vinita

IN THE HIGH COURT OF BOMBAY AT GOA

WRIT PETITION NO. 623 OF 2015

Ashish Deorao Chandekar aged 42 years,

resident of Building No.206/2/1 MPT Colony,

Headland Sada, Vasco, Goa

]

]

] ...Petitioner

Versus

1. Mormugao Port Authority through its

Chairman, Headland Sada, Vasco, Goa-

403804.

]

]

]

2. Chief Mechanical Engineer and

Disciplinary Authority, Mormugao Port

Trust, Headland Sada, Vasco, Goa,

403804.

]

]

]

]

3. The Estate Officer, Under the Public

Premises (Eviction of Unauthorised

Occupants) Act, 1971, Mormugao Port

Trust, 3

rd

floor, Administrative

Building, Mormugao Port Trust,

Headland Sada, Vasco, Goa-403804

]

]

]

]

]

] ...Respondents

Mr V. A. Lawande, Mr Atul Sadre and Mr Shivam Gurav, Advocates

for the petitioner.

Mr Y. V. Nadkarni, Ms Simran Khadilkar and Mr Nilay Naik,

Advocates for the respondents.

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CORAM : A.S. CHANDURKAR & NIVEDITA P. MEHTA, JJ.

The date on which the arguments were heard : 19

TH

MARCH.,

2025.

The date on which the Judgment is pronounced : 17

TH

APRIL, 2025.

JUDGMENT ( PER Nivedita P. Mehta , J.)

1. The petitioner has filed the instant Writ Petition assailing the order

dated 30.4.2011 passed by the respondent no. 2 removing the petitioner

from the service and the orders dated 2.4.2012, 21.5.2013 and 27.1.2015

passed by the Appellate/Reviewing Authority.

2. Succinctly, the petitioner applied for the post of Hindi Translator

based on an advertisement issued by respondent no.1 in the year 1998.

After the due selection process was concluded, the petitioner was

appointed as a Hindi Translator vide order dated 7.5.1998. The petitioner

was also given a training course of three months conducted by the Central

Translation Bureau, Department of Official Language, Ministry of Home

Affairs, Government of India, at Bangalore as the same was made

compulsory to get appointment on a regular basis. After completion of the

aforesaid translation course, the petitioner was appointed to the post of

Hindi Translator on a regular basis with effect from 2.4.1999 and after

completion of the probation period the petitioner was confirmed on

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8.4.2003. The petitioner at the time of applying for the post of Hindi

Translator had submitted his certificates of educational qualification

which were duly verified by the respondent No.1.

3. On 29.7.2003, the respondent no. 1 issued a memo asking the

petitioner to submit documents of his educational qualification to

consider him for the post of Senior Hindi Translator. Accordingly, the

petitioner replied to the said memo vide his reply dated 26.8.2003. On

29.9.2003, the respondent no.1 again sought information from the

petitioner as regards the University from which the petitioner had

completed his graduation and post-graduation from.

4. The respondent no.1 issued a chargesheet dated 2.3.2004 to the

petitioner for disobeying the order of the Administration in violation of

Mormugao Port Employees (Classification, Control & Appeal),

Regulations 1964 (hereinafter referred to as “MPE Regulations, 1964”).

5. During the enquiry in pursuance of the aforesaid chargesheet, the

petitioner filed a written explanation on 29.5.2004 informing the

respondent No.1 of the University from which the petitioner obtained his

graduation and post-graduation degrees. The petitioner informed him

that he passed B.A. in 1995 and M.A. in 1997 from the University Bhartiya

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Shiksha Parishad, Bharat Bhavan, Matiyari Chinhat, Faizabad Road,

Lucknow.

6. The Enquiry Officer submitted a report to the respondent No.2

holding that the charges against the petitioner are proved. The petitioner

submitted his written submissions to the Disciplinary Authority, however

the same were not accepted and the respondent No.2 issued a

memorandum dated 4.5.2005 holding the petitioner guilty of the charges

and proposed to impose upon him the penalty of “withholding of two

increments of pay with cumulative effect".

7. The petitioner submitted his written submission in response to the

proposed penalty but the same was not considered. The penalty of

"withholding of two increments of pay with cumulative effect, with effect

from 1.2.2006" was passed vide order dated 18.11.2005. The petitioner

preferred an appeal against the same before the Appellate Authority as

per MPE Regulations, 1964. However, the said appeal was dismissed by

the Appellate Authority vide order dated 29.8.2006 and the matter was

closed.

8. On 27.5.2005, a second chargesheet was issued to the petitioner on

the same subject. The article of charge against the petitioner was that he

had submitted a statement dated 29.5.2004 to the Enquiry Officer who

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was appointed vide reference dated 25.3.2004, indicating that he

completed his graduation, B.A. in the year 1995 and post-graduation,

M.A. in the year 1997 at Bhartiya Shiksha Parishad, Bharat Bhavan,

Matiyari Chinhat, Faizabad Road, Lucknow whereas in the attestation

form duly filled and signed by the petitioner at the time of his

appointment, he had declared that B.A and M.A. degree were obtained by

him in the years 1995 and 1997 respectively from K.M.V Mahavidyalaya

Mul and S.B.O.M Institute, Madras. This was contrary to the statement

given to the Enquiry Officer in the earlier enquiry pursuant to the

chargesheet dated 2.3.2004. The petitioner filed Writ Petition

No.227/2005 challenging the chargesheet dated 27.5.2005 wherein this

Court had stayed the aforesaid chargesheet. After two years, the

respondent no.1 prayed for vacating the said stay order dated 23.8.2005

by filing Misc. Civil Application no. 642/2007. This Court vide order

dated 27.11.2007 directed the respondent no.1 to conduct an enquiry in

lieu of chargesheet dated 27.5.2005 within three months and directed that

no adverse orders may be passed against the petitioner without prior

permission of the Court.

