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Judgment
N.J. Jamadar, J
Rule. Rule made returnable forthwith and with the consent of the learned counsels for the parties, heard fnally.
The challenge in this petition is to an order passed by Director, Marketing, Maharashtra State in an appeal, being Appeal No.32 of 2018 under
section 52B of the Maharashtra Agricultural Produce Marketing (Development and Regulation) Act, 1963 (‘APM Act, 1963’) on 4th August
2018, whereby the appeal preferred by the petitioner against the penalty of withholding three annual increments for three years imposed by the
Secretary, Mumbai Agricultural Produce Market Committee, by an order dated 17th February 2018, came to be dismissed by affrming the said order.
The background facts leading to this petition can be stated, in brief, as under :-
(a) The petitioner, who is a retired Lieutenant Colonel, came to be appointed as the Chief Security Offcer at Mumbai Agricultural Product Market
Committee- respondent No.1, on 1st October 2012. The respondent No.2 is the Administrator of respondent No.1. Respondent No.3 is its Secretary.
Respondent No.4 is the appellate and controlling authority of the market committees.
(b) In the year 2005, respondent No.1 had appointed M/s.Marshal Dog Squad Pvt. Ltd. for providing security by deputing 18 dogs and 18 dog
handlers, at Market-1 and Market-2, during the night hours. The contract came to be renewed from time to time. In accordance with the terms of the
contract, the Security Offcers of the concerned markets were to supervise the attendance of the dogs and dog handlers and verify the correctness of
the entries made in the daily and monthly attendance registers. The correctness of those entries were to be further verifed by the Deputy Secretaries
of the concerned markets. Thereafter, the security agency M/s. Marshal Dog Squad Pvt. Ltd. would prepare the monthly bills and forward the same
to the offce of the petitioner, duly countersigned by the Security Offcers and Deputy Secretaries. Thereupon, the petitioner would obtain the approval
of respondent No.3 for payment.
(c) The petitioner claims that on 27th January 2017, after noticing discrepancies in the record maintained by the concerned offcials, the petitioner
submitted a report to respondent No.3 pointing out the misfeasance and malfeasance on the part of the concerned offcials and M/s.Marshal Dog
Squad Pvt. Ltd., with a recommendation to terminate the contract. On the basis of the said report, by an order dated 1st February 2017, the contract
with M/s.Marshal Dog Squad Pvt. Ltd. came to be terminated with effect from 1st February 2017 itself. In addition, Shri Bajrang Jadhav, Deputy
Secretary (Establishment) was directed to conduct an enquiry in respect of the said matter.
(d) Post enquiry, Shri Bajrang Jadhav, in the report dated 17th June 2017, concluded that for the period December 2015 to November 2016, 916
attendances were marked in excess of the actual attendance of the dog handlers during the said period, and thus a sum of Rs.7,01,264/- was paid in
excess to M/s.Marshal Dog Squad Pvt. Ltd. It was, inter-alia, recorded that Shri K.K. Raskar, the then Security Offcer, Shri I.R. Masram, Deputy
Secretary of Market No.1 and Shri R.A. Patil, Deputy Secretary of Market No.2 had not properly verifed the correctness of the entries in the
attendance register and were guilty of negligence in discharge of their duties. In the Supplementary Report, dated 29th July 2017, Shri Bajrang Jadhav
further reported that Shri K.K. Raskar was also negligent in the performance of his duties as Security Offcer qua Market No.2.
(e) In the frst report dated 17th June 2017, Shri Bajrang Jadhav had also recorded that Shri C.T. Pawar, Security Offcer, and the petitioner had
recommended payment of the charges to the contractor without properly verifying the entries in the attendance register and the said irresponsible act
of the petitioner was also prejudicial to the interest of the Committees.
(f) On the basis of the said reports, a charge-sheet was served on the petitioner on 23rd June 2017 under Rule 63(1) of the Mumbai Agricultural
Produce Marketing Committee Service Rules (‘Rules’). The substance of the charge was that the petitioner did not discharge his duty as the
Chief Security Offcer of properly verifying the correctness of the entries in the daily and monthly register of attendance of the dog handlers, resulting
in recording of 916 days excess attendance during the period December-2015 to November-2016 and the consequent excess payment of Rs.7,01,264/-
and thereby the petitioner was guilty of breach of sub-rules (6), (10), (19), (24), (26), (29) and (31) of Rule 59 of the Rules.
(g) The petitioner submitted an explanation to the charges levelled against him vide communication dated 25th October 2017. Shri M.S. Thakur,
Retired Assistant Registrar, conducted enquiry and submitted report on 31st October 2017. It was found that charge Nos.1 to 6 were proved and the
petitioner was guilty of misconduct, as envisaged under Rule 59 (6), (10), (19), (24), (26), (29) and (31) of the Rules.
