Bombay High Court
Union Of India vs Manoj Kumar V. Kumare on 30 January, 2018
civil WP 4072-05.doc
DDR
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4072 OF 2005
Union of India through
General Manager,
Central Railway, Mumbai CST ...Petitioner
Vs.
Mr. Manoj Kumar V. Kumare
Ex-Senior Booking Clerk, C.Rly.
Residing at Snehsadan, Near
Govt. certified School,
Kurla-Camp, Ulhasnagar - 4. ...Respondent
...........
Mr. T.J. Pandian, Advocate for the petitioners/UOI.
Mr. Rahul G. Walia, Advocate for the respondent.
...........
CORAM : SMT. V.K. TAHILRAMANI ACTING C.J.
AND M.S.KARNIK, J.
DATE : 30th JANUARY, 2018.
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civil WP 4072-05.doc
JUDGEMENT (PER M.S.KARNIK, J.)
:-
The petitioner - Union of India by this petition filed
under Article 226 and 227 of the Constitution of India challenge
the order dated 11/3/2005 passed by the Central Administrative
Tribunal, Mumbai Bench, Mumbai ('the Tribunal' for short) in
O.A. No.829 of 2002.
2. The facts of the case in brief are as under :-
The respondent was imposed penalty of removal
from service by an order dated 22/6/2001 passed by the
Disciplinary Authority. The order of removal was upheld by the
Appellate Authority vide order dated 1/11/2001. The Revisional
Authority dismissed the revision by an order dated 14/2/2002.
The Tribunal set aside the order of removal only on the ground
that the authority which issued the impugned order
imposing penalty on the respondent was not competent to
impose penalty.
3. The OA was therefore partly allowed and the
respondent was directed to be reinstated with liberty to
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petitioner to proceed in the matter by referring it to the
competent authority for appropriate orders including treatment
of period from the date of removal from service to
reinstatement.
4. We have heard learned Counsel Shri Pandian for the
petitioner. Learned Counsel was at pains to point out that the
authority which passed the order of removal was competent to
impose penalty.
5. Learned Counsel invited our attention to the relevant
provisions of Railway Servants (Discipline & Appeal) Rules,
1968, more particularly Rule 2 (1)(a). He also invited our
attention to Rule 7 which provides for "Disciplinary Authority".
Shri Pandian thereby contends that the authority which passed
the order of removal was competent to impose penalty.
6. Learned Counsel for the respondent invited our
attention to the appointment/promotion order dated 29/9/1997
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which indicates that the respondent was promoted as Senior
Booking Clerk in the grade of Rs.1200-2040 and the letter has
been signed by Shri S.S. Kadam for Senior Divisional Personnel
Officer ('Senior DPO' for short), CSTM. In the submission of the
learned Counsel for the respondent, as the
appointment/promotion order of the respondent was signed by
Senior DPO, therefore the Senior DPO is the appointing
authority. The order of removal has been issued by the
Divisional Commercial Manager (DCM), a Senior Scale Officer
below the rank of appointing authority. Learned Counsel submits
that DCM therefore could not have issued the order of removal
from service.
7. We have heard learned Counsel. Article 311 (1) of
the Constitution of India provides that 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 has been appointed. The question for
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consideration is whether, as alleged by the respondent, he was
removed from service by an authority subordinate to that which
had appointed him. We have already noticed that the
appointment/promotion order was signed by the Senior DPO. It
is therefore clear that in so far as the respondent is concerned, it
is the Senior DPO who had appointed him and thus was the
appointing authority. The order of removal is issued by the DCM.
It is not disputed that the DCM is below the rank of Senior DPO.
8. Learned Counsel Shri Pandian argued that even the
DCM has power to appoint officers of the rank of the
respondent, therefore, he would have power to remove the
respondent. We cannot accept this contention. Whether or not
an authority is subordinate in rank to another has to be
determined with reference to the state of affairs existing on the
date of appointment. It is at that point of time that the
constitutional guarantee under Article 311(1) becomes available
to the persons holding the post that he shall not be removed or
dismissed by an authority subordinate to that which appointed
civil WP 4072-05.doc
him. On the date of the appointment, the appointing authority
of the petitioner was Senior DPO. The DCM therefore cannot
remove him.
9. To come to this conclusion we have relied upon the
decision of the Hon'ble Supreme Court in the case of Krishna
Kumar Vs. Divisional Assistant Electrical Engineer and
others reported in (1979) 4 SCC 289. Their Lordships have
held that " even the delegation of the power to make a
particular appointment does not enhance or improve the
hierarchical status of the delegate. An Officer subordinate to
another will not become his equal in rank by reason of his
coming to possess some of the powers of that another."
10. Since the respondent was appointed by the Senior
DPO and has been removed from the service by the order passed
by the DCM, it must be held that the DCM had no power to
remove the respondent from the service.
civil WP 4072-05.doc
11. For these reasons, we find no infirmity with the
order passed by the Tribunal. The present Writ Petition is
accordingly dismissed.
12. Rule is discharged with no order as to costs.
(M.S.KARNIK, J.) (ACTING CHIEF JUSTICE)
