Bombay High Court
Raghunath Tejerao Kothalkar vs Marathwada Gramin Bank & Anr on 11 August, 2017
Bench: R.D. Dhanuka
1 WP 2764 of 2006
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Writ Petition No. 2764 of 2006
* Raghunath s/o Tejerao Kothalkar,
Age 54 years,
Occupation : Service,
Marathwada Gramin Bank
Branch Jategaon, District Beed. .. Petitioner.
Versus
1) Maharashtra Gramin Bank,
Head Office, Near Hotel Varsha Inn,
CIDCO, Aurangabad
Through Chairman.
2) The State of Maharashtra,
Rural Development Department,
Mantralaya, Bombay. .. Respondents.
----
Shri. D.R. Bhadekar, Advocate, for petitioner.
Shri. M.M. Patil, Advocate, for respondent No.1.
Shri. V.M. Kagne, Assistant Government Pleader, for
respondent No.2.
----
Coram: R.D. DHANUKA &
SUNIL K. KOTWAL, JJ.
Date : 11 AUGUST 2017
ORAL JUDGMENT (By R.D. Dhanuka, J.) :
1) Leave is granted to the petitioner to amend and
to substitute the name of respondent No.1 by
2 WP 2764 of 2006
"Maharashtra Gramin Bank". Amendment to be carried
out forthwith.
2) By this petition filed under Article 226 of the
Constitution of India, the petitioner seeks a writ of
certiorari for quashing the impugned order dated 18
October 2005 passed by the Board of Directors of
respondent No.1 which was arising out of the order dated
25 May 2004 passed by the Chairman of the respondent
No.1. Some of the relevant facts for the purpose of
deciding this petition are as under :-
3) The petitioner was employed by the respondent
Bank as Officer/Branch Manager. On 1 April 1998, the
time scale of the officer was revised as pay scale of
Rs.7100 - 12540. It is the case of the petitioner that in the
year 2003, the petitioner was getting and drawing basic
pay of Rs.13560/-.
4) On 3 June 2003, the respondent initiated
departmental enquiry against the petitioner and levelled
21 charges and issued articles of charge and allegation
3 WP 2764 of 2006
and directed the petitioner to submit his written
statement of defence. The petitioner did not submit any
written statement of the defence to the said article of
charge and allegations.
5) It is the case of the respondent that the
petitioner accepted all the charges levelled against him.
This statement of the petitioner was recorded in the
proceeding of the enquiry. The said proceeding was signed
by the petitioner.
6) On 30-1-2004 the learned Enquiry Officer
conducted an enquiry and submitted a report. The
petitioner was thereafter granted personal hearing by the
disciplinary authority in so far as quantum of punishment
is concerned.
7) On 25 May 2004 the disciplinary authority
passed order of reduction of 3 times in pay scale as well
as reduction to lower stage of pay of Rs.7100 in the time
scale of Rs.7,100 to 12,540.
4 WP 2764 of 2006
8) Being aggrieved by the said order passed by
the disciplinary authority and the Chairman, the petitioner
invoked Regulation 47 of the Marathwada Gramin Bank
Officers and Employees Service Regulations 2001 and
preferred an appeal before the appellate authority.
9) The Senior Manager of the respondent Bank by
a letter dated 10 November 2005 informed the petitioner
that appeal was kept before the Board of Directors of the
bank in the meeting held on 18 October 2005. It was
alleged that, the Board had perused the contents of the
appeal along with the entire enquiry proceeding/
arguments of both the parties, record and relevant
papers, documents thoroughly and the Board had decided
to consider the appeal and after discussion resolved to
reduce the payment by bringing down the basic pay of
Rs.8460/- in stead of Rs.7100/- (initial stage) in the time
scale of Rs.7100 - 12540. The petitioner was informed that
the revised punishment would be effective from the date
of the decision of the Board i.e. 18 October 2005.
5 WP 2764 of 2006
10) This communication of the respondent has been
impugned by the petitioner in this petition along with the
order dated 18 October 2005 referred in the said
communication dated 10 November 2005.
11) The learned counsel for the petitioner invited
out attention to the communication dated 10 November
2005 and submits that the respondent has failed to give
personal hearing to the petitioner. He submits that the
purported decision dated 18 October 2005 of the Board of
Directors referred in the communication dated 10
November 2005 is also not furnished to the petitioner. He
invited our attention to the Regulation 47 of the
Marathwada Gramin Bank Officers and Employees Service
Regulations 2001 (hereinafter referred to as "the
Regulations, 2001") and submits that since the petitioner
was not given personal hearing by the appellate authority
and was not even communicated with the impugned order
dated 18 October 2005, the impugned order deserves to
be set aside being in violation of the principles of natural
justice and being arbitrary.
