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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 2169 OF 2007
PETITIONER :- Anil s/o Rambhau Wairagade, aged about 57
years, occupation nil, r/o Nagjibhai Town,
Sitabuldi, Near Jagannath Lodge, Nagpur
440012.
...VERSUS...
RESPONDENTS :- 1. Maharashtra Small Scale Industries
Development Corporation Limited, Krupa
Nidhi, 9, Walchand Hirachand Marg, Ballard
Estate, Mumbai-400001, through its
Chairman.
2. Managing Director, Maharashtra Small Scale
Industries Development Corporation
Limited, Krupa Nidhi, 9, Walchand
Hirachand Marg, Ballard Estate, Mumbai-
400001.
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Mr.D.V.Chauhan, counsel for the petitioner.
Mr.D.M.Kukday, counsel for the respondents.
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CORAM : SMT. VASANTI A NAIK &
MRS.SWAPNA JOSHI
, JJ.
DATED : 05.04.2017 O R A L J U D G M E N T (Per Smt.Vasanti A Naik, J.) By this writ petition, the petitioner challenges the order of the respondent-Managing Director, Maharashtra Small Scale Industries ::: Uploaded on - 10/04/2017 ::: Downloaded on - 12/04/2017 00:23:58 ::: 0504WP2169.07-Judgment 2/5 Development Corporation Limited dated 28/10/2004, dismissing the petitioner from service as also the order of the appellate authority dated 07/09/2006, dismissing the appeal filed by the petitioner against the order of dismissal.
2. The petitioner, who was working at the relevant time as a Divisional Manager with the respondent-Maharashtra Small Scale Industries Development Corporation Limited was dismissed from service after the charges levelled against him in the departmental enquiry were proved. The petitioner had filed an appeal before the appellate authority against the order of dismissal under Rule 104 of the Employees Service Rules. The appeal filed by the petitioner was dismissed by the impugned order dated 07/09/2006.
3. Shri Chauhan, the learned counsel for the petitioner, inter alia submitted that the appellate authority did not apply its mind while deciding the appeal filed by the petitioner. It is submitted by taking this court through rule 104 of the Employees Service Rules that while considering an appeal against the order imposing a major penalty like the one in this case, the appellate authority is required to consider whether the facts on which the order was based have been established and whether the established facts afford sufficient ground for taking ::: Uploaded on - 10/04/2017 ::: Downloaded on - 12/04/2017 00:23:58 ::: 0504WP2169.07-Judgment 3/5 action. It is stated that it is necessary for the appellate authority to consider the aforesaid aspects and further consider whether the penalty is excessive. It is submitted that the order of the appellate authority is cryptic and does not record a single reason for dismissing the appeal of the petitioner. It is stated that the order of the appellate authority dated 07/09/2006, is not in the order form and it is merely a communication informing the petitioner that the appeal filed by the petitioner was rejected after the perusal of the documents. It is submitted that the appellate authority has not decided the appeal in accordance with rule 104 of the Employees Service Rules. The learned counsel relied on the judgment of this court, dated 05/02/2009 in Writ Petition No.2615 of 2007 to substantiate his submissions.
4. Shri Kukday, the learned counsel for the respondents, submitted that it appears from the order dated 07/09/2006 that the appeal was placed before the Board of Directors on 31/07/2006 and the decision of rejecting the appeal is taken after perusing the papers. It is however fairly stated that no reasons are recorded in the order dated 07/09/2006 while upholding the order of the disciplinary authority and rejecting the appeal.
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5. On a reading of rule 104 of the Employees Service Rules, it appears that the order of the appellate authority dated 07/09/2006 is liable to be quashed and set aside. Though a duty is cast upon the appellate authority under rule 104 of the Rules, to consider whether the facts on which the order was based have been established and whether the facts that are established afford sufficient ground for taking action, the appellate authority has not considered these aspects at all. At least, the order dated 07/09/2006 does not disclose that these aspects have been considered by the appellate authority while dismissing the appeal filed by the petitioner. Since a duty is enjoined upon the appellate authority to consider the aforesaid aspects and further consider whether the penalty is excessive, and since the appellate authority has not considered these aspects, the impugned order cannot be sustained. A mere observation in the impugned order that the Board of Directors, after perusal of all the documents of the case and detailed deliberation, have rejected the appeal would not be a consideration of the aspects that are required to be considered in view of rule 104 of the Rules. It is rightly submitted on behalf of the petitioner that the document dated 07/09/2006 is not in the form of an order and is merely a communication informing the petitioner that his appeal is dismissed. It was necessary for the appellate authority to have decided the appeal in accordance with rule 104 of the Rules.
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6. Hence, for the reasons aforesaid, the writ petition is partly allowed. The impugned order, dated 07/09/2006 is hereby quashed and set aside. The appellate authority is directed to decide the appeal of the petitioner within three months. The petitioner undertakes to appear before the appellate authority on 24/04/2017 so that service of notice on the petitioner would be dispensed with. Rule is made absolute in the aforesaid terms with no order as to costs.
JUDGE JUDGE
KHUNTE
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