Partly allowed

Union of India v. Shri Manish Bajpai

Karnataka HC15 Feb 2024WP/19149/2021

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed the writ petition in part, setting aside the CAT order and dismissal. It directed the department to conduct a fresh enquiry on the same charges, granting the respondent an opportunity to participate and place his defense within six months. It affirmed the denial of wages pending the outcome of the new enquiry.

What did the court decide?

Writ petition allowed in part; CAT order, penalty order and enquiry report set-aside; Fresh enquiry directed within six months with opportunity to defend.

Union of India Vs Shri Manish Bajpai — Pension and Retirement Benefits | Karnataka HC (2024)

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W.P. No.19149/2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF FEBRUARY, 2024

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PRESENT

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THE HON’BLE MR. P.S. DINESH KUMAR, CHIEF JUSTICE

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AND

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THE HON’BLE MR. JUSTICE T.G. SHIVASHANKARE GOWDA

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WRIT PETITION NO. 19149 OF 2021 (S-CAT)

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BETWEEN:

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UNION OF INDIA REPRESENTED BY ITS SECRETARY DEPARTMENT OF SPACE ANTARIKSH BHAVAN NEW BEL ROAD BENGALURU-560 094.

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THE DIRECTOR U.R. RAO SATELLITE CENTRE FORMERLY KNOWN AS ISRO SATELLITE CENTRE DEPARTMENT OF SPACE GOVERNMENT OF INDIA OLD AIRPORT ROAD BENGALURU-560 017.

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THE DEPUTY SECRETARY TO THE GOVERNMENT OF INDIA DEPARTMENT OF SPACE ANTHARIKSH BHAVAN NEW BEL ROAD

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BENGALURU-560 094. …PETITIONERS

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(BY SHRI. ARVIND KAMATH, ASGI A/W SHRI. H. SHANTHI BHUSHAN, DSGI & SHRI. B. PRAMOD, CGC)

W.P. No.19149/2021

AND:

SHRI. MANISH BAJPAI S/O S.N. BAJPAI AGED ABOUT 47 YEARS RESIDING AT B/01 (FIRE SERVICE ISRO QTRS) 14^TH A MAIN ROAD, HAL 2^ND STAGE INDIRANAGAR BENGALURU-560 078. …RESPONDENT

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(BY SHRI. K.S. ANIL SHEKAR, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 13.11.2019 MADE IN ORIGINAL APPLICATION NO. 170/1870/2018 BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, BANGALORE BENCH AT ANNEXURE-A AND ETC.

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THIS WRIT PETITION, HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 23.11.2023, COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, CHIEF JUSTICE , PRONOUNCED THE FOLLOWING:-

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ORDER

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This Writ Petition by the Union of India¹ is filed

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challenging the order dated 13.11.2019 passed by the CAT² in O.A. No. 170/1870/2018.

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We have heard Shri. Arvind Kamath, learned Additional Solicitor General of India along with Shri. Shanthi Bhushan, learned Deputy Solicitor General of India for the

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1 UOI

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2 The Central Administrative Tribunal

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Union; Shri. B. Pramod, learned CGC for the petitioners and

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Shri. Anil Shekhar, learned Advocate for the respondent.

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Brief facts of the case are, respondent was working

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as a Station Officer and in-charge of Fire Safety & Security Division in U R Rao Satellite Centre, Bengaluru. He was irregular in attending to his duties. A Charge Memo dated 15.06.2011 was issued to him under ‘Minor Penalty Proceedings’. He did not appear for inquiry and was placed ex-parte. A penalty order dated 30.07.2012 was issued imposing reduction to a lower stage in the time-scale of pay by one stage for a period of three years without cumulative effect and without any adverse effect on the pension.

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Subsquently, respondent was transferred to ISRO Satellite Integration and Test Establishment. He did not report to duty in that post.

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On 04.02.2013, the Principal of Kendriya Vidhayala (NV) School within the Campus, lodged a complaint with regard to respondent’s misbehaviour with staff members of

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the School. Respondent was placed under suspension vide order dated 06.02.2013.

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A ‘Major Penalty Proceeding’ was initiated and

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respondent did not appear and he was placed ex-parte. In the inquiry proceedings concluded on 09.08.2016 , the charges against him were held proved. He submitted a representation dated 27.07.2017 stating that he was suffering from mental illness. Based on the advice of the UPSC, the UOI vide order dated 28.10.2017, dismissed the respondent from service. Upon a representation submitted by respondent and his wife, the Department took a lenient view and granted Compassionate Allowance.

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Aggrieved by the dismissal order, respondent filed an application before the CAT and the same has been allowed directing the Department to reinstate the respondent and that he could be posted at any other equal rank. The Department filed a review petition and the same has been dismissed. Feeling aggrieved, the Department is before this Court.

