Judgment:
1. The applicant was served with the charge memo dt. 26.11.98 containing one article of charge viz., that while she was functioning as LDC, Military Hospital, Golconda during 1992-93 misappropriated an amount of Rs. 45,000/- by falsifying accounts and by creating false and forged documents. As she denied the charge, an enquiry was held under Rule-14 of CCS (CCA) Rules, 1965. The Enquiry Officer submitted report finding her guilty, the Disciplinary Authority by order dt. 17.4,2000 considering al! aspects of thecase and the gravity of the charge imposed the penalty of dismissal from service. Without carrying the matter in appeal, the applicant filed the present OA before us.
2. Learned Counsel for the applicant Sri K. Lakshmi Narasimha questions the competency of the authority who issued the charge memo as well as the authority who passed the impugned order. It is argued that the Dircctor General, Medical Services (Army) was neither the appointing authority nor the Disciplinary Authority and that was incompetent to penalise the applicant or to award major penally under Rules 11(v) to (ix) of Central Civil Services (Classification and Control) Rules (for short the rules). Hence it is argued that the impugned order is liable to be quashed on this ground alone.
3. Learned Counsel for the applicant seeks to argue on merits also but we have not allowed him to do so. In that case he should have filed an appeal, then only he has to approach the Tribunal because the appellate authority is the appropriate authority to consider the case on merits as well as the proportionality of the penalty.
4. Learned Counsel for the respondents Sri E. Krishna Swamy strenuously contends that the Director General of Medical Services, Armed Forces was fully competent to pass the impugned order and to award the applicant with major penalty under Rule-11 (v) to (ix). He places reliance upon the notification issued by the President dt. 25.4.1984 whereby the said authority was empowered to impose the major penalties also with regard to the employees working under the Adjutant General's Branch. As it is not in dispute that the applicant is working under the Adjutant General's Office, the applicant was rightly dismissed from service by the competent authority. It is further argued that as no appeal has been filed, the applicant should not be permitted to advance any arguments on merits.
5. Heard the Counsel for the applicant and the respondents and considered the pleadings and other material on record.
6. Since the applicant has raised the questions as to the competence/jurisdiction of the Disciplinary Authority in passing the impugned order, inview of the judgment in Whrilpool Corporation v.Registrar of Trademarks, Mumbai and Ors., 1998(8) SCC 81, the O.A. can be maintainable even without an appeal being filed by the applicant.
This point is not seriously disputed by the learned standing Counsel for the respondents.
7. However the applicant cannot be permitted to raise the arguments pertaining to the merits of the case as such disputes can be well decided by the appellate authority. As the applicant had not taken the recourse of the appeal in this case, such questions cannot be urged.
The only point therefore thus arises for our consideration is as to the competence of the authority who passed the order of the dismissal.
Learned Counsel for the applicant places heavy reliance on sub Rule (4) of Rule-12. According to him Sub-rule 2 of Rule 12 subject to Sub-rule (4). It is therefore necessary to reproduce Sub-rules (2) and (4) of Rule 12:- (2) Without prejudice to the provisions of Sub-rule (1), but subject to the provisions of Sub-rule (4), any of the penalties specified in Rule 11 may be imposed on : , (a) a member of a Central Civil Service other than the General Central Service by the appointing authority or the authority specified in the schedule in this behalf or by any other authority empowered in this behalf by a general or special order of the President; (b) a person appointed to a Central Civil Post included in the General Central Service, by the authority specified in this behalf by a general special order of the President or, where no such order has been made, by the appointing authority or the authority specified in the Schedule in this behalf.
(a) except where the penalty specified in Clause (v) or Clause (vi) of Rule 11 is imposed by the Comptroller and Auditor General on a member of the Indian Audit and Accounts Service, no penalty specified in Clauses (v) to (ix) of that rule shall be imposed by any authority subordinate to the appointing authority; (b) where a Government servant who is a member of a Service other than the General Central Service or who has been substantively appointed to any civil post in the General Central Service, is temporarily appointed to any other Service or post, the authority competent to impose on such Government servant any of the penalties specified in Clauses (v) to (ix) of Rule 11 shall not impose any such penalties unless it has consulted such authority, not being an authority subordinate to it, as would have been competent under Sub-rule (2) to impose on the Government servant any of the said penalties had he not been appointed to such other Service or post; (c) in respect of a probationer undergoing training in Lal Bahadur Shastri National Academy of Administration, the Director of the said Academy shall be the authority competent to impose on such probationer any of the penalties specified in Clauses (i) to (in) of Rule 11 after observing the procedure laid down in Rule 16.