9. The respondent no.1 however sought to withdraw the chargesheet

dated 27.5.2005 during the pendency of Writ Petition No.227 of 2005. In

view of this development, the said writ petition was disposed of with

liberty to the respondent no.1 to issue a fresh chargesheet. After

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withdrawing the chargesheet dated 27.5.2005, the respondent no.1 again

issued a third chargesheet dated 12.5.2008 on similar charges. In the

aforesaid chargesheet, the Article of the charge against the petitioner was

that the petitioner had violated Regulations 3(1)(i) and 3(1)(iii) of the

MPE Regulations, 1964, alleging that the petitioner made false and

misleading statements by giving two different names of the Educational

Institutions through which he obtained the same qualifications i.e. B.A. in

1995 and M.A. in 1997 while in Annexure-I of the application form duly

signed by the petitioner and submitted while seeking appointment stating

that he had obtained his B.A in 1995 and M.A in 1997 through K.M.V

Mahavidyalaya Mul, S.B.O.M Institute, Madras. While filing his written

explanation before the Enquiry Officer during the earlier enquiry on

25.3.2004, the petitioner had stated that he had obtained his B.A in 1995

and M.A in 1997 through Bhartiya Shiksha Parishad Bharat Bhavan,

Matiyari, Chinhat, Faizabad Road, Lucknow. The petitioner on 15.7.2008

and 11.9.2008 requested the respondent No.2 to provide a copy of the

application form signed by him and attested by the Plantation Officer as

stated in the statement of Articles of Charge to effectively putforth his

defence. The respondent No.2 vide order dated 22.9.2008 replied that the

Authority was unable to furnish the said document as no such document

existed and that the charges were based on the petitioner’s Attestation

Form. The petitioner filed his reply dated 31.7.2008 denying the charges

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levelled against him and stated that in the absence of the aforesaid

document, he was not able to place his defence effectively.

10. The respondent no.2 appointed Enquiry Officer Shri S. R. Singbal

who conducted the departmental enquiry. During the enquiry process,

the Enquiry Officer issued a letter dated 13.1.2009 to the Chairman,

Bhartiya Shiksha Parishad Bharat Bhavan, Matiyari, Chinhat, Faizabad

Road, Lucknow for verifying the certificates which were issued by the said

Institution. The Assistant Director, Bhartiya Shiksha Parishad Bharat

Bhavan, Matiyari, Chinhat, Faizabad Road, Lucknow replied vide letter

dated 5.12.2009 stating therein that the petitioner has completed B.A and

M.A from the Institute in 1995 and 1997 respectively.

11. After the conclusion of the enquiry proceeding, the Enquiry Officer

submitted his report dated nil to the respondent no.2 who was the

Disciplinary Authority stating therein that charges levelled against the

petitioner were not proved. The Disciplinary Authority on 18.3.2011

passed an order stating that he was disagreeing with the findings of the

Enquiry Officer and that he had come to the conclusion that the petitioner

was guilty of the charge as framed. The petitioner submitted his reply

dated 7.4.2011 denying the contentions therein. The Disciplinary

Authority without considering the submissions of the petitioner passed an

order dated 30.4.2011 overruling the findings of the Enquiry Officer in

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referring to Clause 10 sub-clause (iv) of the MPE Regulations, 1964 and

awarded the penalty of “Removal from service which shall not be a

disqualification for future employment" with immediate effect, in terms of

Regulation 9(2)(viii) and 11 of MPE (Classification, Control and Appeal)

Regulations 1964.

12. The petitioner filed an appeal before the Appellate Authority

Deputy Chairman, Mormugao Port Trust (for short “MPT”) against the

order of termination. The said appeal came to be dismissed by the

Appellate Authority vide order dated 2.4.2012 without assigning any

reasons. Thereafter the petitioner filed a review before the Chairman,

MPT and the same was also dismissed vide order dated 21.5.2013.

Subsequently, another review application order was preferred by the

petitioner before the Ministry of Shipping Government of India and the

said review was dismissed as not maintainable. Hence, the present writ

petition.

13. The MPT in its affidavit-in-reply stated that the order dated

30.4.2011 awarding the penalty of removal from service was passed after

complying with all the necessary procedures and proper application of

mind. Hence it was stated that this Court should not interfere with the

order in the exercise of extraordinary jurisdiction under Article 226 of the

Constitution of India. It was further stated that the order dated 12.4.2012

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passed by the Deputy Chairman as Appellate Authority, and the order

dated 21.5.2013 passed by the Chairman as Reviewing Authority did not

suffer from any infirmities. Moreover, the disciplinary enquiry conducted

against the petitioner had culminated in the order dated 30.4.2011. It is

further stated that the MPE Regulations, 1964 annexed by the petitioner

to the petition was an unamended version of the said 1964 Regulations

which had been subsequently amended in the years 1995 and 1997. The

amended 1964 Regulations vide Clause 11(26)(i) did not mandate the

Disciplinary Authority to call upon the employee to make a representation

against the proposed penalty to be awarded. It is also submitted that it

was incorrect on the part of the petitioner to allege that the Disciplinary

Authority was vested with no power under Regulation 10(iv) to overrule

the findings of the Enquiry Officer. The MPT thus stated that the

impugned order did not call for any interference by this Court.

14. Mr. V.A. Lawande, the learned counsel on behalf of the petitioner

advanced his submissions as given hereunder:

(a) The order dated 30.11.2011 violates Regulation 11(26)

(i) of MPE Regulations, 1964. The Disciplinary

Authority disagreeing with the report of the enquiry

officer asked the petitioner to show cause within 15

days. It was incumbent upon the respondent no. 2 to

issue notice to the petitioner by specifically

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mentioning the proposed penalty as required under

the Regulations.