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Shri. Kamath, for the UOI, submitted that:

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the CAT has not set aside the dismissal order nor pointed out any procedural irregularities in the disciplinary proceedings conducted against respondent;

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it is settled principle that the jurisdiction of the CAT to interfere with the disciplinary matters or punishment cannot be equated with that of an appellate jurisdiction;

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the power to impose penalty on a delinquent officer is conferred upon the Competent Authority by law. The CAT shall not substitute its opinion with regard to imposition of penalty;

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respondent has pleaded about his mental illness long after the penalty order was passed as an afterthought. There is no material on record to demonstrate that respondent was suffering from mental illness at the time of his misconduct. The CAT has failed to consider this aspect;

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the Charge Memorandum was issued to respondent on 29.07.2013 for the misconduct in the School premises between January 2012 to April 2013. In the medical certificate dated 18.01.2018 issued by Manipal Hospital, it is mentioned that he was under treatment for Schizophrenia since December, 2013. Respondent’s misconduct was much prior to the said date.

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Opposing the writ petition, Shri. Shekar, for the

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respondent, submitted that:

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respondent was suffering from Schizophrenia since 2013 and he was undergoing treatment. The Department has not considered this important fact;

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during the treatment period for mental illness, the Disciplinary proceedings could not have been conducted, as the same would violate principles of natural justice;

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as per Section 20(4) of the Rights of Persons with Disabilities Act, 2016, an alternative post ought to

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have been given to the respondent as held in

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Ravinder Kumar Dhariwal and Anr. Vs. UOI³ .

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We have carefully considered rival contentions and perused the records.

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Undisputed facts of the case are, respondent was

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working in the Fire Safety and Security Division of the Satellite Centre.

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In 2011, a charge memo was issued to the respondent with an allegation that he was not adhering to the instructions of the superiors. Respondent remained ex parte in the proceedings. After completion of enquiry, a penalty of reduction of pay to a lower stage without cumulative effect was imposed.

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There was no improvement in respondent’s conduct. Hence, he was transferred to another campus office in Marathalli, Bengaluru with a direction to report to the General Manager with immediate effect. Respondent did not

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3 AIR Online 2021 SC 1244

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report in time and attend to his duties. The General Manager sent a note dated 10.01.2012 to the Group Director intimating that the respondent had refused to work and applied Medical leave for seven days between January 24 & 30, 2012.

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Respondent was highly irregular in reporting for duty. Between January-May 2012, respondent attended the office for about 10 to 15 minutes. From April 16, 2012, respondent stopped reporting for duty.

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Though respondent was transferred to ISITE Office in Marathalli, he was visiting his place of previous posting namely, Safety and Security Division and creating nuisance. On December 12, 2012, sixteen staff members of the safety division submitted a representation to the Group Director complaining against the respondent, alleging that respondent was blocking communication channels, creating nuisance, damaging the assets, misplacing equipments and troubling others from discharging their duties.

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Though respondent was transferred to ISITE

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Campus, he demanded his salary from the accounts office of his previous place of posting. On December 21, 2012, the Accounts Officer complained to the Senior Head of Satellite Centre in that behalf.

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Unable to tolerate the indiscipline, the Director of the Satellite Centre wrote to the Secretary, Department of Space to keep respondent under suspension.

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In addition to the above, the Principal of the Kendriya Vidyalaya School situated in the campus submitted complaints to the Controller of the Satellite Centre about respondent’s indecent behaviour with their staff members.

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In view of the above, respondent was placed under suspension on February 6, 2013 with immediate effect and disciplinary proceeding under major penalty was initiated. A charge memo dated July 29, 2013 under Rule 11 of Department of Space Employees’ (Classification, Control and Appeal) Rules, 1976 was issued. On receipt of the notice,

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respondent submitted a reply justifying his action and requested for personal hearing. On November 21, 2013, respondent’s suspension was revoked. However, respondent did not report for duty. On February 11, 2014, a Memorandum was issued directing him to report for duty with immediate effect, but he did not report till March 21, 2014.

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Respondent did not appear before the Enquiry Officer appointed under major penalty proceedings and he was placed ex parte. The Enquiry Officer submitted his Report dated August 9, 2016 holding all charges as proved. The Secretary, Department of Space issued a notice on September 21, 2016, seeking respondent’s reply with regard to penalty. Along with the notice, the Enquiry Report running to 104 pages was also enclosed.

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In the meanwhile, Doctor Shivajyothi, a Medical Officer working in the ISITE Campus submitted a complaint against the respondent alleging misbehaviour. The Director of Satellite Centre recommended one more Disciplinary

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proceeding to go into the allegations levelled by the Medical Officer. Respondent was placed under suspension, but he refused to receive the Suspension Order and it was sent to his official residential address.

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In the meanwhile, the Secretary, Department of Space after taking advice from the UPSC on the Enquiry Report dated August 9, 2016, decided to impose penalty of dismissal and vide order dated October 28, 2017, dismissed the respondent from service.

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After dismissal, the respondent and his family members submitted a representation to take a lenient view in the matter. The Secretary, Department of Space, taking a lenient view, granted compassionate allowance vide order dated September 18, 2018.

