IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3887 OF 2002 WRIT PETITION NO. 3887 OF 2002 WRIT PETITION NO. 3887 OF 2002 Union of India & Ors. ...Petitioners (Orig.Respondents) V/s. N.K. Theckedath ...Respondent Mr.Ravi Shetty with Mr.N.R. Prajapati for the Petitioners. Mr.Sureh G. Pillai for the Respondent. CORAM : D.K. DESHMUKH & CORAM : D.K. DESHMUKH & CORAM : D.K. DESHMUKH & V.M. KANADE, JJ. V.M. KANADE, JJ. V.M. KANADE, JJ. DATED : JANUARY 30, 2008 DATED : JANUARY 30, 2008 DATED : JANUARY 30, 2008 P.C. :- P.C. :- P.C. :- 1. By this petition, the petitioner challenges the order passed by the Central Administrative Tribunal dated 19th July, 2001. By that order, the Tribunal has set aside the order dated 27th January, 1994 passed by the Disciplinary Authority as also the order of the appellate authority dated 27th July, 1994 by which order the order of the Disciplinary Authority was upheld. By the order dated 27th January, 1994, the Principal Director of Audit (Central) had imposed punishment on the respondent reducing the pay of the respondent by two stages from Rs.2975 to 2825 in the time scale of pay of Rs.2375-75-3200-EB-100-3500 for a period of two years with effect from 1st February, 1994 without cumulative - 2 - effect and not adversely affecting his pension. This order was passed as a consequence of departmental enquiry held against the respondent wherein the allegation of misconduct was made against the respondent. Appeal was filed against this order before the appellate authority. That appeal was rejected. Against that order, the CAT was approached. Perusal of the order of the CAT shows that the order has been set aside for two reasons 1) That the Principal Director of Audit (Central) who has made the order imposing the punishment is subordinate in rank to the appointing authority of the respondent and therefore, imposing of punishment is contrary to the provisions of Article 311(1) of the Constitution and (2) that though the Director of Audit has been designated as a competent authority, the competent authority designated being subordinate to the Head of the Department who is the appointing authority of the respondent, the order imposing punishment is improper. 2. We have heard the learned Counsel for both the parties. - 3 - 3. Article 311(1) of the Constitution reads as under :- 311(1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed." 4. Perusal of the above quoted Article makes it clear that Article 311(1) comes into play only in case punishment imposed is of dismissal or removal. Therefore, in the present case, provisions of Article 311(1) are not attracted because the punishment imposed on the respondent is neither dismissal nor removal. 5. So far as second ground is concerned, it is clear that so far as field officers like the respondents are concerned, the appointing authority is Head of the Department in rank of Principal Accountant - 4 - General/Accountant General and competent authority to impose penalty is Head of the Department in the rank of Principal Accountant General/Accountant General. It is clear from the Auditor General’s Manual that so far Civil Audit Office is concerned, Principal Director (Audit) has been designated as Head of Office, therefore, Principal Director (Audit) is the Head of the Department so far as respondent is concerned and therefore, as per the standing orders of the Auditor’s General Manual, the Principal Director (Audit) could be Head of the Department who will be competent to impose the penalty though he will be subordinate to the appointing authority of the petitioner. Perusal of the order of the CAT also shows that the CAT has accepted the submission on behalf of the petitioner that the Principal Director (Audit) has been designated as Head of the Department but it appears from the order of CAT that according to the Tribunal, despite designation of Principal Director (Audit) as Head of Department, he cannot impose punishment on the respondent because he continues to be subordinate to the appointing authority of the respondent. In our opinion, these observations - 5 - are contrary to law. We have not been pointed out any provision by the learned Counsel for the respondent which lays down that punishment other than removal and dismissal cannot be imposed on a member of civil service by an authority who is designated as competent authority who may happen to be subordinate to the appointing authority. The Rule that the punishing authority cannot be lower in rank than the appointing authority applies in view of the provisions of Article 311(1), only in case punishment is of dismissal or removal and in case of other penalties, the Government is free to designate an officer as disciplinary authority though that officer may be subordinate to the appointing authority of the concerned civil service. Thus, we find that both the reasons given by the Tribunal for interfering with the order imposing punishment on the respondent are not proper and in accordance with law. 6. In the result, therefore, the present petition is allowed. Rule is made absolute in terms of prayer clause (a). No order as to costs. - 6 - (D.K. DESHMUKH, J.) (D.K. DESHMUKH, J.) (D.K. DESHMUKH, J.) (V.M. KANADE, J.) (V.M. KANADE, J.) (V.M. KANADE, J.)