(b) The action of the Disciplinary Authority terminating

the services of the petitioner was based upon a

chargesheet dated 12.5.2008. However, on the same

issue, earlier charge-sheets dated 2.3.2004 and

27.5.2005 were issued to the petitioner. As far as the

matter of the chargesheet dated 2.3.2004 is

concerned, a full-fledged enquiry was conducted and

the petitioner was punished with withholding of two

increments of pay. Furthermore, the chargesheet

dated 27.5.2005 was withdrawn by the respondents

and therefore, the mode and the manner in which the

petitioner was on various occasions charged on the

same ground is untenable.

(c) The Disciplinary Authority in violation of principles of

natural justice passed the order dated 30.4.2011. The

charges framed against the petitioner in the

chargesheet dated 12.5.2008 were fully based upon the

application form which was submitted by the

petitioner to the General Administration Department,

MPT, at the time of his appointment and the copy of

the same was not furnished to the petitioner despite

numerous requests. Therefore, the petitioner was

denied a fair and proper hearing.

(d) This Court vide order dated 27.11.2007 had allowed

the respondent no.1 to hold an enquiry in pursuance of

the chargesheet dated 27.7.2005. The respondent no.1

failed to hold any such enquiry and withdrew the

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chargesheet and therefore, the respondents are

precluded from issuing a fresh chargesheet dated

12.5.2008 on the same grounds.

(e) The Enquiry Officer exonerated the petitioner and

submitted a report to the Disciplinary Authority. The

Disciplinary Authority, while disagreeing with the

findings of the Enquiry Officer, should have conveyed

its tentative findings on the grounds of disagreement

and allowed the petitioner to put forth his defence.

(f) The action of the Disciplinary Authority was

predetermined and biased. The findings of the Enquiry

Officer were overruled in a cryptic manner referring to

Clause 10 sub-clause (ii) MPE Regulations, 1964.

Moreover, removal from service was illegal as there is

no documentary evidence available with the

Disciplinary Authority on which the order dated

30.4.2011 had been issued. The Appellate Authority

while deciding the appeal of the petitioner was

required to pass a speaking order stating the reasons

for dismissing the appeal.

(g) The Appellate Authority was required to make sure

that the procedure laid down has been complied with

by the Disciplinary Authority and findings on record

were duly supported to warrant penalty of dismissal.

(h) With regards to the amended Regulation 11 (26) (i),

the provision dictates that if a major penalty is

imposed in terms of item no.(s) (vi) to (ix) of

Regulation 9 of the MPE Regulations, 1964, it is

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mandatory to furnish a copy of the record of the

Enquiry Officer and where the Disciplinary Authority

is different from the Enquiry Officer, a statement as to

its findings along with brief reasons for disagreement

has to be mentioned. In this case, no such reasons for

disagreement with the report of the Enquiry Authority

were given by the Disciplinary Authority thus vitiating

the entire proceedings.

15. The learned counsel for the petitioner relied upon the following

judgments: -

(i) Punjab National Bank and Others Vs. Kunj Behari

Misra, (1998) 7 SCC 84;

(ii) Yoginath D. Bagde Vs. State of Maharashtra and

Another, (1999) 7 SCC 739;

(iii) State of Assam Vs. Mohan Chandra Kanta, AIR 1972

SC 2535;

(iv) Aditya Kumar Mishra Vs. State of Uttar Pradesh,

Road Transport Corporation through its Managing

Director, 2024 SCC OnLine ALL 4699;

(v) Krishna Kumar Rao Vs. Haryana Warehousing

Corporation, 1994 SCC OnLine P&H 1181;

(vi) Dr. M. S. Mudhol and another Vs. S. D. Halegkar and

others, (1993) 3 SCC 591;

(vii) Vikas Pratap Singh and others Vs. State of

Chhattisgarh and others, (2013) 10 S.C.R 1114;

(viii) Varindra Hans Vs. Union of India and others in Civil

Writ Petition No. 30737 of 2018 of High Court of

Punjab and Haryana decided on 31.07.2019;

(ix) United Bank of India Vs. Biswanath Bhattacharjee,

(2022) 13 SCC 329;

(x) Allahabad Bank and others Vs. Krishna Narayan

Tiwari, Civil Appeal No. 7600 of 2024 decided on

02.01.2017 by the Hon’ble Supreme Court

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(xi) Jayantibhai Raojibhai Patel Vs. Municipal Council

Narkhed and others, (2019) 17 SCC 184.

16. Mr. Y. V. Nadkarni, learned counsel on behalf of the respondents

made the following submissions:

(a) After the charges were framed against the petitioner

under Clause 3(1)(i) and 3(1)(iii) of the MPE

Regulations, 1964, an Enquiry Officer was appointed as

the petitioner did not admit to the charges. The

Enquiry Officer submitted a report holding that the

charges levelled against the petitioner were not proved.

The report and findings of the Enquiry Officer who

disagreed with the report concluded that the charges

were proved and called the petitioner to file his

explanation within 15 days.

(b) It was only incumbent upon the Disciplinary Authority

to give the petitioner an opportunity to be heard and

such opportunity was duly given.

(c) Regulation 11(26) (i) of Regulation 1964 does not

mandate the Disciplinary Authority to call upon the

employee to make a representation against the

proposed penalty to be awarded. The petitioner has

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relied on the unamended Regulations. The Regulations

were amended in the years 1995 and 1997 and in so far

as the effect of amended Regulation was concerned, all

the requirements therein had been complied with. The

Disciplinary Authority was not under an obligation to

give detailed reasons as to its dissatisfaction with the

findings of the Enquiry Officer. Upon concluding that

the petitioner was guilty, the Disciplinary Authority,

cited reasons in brief and furnished a copy of the

enquiry report to the petitioner and therefore, all the

procedural requirements as given under Regulation

11(26) (i) had been complied with.

