1 133211 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APELLATE JURISDICTION WRIT PETITION NO. 1332 OF 2011 S. Durai ...Petitioner V/s. Union of India & Ors. ...Respondents Mr. V. Mishra i/by M/s. V. Mishra & Co. for the Petitioner Mr. Umesh Shetty with Mr. Vivek Sawant i/by Mr. Kusumakar Kaushik for Respondents No. 2 and 3 CORAM: A.M. KHANWILKAR AND R.Y. GANOO, JJ. DATE: 8TH AUGUST, 2011 P.C.:- Heard the counsel for the parties. 2. Rule. Rule is made returnable forthwith by consent. Mr. Kusumakar Kaushik, advocate-on-record, waives notice for respondents No. 2 and 3. 2 133211 3. As short question is involved, petition is taken up for final disposal forthwith, by consent. 4. This Wit Petition under Article 226 of the Constitution of India takes exception to the order of dismissal passed by the Appointing Authority dated 18th June, 2010 and the order dated 1st January, 2011 passed by the Appellate Authority, dismissing the petitioner’s appeal. 5. For the nature of order that we propose to pass, it is not necessary to refer to factual matrix of the case. In our order dated 23rd June, 2011, we have already referred to the other three points which were urged before us on that day. However, on the fourth point raised in the present matter by the counsel for the petitioner, we were, prima facie, of the opinion that the petition ought to succeed. That aspect is noted paragraphs 4 to 6 of our order dated 23rd June, 2011. 6. The grievance of the petitioner is that the order of punishment passed by the Appointing Authority suffers from violation of principles of natural justice. In that, admittedly, the petitioner was not heard on the quantum of punishment. 3 133211 7. The petitioner has placed reliance on the decision of the Apex Court in the case of State Bank of India and Ors. v. Ranjit Kumar Chakraborty & Anr. in Civil Appeal No. 3233 of 2001, which is at pages 303 to 305 of the paper book. The Apex Court had occasion to interpret the very rule with which we are concerned, viz., Rule 68(3)(iii) of State Bank of India Officers Service Rules, 1992. It has held that the order of punishment, if passed by the Appointing Authority without hearing the delinquent officer, is vitiated. 8. The counsel appearing for respondents No. 2 and 3 tried to distinguish the said decision only on the argument that the petitioner, in his written submissions filed before the Appointing Authority, had made submissions with regard to the quantum of punishment, which were duly considered by the Appointing Authority. In any case, the petitioner carried the matter in appeal, and the Appellate Authority has confirmed the punishment after considering the grounds taken by the petitioner. 9. In our opinion, the argument so advanced will have to be turned down in the fact situation of the present case. It is not in dispute that the petitioner had filed written submissions before the Appointing 4 133211 Authority, which refers to the question of quantum of punishment. The fact remains that the Appointing Authority, before passing the order of punishment, did not give hearing to the petitioner. The reason why the petitioner was not heard is not relevant, and need not be gone into in the present petition. Suffice it to observe that the Appointing Authority did not hear the petitioner on the quantum of punishment. 10. The petitioner, in the appeal, made specific grievance that the order passed by the Appointing Authority was in breach of the principles of natural justice. It is common ground that the petitioner was not heard in person even before the Appellate Authority. Significantly, the Appellate Authority has adverted to the grievance made by the petitioner that the order of punishment was passed in breach of the principles of natural justice. However, while dealing with the said contention, the Appellate Authority merely observed thus:- “5. ... the Committee is of the view that the appellant has not raised any notable point of merit in his appeal warranting any favourable consideration. In the circumstances, the Committee is of the view that the punishment imposed on the appellant is commensurate with the gravity of the lapses and hence, it does not consider the need for interfering with the order of penalty imposed by the Appointing Authority. The appeal, thus, stands rejected as without substance and the Committee orders accordingly.” 5 133211 In other words, it is common ground that the Appointing Authority did not give hearing to the petitioner, and the Appellate Authority has not dealt with the grievance of the petitioner about the said breach committed by the Appointing Authority, except to observe that the punishment imposed on the petitioner was commensurate with the gravity of the lapse. 11. The counsel for respondents No. 2 and 3, has, however, placed reliance on the decision of the Supreme Court in Goa Shipyard Ltd. v. Babu Thomas, (2007) 10 SCC 662, to contend that, even if there is some breach committed by the Appointing Authority, the Appellate Authority having considered the matter afresh, the grievance of the petitioner would not survive for consideration. We are not impressed by the submission, considering the fact situation of the present case. As has been held by us hitherto, the Appellate Authority has merely opined that the punishment imposed on the petitioner is commensurate with the gravity of the lapse; but has not at all dealt with the grievance of the petitioner that the petitioner was not given opportunity of hearing before the Appointing Authority. Besides, the Appellate Authority took no measures to ensure that the said lapse was remedied at least before it by giving opportunity of hearing to the petitioner. As aforesaid, 6 133211 the Appellate Authority also proceeded to decide the matter on the basis of written appeal memo alone. 12. In our opinion, therefore, the appropriate order that need to be passed in this petition is to set aside the decision of the Appellate Authority, as also of the Appointing Authority, and relegate the petitioner before the Appointing Authority for re-consideration of the matter from the stage of giving opportunity of hearing to the petitioner at least on the quantum of sentence by the Appointing Authority; and to proceed further in accordance with law. 13. The petition succeeds on the above terms. The Rule is made absolute accordingly, with no order as to costs. 14. The petitioner shall appear before the Appointing Authority on 29th August, 2011 at 11.00 a.m., in the office of the Appointing Authority,on which date, the Appointing Authority may proceed with the hearing of the proceedings or assign some other date as may be convenient to it while ensuring that the matter is decided expeditiously, in any case not later than three months from the date of appearance to be made by the petitioner. The petitioner is present in Court, and waives 7 133211 notice of hearing before the Appointing Authority to be held in terms of this order on 29th August, 2011. R.Y. GANOO, J. A.M. KHANWILKAR, J.