegality in shifting the burden
of proof on the Insurance Company. He
states that the initial burden is on the
workman, who has to discharge the same
and only then the onus would shift on the
employer.
When
workman
raised
industrial
dispute
and
invoked
the
jurisdiction of the Court, he seeks relief of
setting aside the order of removal from
service and reinstatement with full back
wages. The workman after deciding the
preliminary issues that the enquiry was
not fair and proper. The burden of proof
was upon the workman to prove his case,
but he did not produce any evidence,
hence he has not discharged his burden. In
the case of V.K. Raj Industries Vs.
Labour Court and others, 1979 (39)
FLR 70, a Division Bench of this Court
held that if a party challenges the
illegality of an order, the burden lies on
him to prove the illegality of the order.
Reliance has been placed on Meritec
India Ltd. Vs. State of U.P. and others,
1996(74)
2004
and
Shankar
Chakravarti Bs. Britannia Biscuit Co.
Ltd., 1984(49) FLR 38. In the aforesaid
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INDIAN LAW REPORTS ALLAHABAD SERIES [2003
466
cases also it has been held that the burden
of proof lies on the party, who invokes the
jurisdiction of the court. "The test would
be, who would fail if no evidence is led."
The court answered that the person, who
invokes jurisdiction and raises the dispute,
has to discharge his burden of proof and
the onus shift on the other party. Thus
when the whole case was open before the
Tribunal, the burden to prove that the
order of removal was wrong, was on the
workman, who was challenging the order.
It appears that the workman did not
examine himself neither at the time of
decision
of
preliminary
issue
nor
thereafter. The pleadings are not proved.,
hence there was no evidence before the
Tribunal to prove that the order of
removal was illegal and the award is not
based on any evidence.

11. The second contention of
termination is covered by Section 25-F of
the U.P. Industrial Dispute Act, 1947. The
Apex
Court
in
Himanshu
Kumar
Vidhyarthi Vs. State of Bihar, 1997 (76)
FLR 237, has held that the services of a
workman are regulated by the statutory
Rules, concept of industry is excluded and
as such the award passed by the labour
court is also without jurisdiction.

12. Lastly, it has been submitted that
in para 11 of his written statement the
workman had stated that he was out of
employment for merely 19 years and has
prayed for lesser punishment, hence the
award of reinstatement with full back
wages was illegal. The reason has been
given by the labour court in awarding full
back wages.

13. In the writ petition there was an
interim order. From the counter affidavit,
it appears that the workman was aged
about 55 years. He must have retired by
now. No purpose would be served by the
order of his reinstatement at this stage.

14. For the reasons stated above, the
writ petition partly succeeds and is
allowed. The petitioner is directed to pay
50% of the back wages to respondent no.2
from the date of reference to the date of
his retirement with 10% interest, as the
workman had not worked during the
period, within two months from the date
of production of this order. The interim
order dated 10.3.1998 is vacated. No
order as to costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 5.8.2003

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE R.K. AGARWAL, J.

Special Appeal No. 523 of 2002

U.P.
Public
Service
Commission,
Allahabad

...Appellant
Versus
Surendra Kumar Singh ...Respondent

Counsel for the Appellant:
Sri B.N. Singh
Sri Neeraj Tiwari

Counsel for the Respondent:
Sri A.K. Bajpai
Sri S.P. Pandey
Sri J.P. Rai

U.P. Transport (Subordinate) Technical
Service Rules 1980-Rule 15 (3)-gives a
vide discretion to adopt any procedure
for selection of candidates. The court
cannot sit over the judgment and must
observe judicial restraint. (Para 11)
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