(d) An earlier charge sheet dated 2.3.2004 was issued to

the petitioner on the charge that he was asked by the

MPT to furnish his educational qualification certificates

to re-verify the same to consider him for the post of

Senior Hindi Translator on a regular basis but the

petitioner failed to submit the same despite repeated

requests made to him and therefore the charge sheet

culminated in issuing Order dated 18.11.2005 awarding

the penalty.

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(e) It is pertinent to note that the Petitioner herein has

accepted the said Order dated 18.11.2005 and had not

challenged the same.

(f) Subsequently, a charge sheet dated 27.5.2005 was

issued to the petitioner on the charge that the petitioner

had submitted a statement dated 29.5.2004 to the

Enquiry Officer indicating that he has done his

Graduation B.A. in 1995 and Post Graduation M.A in

the year 1997 at Bhartiya Shiksha Parishad Bharat

Bhavan, Matiyari, Chinhat, Faizabad Road, Lucknow

whereas in the Attestation Form duly filled and signed

by the petitioner and which was submitted to the

General Administration Department, MPT at the time

of his appointment, he had declared that B.A. and M.A

had been done by him in the year 1995 and 1997

respectively at K.M.V. Mahavidyalaya Mul, S.B.O.M.

Institute, Madras. This was contrary to the statement

given to the Enquiry Officer at the time of enquiry. The

Petitioner challenged the said charge sheet dated

27.05.2005 by filing Writ Petition No.227/2005 and

this Court vide order dated 23.8.2005 issued a rule and

directed that until further orders, proceedings shall

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remain stayed of the aforesaid charge sheet. This Court

on an application filed by the respondent no.1 vide

order dated 23.08.2005 allowed the respondents to

proceed with the enquiry but the final order was not be

given effect to, if it was adverse to the Petitioner,

without prior permission of the Court. The respondent

no.1 filed a Misc. Civil Application No.131/2008 in Writ

Petition No.227/2005 submitting that they desired to

withdraw the charge sheet dated 27.05.2005 with

liberty to issue a fresh charge sheet and this Court was

pleased to dispose of the Writ Petition No.227/2005

with such liberty.

(g) The respondent no.1 thereafter issued a charge sheet

dated 12.5.2008 which ultimately culminated in the

passing of the removal Order dated 30.04.2011.

(h) While conducting the whole process of enquiry there

was no violation of principles of natural justice. The

petitioner was informed that in the list of documents

mentioned in Annexure III of the charge sheet dated

12.5.2008 what was indicated was only the attestation

form dated 12.11.1997 signed by the petitioner and

attested by the Plantation Officer, Forestry Sangli.

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According to the respondents, the petitioner was

informed that no such document exists and charges

were framed on the basis of the attestation form listed

in the list of documents. The enquiry was held against

the petitioner by the Competent Authority as per the

procedure prescribed in law.

(i) The scope of judicial interference in writ jurisdiction

against the order of the Disciplinary Authority was

limited and the Court cannot act as an appellate forum

and look into the findings of the Authority that have

been arrived at after a full-fledged enquiry. The case of

the petitioner did not warrant interference by the Court

under any of the circumstances where such interference

has been deemed necessary and proper as per the law

as laid down by the Hon’ble Supreme Court.

(j) The petitioner made false undertakings at the time of

appointment and therefore the punishment of dismissal

was warranted.

(k) With regard to back wages, the petitioner had failed to

plead that he was not gainfully employed and was

therefore not eligible for back wages under any of the

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circumstances that had been culled out by the Hon’ble

Supreme Court, where the grant of back wages may be

justified.

17. The learned counsel for the respondents relied on the following

judgments :

(i) S. N. Mukherjee Vs. Union of India, (1990) 4 SCC

594;

(ii) State Bank of Bikaner & Jaipur and others Vs.

Prabhu Dayal Grover, (1995) 6 SCC 279;

(iii) State Bank of Karnataka and another Vs. N.

Gangaraj, (2020) 3 SCC 423;

(iv) State Bank of Karnataka and another Vs. Umesh,

(2022) 6 SCC 563;

(v) Deepali Gundu Surwase Vs. Kranti Junior

Adhyapak Mahavidyalaya (D. ED) and others,

(2013) 10 SCC 324;

(vi) Maharashtra State Road Transport Corporation Vs.

Mahadev Krishna Naik, 2025 SCC OnLine SC 325.

18. Having heard the learned counsel for the parties and perused the

materials available on record, the rival contentions now fall for our

consideration.

19. The enquiry report recorded the charges made against the

petitioner for violation of Regulation 3(1)(i) and 3(1)(iii) of the MPE

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Regulations, 1964 by giving two different names of the Educational

Institute from where he received his qualification in B.A. and M.A in two

separate communications. In the course of the proceedings four witnesses

were examined, however, their statements do not disclose anything of

great evidentiary value due to the passage of time since the appointment

of the petitioner. The Enquiry Officer concluded that the documents

submitted by the petitioner, i.e. the marksheets of his B.A. & M.A had

been confirmed with Bharatiya Shiksha Parishad, UP and were deemed to

be conclusively authentic. Further, the enquiry report records that the

issue raised pertaining to the Bharatiya Shiksha Parishad, UP not being a

recognised University was a sub judice issue and, therefore, was beyond

the scope of this enquiry. It was further stated that, in view of the facts

and evidence placed, the petitioner had rightly mentioned the names of

the study centres and that there was no contradiction to the information

produced by the petitioner in the attestation form with regards to the

name of the study centre as well as the name of the university. Hence, the

charges levelled against him for giving false, misleading and contradictory

statements were not proved.

20. The Enquiry Officer in his inquiry report observed in conclusion as

under :-

“Therefore in conspectus of above facts and evidence

placed before me, it is proved that CO has rightly

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mentioned the names of study centres i.e. K.M.V.