6 WP 2764 of 2006
12) The learned counsel for the petitioner submits
that though the petitioner has admitted the allegations
made in the articles of charge and allegations, the
petitioner was entitled to be heard by the appellate
authority in so far as quantification of the punishment is
concerned. The learned counsel for the petitioner invited
our attention to the contentions raised in the affidavit in
reply filed by the respondent bank that there was no
procedure prescribed for personal hearing before the
appellate authority and in case it is requested by a
delinquent employee, the appellate authority in its
discretion may grant such personal hearing depending
upon the nature of individual case. In so far as supplying
of the order alleged to have been passed by the appellate
authority under Regulation 47 is concerned, it is
contended by the respondent in the affidavit in reply that
there is no procedure prescribed for supply of the decision
of the appellate authority to a delinquent employee. He
submits that the stand adopted by the respondent in the
affidavit in reply of not granting personal hearing and of
not supplying copy of the decision is illegal and is in gross
violation of principles of natural justice.
7 WP 2764 of 2006
13) The learned counsel for the petitioner placed
reliance on the judgment of the Full Bench of this Court in
the case of Anil Amrut Atre v. District and Sessions
Judge, Aurangabad, reported as 2002 (3) Mh.L.J. 750 and
in particular on paragraphs 23, 26 and 31. He submits
that Rule 23(2) of the Maharashtra Civil Services
(Discipline and Appeal) Rules 1979 which is in pari
materia with Regulation 47 of the Regulations 2001 has
been considered by the Full Bench of this Court and has
held that the expression "consider" will include within its
sweep application of mind, personal hearing and
recording of reasons. He submits that the appellate
authority was not only bound to render hearing to the
petitioner but was also bound to provide reasoned order
to the petitioner.
14) Learned counsel for the respondent, on the
other hand, submits that the petitioner had admitted all
the charges levelled against him by the respondent before
the learned Enquiry Officer. The learned Enquiry Officer
recorded the admission on the part the petitioner in
respect of the charges in the proceeding before him. He
8 WP 2764 of 2006
submits that in so far as the submission of the learned
counsel for the petitioner that no personal hearing was
given by the appellate authority or that copy of the
impugned decision taken by the appellate authority under
Regulation 47 not having been furnished to the petitioner
and thus the same is in violation of principles of natural
justice is concerned, it is submitted by the learned counsel
for the bank that Regulation 47 neither contemplates any
personal hearing nor supply of the order passed by the
appellate authority. He, however, submits that in any case
the petitioner never applied for giving personal hearing
before the appellate authority.
15) Regulation 47(2) provides that the appellate
authority was to consider the appeal and pass suitable
order preferably within the period of six months. A
perusal of the communication dated 10 November 2005
from the Senior Manager of the respondent to the
petitioner indicates that the petitioner was only informed
about the decision purported to have been taken by the
Board of Directors in the meeting held on 18 October
2005. By the said letter, the petitioner was conveyed that
9 WP 2764 of 2006
the Board had perused the contents of appeal along with
entire enquiry proceedings/arguments of both the parties,
record and other relevant papers/documents thoroughly.
The petitioner was informed that the Board had decided to
consider the appeal and after discussions resolved to
reduce the punishment by bringing down the basic pay to
Rs.8460/- in stead of Rs.7100 (initial stage) in the time
scale of Rs.7100/- to Rs.12540/- effective from 18-10-2005.
16) In our view, the appellate authority was bound
to pass a reasoned order after giving an opportunity of
being heard to the petitioner and ought to have supplied
the decision to the petitioner who was a party to the
appeal provided under Regulation 47 of the Regulations,
2001. Both these requirements are mandatory and are in
consonance with the principles of natural justice. In our
view any order passed by any authority which may have
civil consequences and affects the rights of a person can
be passed only after complying with the principles of
natural justice i.e. after giving personal hearing to a party
who is likely to be affected by the adverse order if any,
followed by reasoned order and supplying the impugned
10 WP 2764 of 2006
order to such party. Regulation 47 does not provide that
personal hearing would be rendered only if it is demanded
by the delinquent employee.
