(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 1837 OF 1998 Dasrao Digamberrao Bhakare, Age : 59 years, Occupation : Senior Clerk, under suspension, in the office of the Dy. Director, Land Record, Aurangabad. .. Petitioner. versus 1. The State of Maharashtra. 2. The Secretary, Department of Revenue and Forest, Mantralaya, Mumbai. 3. Dy. Director, Land Record, Aurangabad. .. Respondents. ....................... Mr. R.S. Deshmukh, Advocate, for the petitioner. Mr. K.G. Patil, Assistant Government Pleader, for respondent nos.1 to 3. ........................ (2) CORAM : B.R. GAVAI & S.V. GANGAPURWALA, JJ. DATE : 17TH AUGUST 2010 ORAL JUDGMENT (Per S.V. Gangapurwala, J.) : 1. The petitioner was working as a Senior Clerk, at the relevant time, with the office of the Deputy Director of Land Record. On 23-11-1993, the petitioner was suspended and simultaneously an inquiry was initiated against the petitioner. On completion of the inquiry, the Inquiry Officer recommended minor punishment i.e. withholding three increments of the petitioner. The disciplinary authority passed an order of compulsory retirement of the petitioner, disagreeing with the punishment suggested by the Inquiry Officer. 2. The petitioner challenged the said order of compulsory retirement before the Maharashtra Administrative Tribunal, Mumbai, Aurangabad Bench at Aurangabad, by filing Original Application bearing No. 339/1997. The Tribunal dismissed the Original Application filed by the petitioner and confirmed the order of compulsory retirement passed by the respondent no.1. 3. Mr. R.S. Deshmukh, learned Counsel appearing for (3) the petitioner, submitted that no second show cause notice was issued to the petitioner. He further submitted that when the disciplinary authority is disagreeing with the Inquiry Officer, with regard to the quantum of punishment, then it is incumbent on the part of the disciplinary authority to issue a separate show cause notice, in that regard. For the said purpose, he has relied on the judgment of the Apex Court, in the case of Lav Nigam Vs. Chairman & MD, ITI Ltd. and another (2006(9) SCC 440), so also, judgment of the Apex Court, in the case of Yoginath D. Bagde Vs. State of Maharashtra and another (AIR 1999 SC 3734). He has further relied on the judgment of the Apex Court, in the case of Punjab National Bank and others Vs. Kunj Behari Misra (AIR 1998 SC 2713). 4. Mr. K.G. Patil, learned Assistant Government Pleader appearing for the respondents, supported the judgment of the Tribunal and contended that even the Inquiry Officer had found the petitioner guilty of the charges. The disciplinary authority, relying on the inquiry report, has taken a decision to compulsorily retire the petitioner and, in such circumstances, it is not mandatory to issue a separate show cause notice. 5. It is the consistent view of the Apex Court, that when the disciplinary authority differs with the view taken by the Inquiry Officer, he is bound to give notice to the delinquent and (4) it is only after hearing the delinquent, the disciplinary authority should arrive at the final finding. A useful reference can be made to the following observations of the Apex Court, in the case of Lav Nigam Vs. Chairman & MD, ITI Ltd. & another (cited supra) : " Challenging the orders of the respondent authorities, the appellant filed a writ petition before the High Court. The appellant specifically raised the issue that the disciplinary authority was obliged to give a separate show cause notice if the disciplinary authority differed with the inquiry officer. The High Court also held that there was no need to give two separate show cause notices one before the disciplinary authority found against the employee while differing with the view of the inquiry officer, and another against the proposed punishment. It was further held that the two notices could be combined in one. The writ petition was accordingly dismissed. The conclusion of the High Court was contrary to the consistent view taken by this Court that in case the disciplinary authority differs with the view taken by the inquiry officer, he is bound to give a notice setting out his tentative conclusions to the appellant. It is only after hearing the appellant that the disciplinary authority would at all arrive at a final finding of guilt. Thereafter, the employee would again have to be served with a notice relating to the punishment proposed. " (5) 6. In the light of the fact, that the mandatory requirement and the principles of natural justice have not been followed, as no separate show cause notice is issued to the petitioner, before imposing higher punishment by the disciplinary authority, than the one recommended by the Inquiry Officer, the impugned order deserves to set aside. 7. In the result, the petition is allowed. (i) The order dated 11th December 1997, passed by the learned Maharashtra Administrative Tribunal, Mumbai, Aurangabad Bench, Aurangabad, in Original Application No. 339/1997, is quashed and set aside. So also, the order dated 9th June 1997, passed by the respondent no.1, thereby retiring the petitioner compulsorily, is quashed and set aside. (ii) In the light of the fact, that we have quashed the impugned action of the respondent / authority and the order of the Tribunal, coupled with the fact, that the petitioner has retired from service, the respondents are directed to pay all consequential benefits, including pensionary benefits, to the petitioner, treating that the petitioner has rendered continuous service and retired from service on superannuation. It is made clear that the period of suspension of the petitioner shall be treated as period on duty. (6) (iii) The respondents are directed to pay arrears to the petitioner, on this count, within a period of six months from today. 8. Rule is made absolute on the above terms. However, there shall be no order as to costs. ( S.V. GANGAPURWALA ) ( B.R. GAVAI ) JUDGE JUDGE ......................... bgp/wp1837