Mahavidyalaya Mul for BA in 1995 and S.B.O.M.

Institute, Madras for MA (Hindi) in 1997 in the

Sr.No.10 of attestation form (C-34 & 35) and whist

mentioning in the explanation dt. 25.3.2004 (C-33)

before Inquiry Officer Shri Silvester Correia the name of

the University i.e. Bhartiya Shiksha Parishad, Bharat

Bhavan, Matlyari, Chinhat, Faizabad Road, Lucknow –

227105 as appearing in the certificates (C-69 & C-70)

and marksheets (C-76, C-77, C-78, C-79, C-80). Also

there is no contradiction between the information given

by CO in the attestation form (C34 & C35) i.e. names of

the study centres and the name of university in the

explanation (C33) before the Inquiry Officer Shri

Silvester Correia, through which the CO acquired his BA

& MA (Hindi) qualification, as the information provided

by CO as above are independent of each other and true

in all respect as regards to names of study centres in

attestation form and name of university mentioned in

the explanation before Inquiry Officer Shri Silvester

Correia. Hence the charges levelled against the CO vide

abovementioned Chargesheet of giving false, misleading

and contradictory information, as regards the

Institution through which he has obtained his

educational qualifications i.e. BA & MA (Hindi) are not

proved.”

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21. It is pertinent, at this juncture, to look at the contents of Regulation

11(25) of the MPE Regulations, 1964 which reads as under :

“The disciplinary authority shall, if it is not the

inquiring authority, consider the record of the

inquiry and record its findings on each charge.”

In the present case, the Disciplinary Authority was not the

inquiring authority. After considering the enquiry report, the Disciplinary

Authority passed an order dated 18.3.2011 which commences as under :

“Whereas an inquiry was conducted against Shri Ashish D.

Chandekar, Hindi Translator, EDP No.154416 of MM

Division to inquire into the charge levelled against him

vide chargesheet of even reference

no.MM/GEN/125/2008/419 dtd. 12.05.2008.

And, whereas the undersigned as Disciplinary Authority

having carefully gone through the Inquiry Report (copy

attached) disagrees with the findings of the Inquiry Officer,

and has come to the conclusion that Shri Ashish D.

Chandekar is guilty of the charge against him for the

following reasons :

1. ……………………………………….………..

2. ……………………………………….………..

Shri Ashish D. Chandekar is hereby given an opportunity

for making a representation on the above. Any such

representation which he may wish to make should be

submitted in writing to the undersigned, so as to reach not

later than 15 days from the date of receipt of order.”

(emphasis supplied)

22. Regulation 11(26) of MPE reads thus:

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“26.(i) If the Disciplinary Authority having regard to its

findings on the charge is of the opinion that any of

the penalties specified in terms of items (iv) to (ix)

of regulation 9 should be imposed, it shall make

an order imposing such penalty and shall furnish

to the employee a copy of the report of the Inquiry

Authority and where the Disciplinary Authority is

not the Inquiry Authority, a statement of its

findings together with brief reasons for

disagreement, if any, with the findings of Inquiry

Authority. (emphasis supplied)

(ii) In every case in which it is necessary to consult

the Board the record of Inquiry shall be

forwarded by the Disciplinary Authority along

with its recommendations to the Board of passing

such orders.

Note :

Any disciplinary action which had been taken or

is pending or an appeal/review in respect of any

disciplinary action has been preferred prior to

inclusion of above clause. The same shall be

deemed to have been taken or pending or

preferred as the case may be under these

amended regulations and shall be disposed off in

accordance with the provisions of these amended

regulations.”

23. The requirement under Regulation 11(25) has not been complied

with and therefore it is per se apparent that the Disciplinary Authority has

not applied its mind. The Disciplinary Authority while disagreeing with

the views of the Enquiry Officer, has breached the principles of natural

justice as contrary to Regulation 11(26), the Disciplinary Authority has

straightway held that the charges levelled against the petitioner as proved.

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The Disciplinary Authority, if it intended to disagree with the findings

recorded by the Enquiry Officer ought to have recorded his tentative

reasons for disagreement and thereafter should have provided an

opportunity to the delinquent employee to represent against the tentative

reasons, before recording any findings on the charges. The pre-

determined stand of the Disciplinary Authority in concluding that the

petitioner was guilty of the charge framed and thereafter calling for

further representation on the dissenting note is nothing but an empty

formality.

24. In Kunj Behari Misra (supra), the Hon’ble Supreme Court held

that Article 311(2) of the Constitution of India mandates the Disciplinary

Authority to give an opportunity of representation to the charged

employee on his findings. While explaining the principles laid down in

Managing Director, ECIL Vs. B Karunakar reported in (1993)4 SCC 727,

on the aspect of complying with the principles of natural justice by

furnishing a copy of the enquiry officer’s report with an opportunity to the

delinquent officer to submit his further representation on the report and

in the case of disagreement with the enquiry officers’ report, the Hon’ble

Supreme Court, at paragraphs 18 and 19 held as follows:

“18. Under Regulation 6, the enquiry proceedings can be

conducted either e by an enquiry officer or by the

disciplinary authority itself. When the enquiry is

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conducted by the enquiry officer, his report is not final

or conclusive and the disciplinary proceedings do not

stand concluded. The disciplinary proceedings stand

concluded with the decision of the disciplinary

authority. It is the disciplinary authority which can

impose the penalty and not the enquiry officer. Where

the disciplinary authority itself holds an enquiry, an

opportunity of hearing has to be granted by him. When

the disciplinary authority differs with the view of the

enquiry officer and proposes to come to a different

conclusion, there is no reason as to why an

opportunity of hearing should not be granted. It will be

most unfair and iniquitous that where the charged

officers succeed before the enquiry officer, they are

deprived of representing to the disciplinary authority

before that authority differs with the enquiry officer's

report and, while recording a finding of guilt, imposes

punishment on the officer. In our opinion, in any such

situation, the charged officer must have an

opportunity to represent before the disciplinary

authority before final findings on the charges are

recorded and punishment imposed. This is required to

be done as a part of the first stage of enquiry as

explained in Karunakar case.

