The court held that disciplinary punishment must reflect the gravity of misconduct, and the Tribunal exceeded its jurisdiction by failing to consider the distinct responsibilities of the employees involved.

JUDGMENT :

M.M. Sathaye, J.

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