The State of Maharashtra v. Dr. Mrs. Aruna P. Katke

1. Rule was issued on 25.07.2011. Heard learned Additional Government Pleader for the Petitioner/State and learned counsel for the sole Respondent finally.

2. By this petition, the State is challenging the judgment and order dated 29.04.2011 passed by the Maharashtra Administrative Tribunal, Mumbai (for short, “the Tribunal”) in Review Application No.68 of 2010 in Original Application No.815 of 2008 (for short, “the said OA”). By the said impugned order, the review was allowed and dismissal order dated 16.11.2010 was set aside with certain directions.

3. The Respondent was appointed as a Medical Officer (Class-II) with the Petitioner at Service Dispensary ESIS, Vile Parle. The services of the Respondent were temporary. During an audit, misappropriation, shortage and excess of drugs was found, which resulted in suspension of Respondent on 22.02.1991 and initiation of Departmental Enquiry (for short, “DE”) on 16.03.1991. It is the case of the Petitioner that since the Respondent was temporary employee, the Petitioner could have terminated her services even without holding a DE, however in order to give a fair chance, DE was held. An Enquiry Officer was appointed. Charge-sheet was served upon the Respondent on 24.03.1992. Charge was of misappropriation of drugs worth Rs. 50,837/-. She filed reply. It appears that the Department did not take immediate steps and enquiry started on 06.01.1998. The Respondent was dismissed from services ultimately by an order dated 20.07.2001.

4. The Respondent challenged this order by filing Departmental Appeal, which was also dismissed. The Respondent then filed the said OA challenging the order of her dismissal and order in Departmental Appeal. The Petitioner appeared and filed reply. The Tribunal rejected the contention of the Respondent holding that the findings of the Enquiry Officer is based on material on record. The Tribunal also found that for objections regarding discrimination about quantum of the punishment and its legality, relevant material was not produced before the Tribunal. The said OA was dismissed.

5. The Respondent filed review application, which was followed by reply, rejoinder etc. The review application was allowed and the order of Respondent’s dismissal as well as order of the Appellate Authority were set aside. The Respondent was directed to be reinstated in service and the Petitioner was given liberty to impose minor punishment on Respondent as imposed on others against whom the joint enquiry was held. The Respondent was held entitled to her pay and allowances for a period of three years prior to date of filing the said OA.

6. Mr. Walimbe, learned Additional Government Pleader submitted that there was no reason to review the order dated 16.11.2010, under which the said OA was dismissed. He submitted that the argument about discrimination while imposing the punishment was also considered. He submitted that the Respondent should have placed on record all the facts and circumstances with regard to co-delinquents and orders of punishment passed against them, which is not done and therefore it was correctly held that there is no discrimination. He submitted that the Respondent being a doctor, the gravity of misconduct was more as compared to the co-delinquents who are compounder and nurse. Therefore there is no reason to apply parity. He further submitted that the burden of proving that the Respondent is not working in the interregnum is upon the Respondent, which is not discharged. He submitted that the Respondent is a doctor by profession and it is unbelievable that she would sit idle without any work or earning for long time. He submitted that the impugned order suffered from perversity in as much as the Respondent was a temporary employee and therefore even DE was not necessary. He has relied upon the judgment of Chairman and Managing Director, United Commercial Bank and Ors. Vs. P.C. Kakkar [(2003) 4 SCC 364] in support of his submission.

7. The learned Additional Government Pleader has also placed on record the orders passed by the Petitioner imposing penalty on Respondent’s co-delinquents - Dr. A.R. Kembhavi & Mr. B. Bhaskar and Smt. Madhavi Hardas. It is pointed out that co-delinquents, Mr. B. Bhaskar and Smt. Hardas were compounder and nurse, having completely different roles than the Respondent and other co-delinquent Dr. A.R. Kembhavi who were doctors. He submitted that both the doctors including the Respondent were dismissed and the compounder and nurse were imposed with lesser punishments. He submitted that therefore there is no discrimination by the Petitioner and both the doctors, having more serious and responsible roles in the hospital, were dismissed.

