Bombay High Court
Avinash Malharrao Kakade vs Mumbai Agricultural Produce ... on 18 January, 2022
Bench: N. J. Jamadar
CIVIL WP-11656-2019-J.DOC
3
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 11656 OF 2019
Digitally
signed by
SHRADDHA Avinash Malharrao Kakade, ]
SHRADDHA KAMLESH
KAMLESH TALEKAR Aged 56 years, Occupation : Service, ]
TALEKAR Date:
2022.01.18 Indian Inhabitant, having address at ]
17:19:36
+0530 Central Facility Building, First Floor, ]
Sector-18, Turbhe, Navi Mumbai-400 703 ]...Petitioner
Versus
1. Mumbai Agricultural Produce Market ]
Committee ]
Established under the Provisions of ]
M.A.P.M. (Regulation) Act, 1963 ]
(Maha. Act No. XX of 1964) ]
Having address at Central facility ]
Building Third Floor, Sector 18, ]
Turbhe, Navi Mumbai-400 703. ]
]
2. The Administrator, ]
Mumbai Agricultural Produce Market ]
Committee, ]
Having address at Central facility ]
Building Third Floor, Sector 18, ]
Turbhe, Navi Mumbai-400 703. ]
3. The Secretary, ]
Mumbai Agricultural Produce Market ]
Committee, ]
Having address at Central facility ]
Building Third Floor, Sector 18, ]
Turbhe, Navi Mumbai-400 703.
4. Joint Director of Marketing ]
State of Maharashtra ]
3 Floor, Central Building,
rd
]
Pune ]...Respondents
****
Shri Pradeep Thorat a/w. Shri Aniesh S. Jadhav for petitioner.
None present for respondent Nos.1 to 3.
Shraddha Talekar, PS. 1/14
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Shri V.S. Nimbalkar, AGP for State-respondent No.4.
***
CORAM : N.J. JAMADAR, J.
Reserved for Order on : 18th NOVEMBER 2021.
Pronounced on : 18th JANUARY 2022.
(THOUGH VIDEO CONFERENCE)
JUDGMENT :
1. Rule. Rule made returnable forthwith and with the
consent of the learned counsels for the parties, heard fnally.
2. The challenge in this petition is to an order passed by
Director, Marketing, Maharashtra State in an appeal, being
Appeal No.32 of 2018 under section 52B of the Maharashtra
Agricultural Produce Marketing (Development and Regulation)
Act, 1963 ('APM Act, 1963') on 4 th August 2018, whereby the
appeal preferred by the petitioner against the penalty of
withholding three annual increments for three years imposed by
the Secretary, Mumbai Agricultural Produce Market Committee,
by an order dated 17th February 2018, came to be dismissed by
affrming the said order.
3. The background facts leading to this petition can be
stated, in brief, as under :-
(a) The petitioner, who is a retired Lieutenant
Colonel, came to be appointed as the Chief Security
Offcer at Mumbai Agricultural Product Market
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Committee- respondent No.1, on 1st October 2012.
The respondent No.2 is the Administrator of
respondent No.1. Respondent No.3 is its Secretary.
Respondent No.4 is the appellate and controlling
authority of the market committees.
(b) In the year 2005, respondent No.1 had
appointed M/s.Marshal Dog Squad Pvt. Ltd. for
providing security by deputing 18 dogs and 18 dog
handlers, at Market-1 and Market-2, during the night
hours. The contract came to be renewed from time to
time. In accordance with the terms of the contract,
the Security Offcers of the concerned markets were
to supervise the attendance of the dogs and dog
handlers and verify the correctness of the entries
made in the daily and monthly attendance registers.
The correctness of those entries were to be further
verifed by the Deputy Secretaries of the concerned
markets. Thereafter, the security agency M/s.
Marshal Dog Squad Pvt. Ltd. would prepare the
monthly bills and forward the same to the offce of
the petitioner, duly countersigned by the Security
Offcers and Deputy Secretaries. Thereupon, the
petitioner would obtain the approval of respondent
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No.3 for payment.
(c) The petitioner claims that on 27th January 2017,
after noticing discrepancies in the record maintained
by the concerned offcials, the petitioner submitted a
report to respondent No.3 pointing out the
misfeasance and malfeasance on the part of the
concerned offcials and M/s.Marshal Dog Squad Pvt.
