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1. Shri. V. B. Patil for respondent No. 1/Caveator Agricultural Produce Market Committee, Jalgaon (APMC) has raised preliminary objection. He invites attention to Rule 102 (2) of Maharashtra Agricultural Produce Marketing (Development and Regulation) Rules, 1967 to urge that remedy of filing second appeal before the State Government is prescribed thereunder and hence, this Court should not interfere. He also relies upon the Division Bench judgment of this Court reported in 1984 (1) Bom. C.R. 50 in the case of Pramod Rajaram Chavan & Ors. v. Agricultural Produce Market Committee & Anr. to support his contention.
2. Senior Advocate Shri. Dixit with Advocate Nagargoje has invited attention to impugned order passed by the Director of Marketing on 15.11.2010 to urge that the appeal preferred was not questioning any punishment under Rule 102 of 1967 Rules and hence, it was not an appeal under Rule 104 thereof. He invites attention to provision of 52B of Maharashtra Agricultural Produce Marketing (Development and Regulation) Act, 1963 to argue that appeal preferred by petitioner was under section 52B and hence, there is no question of looking into the provisions of Rule 104.
3. With the assistance of respective counsel, issue is heard finally. I have perused the legal provisions. The judgment of the Division Bench on which the respondent No. 1 has placed reliance only points out availability of a second appeal under Rule 104. The Division Bench has found that by Rule 104 an appeal is provided against the order imposing penalties referred to Rule 103. Initially such an appeal lies to a Director and any person aggrieved by the order of Director can file further appeal to State Government.
4. Rule 104, no doubt, in its Subrule (1) expressly refers to order imposing any of the penalties mentioned in Rule 102. Here contention of petitioner is penalty imposed upon him is not under Rule 102, but it is under Rule 103. The petitioner therefore is attempting to show that under Rule 104 and also under section 52B separate remedies by way of an appeal are prescribed.
5. If this argument is to be accepted, it becomes apparent that for imposing penalty of removal from service or then for imposing penalty of dismissal from service prescribed by Clause VI and VII of Rule 102, no procedure is prescribed in 1967 Rules. I find that Rule 103 does not prescribe a punishment of dismissal or removal not already envisaged under Rule 102. The punishment possible and contemplated under Rules are prescribed under Rule 102 only. When the employer wishes to impose punishment of reduction or removal or dismissal prescribed under Rule 102, procedure therefor is prescribed in Rule 103. Rule 103 is not the power given to employer to impose punishment, but it is an obligation to follow procedure stipulated therefor, when he decides to impose those punishments already stipulated for in Rule 102. Punishment of dismissal under Rule 102 (VII) can be imposed by following procedure under Rule 103. The provisions of Rule 104 in that context contemplate an appeal against order of punishment under Rule 102. Again if distinction sought to be canvassed by learned Senior Advocate is to be accepted, there will be a remedy of appeal, if punishment is imposed under Rule 102 and no remedy of appeal, if it is to be found under Rule 103. Such a distinction is not born out from the Rules and even otherwise, it will be arbitrary.
6. Perusal of impugned order dated 15.11.2010 here specifically mentions that the procedure for inquiry under Rule 103 has been followed. If the order imposing penalty passed by Marketing Committee is to be treated as one under Rule 103, it is apparent that appeal under Rule 104 could not have been preferred by petitioner as the said Rule expressly refers to penalties prescribed in Rule 102.
7. Section 52B is a provision in the Act and it permits any person aggrieved by a decision or order passed under any of the provisions of A.P.M.C. Act to prefer an appeal to the Director and to the State Government. The appeal to Director is permitted when such decision is taken or order is passed by Marketing Committee, its Chairman or office bearers. Appeal to State Government is envisaged when such decision is taken or order is passed by Director. Section 52B therefore is a general provision which permits "any person" to prefer an appeal and Rule 104 is a specific provision which appears in Chapter VI of the A.P.M.C. Rules 1967 dealing with the officers and servants of the Market Committee. Again it is therefore apparent that the different forums of appeal or different avenues therefor are not contemplated in the matter as nothing in Rule 104 militates with section 52B of the Act. Appeal of petitioner is styled as one under section 52B and Rule 104 of Rules.
8. In view of this, I am not in a position to accept the contentions of learned Senior Counsel. I find that remedy of filing further appeal under Rule 104 to State Government is available to petitioner. As said remedy is prescribed by Rules and petitioner has already exhausted the remedy of filing first appeal accordingly, I am not inclined to interfere at this stage. With liberty to petitioner to exhaust that remedy, present petition is disposed of. No costs.
9. Needless to mention that period spent before this Court by petitioner can be taken into account in accordance with law by the State Government, if any such appeal is filed by petitioner before it.