19. The result of the aforesaid discussion would be that the

principles of natural justice have to be read into

Regulation 7(2). As a result thereof, whenever the

disciplinary authority disagrees with the enquiry

authority on any article of charge, then before it

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records its own findings on such charge, it must record

its tentative reasons for such disagreement and give to

the delinquent officer an opportunity to represent

before it records its findings. The report

of the enquiry officer containing its findings will have

to be conveyed and the delinquent officer will have an

opportunity to persuade the disciplinary authority to

accept the favourable conclusion of the enquiry officer.

The principles of natural justice, as we have already

observed, require the authority which has to take a

final decision and can impose a penalty, to give an

opportunity to the officer charged of misconduct to file

a representation before the disciplinary authority

records its findings on the charges framed against the

officer.”

25. In Yoginath D. Bagde (supra), it has been observed that the right of

hearing of an employee who is subjected to proceedings conducted by a

Disciplinary Authority has to be granted at two stages, first when, the

charges are levelled against him, second, when the findings of the enquiry

officer are being considered by the Disciplinary Authority. The relevant

portion of paragraph 31 has been extracted hereunder for convenience :

“31.…A delinquent employee has the right of hearing not

only during the enquiry proceedings conducted by the

enquiry officer into the charges levelled against him

but also at the stage at which those findings are

considered by the disciplinary authority and the latter,

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namely, the disciplinary authority forms a tentative

opinion that it does not agree with the findings

recorded by the enquiry officer. If the findings

recorded by the enquiry officer are in favour of the

delinquent and it has been held that the charges are

not proved, it is all the more necessary to give an

opportunity of hearing to the delinquent employee

before reversing those findings. The formation of

opinion should be tentative and not final. It is at this

stage that the delinquent employee should be given an

opportunity of hearing after he is informed of the

reasons on the basis of which the disciplinary

authority has proposed to disagree with the findings of

the enquiry officer. This is in consonance with the

requirement of Article 311(2) of the Constitution as it

provides that a person shall not be dismissed or

removed or reduced in rank except after an enquiry in

which he has been informed of the charges against him

and given a reasonable opportunity of being heard in

respect of those charges. So long as a final decision is

not taken in the matter, the enquiry d shall be deemed

to be pending. Mere submission of findings to the

disciplinary authority does not bring about the closure

of the enquiry proceedings. The enquiry proceedings

would come to an end only when the findings have

been considered by the disciplinary authority and the

charges are either held to be not proved or found to be

proved and in that event punishment is inflicted upon

the delinquent. That being so, the "right to be heard"

would be available to the delinquent up to the final

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stage. This right being a constitutional right of the

employee cannot be taken away by any legislative

enactment or service rule including rules made under

Article 309 of the Constitution.”

26. The aforementioned extract delineates the two-fold right to be

heard of an employee who is subject to proceedings before a Disciplinary

Authority. The position adopted by the Hon’ble Supreme Court herein

assails any defence that may be sought under the argument that upon the

filing of a conclusive report by the enquiry committee, the case of an

employee may be laid to rest. It is clear that before the Disciplinary

Authority rules on the findings of the enquiry committee, it is mandatory

to afford an opportunity to the employee.

27. In the present case, the Disciplinary Authority does not rule on the

defence advanced by the petitioner or even record it in its order imposing

punishment. The order of the Disciplinary Authority dated 18.03.2011

first records disagreement with the findings of the Enquiry Officer and

then concludes that the petitioner is guilty of the charge as framed. It

therefore seeks the petitioner’s response to the same. This course as

followed is contrary to the settled law in this regard.

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28. In Aditya Kumar Mishra (supra), the High Court of Allahabad has

summarised the law laid down by the Hon’ble Supreme Court in a catena

of pronouncements as extracted hereunder:

“The law regarding judicial review of disciplinary

proceedings is well settled. Disciplinary proceedings are

quasi-judicial proceedings, and the Inquiry Officer

performs a quasi-judicial function. Under Article 226 of

the Constitution, the High Court is not a court of appeal

over the decision of the disciplinary authority and does

not either re-appreciate the evidence submitted against

the employee, nor does the High Court record an

independent finding on evidence. However, under Article

226 the High Court can interfere where the findings of the

disciplinary authority are wholly arbitrary and

capricious or are based on no evidence or where the

findings are such which no reasonable man can ever

arrive at. The findings in the disciplinary proceedings as

well as the punishment awarded to the delinquent should

also not be influenced by irrelevant considerations. The

Inquiry Officer and the disciplinary authority cannot

record findings or pass orders of punishment on mere

suspicion. The Inquiry Officer and the disciplinary

authority can also not travel beyond the charges and any

punishment imposed on the basis of a charge which was

not the subject matter of the charge sheet would be

illegal.”

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29. In light of this crystalised position, it is clear that a Court under writ

jurisdiction may interfere where the conclusion of the Disciplinary

Authority is capricious or wholly arbitrary. In the instant case, the

Disciplinary Authority took a divergent position from the one that was

recorded by the Enquiry Officer without seeking the petitioner’s response

on the view proposed to be taken by it. It is our view that such a scenario

presents itself as a fit case for the exercise of writ jurisdiction.

30. The learned counsel on behalf of the petitioner has submitted

numerous judgments, which in effect are derived from the views

pronounced in Yoginath D. Bagde (supra) and reiterate the same

principle as condensed in Aditya Kumar Mishra (supra). Therefore, we

find that the case of the petitioner is covered by the ratio of the aforesaid

pronouncements.

