1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION W.P. NO. 1085 OF 1998 WITH CIVIL APPLICATION NO.522 OF 2007 Mrs.Sheila Rajan ] Residing at Prakash Park ] B-9, 147, Lulla Nagar, ] Pune-411040 ]..Petitioner Vs. 1. Union of India, through ] The Secretary, Ministry of ] Defence, New Delhi ] 110 001. ] 2. Director General Armed ] Forces Medical Services ] Ministry of Defence, ] `M ’ Block, DHQ PO ] New Delhi 110 001 ] 3. Commandant, ] Armed Forces, Medical ] College, Pune 411 040 ]..Respondents .... Mr.G.K.Masand Adv. for Petitioner Mr.Vinod Joshi with Mr.Y.R.Mishra Adv. for Union of India .... CORAM : BILAL NAZKI AND SMT.V.K.TAHILRAMANI,JJ. RESERVED ON : JUNE 09, 2009 DECLARED ON : JULY 10, 2009 2 ORAL JUDGMENT:[ PER V.K.TAHILRAMANI,J.] 1. The petitioner has challenged the order dated 3rd September, 1997 passed by the Central Administrative Tribunal in Original Application No. 1105 of 1992 by which the Tribunal has dismissed Original Application. The said Original Application was filed by the Petitioner challenging the order of compulsory retirement passed on 28th February, 1992 as well as the appellate order dated 7th August, 1992 by which the appeal filed by the petitioner against the order of compulsory retirement dated 28th February, 1992, is rejected. 2. The petitioner was appointed as Speech Therapist in November, 1971 in Armed Forces Medical College at Pune which is run by the Ministry of Defence. The post of Speech Therapist in the Armed Forces Medical College has been classified “Group-C ” post. The petitioner noticed that the post of Speech of Therapist in various other Central Government Hospitals were classified either as “Group-A ” or “Group-B ”. Hence, the petitioner took up the case for upgradation of the post of Speech Therapist at Armed Forces Medical College. As the petitioner did not get any relief, the petitioner approached Central Administrative Tribunal seeking directions to the Respondents to upgrade the post of Speech Therapist at Armed Forces Medical College. 3. While her case for upgradation was pending for consideration, the petitioner was served with Memorandum of charges dated 22nd May, 1991 by which the 3 petitioner was charged as follows: “(i) During the period from January 1989 to February, 1989, Mrs.Sheila Rajan, Speech Therapist of the Department of ENT of Armed Forces Medical College, while on duty at the civil OPD Speech Therapist Center, charged Rs.850/- as costs of hearing aid and having accepted that the said Mrs.Shiela Rajan, Speech Therapist has received Rs.100/- on 19th January, 1989 and Rs.200/- on 18th February, 1989 from Nos.775126(PA/L/NK) P K Samuel of Southern Command and Provost Unit, Pune. The stated monetary transaction was illegal and contrary to the prescribed Rules. ” 4. To sustain the charge, Inquiry Officer was appointed. The Inquiry Officer in his report came to the conclusion as reflected in paragraph 62 that on the basis of whatever has been stated by the defendant i.e. petitioner and whatever evidence which has been placed on record, the defendant has clearly failed to refute the charge leveled against her and held charge proved and held the petitioner guilty of misconduct. This shows that Inquiry Officer proceeded with the inquiry with an assumption that the petitioner was required to prove her innocence rather than the disciplinary authority was required to prove the charge by leading substantive evidence. This, despite the fact that Inquiry Officer had himself in his report held that on the basis of Exhibit-D-11 the established procedure of monetary transaction thus appeared to be logical or conclusive. 5. Petitioner has further contended that during the course of the inquiry, the petitioner had demonstrated that hearing aids not being available at Pune 4 during the relevant period to staff of ENT department, including the Head of Department Col.Kochar had been helping the patients having hearing problems for procuring hearing aids from manufacturers at costs which was to be borne by the patients or their relatives. The petitioner had also produced during the inquiry the record maintained by her in writing showing the monetary transaction. Except for bare denial, respondents had not produced any evidence to show that monetary transaction for procuring hearing aids for patients was not in vogue. Petitioner ’s case is that what the petitioner had done, was not uncommon as even her superior Col. Kochar had been similarly procuring the hearing aids for patients attended by him. Col.Kochar provided hearing aids to Shri. Buta Singh. There appears to be some substance in this contention of the petitioner if one looks into note dated 5th June, 1990 written by Shri.Buta Singh to Col. R.C.Kochar (Exhibit-D-11). 6. On conclusion of the inquiry, the Inquiry Officer submitted his report to the disciplinary authority and despite law laid down by the Supreme Court in the case of Union of India Vs. Mohd. Ramzan Khan reported in 1991 S.C.C. (L&S) at page 612, a copy of the inquiry report was not furnished to the petitioner requiring her to submit her representation against the inquiry report and imposed upon the petitioner penalty of compulsory retirement vide order dated 28th February, 1992. 7. Report of the punishment order shows absolute non-application of mind on the part of disciplinary authority who had acted in an arbitrary manner. In 5 the appeal filed against the order of compulsory retirement to the appellate authority the petitioner had taken as many as 20 grounds but the appellate authority disposed of the appeal by order dated 7th August, 1992 without considering any of the several grounds raised by the petitioner in her appeal. 