1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION WRIT PETITION NO.7048 OF 2009 Shri Dyneshwar J. Parmekar Age 42 yrs., Hindu, Occ: Service, Residing at B/107, Gorai Shiv Sagar, Plot No.79, RSC-48, Near Pragati School, Gorai 2nd, Borivali (W), Mumbai ...Petitioner. v. 1 The Additional Principal Conservator of Forest (Human Resources Management & Administration), Nagpur M.S. 2 The Chief Conservator of Forest (Wild Life) Forest Department, Borivali (W), Mumbai -66 3 Conservator of Forest & Director, Sanjay Gandhi National Park, Borivali (W), Mumbai ...Respondents. Mr. N.V.Bandiwadekar with S.C.Prabhu, advs. For the Petitioner. Mr. V.S.Masurkar, Govt. Pleader For the Respondent Nos.1 to 3. CORAM : Ferdino I. Rebello & J.H. Bhatia, JJ. DATED : 1st Dec , 2009. Oral Judgment: (Per Ferdino I. Rebello, J.) 1 Rule. Heard Forthwith. 2 Petitioner is aggrieved by the order of the Administrative Tribunal dated 13.6.2008 in Original Application No.36 of 2007 and the 2 order dated 18.3.2009 passed in Review Application No.20 of 2008. 3 Petitioner had filed Original Application before the Tribunal challenging the order dated 31.10.06 issued by the respondent no.1 as an Appellate Authority and an order dated 14.12.2005 issued by the respondent no.2 as a Disciplinary authority. Original authority after holding that all the charges are proved imposed punishment of stoppage of one increment on permanent basis. The petitioner had denied the charges and also placed several documents on record. No enquiry officer was appointed to go into the issue as to whether the charges are proved or not. The Disciplinary Authority also held that the period of suspension undergone by the petitioner shall be treated as suspension period without any enquiry. 4 Petitioner aggrieved by the order preferred an appeal before the Principal Chief Conservator of Forest M.S., Nagpur. The Appellate Authority set aside the order passed by the Chief Conservator of Forest (Wild Life), Mumbai and directed that the increment would be stopped for three years on temporary basis and also treated the period of suspension undergone by the petitioner as suspension period. 5 This was the subject matter of challenge before the learned Tribunal. Various grounds were raised by the petitioner. At this stage, it 3 may be mentioned that in the reply filed before the Tribunal, the stand of the respondent was that the enquiry was initiated against the petitioner under Rule 10 of the MCS (Discipline and Appeal) Rules, 1979 and accordingly, applicant was even charge-sheeted on 12.7.2004 and the applicant has made representation to the Disciplinary Authority on 21.2.2005. Disciplinary Authority held that the regular enquiry is not necessary and , therefore, after considering the representation had imposed minor punishment. 6 Before the Tribunal, it was seriously contended that the Chief Conservator of Forest (Wild Life) was not the Disciplinary Authority. The second major objection raised was that considering the punishment imposed was withholding of one increment on permanent basis, the procedure under Rule 10(2) of the MCS (Disciplinary Appeal) Rule 79 which in such circumstances mandates that the enquiry shall be held in terms of Rule 8 Sub Rule 3 to 27 was not followed. There were other grounds raised which we are not adverting to for the present. Rule 10(2) of the Disciplinary Appeal reads as under: 10. Procedure for imposing minor Penalties. “(2) Notwithstanding anything contained in clause (b) of sub-rule (1), if in a case it is proposed, after considerating the representation if any, made by the Government servant under clause (a) of that 4 sub-rule, to withhold increments of pay and such withholding of increments is likely to affect adversely the amount of pension payable to the Governments servant or to withhold increment of pay for a period exceeding three years or to withhold increments of pay with cumulative effect for any period, an enquiry shall be held in the manner laid down in sub-rule (3) to (27) of rule 8, before making any order of imposing on the Government servant any such penalty.’ A reading of the rule would indicate that if an increment is withheld and that would affect adversely the amount of pension payable to the Government servant or to withhold increment of pay for a period exceeding for three years, than enquiry shall be held in the manner laid down in Sub-rule (3) to (27) of Rule 8. Admittedly, in the instant case, an increment was withheld on permanent basis and as such, Disciplinary Authority ought to have followed the procedure and the Sub-Rule (3) to (27) of Rule 8 which admittedly was not done. However, the Appellate Authority set aside the order of the Disciplinary Authority and imposed punishment of the withholding increment for a period of three years on temporary basis. The learned Tribunal proceeded on the footings that as such, the procedure under Rule 10(2) in view of the Appellate Authority order was not required to be followed. 7 In so far as the issue of whether the respondent no.1 was the 5 Disciplinary Authority the learned tribunal proceeded on the footing that the Appellate Authority has also recorded findings that the Chief Conservator of Forest (Wild Life) was the Disciplinary Authority. No Reasons have been adduced as to why the learned Tribunal concurred with the findings of the Appellate Authority on that count. 8 In Review preferred, the learned Tribunal as the first objection regarding the following the procedure under Rule 8 held that as the increment was withhold for a period of three years on temporary basis , there was no need to hold any enquiry and further in so far as the second objection is concerned, held that the Appellate Authority has also recorded the finding and on this count dismissed the Review petition. 9 The first question that we have to consider is whether after the Disciplinary Authority imposed a punishment, which would attract Rule 10(2) was it open to the Appellate Authority by reducing the punishment and bringing it under Rule 10(2), then to hold that the enquiry was not required. In our opinion, prima-facie, once the Disciplinary Authority imposes punishment, which attracts provisions of Rule 8 (3 to 27) of the MCS Rules, 1979 then he could not have imposed punishment without conducting the enquiry contemplated under Rule 8. Can a subsequent act cures the original illegality. This has 6 neither then answered by the learned Tribunal or in the Review Application. In our opinion, on this count, itself the impugned order is liable to be set aside and the matter remanded back to the Tribunal for de-novo consideration. 10 The second aspect of the matter is relating as to who is the Disciplinary Authority. Once there is challenge by the petitioner before the Tribunal , the Tribunal was bound to give reasons as to why it concurred with the findings of the Appellate Authority. Merely stating that it agrees with the view that because of the Appellate Authority has given a finding without giving any reasons in our opinion also discloses failure to exercise jurisdiction by the learned Tribunal. The learned Tribunal merely concurred with these findings recorded without recording any reasons. In the Review Application, the learned Tribunal mainly proceeded on the footing that the Tribunal had considered the point and answered it. In our opinion on this count also the impugned order is liable to be set aside. 11 For the aforesaid reasons, impugned orders of the learned Tribunal are set aside and the Original Application is restored to the file of the Tribunal for de-novo consideration according to the law. 7 Rule made absolute accordingly. There shall be no order as to costs. (J.H. BHATIA,J.) (F.I.REBELLO, J.)