Shivraj Dohare vs M.P.S.E.B. And Anr.
2023 Latest Caselaw 3400 MP

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     IN THE HIGH COURT OF MADHYA PRADESH
                             AT GWALIOR
                                  BEFORE
     HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE

                  ON THE 1st OF MARCH 2023

                  WRIT PETITION No.822 of 2005

       Between:-

       SHIVRAJ DOHARE, S/O SHRI C.L.
       DOHARE, AGED ABOUT 35 YEARS,
       OCCUPATION: SERVICE, R/O 150, BEHIND
       PNT COLONY, R.K. PURI POST OFFICE,
       THATIPUR, GWALIOR (MADHYA
       PRADESH)
                                                  .....PETITIONER

       (BY SHRI ALOK KUMAR SHARMA - ADVOCATE )

       AND
1.     THE M.P. STATE ELECTRICITY BOARD,
       JABALPUR (M.P.) THROUGH ITS
       SECRETARY
2.     THE ADDITIONAL SECRETARY (P)-11,
       MPSEB JABALPUR (MADHYA PRADESH)

                                                     .....RESPONDENTS

       (BY SHRI RAVI JAIN - ADVOCATE )

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      This petition coming on for hearing this day, Hon'ble Shri
Justice Milind Ramesh Phadke passed the following:
                           ORDER

1. This petition under Article 226 of the Constitution of India has been filed seeking the following reliefs:-

"(i) That, the order Annexure P/1 be quashed.

(ii) That, the order Annexure P/7 be quashed.

(iii) That, the respondents be directed to make payment of all the consequential benefits including the difference of subsistence allowance not legally paid to the petitioner.

(iv) That, the other relief doing justice including cost be awarded."

2. It is submitted by the counsel for the petitioner that departmental enquiry was conducted against the petitioner and he was saddled with the punishment of reduction of salary to a lower stage of pay i.e. from Rs.8000/- to Rs.5600/- in the time scale of Rs.5600-10400/- for a period of three years during which he will not earn any increment and on completion of period of such three years it is held that the petitioner will start earning increment on basic of Rs.5600/- onwards thereby reducing salary by 10 stages will have a commutative effect and the petitioner will start again from basic salary of Rs.5600/-

after three years. Against the said order, the petitioner preferred an appeal, which has been dismissed by a non-speaking order.

3. A solitary ground has been raised by the counsel for the petitioner that the order passed by the Appellate Authority lacks reasons and the same has been passed merely by saying "And whereas you preferred an appeal against the above order which was considered by the Board carefully as a review petition and as it was not found to be convincing and satisfactory, it has been directed to reject your appeal." It is submitted that this clearly shows that the appellate authority had not applied its mind and has dismissed the appeal in a cursory manner.

4. Per contra, the petition is vehemently opposed by the counsel for the respondents.

5. Heard the learned counsel for the parties.

6. The only question, which arises for the consideration in the present petition is as to whether the appellate authority is required to decide the appeal by assigning any reason or not.

7. It is well established principle of law that reasons are heart beat of an order and only from the reasons it can be deciphered about the facts, which persuaded the appellate authority to take a decision in a particular manner. The reasons are necessary to rule out the possibility of any mala fide or arbitrary action. Furthermore, the power of an appeal is not an administrative in nature and it is quasi judicial in nature and

each and every appeal should be decided by the appellate authority after considering the grounds raised by the appellant. The Supreme Court in the case of Divisional Forest Officer, Kothagudem and Others Vs. Madhusudhan Rao reported in (2008) 3 SCC 469 has held as under:-

"19. Having considered the submissions made on behalf of the respective parties and also having regard to the detailed manner in which the Andhra Pradesh Administrative Tribunal had dealt with the matter, including the explanation given regarding the disbursement of the money received by the respondent, we see no reason to differ with the view taken by the Administrative Tribunal and endorsed by the High Court. No doubt, the Divisional Forest Officer dealt with the matter in detail, but it was also the duty of the appellate authority to give at least some reasons for rejecting the appeal preferred by the respondent. A similar duty was cast on the revisional authority being the highest authority in the Department of Forests in the State. Unfortunately, even the revisional authority has merely indicated that the decision of the Divisional Forest Officer had been examined by the Conservator of Forests, Khammam wherein the charge of misappropriation was clearly proved. He too did not consider the defence case as made out by the respondent herein and simply endorsed the punishment of

dismissal though reducing it to removal from service."

