Union Of India Thr. Secretary ... vs National Commission For ...
2022 Latest Caselaw 7236 Bom

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                                                                           904 - WP 8170 OF 2022.doc


                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
KANCHAN
VINOD
          Digitally signed by
          KANCHAN VINOD
          MAYEKAR
                                        CIVIL APPELLATE JURISDICTION
          Date: 2022.07.29
MAYEKAR   16:02:29 +0530


                                        WRIT PETITION NO. 8170 OF 2022
                          1. Union of India,                    )
                          Through the Secretary,                )
                          Ministry of Defence, South Block,     )
                          New Delhi - 110 001                   )

                          2. Director General Defence Estates)
                          Raksha Sampda Bhavan,             )
                          Ullan Batar Road, Sport View,     )
                          Delhi Cantonment,                 )
                          New Delhi - 110 001               )

                          3. Chief Executive Officer,        )
                          Deolali Cantonment Board,          )
                          Deolai Camp, Tehsil and District Nashik)       ..... Petitioners

                                VERSUS

                          1. National Commission for Scheduled)
                          Castes                           )
                           th
                          5 Floor, Lok Nayak Bhawan,       )
                          Khan Market, New Delhi - 110 003 )

                          2. Smt.Chandraprabha Bhagwat Kedare)
                          R/o- Vaishanav Sankul-2, Adke Nagar,)
                          Anand Road, Deolali Camp,        )
                          Dist. Nashik                     )             ..... Respondents

                          Mr.Neeta V.Masurkar for the Petitioners.
                          Mr.Anil Jamsandekar, a/w. Ms.Archita Gharat for the Respondent no.2
                          (Legal Aid).

                                                 CORAM: R. D. DHANUKA AND
                                                        KAMAL KHATA, JJ.

DATE : 27TH JULY, 2022 KVM

904 - WP 8170 OF 2022.doc

ORAL JUDGMENT (Per R.D.Dhanuka, J):-

Rule. Mr.Jamsandekar, learned counsel for the respondent no.2

waives service. Learned counsel for the petitioners states that the

respondent no.1 has been served. None appeared for the respondent

no.1. Be that as it may, respondent no.1 is a formal party. Rule made

returnable forthwith.

2. By this petition filed under Article 226 of the Constitution of

India, the petitioners seek declaration that the order dated 2 nd March,

2022 and its observations dated 10th March, 2022 by the respondent

no.1 Commission is null and void and cannot be acted upon. The

petitioners also seek writ of certiorari for quashing and setting aside the

impugned order dated 2nd March, 2022 and observations dated 10th

March, 2022 passed by the respondent no.1.

3. It is the case of the petitioners that the respondent no.2 was

appointed on 14th January, 1973 as a staff nurse in Cantonment Board

Hospital, Deolali. The petitioner had initiated disciplinary action

against the respondent no.2 which culminated into an action of KVM

904 - WP 8170 OF 2022.doc

compulsory retirement from the services under Rule 11(2)(VI) of the

CFSR, 1937. Various proceedings filed by the respondent no.2 against

such disciplinary action initiated by the petitioners came to be rejected.

The respondent no.2 withdrew the writ petition on 8 th August, 2013.

The respondent no.2 appears to have filed review petition before the

respondent no.1 on 17th July, 2013 alleging injustice and harassment in

service on the part of the petitioner.

4. On 10th March, 2022, in the Minutes of hearing, the respondent

no.1 Commission recorded that the respondent no.2 had alleged that

she was compulsorily retired without adopting due procedure. The

respondent no.1 Commission observed that after going through the

merits of the case injustice was incurred upon the Scheduled Caste

employee and the punishment given on compulsorily retirement was

draconian in nature. The respondent no.1 accordingly recommended

the concerned authority to re-investigate the whole matter. The

respondent no.2 had prayed for revocation, for setting aside the order

of compulsory retirement and to consider her for service till retirement

along with service benefits. The petitioner has impugned the said order/

recommendation made by the respondent no.1 Commission on the KVM

904 - WP 8170 OF 2022.doc

ground of lack of jurisdiction of the respondent no.1 to interfere with

the disciplinary action taken by the petitioners resulting in compulsory

retirement of the respondent no.2.

5. Ms. Masurkar, learned counsel for the petitioners placed reliance

on the judgment of this Court delivered on 25th October, 2021 in Writ

Petition No. 5283 of 2018 in case of Ms. Sadhana B.Bendbhar vs.