Sub-Rule-2 indicates that any of the penalties specified in Rule-11 can be imposed by the appointing authority or the authority specified in the schedule or by any other authority in that behalf. This para is however subject to Sub-rule-4. Sub-rule-4 makes it abundant clear that no penalty specified in Clauses (iv) to (ix) of Rule 11 should be imposed by any authority sub-ordinate to the appointing authority. In part-V of Schedule Appended to the rules the discription of the posts, appointing authority and the competent authority to impose the penalties with reference to item No, (iv) to (ix) in Rule-11 and the penalties are shown. Sl. No. 2 (item-ii) has been amended by the notification issued by the President dated 25.4.1989. In accordance with this amendment, it is seen that, with reference to Adjutant Generals Branch, the Adjutant General was shown as the appointing authority as well as the authority competent to impose penalties under Rule-12. Adjutant General was also shown as the authority to impose all the penalties under Rule-11. Again at Sl. No. 1 (vii) the Director General, Armed Forces Medical Services was shown as the appointing authority and he was also shown as the authority empowered under Rule-12 with Reference 10 all the penalties under Rule-11.
8. In the instant case the Director General, Medical Services (Army) was the authority who passed the order of dismissal.
9. We find force in the contention of the learned Counsel for the applicant. Sub-rule (2) empowers the appointing authority or the authority specified in the schedule to impose any of the penalties specified in Rule 11. But this provisions is subject to Sub-rule (4).
Sub-rule-4 however clearly stipulates that the major penalties specified in Clauses (v) to (ix) of Rule 11 shall be imposed only by the appointing authority. It therefore follows that the penalty of dismissal imposed on the applicant by the appointing authority. The appointing authority specified in the Schedule V being the Adjutant General and who was competent to impose all the penalties, it should be imposed by him only. The notification dt. 25.4.1984 has no impact on the schedule. The contention that the Director General Medical Services (Army) was also empowered though he was not the appointing authority to impose the major penalty is incorrect. Even as per item (viii) of Sl.
No. 1 in part-V of the schedule, the appointing authority was shown as Director General, Armed Forces Medical Services to impose all the penalties under Rule-11. He cannot be equated with Director General, Medical Services (Army). In the reply filed by the respondents at page-142 of material papers a table was given by the respondents in which it was clearly seen that DGMS (Army) was shown as an officer of below the rank of Adjutant General. The submission made by the respondents at reply at page-135 that in view of the notification dated 25.4.1984 whereby part-V of the Schedule has been amended and the Disciplinary Authority was now shown for imposition of major penalty as Director General Medical Services (Army) is baseless. We have seen the table in part-V of the schedule and it is clearly shown that the Adjutant General alone was the competent authorities to impose the major penalties.
10. Further the Hon'ble High Court in WP 17580/01 which has been filed by the applicant herself against orders of this Tribunal in OA 628/2000 dated 25.7.2001 the question of competence of the authority to pass the suspension order was challenged. In that order the Hon'ble High Court has stated as under :- "Heard the learned Counsel for the petitioner and the learned standing Counsel for the respondents.
Rule 10 of the Central Civil Services (Classification, Control & Appeal) Rules, 1993 reads : (1) The appointing authority or any authority to which it is subordinate or the disciplinary or any other authority empowered in that behalf by the President, by general or special order, may place a Government Servant under suspension - (a) where, a disciplinary proceeding against him is contemplated or is pending; (aa) where, in the opinion of the authority aforesaid, he has engaged himself in activities prejudical to the interest of the security of the States; or (b) where a case against him in respect of any criminal offence is under investigation, inquiry or trial; Provided that, except in case of an order of suspension made by the Comptroller and Auditor-General in regard to a member of the Indian Audit and Accounts Service and in regard to an Assistant Accountant General or equivalent (other than a regular member of the Indian Audit & Accounts Service), where the order of suspension is made by an authority lower than the appointing authority, such authority shall forthwith report to the appointing authority the circumstances in which the order was made.
Having regard to the phraseology used in the aforementioned Rule, we are of the opinion that an order in terms of the directions issued by the learned Tribunal can only be passed by the Adjutant General, who is the appointing authority, or any other authority, higher in rank to him.
Hence, we dispose of this writ petition, directing the appropriate authority to consider the matter, as directed by the Tribunal, and keeping in view the observations, made aforementioned. No costs." It is seen from this order that the Hon'ble High Court having heard the Counsel for both the parties found that Adjutant General or any authority higher in rank was the appointing authority. The High Court's finding is binding on us.
11. From the above discussion, it has to be held that Adjutant General atone was the appointing authority of the applicant who should have imposed the major penalty. The impugned order passed by the Director General of Medical Services (Army) is therefore incompetent and void.
The impugned order of dismissal is therefore quashed.
12. The contention as regards to the justification of competence of the authority who issued the charge memo cannot be gone into at this stage.
The applicant should have approached the Tribunal if she were aggrieved by the validity of the charge memo. Having subjected herself to the charge memo and participated in the enquiry, it is not open to her to raise that question at this stage.
13. The impugned order dt. 17.4.2000 is quashed. O.A. accordingly allowed, in the circumstances without costs.