Bombay High Court
Rajendra Daulatrao Wankhede vs Shivaji Pandurang Nikale And ... on 22 September, 2016
Bench: S.V. Gangapurwala
1 wp 9751.16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 9751 OF 2016
Rajendra S/o Daulatrao Wankhede,
Age : 54 Years, Occu. : Service
Working as Forester (Saw Mill Checking)
Aurangabad,
R/o N-7, Sector-F, House No. 1/1,
Ayodya Nagar, CIDCO, Aurangabad,
Tq. & Dist. Aurangabad.
ig .. Petitioner
Versus
1. Shivaji Pandurang Nikale,
Age : 56 Years, Occu. : Assistant
Plantation Officer,
R/o Vishnunagar, Hiverkeda Road,
Kannad, Tq. Kannda,
Dist. Aurangabad.
2. The State of Maharashtra,
Through its Secretary,
Revenue and Forest Department,
Mantralaya, Mumbai - 32.
3. The Chief Conservator of Forest
(Regional), Aurangabad,
District Aurangabad.
4. The Deputy Conservator of Forest,
Aurangabad Forest Division,
Aurangabad,
District Aurangabad. .. Respondents
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Shri Avishkar S. Shelke, Advocate for the Petitioner.
Shri Sujeet D. Joshi, Advocate for the Respondent No. 1.
Shri V. H. Dighe, A.G.P. for Respondent Nos. 2 to 4.
CORAM : S. V. GANGAPURWALA AND
K. L. WADANE, JJ.
DATE : 22ND SEPTEMBER, 2016.
ORAL JUDGMENT (Per S. V. Gangapurwala, J.) :-
. Rule. Rule made returnable forthwith. With the consent of
parties taken up for final hearing.
2. Mr. Shelke, the learned counsel for the petitioner states
that, the petitioner was transferred in the place of the
respondent No. 1 and vice versa. The respondent No. 1 assailed
the order transferring him by filing Original Application No. 420
of 2016. Though the petitioner would be prejudiced by any
adverse order passed against him, in the said original
application, the petitioner was not arrayed as party and in
absence of the petitioner impugned order came to be passed by
the Tribunal. The learned counsel submits that, the petitioner
did not get any opportunity to put forth his stand. The petitioner
had already joined the post at his transferred place on
01.06.2016. Even salary was paid to the petitioner from the said
office. Since June 2016 the petitioner is working on the said
post. According to the learned counsel, the Tribunal in absence
of the petitioner could not have passed the said order.
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3. Mr. Joshi, the learned counsel for the respondent No. 1
submits that, the petitioner was aware of the transfer order being
challenged before the Tribunal. The petitioner could have
appeared before the Tribunal to put forth his case. Though the
proceedings were pending before the Tribunal for almost three
months. The petitioner slept over and did not appear in the
matter. Now the petitioner cannot turn around and make a
grievance of opportunity not being granted to him. Even the
state was not co-operating. The state filed the order of transfer
of the petitioner only along with reply to rejoinder affidavit and
not prior to it. According to the learned counsel, the order of
transfer which was under challenge did not specify that the
petitioner is transferred in the place of the respondent No. 1.
The respondent No. 1 was not aware that he is transferred at the
place of petitioner. The order of transfer did not specify the said
aspect.
4. We have also heard the learned Assistant Government
Pleader. The learned A. G. P. states that, in the reply filed before
the Tribunal, the state had made it clear that, it was the
petitioner who has been transferred in place of the respondent
No. 1. As such, it is erroneous on the part of the respondent No.
1 to say that, the said fact was not brought to the notice of the
respondent No. 1.
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5. We have considered the submissions canvassed by learned
counsel for respective parties.
6. It is a fact that, by the impugned order passed by the
Tribunal, the petitioner would be affected and would stand
displaced from the place where the petitioner is transferred as
stated by the petitioner and the learned A. G. P. that, the
petitioner has already joined at his transferred place on
01.06.2016 and that salary is paid to him on and from June 2016.
The rights of the petitioner certainly would be affected by the
impugned order. It is the cardinal and fundamental principle of
natural justice that, no man shall be condemned unheard.
7. As the petitioner was not party before the Tribunal,
naturally the petitioner could not put forth his case. In such a
case opportunity deserves to be given to the petitioner.
8. In the light of the above, we pass the following order.
9. The impugned order is quashed and set aside and the
parties are relegated before the Maharashtra Administrative
Tribunal, Aurangabad. The parties shall appear before the
Tribunal on 03rd October, 2016. The respondent No. 1 shall array
the present petitioner as respondent in the Original Application
No. 420 of 2016. As date for appearance is already given, fresh
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notices to parties are not necessary. The petitioner shall file his
say within a period of ten (10) days from the date of appearance
before the Tribunal. Considering the fact that, it is a case of
transfer and the matter is remitted back from this Court, we
request the Tribunal to dispose of the proceedings as
expeditiously as possible and preferably within a period of one
month from the date of filing say by the petitioners.
10.
Rule accordingly is made absolute in above terms. No
costs.
Sd/- Sd/-
[ K. L. WADANE, J. ] [ S. V. GANGAPURWALA, J. ]
bsb/Sept. 16