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Shri. Kamath’s first contention is that, the CAT could not have substituted its opinion with that of disciplinary authority. We may record that the CAT or a Court can examine whether principles of natural justice were complied

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with? whether there was evidence in support of the penalty

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order? and whether the penalty was proportionate?.

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In the case on hand, CAT’s order is based on an assumption that respondent had caused disturbance in the office due to mental instability. On this premise, CAT has got respondent evaluated by NIMHANS⁴ , Bengaluru. Its Report is

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as follows:

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“NATIONAL INSTITUTE OF MENTAL HEALTH & NEURO SCIENCES BENGALURU 560 029

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Ph No. 26995201 & 26995202, E-Mail: [email protected]

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No: NIMH/HOS/MS/Med Board/2019-20 Date: 22-10-2019

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MEDICAL BOARD PROCEEDINGS

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PATIENT’S NAME	*Mr Manish Bajpai*
FATHER’S NAME	Mr. S N Bajpai	DATE OF BOARD	22-10-2019
AGE	47 Yrs	PLACE OF BOARD	NIMHANS
SEX	Male	MRD NO	P407460
UNIT	UNIT III	UHID No	20180009990
DIAGNOSIS	Psychosis NOS in re	mission

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Ref: Letter ref no sl no 80 KBS(MJ)/CVS(MA) from Section Officer, Central Administrative Tribunal, Bengaluru Bench dated 10.10.2019.

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The Board, after examining Mr Manish Bajpai and having gone through all available medical records and after

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4 National Institute of Mental Health & Neuro Sciences

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discussion during the medical board meeting opines that, at the time of examination, there was no Psychiatric abnormalities detected.

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He is advised to continue medications.

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Sd/Medical Superintendent, Dy. Medical Superintendent Chairman Member Sd/- Sd/Prof & HOD Psychiatry Prof and HOD Neurosurgery, Member Member Sd/Prof & HOD Neurology Consultant In charge of Case Member

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Sd/Dr. Chethan B

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Asst Professor of Psychiatry”

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26. Based on the above Medical Report, the CAT has

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concluded that as on the date of the Certificate, respondent was free of any mental instability and directed his

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reinstatement in an equal rank and emolument by following de-categorization process adopted by the Indian Railways.

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As rightly urged by the learned Additional Solicitor General, there was no material either before the Enquiry Officer or the Disciplinary Authority and the CAT, which would demonstrate that respondent was suffering from mental disorder/instability during 2012-13, the period during which he is alleged to have committed the misconduct. The first Out-patient Record issued by the Manipal Hospital produced as Annexure-R14 by the respondent is dated December 28, 2013. It is recorded therein that since January 2013, respondent was kept out of work. It is further recorded that since six months there was gradual change in his behaviour such as not sleeping well and entertainig suspicion that something was going against him in the Office. The respondent has also placed the Out-patient Records of different dates ending with the one dated December 10, 2021.

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The facts recorded hereinabove, show that

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respondent was not adhering to the instructions of his superiors in the year 2010. Minor penalty proceeding was

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initiated in 2011 and a penalty of reducing pay by one stage was imposed in 2012. Though he was transferred to another campus, it was alleged that he was going to his place of previous posting namely, the Fire Safety and Security Division in the Satellite campus and causing disturbance. All this has happened till February 2013. Admittedly, respondent has remained ex parte in the disciplinary proceedings. Unless there is a finding recorded by the Enquiry Officer with regard to the mental condition, the direction issued by the CAT to reinstate in a different Department with equal rank, is not be sustainable. There is some material in R14 series, which suggest that respondent has undergone treatment for mental illness. But those documents need to be proved. The respondent is aged about 52 years. If his misconduct has occurred due to Mental illness, he must have an opportunity to defend his cause.

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In the circumstances, we are of the opinion that it

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would be appropriate to grant an opportunity to the respondent to put up his defence before the Enquiry Officer. Hence, the following:

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ORDER

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(i) Writ petition is allowed in part .

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(ii) Order dated November 13, 2019 passed by the CAT and the penalty order dated October 28, 2017 passed by the Disciplinary Authority and the Enquiry Report dated August 9, 2016 are set-aside.

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(iii) Petitioners shall hold a fresh enquiry on the same charges after granting an opportunity to the respondent to participate and place his defence. Such enquiry shall be held and concluded as expeditiously as possible and in an outer limit of six months from the date of receipt of a copy of this order.

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(iv) Having regard to the facts and circumstances of this case, we are at one with the view taken by the CAT so far as denial of wages and direct that respondent shall be bound by the order to be passed by the Disciplinary Authority after completion of enquiry as directed above.

No costs.

Sd/CHIEF JUSTICE

Sd/JUDGE

SPS

Union of India v. Shri Manish Bajpai

Case brief

What is this about?

What did the court decide?

Union of India v. Shri Manish Bajpai

Case brief

What is this about?

What did the court decide?

What the court decided

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