Ltd., with a recommendation to terminate the
contract. On the basis of the said report, by an order
dated 1st February 2017, the contract with
M/s.Marshal Dog Squad Pvt. Ltd. came to be
terminated with effect from 1st February 2017 itself.
In addition, Shri Bajrang Jadhav, Deputy Secretary
(Establishment) was directed to conduct an enquiry
in respect of the said matter.
(d) Post enquiry, Shri Bajrang Jadhav, in the report
dated 17th June 2017, concluded that for the period
December 2015 to November 2016, 916 attendances
were marked in excess of the actual attendance of the
dog handlers during the said period, and thus a sum
of Rs.7,01,264/- was paid in excess to M/s.Marshal
Dog Squad Pvt. Ltd. It was, inter-alia, recorded that
Shri K.K. Raskar, the then Security Offcer, Shri I.R.
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Masram, Deputy Secretary of Market No.1 and Shri
R.A. Patil, Deputy Secretary of Market No.2 had not
properly verifed the correctness of the entries in the
attendance register and were guilty of negligence in
discharge of their duties. In the Supplementary
Report, dated 29th July 2017, Shri Bajrang Jadhav
further reported that Shri K.K. Raskar was also
negligent in the performance of his duties as Security
Offcer qua Market No.2.
(e) In the frst report dated 17 th June 2017, Shri
Bajrang Jadhav had also recorded that Shri C.T.
Pawar, Security Offcer, and the petitioner had
recommended payment of the charges to the
contractor without properly verifying the entries in
the attendance register and the said irresponsible act
of the petitioner was also prejudicial to the interest of
the Committees.
(f) On the basis of the said reports, a charge-sheet
was served on the petitioner on 23 rd June 2017 under
Rule 63(1) of the Mumbai Agricultural Produce
Marketing Committee Service Rules ('Rules'). The
substance of the charge was that the petitioner did
not discharge his duty as the Chief Security Offcer of
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properly verifying the correctness of the entries in the
daily and monthly register of attendance of the dog
handlers, resulting in recording of 916 days excess
attendance during the period December-2015 to
November-2016 and the consequent excess payment
of Rs.7,01,264/- and thereby the petitioner was guilty
of breach of sub-rules (6), (10), (19), (24), (26), (29)
and (31) of Rule 59 of the Rules.
(g) The petitioner submitted an explanation to the
charges levelled against him vide communication
dated 25th October 2017. Shri M.S. Thakur, Retired
Assistant Registrar, conducted enquiry and
submitted report on 31st October 2017. It was found
that charge Nos.1 to 6 were proved and the petitioner
was guilty of misconduct, as envisaged under Rule 59
(6), (10), (19), (24), (26), (29) and (31) of the Rules.
(h) A Show Cause Notice was served to the
petitioner on 16th December 2017. The petitioner gave
a reply thereto on 30th December 2017.
(i) By an order dated 17th February 2018,
respondent No.3 concurred with the view of the
Enquiry Offcer and found the petitioner guilty of
misconduct and negligence under Rule 59 (6), (10),
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(19), (24), (26), (29) and (31) of the Rules and
proceeded to impose the penalty of withholding three
annual increments for three years under Rule 60(4) of
the Rules.
4. Being aggrieved, the petitioner preferred an appeal under
section 52B of the APM Act, 1963 before the Director, Marketing,
Maharashtra.
5. By the impugned order dated 4 th August 2018, the
respondent No.4 dismissed the appeal and affrmed the order
passed by respondent No.3 on 17th February 2018.
6. Being further aggrieved, the petitioner has invoked the
writ jurisdiction of this Court.
7. I have heard Shri Pradeep Thorat, the learned counsel for
the petitioner and Shri Nimbalkar, the learned AGP for the
State-respondent No.4.
8. None appeared for respondent Nos.1 to 3, though a notice
was given to the counsel for respondent Nos.1 to 3 by the
counsel for the petitioner, and the matter was posted on a
number of occasions to avail opportunity to respondent Nos.1 to
3 to appear before the Court and contest the petition.