8. Sub-Rule (2) of Rule 27 relating to appeal against order of punishment contained in Central Civil Services (Classification, Control and Appeal) Rules, (for short “C.C.S. Rules ”), provides as under: “27(2) In the case of an appeal against an order imposing any of the penalties specified in Rule 11 or enhancing any penalty imposed under the said rules, the Appellate Authority shall consider:- (a) whether the procedure laid down in these rules has been complied with and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice; (b) whether the findings of the disciplinary authority are warranted by the evidence on the record; and (c) whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe; and pass orders- (i) confirming, enhancing, reducing or setting aside the penalty; or (ii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such direction as it may deem fit in the circumstances of these cases; 6 provided that - (i) the Commission shall be consulted in all cases where such consultation is necessary: (ii) if such enhanced penalty which the Appellate Authority proposes to impose is one of the penalties specified in clauses (v) to (ix) of Rule 11 and an inquiry under Rule 14 has not already been held in the case, the appellate authority shall, subject to the provisions of Rule 19, itself hold such inquiry or direct that such inquiry be held in accordance with the provisions of Rule 14 and thereafter, on a consideration of the proceedings of such inquiry and make such orders as it may deem fit: (iii) if the enhanced penalty which the Appellate Authority proposes to impose is one of the penalties specified in clauses (v) to (ix) of Rule 11 has been held in the case, the appellate authority shall make such orders as it may deem fit after the appellant has been given a reasonable opportunity of making a representation against the proposed penalty; and (iv)no order imposing an enhanced penalty shall be made in any case unless the appellant has been given a reasonable opportunity, as far as may be in accordance with the provisions of Rule 16, of making a representation against such enhanced penalty ”. 7 9. Reading of the statutory provisions vis-a-vis the order passed by the Appellate Authority, shows that the Appellate Authority has not at all observed procedure contained in Sub-Rule (2) of Rule 27 of the Rules. The order of the Appellate Authority was passed in a mechanical and routine manner. 10.Being aggrieved by the order of the appellate authority, the petitioner had filed Original Application No. 1105 of 1992 before the Central Administrative Tribunal. The Central Administrative Tribunal rejected the said Original Application, hence, the present writ petition has been preferred. 11.Both the orders i.e. order passed by the disciplinary authority as well as order passed by the appellate authority are not only violative of the constitutional provisions but are also violative of principles of natural justice. These orders are also contrary to the law laid down by the Honourable Supreme Court of India in the case of Ram Chander Vs. Union of India and ors., reported in 1986 Lab.I.C. at page 885. In the case of Ram Chander the order of removal from service was set aside as the Supreme Court was of the opinion that there was no attempt on the part of the Railway Board to marshall the evidence on record with a view to decide about the sustainability of the findings recorded by the disciplinary authority and, further, in the order itself there was no indication that the Railway Board applied its mind as to whether the act of misconduct with which the railway servant concerned (appellant) was 8 charged together with the attendant circumstances and the past record of the appellant were such that he should have been visited with the extreme penalty of removal from service for a single lapse during the period of service. In our view, looking to the act of petitioner, the punishment imposed on the petitioner for compulsory retirement is extremely harsh and highly disproportionate to the charge leveled against the petitioner. From all the material on record, it is clear that the petitioner was not trying to gain something out of the act of the petitioner for procuring the hearing aids but act was done by her only with a view to help the hearing impaired persons. It is nobody ’s case that petitioner was charging more for the hearing aids than the price of the hearing aids. It is not any body's case that she gained something out of the said act. In such case, we feel that the penalty of compulsory retirement imposed on the petitioner, is highly disproportionate. In such case, the orders deserve to be set aside. 12.The impugned order was passed by the Central Administrative Tribunal as well as the order of punishment passed by the disciplinary authority and the order passed by the appellate authority rejecting the petitioner ’s appeal against the order of punishment, are set aside. The matter is remanded back to consider the matter afresh on the quantum of punishment. The authorities to consider the matter afresh and if at all, they come to the conclusion that it is still necessary to impose punishment on the petitioner, in such case, the lesser punishment may 9 be imposed on the petition. 13.With the above observations, petition is allowed. Rule made absolute accordingly. In view of the disposal of the writ petition, Civil Application is disposed of. [ BILAL NAZKI,J. ] [ SMT.V.K.TAHILRAMANI,J.]