Allowed

Sharad W.Nerkar v. Mah.Small Scale Ind.Dev. Corpn.Ltd.

Bombay HC7 Sept 2009WP/777/1998

Case brief

AI extract

What is this about?

The High Court allowed two writ petitions challenging dismissal orders confirmed by an appellate resolution. The Court held the appellate authority failed to conduct a personal hearing or record reasons, violating Rule 104. The confirmatory orders were set aside and matters remitted within four months.

What did the court decide?

Confirmatory resolution set aside; appeals remitted to Appellate Authority with directions to grant personal hearing and pass speaking order within four months.

Sharad W.Nerkar Vs Mah.Small Scale Ind.Dev… — Labour and Industrial Disputes | Bombay HC (2009)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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ORDINARY ORIGINAL CIVIL JURISDICTION

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WRIT PETITION NO.777 OF 1998

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Sharad Wasudeo Nerkar.

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...Petitioner.

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vs.

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Maharashtra Small Scale Industries
Development Corporation Ltd.

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...Respondent.

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Mr.M.S.Topkar with B.V.Bukhari, for Petitioner.

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Ms.Kiran Bagalia with Brijesh Upadhyay i/b.
M/s.Purnanand & Co.,for Respondent.

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AND

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WRIT PETITION NO.184 OF 1998

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AND

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NOTICE OF MOTION NO.439 OF 2003
IN
WRIT PETITION NO.184 OF 1998

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Mr.Anilkumar Devdas Pandit.

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...Petitioner.

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vs.

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Maharashtra Small Scale Industries
Development Corporation Ltd.

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...Respondent.

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Ms.Lata Desai, for Petitioner.

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Ms.Kiran Bagalia with Brijesh Upadhyay i/b.
M/s.Purnanand & Co.,for Respondent.

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CORAM: D.K.DESHMUKH & R.G.KETKAR, JJ.

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DATED: 7th September,2009

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P.C.:-

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1.The employer of both the petitioners in these

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petitions is the same. The appeals filed by the
petitioners against the order imposing punishment on
them, have been disposed of by the same resolution,
therefore, both these petitions can be conveniently
disposed of by a common order.

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2.The petitioners in both the petitions were in
theserviceoftherespondent-Corporation,

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chargesheets were served on them alleging that they

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are guilty of misconduct. At the conclusion of the

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departmental inquiry, the disciplinary authority
imposed punishment of dismissal on both the
petitioners. Both the petitioners, admittedly,

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preferred appeals as per the service rules. The
appeals preferred by both the petitioners were
disposed of by the appellate authority viz. the Board,
by a common resolution, which reads as under:-

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RESOLVED THAT the action taken
by the Managing Director to dismiss
Shri.S.W.Nerkar, the then General Manager
(RM/CWH) Shri.A.D.Pandit, the then
Finance Controller from the services of
the Corporation vide Order dated
31.3.1995 be and is hereby concurred and
confirmed.�

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FURTHER RESOLVED THAT appeals
made by Shri.S.W.Nerkar, the then General
Manager (RM/CWH) and A.D.Pandit the then
Finance controller be and are hereby
rejectedandtheybeinformed
accordingly.�

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The decision of the Board was communicated to the
petitioners by a communication which merely stated
that the Board has considered the appeals filed by the
petitioners and has decided to reject the same. The
submission of the learned Counsel appearing for
petitioners is that the Resolution of the Board

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dismissing the appeals filed by the petitioners is
contrary to the provisions of Rule 104 of the Service
Rules which admittedly apply to the petitioners,
specifically clause (ii) of Rule 104 of the Service

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Rules. The learned Counsel also relied on the judgment
of the Full Bench of this Court in the case �Anil

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Amrut Atre Vs. District and Sessions Judge & Another,
2003(2) Bom.C.R. 246�.

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3.We have heard the learned Counsel appearing

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for both the side. The Rules that are relevant for our
purpose are sub-rule (i) and (ii) of Rule 104 of the
Service Rules, they read as under:-

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�104. (i)Every employee shall be

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entitled to prefer an appeal hereinafter

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provided against the order passed by an

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authority imposing on him any of the
penalties specified in Rule 97.

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(ii)In the case of an appeal against

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an order imposing any penalty specified

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in rule 97, the appellate authority,

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shall consider :

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(a)Whether the facts on which the

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order was based have been established.

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(b)Whether facts established afford

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sufficient ground for taking action.

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and

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(c)Whether the penalty is excessive
orinadequate,andaftersuch

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consideration shall pass such order as it
thinks proper.�

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It is apparent that Rule 104 casts duty on the

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Appellate Authority while considering the appeal, to

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apply its mind to the aspects which are mentioned in
clause (ii) of Rule 104. Perusal of the judgment of

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the Full Bench of this Court in �Anil Amrut Atre� case
shows that this Court was considering an identical

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Rule being Rule no.23 of the Maharashtra Civil
Services (Discipline & Appeal) Rules in that case.
Perusal of the judgment of the Full Bench shows that

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the Full Bench has relied on the law laid down by the

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Supreme Court in its Judgment in the case of

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651�, to hold that in view of the language of the
Rule, the Appellate Authority is obliged to record its
satisfaction on the points which are mentioned in the
Rule. Paragraphs 15, 16 and 17 of the Judgment of the
Full Bench of this Court are relevant, they read as
under:-

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�15.In (R.P.Bhatt v. Union of India
and others), 1986(2) S.C.C. 651, the Apex
Court was called upon to consider the
provisions of Rule 27(2) of the Central
Civil Services (Classification, Control
and Appeal) Rules, 1965, the relevant
Rule read as under:--

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�27(2)In the case of an appeal against
an order imposing any of the penalties
specified in Rule 11 or enhancing any
penalty imposed under the said Rules, the
Appellate Authority shall consider:

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(a)whether the procedure laid down in
these Rules has been complied with and if
not, whether such non-compliance has
resulted in the violation of any
provisions of the Constitution of India
or in the failure of justice.