9. Shri Thorat advanced a multi-pronged submission. Firstly,
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the impugned order passed by respondent No.4 is singularly
without reasons. Since the impugned order is sans reasons, the
petition deserves to be allowed on the said count alone. The
respondent No.4, according to Shri Thorat, committed a grave
error in law in not at all considering the submissions canvassed
on behalf of the parties, testing the legality, propriety and
correctness of the order impugned before him, in exercise of
appellate jurisdiction, and instead dismissing the appeal by a
stroke of pen. Secondly, the impugned order of imposing penalty
of withholding three annual increments for three years, upon
the petitioner, who had, at the highest, supervisory role, is
wholly discriminatory as Shri K.K. Raskar and Shri C.T. Pawar,
the Security Offcers, who were primarily responsible to verify
the attendance and the correctness of the entries in the
attendance register and were also found to be hand in glove with
the security agency M/s.Marshal Dog Squad Pvt. Ltd., were let
off by imposing a fee-bit penalty of withholding one increment
for one year only. Thirdly, taking the Court through the reports
of Shri Bajrang Jadhav, Shri Thorat would urge that those
reports incriminated the offcials other than the petitioner and
the latter was, in a sense, completely exonerated, apart from a
stray observation of supervisory negligence. Therefore, the very
order holding the petitioner guilty of misconduct as envisaged
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under Rule (6), (10), (19), (24), (26), (29) and (31) of the Rules is
legally unsustainable.
10. In contrast to this, Shri Nimbalkar, the learned AGP would
urge that the disciplinary action was initiated against the
petitioner and other offcials in conformity with the provisions
contained in APM Act, 1963 and the governing service rules.
The petitioner was provided an effective opportunity of hearing.
There is neither jurisdictional error nor procedural irregularity
which would warrant exercise of writ jurisdiction by this Court.
The learned AGP further submitted that, being the Chief
Security Offcer, the petitioner was responsible for overall
security arrangement and, thus, the petitioner was adequately
punished.
11. To begin with, the challenge to the impugned order on the
count that it singularly lacks reasons, I have carefully perused
the impugned order passed by respondent No.4. In the
impugned order, the Joint Director, Marketing has recorded a
preface of the proceedings, the submissions on behalf of the
petitioner and the marketing committee, the fnding recorded by
the enquiry offcer and the conclusions drawn by the Marketing
Committee and, thereafter, simply proceeded to observe that he
is satisfed that the appeal deserved to be dismissed.
Shraddha Talekar, PS. 9/14
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12. The submission of Shri Thorat that the impugned order is
sans reason is impeccable. As an appellate authority, it was
incumbent upon respondent No.4 to arrive at a conclusion, after
analysing the material against the petitioner and testing the
legality, propriety and correctness of the impugned order
independently. No effort seems to have been made by
respondent No.4 to evaluate either the correctness of the fnding
recorded by respondent No.3 or the justness of the penalty.
Since, the impugned order simply lacks reason, this Court is not
equipped to discern as to what weighed with the appellate
authority to affrm the order passed by respondent No.3 and
dismiss the appeal.
13. The reliance placed by Shri Thorat on the judgment of the
Supreme Court, in the case of Chairman, Disciplinary
Authority, Rani Lakshmi Bai Kshetriya Gramin Bank Vs.
appears to be well
founded. In the said case, a submission was sought to be
canvassed on behalf of the employer that an order of affrmation
does not require any reasons. The Supreme Court observed that
an order of affrmation need not contain elaborate reasons.
However, it does not imply that the order of affrmation need not
1 (2009) 4 SCC 240
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contain any reasons whatsoever. The observations in paragraph
Nos. 5 to 9 are material and hence, extracted below :
"5 In our opinion, an order of affrmation need not contain
as elaborate reasons as an order of reversal, but that does not
mean that the order of affrmation need not contain any
reasons whatsoever. In fact, the said decision in Prabhu Dayal
Grover's case(supra) has itself stated that the appellate order
should disclose application of mind. Whether there was an
application of mind or not can only be disclosed by some
reasons, at least in brief, mentioned in the order of the
appellate authority. Hence, we cannot accept the proposition
that an order of affrmation need not contain any reasons at
all. That order must contain some reasons, at least in brief, so
that one can know whether the appellate authority has
applied its mind while affrming the order of the disciplinary
authority.
6 The view we are taking was also taken by this Court in
Divisional Forest Offcer vs. Madhusudan Rao, JT 2008 (2) SC
253 (vide para 19), and in Madhya Pradesh Industries Ltd. vs.
