1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. Writ Petition No.3631 of 2007. Suresh Ganpatrao Maske vs. State of Mah and others. Office Notes, Office Memoranda of Coram appearances, Court's orders or directions Court's or Judge's Orders and Registrar's orders. Shri A. S. Chandurkar, Advocate for the petitioner. Shri C. S. Kaptan, Advodate for R-2 & 3. Coram : B.P.DHARMADHIKARI AND F.M. REIS, JJ. Dated : 27th JULY, 2009. 1. The matter is for final disposal. 2. Advocate Shri S. M. Puranik has mentioned the matter on behalf of Advocate Mr. Kaptan on the ground that the Advocate Shri Kaptan is not available. 2. Considering the controversy and its nature, we reject his request. 3. Advocate Mr. Chandurkar argues that the petitioner is already retired on his superannuation and in view of the provisions of rule 27(2) of Maharashtra Civil Services (Pension) Rules, 1982 punishments of withholding permanently and for five years 5% of his pension have been inflicted by the disciplinary authority after taking into account certain records which were not proved before the Enquiry Officer in Regular Departmental Enquiry. 2 According to him, this is in violation of rule 9 sub rule 1, which enables the disciplinary authority to remit the matter back to the enquiry authority, but does not enable him to take on record such documents. He points out that the show cause notice in relation to those notices was served on the petitioner. The petitioner replied it and raised the appropriate objection. 4. We have perused the relevant documents with the assistance of the learned Advocate for the petitioner. We find that the documents looked into by the disciplinary authority were forming part of enquiry records and enquiry officer could not look into them as the same were not brought on record by way of evidence. Even before the disciplinary authority, the documents have not been brought on record. Rule 8 sub rule 17 is the power of Enquiry Officer to take such documents on record even latter at any point of time. Rule (9) however, does not confer any such power on the disciplinary authority and sub rule (1) enables him to remit the matter back to enquiry officer if he finds that material or relevant documents/evidence was left out. 5. In view of this position, it is apparent that the mode and manner in which the disciplinary 3 authority took additional documents on record, relied upon it and recorded finding is unsustainable. In the result, the said action of Enquiry Officer and consequently, the order of punishment dated 27-7-2005 passed by the respondent no.2 is quashed and set aside. 6. Writ Petition is allowed partly to that extent. It is made clear that the respondents are free to consider remission of matter back to enquiry officer in accordance with law if said process is still open to them. JUDGE JUDGE /Muley/