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(b)whether the findings of the

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Disciplinary Authority are warranted by
the evidence on the record; and

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(c)whether the penalty or the enhanced
penalty imposed is adequate, inadequate
or severe;

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and pass orders---

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(i)confirming enhancing, reducing

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or setting aside the penalty; or

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(ii)remitting the case to the
authority which imposed or enhanced the
penalty or to any other authority with
such direction as it may deem fit in the
circumstances of the case.

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16.Interpreting sub-rule (2) of
Rule 27 and emphasizing the work
�consider� as implying due application of
mind, the Court observed:---

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�The word �consider� in Rule 27(2)

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implies due application of mind, it is
clear upon the terms of Rule 27(2) that
the Appellate Authority is required to
consider (1) whether the procedure laid
down in the Rules has been complied with,
and if not, whether such non-compliance
has resulted in violation of any
provisions of the constitution or in
failure of justice, (2) whether the
findings of the Disciplinary Authority
are warranted by the evidence on record,

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and (3) whether the penalty imposed is
adequate, and, thereafter pass orders
confirming, enhancing etc. the penalty or
may remit the case to the authority which
imposed the same. Rule 27(2) casts a
duty on the Appellate Authority to
consider the relevant factors set forth
inClauses(a),(b)and(c)
thereof.� (Emphasis supplied)
17.In that case, the appeal was

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dismissed, without considering the
relevant facts and circumstances. It

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was, therefore, held that the appellate
order was liable to be quashed and set
aside, as there was non-application of
mind on the part of the Appellate
Authority to the relevant circumstances
mentioned in Rule 27(2) of the Rules. The
Court noted that there was no indication
in the impugned order as to how the
Appellate Authority was satisfied as to
whether the procedure laid down in the
Rules had been complied with and if not,
whether such non-compliance had resulted
in violation of any provisions of the
Constitution or failure of justice. The
Appellate Authority had not given any
finding on the crucial question whether
the finding of the Disciplinary Authority

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was warranted by evidence on record.
Since there was non-compliance with the
requirements of the Rules, the order was
vulnerable.�

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The final conclusion is recorded by the Full Bench in
paragraph 31 of the Judgment. Paragraph 31 of the
Judgment reads as under:-

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31.In our opinion, however, the
point is finally concluded by the Supreme
Court in above two decisions, wherein
interpreting similar Rules, the Apex
Court has held that personal hearing
ought to be afforded by the Appellate
Authority to the delinquent. We are,
therefore, unable to agree with the
conclusions in the above cases.
Similarly, in Writ Petition No.3221 of
1996 (Subhash Tatoba Nikam V. The Hon�ble
High Court of Judicature of Bombay and
another), decided on December,3,1998,
reported in 1999(1) Bom.C.R. 760 it was
held that when the Appellate Authority
affirms the original order, no reasons
were required to be recorded. With
respect, the decision is not in
conformity with the decisions of the
Supreme Court R.P.Bhatt and Ram Chander,

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and cannot be said to have laid down
correct law on the point, (State Bank of
Patiala V. Mahendra Kumar Singhal), 1994
Supp. (2) S.C.C. 463, is not relevant to
the point. It was held by the Apex Court
therein that affording of personal
hearing by the Appellate Authority is not
necessary in absence of such a rule. In
the instant case, the Appellate Authority
is required to consider as to whether the
procedure laid down in the Rules has been
followed, and, according to the Supreme

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Court, the expression (�consider�) will
include within its sweep application of
mind, personal hearing and recording of
reasons. It was, therefore, obligatory on
the Appellate Authority to apply its mind
and to pass an appropriate speaking order
after affording personal hearing to the
delinquent.�

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It is clear from the judgment of the Full Bench that

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the Appellate Authority is not only obliged to give
personal hearing to the Appellants before disposing of
the Appeal but it also obliged to record reasons for

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its decision. In the present case, admittedly, no
personal hearing was given to the petitioners nor the

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Appellate Authority has recorded any reasons. In our
opinion, therefore, the following order would meet the
ends of justice:-

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(i)Both the petitions, therefore, succeed and

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are allowed. The Resolution passed by the Board of
Directors-the Appellate Authority dismissing the
appeals filed by both the petitioners, is set aside.

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The appeals filed by both the petitioners were

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remitted back to the Appellate Authority with
direction to decide the appeals after granting
personal hearing to the petitioners, in accordance

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with the provisions of Rules and Law in force.

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(ii)In view of the pendency of the matter for
such a long time, the Appellate Authority shall
dispose of the appeals in accordance with law, as

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expeditiously as possible, in any case within a period
of four months from today.

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Rule is made absolute accordingly.

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No order as to costs.

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Notice of Motion no.439 of 2003 in Writ

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petition no.184 of 1998 is also disposed of.

Sharad W.Nerkar v. Mah.Small Scale Ind.Dev. Corpn.Ltd.

Case brief

What is this about?

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Sharad W.Nerkar v. Mah.Small Scale Ind.Dev. Corpn.Ltd.

Case brief

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