8. On the other hand Mr. Kshirsagar, learned counsel for the Respondent, submitted that the learned Chairman of the Tribunal, while passing the impugned order, has considered the record and has come to a proper conclusion that when there was a common enquiry against the Respondent and co-delinquents, while others involved where reinstated after reduction of salary, the Respondent was dismissed. He submitted that the patent unfairness and discrimination in awarding punishment was rightly considered by the Tribunal in the review and therefore no interference is called for. He submitted that in any case, the Petitioner is given liberty to impose minor punishment as was imposed against others and the Respondent is held entitlement to pay and allowances only restricted to 3 years prior to date of filing of OA. In such circumstances, it is urged that the penalty of dismissal imposed upon the Respondent, if upheld, then the Respondent will be disqualified from taking any government service in future. He has relied upon the judgments of State of U.P. and Ors. Vs. Raj Pal Singh [(2010) 5 SCC 783], Tata Engineering & Locomotive Co. Ltd Vs. Jitendra PD. Singh and Anr [(2001) 10 SCC 530] and Arvind K. Waghmare (Advocate) Vs. PM Cares Fund (Prime Ministers Citizens Assistance and Relief In Emergency Situation), New Delhi and Ors [2021(5) Mh.L.J. 561] in support of his case.

9. We have carefully considered the rival submissions and perused the record with the assistance of the learned counsel for the parties.

10. We note that the Respondent has already retired in 2011. It is seen from the impugned order that review is allowed principally on the ground of lack of parity. It is held that when a common enquiry was conducted against the Respondent and other persons, the Respondent was dismissed while others involved were reinstated after reduction of pay by 5%. This was found to be patently unfair. These reasons are found in paragraph No.4 of the impugned order.

11. The Petitioner / State has produced before us all the four orders granting punishment of dismissal to Respondent who was a doctor and dismissal of another doctor Mr. Kembhavi as well imposing lesser punishments on the Compounder Mr. B. Bhaskar and the Nurse Smt. Hardas. It is therefore clear that the State has in fact maintained parity between the Respondent and Dr. Kembhavi by awarding punishment of dismissal to both of them. The responsibility of a doctor in the hospital and the responsibility of the compounder and nurse are clearly distinct and therefore the gravity of misconduct is also different. In the impugned order, this aspect of parity in punishment between delinquents, namely two doctors and difference of responsibility and gravity of misconduct is not considered. On a simplistic approach that in a common enquiry, only the Respondent is dismissed and others are awarded lesser punishment, review seems to have been allowed. In our opinion, without considering the material showing comparative punishments and parity maintained between two doctors, sufficient ground for review was not made out. Therefore the Tribunal has exceeded the scope of review jurisdiction while granting relief under the impugned order.

12. In the case of P.C. Kakkar (supra), the Hon’ble Supreme Court, while considering the scope of judicial review of punishment imposed in a departmental enquiry, has reiterated that where the Court finds the punishment to be shockingly disproportionate, it must record reasons and should normally direct the disciplinary authority to reconsider the penalty. Since we do not find the punishment imposed upon the Respondent shockingly disproportionate, the Petitioner’s case is supported by this judgment.

13. So far as the judgment relied upon by the Respondent in the case of State of U.P. Vs. Raj Pal Singh (supra) is concerned, the High Court in that case had concluded that the gravity of charges was same and therefore it was not open for the disciplinary authority to impose different punishments to different delinquents. This factual conclusion was not interfered with by the Hon’be Supreme Court. We note that the present case is distinguishable, in as much as, we find that the gravity of misconduct as well as responsibility of the Respondent and other doctor was different from co-delinquents and therefore in our view, the punishment imposed on both the doctors including the Respondent is in keeping with parity. The case of Tata Engineering Vs. Jitendra (supra) relied upon the Petitioner is also clearly distinguishable, in as much as in that case, three workmen on identical charges were involved and the case was found to be of singling out of one of them. The facts of the present case are totally different. So far as the last judgment relied upon by the Respondent in the case of Arvind K. Waghmare Vs. PM Cares Fund (supra), we fail to understand why this case is relied upon. In this case, the issue involved was that of public disclosure of moneys of PM Cares Fund and the matter arose out of public interest litigation. Service law was not involved. Paragraph No.10 relied upon by the Respondent merely speaks about scope of review jurisdiction. However, judicial review of punishment imposed in the departmental enquiry was not at all under consideration. In light thereof, none of the judgments relied upon by the Respondent, advance her case.

14. In the aforesaid facts and circumstances and for the reasons recorded above, this is a fit case to interfere and the petition succeeds.

15. Accordingly, the impugned order dated 29.04.2011 passed in Review Application No. 68 of 2010 by the Maharashtra Administrative Tribunal, Mumbai, is quashed and set aside. The writ petition is disposed of and Rule is made absolute in the above terms. No order as to costs. copy of this order. (M.M. SATHAYE, J.) (A.S. CHANDURKAR, J.)