17) This Court in the case of Anil Amrut Atre
(supra) has considered similar provision i.e. Rule 23(2) of
the Maharashtra Civil Services (Discipline and Appeal)
Rules 1979 and also the similar provision in the Railway
Servants (Discipline and Appeal) Rules, 1968 and has held
that the expression "consider" in rule 23(2) of the
Maharashtra Civil Services (Discipline and Appeal) Rules
1979 will include within its sweep application of mind,
personal hearing and recording of reasons. It is held that
it is mandatory on the part of the appellate authority to
apply its mind and to pass speaking order after affording
personal hearing to the delinquent.
18) Regulation 47 is extracted as under :-
"47. Right to appeal.
(i) An officer or employee shall have right of appeal
against any order passed under these Regulations which
injuriously affects his interest.
11 WP 2764 of 2006
(ii) The appeal shall be preferred to the Appellate Authority
mentioned in Regulation 48 within 45 days of the date of the
receipt of the order appealed against. The Appellate Authority
shall consider the appeal and pass suitable order preferably
within a period of 6 months."
19) In our view, the expression "consider" in a
provision for appeal or providing any other legal remedy
to a party cannot be an empty formality. Since the rights
of an officer or an employee may be seriously prejudiced
by any adverse order that is passed by the appellate
authority, by exercising power under Regulation 47, such
powers will have to be exercised in accordance with law
and after following principles of natural justice. In our
view the principles laid down by the Full Bench of this
Court in the case of Anil Amrut Atre (cited supra) squarely
apply to the facts of this case. We are respectfully bound
by the said judgment. Petitioner has demonstrated that a
prejudice is caused to him due to deprivation of personal
hearing and by not furnishing the impugned order passed
by the appellate authority.
20) In our view communication of the order
purportedly to have been passed by the Board of Directors
12 WP 2764 of 2006
of the respondent in its meeting dated 18 October 2005 is
not sufficient. Unless the petitioner would have been
supplied with the reasoned order as would have been
passed by the appellate authority, the petitioner could not
have challenged the said order on its merits. Such order
which is stated to be adverse to the interest of the
petitioner cannot be suppressed from the petitioner who
was appellant before the appellate authority. In our view
the appellate authority is under obligation to furnish the
order passed by it to the petitioner disclosing as to how
the appellate authority had granted only part relief to the
petitioner and on what basis the other reliefs are rejected.
The impugned order dated 10 November 2005 granting
approval to the order dated 18 October 2005 thus
deserves to be set aside being in violation of principles of
natural justice and being arbitrary.
21) A perusal of the impugned letter dated 10th
November 2005 indicates that the Board has alleged to
have considered the arguments of both the parties though
the petitioner was not granted any opportunity of being
heard. It also refers to the discussions alleged to have
13 WP 2764 of 2006
been held by the Board without disclosing about such
discussions with whom. In our view the impugned order
thus shows non application of mind and perversity and
thus deserves to be set aside on this ground also.
22) We therefore, pass the following order :-
(a) The impugned communication dated 10 November
2005 and the impugned decision recorded in the said
letter dated 18 October 2005 annexed at Exhibit 7 is
quashed and set aside.
(b) The appeal dated 4 October 2005 filed by the
petitioner before the appellate authority under Regulation
47 of the Marathwada Gramin Bank Officers and
Employees Service Regulations, 2001 is restored to the
file. The appellate authority shall grant an opportunity to
the petitioner of being heard and shall pass a reasoned
order after considering the material on record and oral &
written submissions, if any, made by the petitioner and
shall pass a fresh order in accordance with law.
(c) It is made clear that this Court has not expressed
any views on the merit of the matter including quantum
14 WP 2764 of 2006
of punishment inflicted by the appellate authority in the
impugned order.
(d) It is also made clear that the appellate authority
shall decide the matter afresh without being influenced by
the decision purported to have been taken in the meeting
held on 18 October 2005 and in the communication dated
10 November 2005 sent to the petitioner. The appellate
authority shall pass fresh order within 3 months from the
the date of receipt of authenticated copy of this order.
(e) The appellate authority shall furnish a copy of the
reasoned order to the petitioner within 3 weeks from the
date of passing of such order. The petitioner is directed
to inform his present address to the appellate authority
for the purpose of communication and for compliance
of this order within two weeks from today.
(f) Rule is made absolute in the aforesaid terms. There
shall be no order as to cost. The parties and the appellate
authority to act on the authenticated copy of this order.
Sd/- Sd/-
(SUNIL K. KOTWAL, J.) (R.D. DHANUKA, J.)
rsl