(h) A Show Cause Notice was served to the petitioner on 16th December 2017. The petitioner gave a reply thereto on 30th December 2017.
(i) By an order dated 17th February 2018, respondent No.3 concurred with the view of the Enquiry Offcer and found the petitioner guilty of
misconduct and negligence under Rule 59 (6), (10), (19), (24), (26), (29) and (31) of the Rules and proceeded to impose the penalty of withholding
three annual increments for three years under Rule 60(4) of the Rules.
Being aggrieved, the petitioner preferred an appeal under section 52B of the APM Act, 1963 before the Director, Marketing, Maharashtra.
By the impugned order dated 4th August 2018, the respondent No.4 dismissed the appeal and affrmed the order passed by respondent No.3 on 17th
February 2018.
Being further aggrieved, the petitioner has invoked the writ jurisdiction of this Court.
I have heard Shri Pradeep Thorat, the learned counsel for the petitioner and Shri Nimbalkar, the learned AGP for the State-respondent No.4.
None appeared for respondent Nos.1 to 3, though a notice was given to the counsel for respondent Nos.1 to 3 by the counsel for the petitioner, and
the matter was posted on a number of occasions to avail opportunity to respondent Nos.1 to 3 to appear before the Court and contest the petition.
Shri Thorat advanced a multi-pronged submission. Firstly, the impugned order passed by respondent No.4 is singularly without reasons. Since the
impugned order is sans reasons, the petition deserves to be allowed on the said count alone. The respondent No.4, according to Shri Thorat, committed
a grave error in law in not at all considering the submissions canvassed on behalf of the parties, testing the legality, propriety and correctness of the
order impugned before him, in exercise of appellate jurisdiction, and instead dismissing the appeal by a stroke of pen. Secondly, the impugned order of
imposing penalty of withholding three annual increments for three years, upon the petitioner, who had, at the highest, supervisory role, is wholly
discriminatory as Shri K.K. Raskar and Shri C.T. Pawar, the Security Offcers, who were primarily responsible to verify the attendance and the
correctness of the entries in the attendance register and were also found to be hand in glove with the security agency M/s.Marshal Dog Squad Pvt.
Ltd., were let off by imposing a fee-bit penalty of withholding one increment for one year only. Thirdly, taking the Court through the reports of Shri
Bajrang Jadhav, Shri Thorat would urge that those reports incriminated the offcials other than the petitioner and the latter was, in a sense, completely
exonerated, apart from a stray observation of supervisory negligence. Therefore, the very order holding the petitioner guilty of misconduct as
envisaged under Rule (6), (10), (19), (24), (26), (29) and (31) of the Rules is legally unsustainable.
In contrast to this, Shri Nimbalkar, the learned AGP would urge that the disciplinary action was initiated against the petitioner and other offcials in
conformity with the provisions contained in APM Act, 1963 and the governing service rules. The petitioner was provided an effective opportunity of
hearing. There is neither jurisdictional error nor procedural irregularity which would warrant exercise of writ jurisdiction by this Court. The learned
AGP further submitted that, being the Chief Security Offcer, the petitioner was responsible for overall security arrangement and, thus, the petitioner
was adequately punished.
To begin with, the challenge to the impugned order on the count that it singularly lacks reasons, I have carefully perused the impugned order
passed by respondent No.4. In the impugned order, the Joint Director, Marketing has recorded a preface of the proceedings, the submissions on behalf
of the petitioner and the marketing committee, the fnding recorded by the enquiry offcer and the conclusions drawn by the Marketing Committee and,
thereafter, simply proceeded to observe that he is satisfed that the appeal deserved to be dismissed.
The submission of Shri Thorat that the impugned order is sans reason is impeccable. As an appellate authority, it was incumbent upon respondent
No.4 to arrive at a conclusion, after analysing the material against the petitioner and testing the legality, propriety and correctness of the impugned
order independently. No effort seems to have been made by respondent No.4 to evaluate either the correctness of the fnding recorded by respondent
No.3 or the justness of the penalty. Since, the impugned order simply lacks reason, this Court is not equipped to discern as to what weighed with the
appellate authority to affrm the order passed by respondent No.3 and dismiss the appeal.
The reliance placed by Shri Thorat on the judgment of the Supreme Court, in the case of Chairman, Disciplinary Authority, Rani Lakshmi Bai
Kshetriya Gramin Bank Vs. Jagdish Sharan Varshney and Others (2009) 4 SCC 240 appears to be well founded. In the said case, a submission was
sought to be canvassed on behalf of the employer that an order of affrmation does not require any reasons. The Supreme Court observed that an
order of affrmation need not contain elaborate reasons. However, it does not imply that the order of affrmation need not contain any reasons
whatsoever. The observations in paragraph Nos. 5 to 9 are material and hence, extracted below :
“5 In our opinion, an order of affrmation need not contain as elaborate reasons as an order of reversal, but that does not mean that the
order of affrmation need not contain any reasons whatsoever. In fact, the said decision in Prabhu Dayal Grover's case(supra) has itself
stated that the appellate order should disclose application of mind. Whether there was an application of mind or not can only be disclosed
by some reasons, at least in brief, mentioned in the order of the appellate authority. Hence, we cannot accept the proposition that an order
of affrmation need not contain any reasons at all. That order must contain some reasons, at least in brief, so that one can know whether the
appellate authority has applied its mind while affrming the order of the disciplinary authority.
