Bombay High Court
Anil Rambhau Wairagade vs Maha. Small Scale Industries ... on 5 April, 2017
Bench: V.A. Naik
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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
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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
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