31. The respondent has relied on the ruling of the Hon’ble Supreme

Court in S.N. Mukherjee (supra) inter alia, which opines that the findings

of an administrative authority such as a Disciplinary Authority, are not

required to be supported by reasons to the same standard as that of the

reasoning offered to support the judgment of a court. It is further,

considered that the need to record reasons is greatest when it is passed at

an original stage and as a sequitur, when an order is passed affirming the

findings validated in a previous order, the requirement to elaborate upon

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previously affirmed findings is less pressing and a mere statement that

the appellate or revisional authority is in consonance of the original order

suffices. However, from a reading of the relied-upon portion (paragraph

36 as reported by SCC), the use of the term “separate reason” is pivotal.

In our view, while it is true that the same reasons for the original order

may not be re-stated, in the instant case, the order of termination records

insufficiently substantiated reasons. Therefore, in our view, to be

exempted from reproducing the reasoning adopted by the authority that

passed the original order is not the same as an exemption from recording

a valid set of reasons. It is a well-settled principle of law that orders,

regardless of whether passed under quasi-judicial authority or judicial

authority, have to be supported by a cogent statement of reasons.

32. In Prabhu Dayal Grover (supra), such exemption from a legal

mandate to record reasons is provided for, expressly, by the regulations

that the Disciplinary Committee is proceeding under. In this light, the

reliance placed on this judgment is misconceived as it does not consider

the rider placed by the Hon’ble Supreme Court. The relevant portion is

extracted here for convenience:

“13. ..It can, therefore, be legitimately inferred that when

express provisions have been made in the Regulations

for recording reasons in only the first two of three fact

situations - and not the other there is no implied

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obligation also to record the reasons in case of

concurrence with the findings of the inquiry officer.”

33. A bare reading of the extract makes it clear that such exemption

from recording reasons has to be in light of a provision in the body of the

regulations, and does not, by any means, dictate that as a general

principle, a revisional/appellate authority may be exempt for having to

record reasons. In the absence of such a provision in the instant factual

matrix, we find that the case in hand is distinguishable from the ruling in

Prabhu Dayal Grover (supra).

34. In N. Gangaraj (supra), the Hon’ble Supreme Court has opined

that the scope of judicial intervention under writ jurisdiction is not the

same as an appellate court sitting in re-appreciation of evidence adduced

in proceedings of the Disciplinary Authority. In our opinion, considering

that a non-speaking order was passed in the present case, the question of

re-appreciation of evidence does not arise. The order dated 30.4.2011 was

passed without any consideration as to the consequence of any evidence

that was adduced during the proceedings of the Disciplinary Authority,

therefore this case is distinguishable on facts.

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35. In Umesh (supra), the Hon’ble Supreme Court opined upon the

scope of judicial intervention over the findings of the Disciplinary

Authority as thus:

“22. In the exercise of judicial review, the Court does not

act as an appellate forum over the findings of the

disciplinary authority. The court does not re-

appreciate the evidence on the basis of which the

finding of misconduct has been arrived at in the

course of a disciplinary enquiry. The Court in the

exercise of judicial review must restrict its review to

determine whether:

(i) the rules of natural justice have been

complied with;

(ii) the finding of misconduct is based on some

evidence;

(iii) the statutory rules governing the conduct of

the disciplinary enquiry have been observed;

and

(iv) whether the findings of the disciplinary

authority suffer from perversity; and

(v) the penalty is disproportionate to the proven

misconduct.”

36. The instant case is squarely covered under clause (iii) of the

extracted paragraph, therefore reliance placed on this ruling by the

respondents is not apposite.

37. Therefore, in case of disagreement with the Enquiry Officer’s

report, the substantial compliance of the principles of natural justice

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requires that the Disciplinary Authority in case of any disagreement can

record only its tentative opinion on the charges with reasons and then

issue notice to the delinquent to show cause. The Disciplinary Authority

cannot hold him guilty at that stage and thereafter call upon him to make

a further representation, which would offend the well-cherished

principles of natural justice.

38. The services of the petitioner were terminated by the decision of the

Disciplinary Authority after taking a divergent view from the one that had

been taken by the Enquiry Officer. We are of the opinion that when a

divergent view is taken from the body vested with the task of fact-finding,

there is a greater burden placed upon the authority with whom the final

decision of imposition of punishment rests to substantiate its premise

based upon which such a divergent view may be taken.

39. In the present case, the Disciplinary Authority clearly failed to

discharge this burden by not apprising the petitioner of the proposed

punishment vide order dated 18.03.2011 which was mandatory in view of

Regulation 11(26)(i), by not considering the submissions of the petitioner

in the body of the order dated 30.4.2011 and by not furnishing a copy to

the petitioner of the application form which was submitted by the

petitioner to the General Administration Department, MPT, at the time of

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his appointment. On these counts, the order of punishment is liable to be

interfered with as it has been passed in a manner contrary to law.

40. As far as the submission pertaining to remit the matter for fresh

consideration by the Disciplinary Authority is concerned, we are not

inclined to do so due to the length of time that has passed since the

conclusion of the enquiry. Prejudice to the rights of the petitioner caused

due to the disciplinary proceedings is apparent on the face of the record.

In the facts and circumstances of this case, by remitting the matter to the

Disciplinary Authority, his agony will be only prolonged. The petitioner

was first issued a memorandum in the same matter on 29.7.2003. Despite

grant of liberty to proceed with the enquiry afresh, the same has been

conducted in breach of principles of justice. The facts of the present case

do not call for an order of remand again. Justice should not only be done

but should manifestly seem to be done.