Union of India, AIR 1966 SC 671, siemens Engineering &
Manufacturing Co. Ltd. vs. Union of India, AIR 1976 SC 1785
(vide para 6), etc.
7 In the present case, since the appellate authority's order
does not contain any reaons, it does not show any application
of mind.
8 The purpose of disclosure of reasons, as held by a
Constitution Bench of this Court in the case of S.N.Mukherjee
vs. Union of India reported in (1990) 4 SCC 594, is that people
must have confdence in the judicial or quasi-judicial
authorities. Unless reasons are disclosed, how can a person
know whether the authority has applied its mind or not? Also,
giving of reasons minimizes chances of arbitrariness. Hence, it
is an essential requirement of the rule of law that some
reasons, at least in brief, must be disclosed in a judicial or
quasi-judicial order, even if it is an order of affrmation.
9 No doubt, in S.N.Mukherjee's case (supra), it has been
observed (vide para 36) that:
"..The appellate or revisional authority, if it
affrms such an order, need not give separate
reasons if the appellate or revisional authority
agrees with the reasons contained in the order
under challenge."
The above observation, in our opinion, really means that the
order of affrmance need not contain an elaborate reasoning
as contained in the order of the original authority, but it
cannot be understood to mean that even brief reasons need
not be given in an order of affrmance. To take a contrary view
Shraddha Talekar, PS. 11/14
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would mean that appellate authorities can simply dismiss
appeals by one line orders stating that they agree with the
view of the lower authority."
(emphasis supplied)
14. The aforesaid pronouncement appears on all four with the
facts of the case at hand. The impugned order is simply bereft of
any reason. In the circumstances, it is impossible to discern as
to whether the appellate authority had applied its mind while
affrming the order of Disciplinary Authority. Thus, the
impugned order deserves to the quashed and set aside on this
count alone.
15. Shri Thorat, the learned counsel for the petitioner
submitted that instead of remitting the matter back to
respondent No.4, it may be appropriate to give a quietus to the
matter. Shri Thorat submitted that the petitioner had
superannuated in the year 2021. The amount of Rs.7,01,264/-,
which was paid in excess to the security agency, has since been
recovered from M/s. Marshal Dog Squad Pvt. Ltd. as is evident
from the administrative order dated 2 nd August 2017. Moreover,
in the enquiry report, it is specifcally recorded that there was
no actual fnancial loss to the Committee. Thus, this Court may
either completely exonerate the petitioner or suitably modify the
penalty, submitted Shri Thorat.
16. It is for this purpose, essentially to modulate the relief to
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be granted to the petitioner, this Court posted the matter on a
couple of occasions to facilitate the respondent Nos.1 to 3 to
appear before the Court and make appropriate submissions.
17. I fnd it rather diffcult to accede to the submissions on
behalf of the petitioner that in the circumstances of the case,
this Court would be justifed in overturning the order passed by
the Disciplinary Authority. Even in the report of Shri Bajrang
Jadhav, as indicated above, it was recorded that there was an
element on negligence on the part of the petitioner, as well. In
this view of the matter, it would be appropriate to remit the
matter back to the appellate authority with a direction to pass a
reasoned order, after providing an effective opportunity of
hearing, within a stipulated period.
18. Hence, the following order :
ORDER
(i) The appeal stands partly allowed.
(ii) The impugned order dated 4th August 2018
passed by respondent No.4 dismissing Appeal No.
32 of 2018 and affrming the order passed by
respondent No.3 dated 17th February 2018, stands
quashed and set aside.
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(iii) Appeal No.32 of 2018 stands restored to the fle
of the Director, Marketing.
(iv) The Director, Marketing shall personally hear
and decide the appeal by passing a reasoned order,
after providing an effective opportunity of hearing to
all the parties.
(v) The Director, Marketing shall not, however, be
infuenced by any of the observations made
hereinabove and shall decide the appeal on its own
merits. All contentions of parties are kept open for
consideration.
(vi) The Director, Marketing shall make an
endeavour to decide the appeal as expeditiously as
possible and, preferably, within a period of three
months from the date of appearance of the parties
before him.
(vii) Parties shall appear before the Director,
Marking, on 1st February 2022.
(viii) Rule made absolute to the aforesaid extent.
In the circumstances, parties shall bear their
respective costs.
[N. J. JAMADAR, J.]
Shraddha Talekar, PS. 14/14