6 The view we are taking was also taken by this Court in Divisional Forest Offcer vs. Madhusudan Rao, JT 2008 (2) SC 253 (vide para 19),
and in Madhya Pradesh Industries Ltd. vs. Union of India, AIR 1966 SC 671, siemens Engineering & Manufacturing Co. Ltd. vs. Union of
India, AIR 1976 SC 1785 (vide para 6), etc.
7 In the present case, since the appellate authority's order does not contain any reaons, it does not show any application of mind.
8 The purpose of disclosure of reasons, as held by a Constitution Bench of this Court in the case of S.N.Mukherjee vs. Union of India
reported in (1990) 4 SCC 594, is that people must have confdence in the judicial or quasi-judicial authorities. Unless reasons are disclosed,
how can a person know whether the authority has applied its mind or not? Also, giving of reasons minimizes chances of arbitrariness.
Hence, it is an essential requirement of the rule of law that some reasons, at least in brief, must be disclosed in a judicial or quasi-judicial
order, even if it is an order of affrmation.
9 No doubt, in S.N.Mukherjee's case (supra), it has been observed (vide para 36) that:
..The appellate or revisional authority, if it affrms such an order, need not give separate reasons if the appellate or revisional authority
agrees with the reasons contained in the order under challenge.
The above observation, in our opinion, really means that the order of affrmance need not contain an elaborate reasoning as contained in
the order of the original authority, but it cannot be understood to mean that even brief reasons need not be given in an order of affrmance.
To take a contrary view would mean that appellate authorities can simply dismiss appeals by one line orders stating that they agree with the
view of the lower authority.â€
(emphasis supplied)
The aforesaid pronouncement appears on all four with the facts of the case at hand. The impugned order is simply bereft of any reason. In the
circumstances, it is impossible to discern as to whether the appellate authority had applied its mind while affrming the order of Disciplinary Authority.
Thus, the impugned order deserves to the quashed and set aside on this count alone.
Shri Thorat, the learned counsel for the petitioner submitted that instead of remitting the matter back to respondent No.4, it may be appropriate to
give a quietus to the matter. Shri Thorat submitted that the petitioner had superannuated in the year 2021. The amount of Rs.7,01,264/-, which was
paid in excess to the security agency, has since been recovered from M/s. Marshal Dog Squad Pvt. Ltd. as is evident from the administrative order
dated 2nd August 2017. Moreover, in the enquiry report, it is specifcally recorded that there was no actual fnancial loss to the Committee. Thus, this
Court may either completely exonerate the petitioner or suitably modify the penalty, submitted Shri Thorat.
It is for this purpose, essentially to modulate the relief to be granted to the petitioner, this Court posted the matter on a couple of occasions to
facilitate the respondent Nos.1 to 3 to appear before the Court and make appropriate submissions.
I fnd it rather diffcult to accede to the submissions on behalf of the petitioner that in the circumstances of the case, this Court would be justifed in
overturning the order passed by the Disciplinary Authority. Even in the report of Shri Bajrang Jadhav, as indicated above, it was recorded that there
was an element on negligence on the part of the petitioner, as well. In this view of the matter, it would be appropriate to remit the matter back to the
appellate authority with a direction to pass a reasoned order, after providing an effective opportunity of hearing, within a stipulated period.
Hence, the following order :
ORDER
(i) The appeal stands partly allowed.
(ii) The impugned order dated 4th August 2018 passed by respondent No.4 dismissing Appeal No. 32 of 2018 and affrming the order passed by
respondent No.3 dated 17th February 2018, stands quashed and set aside.
(iii) Appeal No.32 of 2018 stands restored to the fle of the Director, Marketing.
(iv) The Director, Marketing shall personally hear and decide the appeal by passing a reasoned order, after providing an effective opportunity of
hearing to all the parties.
(v) The Director, Marketing shall not, however, be infuenced by any of the observations made hereinabove and shall decide the appeal on its own
merits. All contentions of parties are kept open for consideration.
(vi) The Director, Marketing shall make an endeavour to decide the appeal as expeditiously as possible and, preferably, within a period of three
months from the date of appearance of the parties before him.
(vii) Parties shall appear before the Director, Marking, on 1st February 2022.
(viii) Rule made absolute to the aforesaid extent. In the circumstances, parties shall bear their respective costs.