41. In light of the aforementioned discussion, it can be culled out

clearly that the basis for imposing such punishment upon the petitioner is

both in violation of the procedural mandate of the MPE Regulations, 1964

and of the principles of natural justice. Furthermore, prior to the

chargesheet that culminated in an order of termination being issued, two

chargesheets had been issued against the petitioner on two separate

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occasions for the same purported misconduct; it is clear that the

petitioner has been victimised by the respondents.

42. Coming to the aspect of consequential relief, it is clear that on the

order of punishment being set aside, the petitioner is entitled to be

reinstated on his former post with continuity. As regards the grant of

back-wages is concerned, the petitioner in paragraph 40 of the Writ

Petition has pleaded that after his services were illegally terminated, he

was rendered jobless. He has stated that he was the only bread earner in

his family. These averments of the petitioner have not been countered by

the respondents. There is no denial on the part of the respondents.

In our view, in the absence of any denial of the petitioner’s stand

that he was jobless after the termination of his services, the petitioner is

entitled to relief in that regard. In the case of Mahaedeo Krishna Naik

(supra), the Hon’ble Supreme Court after referring to the decision in

Deepali Gundu Surwase (supra) has opined that:

“There is one other aspect that would fall for

consideration of the court. In certain decisions, noticed

in Deepali Gundu Surwase (supra), it has been opined

that whether or not an employee has been gainfully

employed is within his special knowledge and having

regard to Section 106 of the Evidence Act, 1872, the

burden of proof is on him. What's required of an

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employee in such a case? He has to plead in his

statement of claim or any subsequent pleading before

the industrial tribunal/labour court that he has not

been gainfully employed and that the award of

reinstatement may also grant him back wages. If the

employee pleads that he was not gainfully employed,

he cannot possibly prove such negative fact by

adducing positive evidence. In the absence of any

contra-material on record, his version has to be

accepted. Reference in this connection may be made to

Section 17-B of the Industrial Disputes Act, 1947, which

confers a right on an employee to seek "full wages last

drawn" from the employer while the challenge of the

employer to an award directing reinstatement in a

higher court remains pending. There too, what is

required is a statement on affidavit regarding non-

employment and with such a statement on record, the

ball is in the court of the employer to satisfy the court

why relief under such section ought not to be granted

by invoking the proviso to the section. We see no

reason why a similar approach may not be adopted.

After the employee pleads his non-employment and if

the employer asserts that the employee was gainfully

employed between the dates of termination and

proposed reinstatement, the onus of proof would shift

to the employer to prove such assertion having regard

to the cardinal principle that 'he who asserts must

prove'. Law, though, seems to be well settled that if the

employer by reason of its illegal act deprives any of its

employees from discharging his work and the

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termination is ultimately held to be bad in law, such

employee has a legitimate and valid claim to be

restored with all that he would have received but for

being illegally kept away from work. This is based on

the principle that although the employee was willing to

perform work, it was the employer who did not accept

work from him and, therefore, if the employer's action

is held to be illegal and bad, such employer cannot

escape from suffering the consequences. However, it is

elementary but requires to be restated that while grant

of full back wages is the normal rule, an exceptional

case with sufficient proof has to be set up by the

employer to escape the burden of bearing back wages.”

(emphasis placed)

The clear upshot of the aforesaid extract is that the onus of proving

whether the terminated employee is presently employed is incumbent

upon the employer since it is observed that it would be a fallacious

endeavor to seek positive evidence of a negative fact. Therefore, this

ruling ultimately supports the claim of the petitioner to back wages and

the reliance placed by the respondent in this regard is unacceptable.

43. Thus, taking an overall view of the matter including the fact that the

order of termination has been set aside on the ground of breach of

principles of justice, we are inclined to award 50% back-wages to the

petitioner from 1.5.2011 till his reinstatement.

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It is to be noted that after the services of the petitioner were

terminated on 30.4.2011, proceedings for his eviction under Section 4 of

the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 were

initiated. On 20.3.2015 the Estate Officer issued a show cause notice to

the petitioner calling upon him to pay damages for unauthorised

occupation of the premises owned by MPT. By the order dated 30.9.2015

passed in the Writ Petition, the undertaking furnished by the petitioner

was accepted and he was permitted to vacate the premises on or before

31.12.2015. The recovery of the amount of damages was deferred till the

final hearing of the Writ Petition. Since the order of termination of the

petitioner’s service has been found to be illegal, the petitioner’s

occupation of the premises owned by the MPT cannot be treated to be

illegal. Hence, there would be no question of recovering the amount of

damages from the petitioner. The show cause notice dated 20.3.2015

stands clarified accordingly.

44. Hence, for the aforesaid reasons, the following order is passed :-

(a) The Order dated 30.04.2011 is untenable in the eyes

of the law and therefore liable to be quashed and set

aside. As a natural consequence, the orders dated

2.4.2012, 21.5.2013 and 27.1.2015 passed by the

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Appellate/Reviewing Authorities are also hereby

quashed and set aside. The petitioner shall be

reinstated on his former post with continuity in

service.

(b) The petitioner is held entitled to 50% back-wages

from 1.5.2011 till his reinstatement.

(c) No further steps shall be taken pursuant to show

cause notice dated 20.3.2015 against the petitioner.

(d) The writ petition is allowed with no order as to costs.

Rule is made absolute.

(NIVEDITA P. MEHTA, J.) (A. S. CHANDURKAR, J.)

45. At this stage, Mr N. Naik, learned counsel for the respondents

seeks stay of the order for a period of twelve weeks in order to challenge

the same.

46. Mr Lawande, learned counsel appearing for the petitioner

opposes the request on the ground that the petitioner is suffering for last

many years.

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47. In the facts of the present case, the judgment shall operate after a

period of four weeks from today.

(NIVEDITA P. MEHTA, J.) (A. S. CHANDURKAR, J.)

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