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2006 Supreme(Bom) 1221
IN THE HIGH COURT OF BOMBAY
(V.G. Palshikar, Acg. C. J. and V.M. Kanade, J.)
S.S. SADHAWANI - Petitioner
V.
ENQUIRY OFFICER, MHADA, MUMBAI and others - Respondents
Advocates appeared
For petitioner: Y. S. Jahagirdar. Senior Advocate with I.M. Khairdi For respondents No.1 to 5 : S.R. Nargolkar, APP.
Headnote:Maharashtra Housing and Area Development Act, 1976 - Section 164 - Jurisdiction/Authority of State. - State Authorities have no jurisdiction to pass order, setting aside order passed by Appellate Authority and restore order of Disciplinary Authority terminating services of petitioners.
Maharashtra Housing and Area Development Act, 1976 - Section 164 - State Government has no jurisdiction and authority to set aside order of the appellate authority under Section 164 - Dismissal of Executive and Deputy Engineers from service after departmental enquiry - Appellate Authority set aside the order passed by the Disciplinary Authority imposing lesser punishment - Order passed by State Government under Section 164 setting aside the order of appellate authority and restoring the order of Disciplinary Authority terminating service is clearly without jurisdiction. - The power is vested in the State Government to issue directions or instructions to the authority or any Board in respect of the finances and conduct of business and affairs of the authority or any Board. Sub-clause (2) of the said provision empowers the State Government to set aside any resolution which has been passed which according to the Government is in contravention of or in excess of the powers conferred by or under this Act or any other law for the time being in force or is likely to lead to abuse or misuse of or to cause waste of the Fund of the authority. Then in such cases, the State may in public interest by order in writing set aside such resolution or order. The aforesaid provisions, therefore, do not empower the Government to set aside the resolution which was passed by the authority which is constituted under the provision s of the Act and Rules made thereunder. It is not possible to read into the said provisions of Section 164 or to construe the language used for the said provision, in such a manner, as to give extended meaning to the words used in the said section. The appellate authority had set aside the order of dismissal which was ordered by the disciplinary authority and had directed that two increments of the petitioners should be stopped. The appellate authority has been set up under the provisions of the Act and Rules and it is a statutory remedy which is available to the delinquent officers against whom the orders are passed by the disciplinary authority. Therefore, respondents do not have jurisdiction to pass the impugned order setting aside the order passed by the appellate authority and restore the order of disciplinary authority terminating the services of the petitioners. The impugned order, therefore, is clearly without jurisdiction as the provisions of Section 164 of the Maharashtra Housing and Area Development Act does not confer power on respondents. (1991) 3 SCC 219; (1984) 2 SCC 41 - Referred.
V.M. KANADE, J. : - Both these petitions can be disposed of by a common judgment since the issue involved in these petitions is identical.
2. The short question which falls for consideration before this Court is whether the Government has the jurisdiction and the authority to issue directions to the appellate authority while exercising its jurisdiction under section 164 of the Maharashtra Housing and Area Development Act (hereinafter referred to as "MHADA Act".)
3. Brief facts which are relevant for the purpose of deciding these petitions are as under : -
4. Both the petitioners were working with MHADA. Petitioner Mr. S.S. Sadhawani was working as Executive Engineer and petitioner CJ. Mirkar was working as Deputy Engineer. During the year 1996 and before the petitioners took charge of their respective posts, officials from the Accounts Department committed various economic offences on the basis of bogus bills. On 25th September, 1997, a Show Cause Notice was issued to both the petitioners by respondent No.3 for initiating the departmental enquiry. Reply was filed by the petitioners to the said show cause notice. Both the petitioners were suspended and enquiry was initiated. Memorandum of charge was served on the petitioners and an Enquiry officer was appointed who submitted his report on 30th October, 2000. The petitioners filed their say to the enquiry report. On 11th June, 2001, the disciplinary authority was pleased to pass an order of dismissal against the petitioners.
5. Being aggrieved by the aforesaid order, both the petitioners filed an appeal before the appellate authority. The appellate authority, however, decided to set aside the order passed by the disciplinary authority. However, lesser punishment was imposed by the appellate authority. The State of Maharashtra by letter dated 11 th December, 2001 set aside the order which was passed by the appellate authority and restored the termination order dated 11th June, 2001 purportedly cancelled under the provisions of section 164 of the MHADA Act. Against the said order, the petitioner preferred a writ petition in this Court which was allowed by this Court on 3rd September, 2002 and the matter was remanded back to respondent No.5.
6. Respondent No.5 gave hearing to the petitioners on 31st October, 2001 and by order dated 19th March, 2003, the appeal was rejected.
7. Being aggrieved by the said impugned order, the petitioners preferred a petition under Article 226 of the Constitution of India.
8. Learned Counsel appearing on behalf of the petitioners invited our attention to the provisions of section 164 and submitted that the Government while exercising its jurisdiction under section 164 was not empowered to set aside the order which is passed by the appellate authority. In support of the said submission, he relied on the judgment of the Supreme Court in the case of Nagaraj Shivarao Karjagi vs. Syndicate Bank, Head Office, Manipal and another reported in (1991) 3 SCC 219 and he also relied on the judgment of the Supreme Court in Chandrika Jha vs. State of Bihar and others reported in (1984) 2 SCC 41.
9. Learned Counsel for the respondents vehemently opposed the submissions made by the learned Counsel for the petitioners. He submitted that the Government was authorised to give directions to the appellate authority in public interest for the purpose of ensuring that finances and conduct of the business and affairs of the authority or any Board was carried out in proper manner. He submitted that in the instant case, the Government had set aside the order of appellate authority in order to set up an example and the exemplary punishment was given in public interest.
10. We are unable to accept the submissions made by the learned Counsel on behalf of the respondents. For the purpose of deciding the issue involved in these petitions, it would be necessary to examine the provisions of section 164 of the MHADA Act. Section 164 reads as under : -
"(1). The State G