8. The Supreme Court in the case of Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank Vs. Jagdish Sharan Varshney and Others reported in (2009) 4 SCC 240 has held as under:-

"5. In our opinion, an order of affirmation need not contain as elaborate reasons as an order of reversal, but that does not mean that the order of affirmation need not contain any reasons whatsoever. In fact, the said decision in Prabhu Dayal Grover case [(1995) 6 SCC 279 : 1995 SCC (L&S) 1376 : (1995) 31 ATC 492] 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 affirmation 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 affirming the order of the disciplinary authority.

9. No doubt, in S.N. Mukherjee case [(1990) 4 SCC 594 : 1990 SCC (Cri) 669] it has been observed that: (SCC p. 613, para 36) "36. ... The appellate or revisional authority, if it affirms 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 affirmance 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 affirmance. To take a contrary view would mean that appellate authorities can simply dismiss appeals by one-line orders stating that they agree with the view of the lower authority."

9. The Supreme Court in the case of Central Board of Trustee Vs. M/s Indore Composite Pvt. Ltd. by judgment dated 26/07/2018 passed in Civil Appeal No.7240/2018 has held as under:-

12) After setting out the facts, the Division Bench proceeded to disposed of the writ petition with the following observations in its concluding paras which read as under:

"On due consideration of the aforesaid on the basis of the fresh documents and affidavit for taking additional documents on record, we cannot direct the establishment to pay damages for the period from March 2006- April 2010 when all these objections were not taken before the learned Tribunal.

Considering the aforesaid, we are of the view that the order passed by the learned Tribunal is just and proper and no case for interference with the impugned order is warranted.

The writ petition filed by the petitioner has no merit and is accordingly dismissed."

(emphasis supplied)

13) In our opinion, the need to remand the case to the High Court has occasioned for the reason that the Division Bench dismissed the writ petition filed by the appellant (petitioner) cursorily without dealing with any of the issues arising in the case as also the arguments urged by the parties in support of their case.

14) Indeed, in the absence of any application of judicial mind to the factual and legal controversy involved in the appeal and without there being any discussion, appreciation, reasoning and categorical findings on the issues and why the findings impugned in the writ petition deserve to be upheld or reversed, while dealing with the arguments of the parties in the light of legal principles applicable to the case, it is difficult for this Court to sustain such order of the Division Bench. The only expression used by the Division Bench in disposing of the writ petition is "on due

consideration". It is not clear to us as to what was that due consideration which persuaded the Division Bench to dispose of the writ petition because we find that in the earlier paras only facts are set out.

15) Time and again, this Court has emphasized on the Courts the need to pass reasoned order in every case which must contain the narration of the bare facts of the case of the parties to the lis, the issues arising in the case, the submissions urged by the parties, the legal principles applicable to the issues involved and the reasons in support of the findings on all the issues arising in the case and urged by the learned counsel for the parties in support of its conclusion. It is really unfortunate that the Division Bench failed to keep in mind these principles while disposing of the writ petition. Such order, in our view, has undoubtedly caused prejudice to the parties because it deprived them to know the reasons as to why one party has won and other has lost. We can never countenance the manner in which such order was passed by the High Court which has compelled us to remand the matter to the High Court for deciding the writ petition afresh on merits."

10. Thus, it is clear that while affirming the order of punishment, the appellate authority may not be under obligation to give elaborate reasons but it must give some reasons for

rejecting the appeal preferred by the respondents. The appellate authority was also expected to consider each and every ground raised by the appellant. The appellate authority should not dismiss the appeal merely by saying that the record was considered/perused. If the impugned order dated 15.7.2003 passed by respondent no.2 is considered, then it is clear that the same does not contain any reason. In fact it has been passed on the basis of opinion given by the respondent no.2 only.

11. Under these circumstances, this Court is of the view that the appellate order passed by the appellate authority cannot be given a stamp of approval. Accordingly, the order dated 15.7.2003 (Annexure P/1) is hereby set aside. Earlier at the time when the order has been passed by Additional Secretary (P)-II, M.P. State Electricity Board, but now due to advent of time Company has been formed where the Appellate Authority is the Managing Director. So the matter is remitted back to the Managing Director who is the Appellate Authority to decide the appeal afresh by considering each and every ground raised by the petitioner. It is an old matter, but since the pettioner is still in service, therefore, the Appellate Authority is directed to consider this aspect on merits and pass a reasoned and speaking order as well as consider the point of quantum of sentence. Let the entire exercise be completed within a period of three months from today.

12. With aforesaid observation, this petition is finally disposed of.

(Milind Ramesh Phadke) Judge Pawar/-

ASHISH PAWAR 2023.03.04 17:24:28 +05'30'