1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.777 OF 1998 Sharad Wasudeo Nerkar. ...Petitioner. vs. Maharashtra Small Scale Industries Development Corporation Ltd. ...Respondent. --- Mr.M.S.Topkar with B.V.Bukhari, for Petitioner. Ms.Kiran Bagalia with Brijesh Upadhyay i/b. M/s.Purnanand & Co.,for Respondent. AND WRIT PETITION NO.184 OF 1998 AND NOTICE OF MOTION NO.439 OF 2003 IN WRIT PETITION NO.184 OF 1998 Mr.Anilkumar Devdas Pandit. ...Petitioner. vs. Maharashtra Small Scale Industries Development Corporation Ltd. ...Respondent. --- 2 Ms.Lata Desai, for Petitioner. Ms.Kiran Bagalia with Brijesh Upadhyay i/b. M/s.Purnanand & Co.,for Respondent. CORAM: D.K.DESHMUKH & R.G.KETKAR, JJ. DATED: 7th September,2009 P.C.:- 1. The employer of both the petitioners in these 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. 2. The petitioners in both the petitions were in the service of the respondent-Corporation, chargesheets were served on them alleging that they are guilty of misconduct. At the conclusion of the departmental inquiry, the disciplinary authority imposed punishment of dismissal on both the petitioners. Both the petitioners, admittedly, 3 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:- 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. 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 rejected and they be informed accordingly. 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 4 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 Rules. The learned Counsel also relied on the judgment of the Full Bench of this Court in the case Anil Amrut Atre Vs. District and Sessions Judge & Another, 2003(2) Bom.C.R. 246 . 3. We have heard the learned Counsel appearing 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:- 104. (i) Every employee shall be entitled to prefer an appeal hereinafter provided against the order passed by an authority imposing on him any of the penalties specified in Rule 97. (ii) In the case of an appeal against an order imposing any penalty specified in rule 97, the appellate authority, 5 shall consider : (a) Whether the facts on which the order was based have been established. (b) Whether facts established afford sufficient ground for taking action. and (c) Whether the penalty is excessive or inadequate, and after such consideration shall pass such order as it thinks proper. It is apparent that Rule 104 casts duty on the Appellate Authority while considering the appeal, to apply its mind to the aspects which are mentioned in clause (ii) of Rule 104. Perusal of the judgment of the Full Bench of this Court in Anil Amrut Atre case shows that this Court was considering an identical 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 the Full Bench has relied on the law laid down by the Supreme Court in its Judgment in the case of 6 R.P.Bhatt Vs. Union of India & Ors., 1986(2) S.C.C. 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:- 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:-- 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: (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. (b) whether the findings of the 7 Disciplinary Authority are warranted by the evidence on the record; and (c) whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe; and pass orders--- (i) confirming enhancing, reducing or setting aside the penalty; or (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. 16. Interpreting sub-rule (2) of Rule 27 and emphasizing the work consider as implying due application of mind, the Court observed:--- The word  consider in Rule 27(2) 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, 8 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 in Clauses (a), (b) and (c) thereof. (Emphasis supplied) 17. In that case, the appeal was dismissed, without considering the relevant facts and circumstances. It 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 9 was warranted by evidence on record. Since there was non-compliance with the requirements of the Rules, the order was vulnerable. The final conclusion is recorded by the Full Bench in paragraph 31 of the Judgment. Paragraph 31 of the Judgment reads as under:- 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, 10 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 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. It is clear from the judgment of the Full Bench that 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 its decision. In the present case, admittedly, no personal hearing was given to the petitioners nor the 11 Appellate Authority has recorded any reasons. In our opinion, therefore, the following order would meet the ends of justice:- (i) Both the petitions, therefore, succeed and are allowed. The Resolution passed by the Board of Directors-the Appellate Authority dismissing the appeals filed by both the petitioners, is set aside. The appeals filed by both the petitioners were remitted back to the Appellate Authority with direction to decide the appeals after granting personal hearing to the petitioners, in accordance with the provisions of Rules and Law in force. (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 expeditiously as possible, in any case within a period of four months from today. Rule is made absolute accordingly. No order as to costs. 12 Notice of Motion no.439 of 2003 in Writ petition no.184 of 1998 is also disposed of. (D.K.DESHMUKH, J.) (R.G.KETKAR, J.)