State of Maharashtra and Others and submitted that in similar

circumstances, this Court had quashed and set aside the

order/recommendation made by the respondent no.1 Commission

interfering with the decision of the employer in respect of the service

condition of the petitioner therein in respect of the respondent no.5

therein who was the applicant before the respondent no.1 commission.

She also placed reliance on the judgment of Delhi High Court in case

of State Bank of India vs. The National Commission for Scheduled

Castes & Ors. in Writ Petition (C) No. 3898 of 2016 and other

connected matters delivered on 19th September, 2016.

6. Mr.Jamsandekar, learned counsel for the respondent no.2

vehemently urged that the respondent no.2 has suffered gross injustice KVM

904 - WP 8170 OF 2022.doc

because of the illegal disciplinary action taken by the petitioners

against the respondent no.2 and thus the respondent no.1 was justified

in recommending re-investigation in the matter resulting into

compulsory retirement of the respondent no.2. He submits that in view

of the gross injustice caused to respondent no.2 in the hands of the

petitioners, this Court shall exercise extra ordinary powers by not

interfering with the order passed by the respondent no.1.

7. It is not in dispute that against an order of her compulsory

retirement, the respondent no.2 has exhausted all the legal remedies

available to her and could not succeed. When the respondent no.2

could not succeed impugning order of compulsory retirement, the

respondent no.2 filed an application before the respondent no.1 inter

alia praying for setting aside the order of compulsory retirement and to

consider her in service till retirement along with service benefits.

8. A perusal of the order/recommendation made by the respondent

no.1 indicates that after observing that the compulsory retirement

granted to the respondent no.2 who is Scheduled Caste employee is

draconian in nature, the respondent no.1 ordered the concerned KVM

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authority to re-investigate the whole matter.

9. In our view the respondent no.1 Commission has no such

jurisdiction to interfere with the decision already taken by the employer

against the respondent no.2 after following procedure and granting

compulsory retirement which action has been upheld in various

proceedings filed by respondent no.2 and has attained finality. The

respondent no.1 Commission cannot act as an appellate authority

against an order passed by an employer taking disciplinary action

against an employee by the employer.

10. This Court in case of Ms.Sadhana B.Bendbhar (supra)

considered the facts where the respondent no.1 had recommended to

appoint the respondent no.5 on a post though she was not senior-most

and was not selected in the employment. This Court after adverting to

the judgment of the Supreme Court in case of Collector, Bilaspur vs.

Ajit P.Jogi & Ors., AIR 2012 SC 44 and construing Article 338 (5) (b)

of the Constitution of India, quashed and set aside the decision taken

by the respondent no.1 Commission and holding that the said decision

was totally without jurisdiction. The principles laid down by this Court KVM

904 - WP 8170 OF 2022.doc

in the said judgment apply to the facts of this case. We do not propose

to take any different view in the matter. Similar view is taken by the

Delhi High Court in case of State Bank of India vs. The National

Commission for Scheduled Castes & Ors. (supra) after adverting to

the various provisions of law including Article 338(6) of the

Constitution of India quashing and set aside the order/recommendation

made by the respondent no.1 Commission by which the respondent

no.1 had sought to interfere with the decision of the employer. The

principles laid down by the Delhi High Court would apply to the facts

of this case. We respectfully agree with the views expressed by the

Delhi High Court.

11. In our view, it was within the powers of the employer to take

disciplinary action against the employee and once having exercised

such powers by the employer and such action having been upheld in all

the proceedings filed by an employee, such employee cannot file such

application before the respondent no.1 Commission to interfere with

the action initiated by the employer in accordance with the service

conditions and in accordance with law. The respondent no.1

Commission has totally acted without jurisdiction and in the teeth of KVM

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Article 338 (5) (b) of the Constitution of India. In our view the

proceedings initiated by the respondent no.2 itself were totally without

jurisdiction. Consequently the order passed by the respondent no.1 is

totally without jurisdiction and deserves to be quashed and set aside.

12. We accordingly pass the following order :-

(a) Impugned order dated dated 2nd March,

2022 and its observations dated 10th March, 2022

made by the respondent no.1 Commission are

quashed and set aside.

(b) The complaint filed by the respondent no.2

before the respondent no.1 is dismissed.

(c) Writ petition is allowed in the aforesaid

terms. Rule is made absolute accordingly. No order

as to costs.

(d) The parties to act on the authenticated copy

of this order.

      [KAMAL KHATA, J.]                    [R. D. DHANUKA, J.]