Judgment J.B. Pardiwala, J.—Petitioner by way of this writ petition under Article 226 and 227 of the Constitution, has prayed for the following reliefs. “11. (A). Your Lordships be pleased to issue a writ of mandamus or any other appropriate writ, direction or other order under Article 226 of the Constitution of India, and to quash and set aside the impugned penalty order dated 21.8.1999 (Annexure : G) and impugned letter dated 29.11.2000 (Annexure: I) and the impugned suspension order dated 20.6.1997 (Annexure : C) and to declare that the departmental proceedings initiated against the petitioner are ab-initio void and illegal, and not sustainable in the eye of law; (B) Your Lordships may be pleased to grant the stay of implementing the impugned penalty order dt. 21.8.1999 (Annexure : G) pending admission, hearing and final disposal of this petition;” 2. Brief facts relevant for the purpose of deciding this petition can be summarized as under: 2.1 Petitioner was appointed as Junior Clerk at Bhuj in the office of Respondent No. 2 vide order dated 21/07/1984. At the relevant point of time when the petition was preferred, he was working as Junior Clerk in office of Respondent No. 2. Respondent No. 1 – Gujarat Water Supply and Sewerage Board is State (within the meaning of Article 12 of the Constitution). In the year 1997, a departmental inquiry was initiated against the petitioner on some charges of misconduct. 2.2 To put in brief petitioner was charged of having put an office note for purchase of printing stationary and printing forms with Ambika Stationary Manufacturer and Consumer Co-operative Societies Ltd., and in this regard some irregularities in purchase of said printing stationary were noticed by the authorities. Show-cause notice was issued calling upon the petitioner to show-cause as to why appropriate penalty should not be imposed upon the petitioner. Record further reveals that the petitioner was placed under suspension by Board vide order dated 20/06/1997 and was ordered to be reinstated in service by order dated 20/06/1998. After a full fledged departmental inquiry, the disciplinary authority came to a conclusion that petitioner did indulge in some irregularities and therefore thought fit to impose a penalty of withholding of one increment for a period of two years. It deserves to be noted that the order of disciplinary authority was a subject matter of challenge by way of appeal as provided under the Rules. 3. It deserves to be noted that the order of disciplinary authority was a subject matter of challenge by way of appeal as provided under the Rules. 3. Appeal was preferred on 14/10/1999 before the authority viz., Member Secretary of the Board. On 29/11/2000 petitioner was informed vide a letter signed by one S.S. Pujar, Chief Administrative Officer of the Board that the appeal has been ordered to be dismissed and the order of the disciplinary authority imposing penalty of withholding of one increment for two years stands confirmed. Communication to the petitioner about the dismissal of his appeal is at page No. 47. 4. This matter was substantially heard on 07/03/2011. On that day, I called upon learned Counsel for the Board, Mr. Munshaw to explain as to whether Page No. 47 is just a communication about dismissal of the appeal or that a substantive well reasoned order, has been passed by the appellate authority and that, if it has been passed whether it has been communicated to the petitioner. Mr. Munshaw, on that day, prayed for sometime to enable him to obtain instructions in this regard. 4.1 Today, when the matter is taken up, Mr. Munshaw, has placed before me the original file to enable me to verify as to whether any substantial order has been passed by the appellate authority or not. I have personally perused the file. The file reveals that one Mr. M.N. Randavi, Officer of Board, prepared a short note giving a fair idea about the matter and about the decision taken by the disciplinary authority. Below the note, some notings have been made handwritten and it appears that it has been stated below the note that Member Secretary is the competent authority to decide the appeal and therefore with this note it appears that the same was placed before the Member Secretary, who in his handwriting has put a small note “it is not possible to allow the appeal”. Except this I do not find anything to even remotely suggest that there was any serious consideration by the appellate authority so far as the appeal of the petitioner is concerned. 5. It is abundantly clear from the notings in the file that there is no order passed by the appellate authority which would indicate any independent application of mind by the appellate authority. 5. It is abundantly clear from the notings in the file that there is no order passed by the appellate authority which would indicate any independent application of mind by the appellate authority. The findings which are recorded by the disciplinary authority can always be reappreicated by the appellate authority. As an appellate authority, it can take a different view on the same set of evidence. Appellate authority also owes a duty to see as to whether procedure laid down in the rules was complied with, inquiry officer was justified in arriving at the finding that the delinquent officer was guilty of the misconduct alleged against him and, whether penalty imposed by the disciplinary authority was excessive. 6. I am of the view that the appellate authority has failed to discharge his duty as the law demands. Appeal is a statutory remedy available to the petitioner as a delinquent. It is a valuable right which the rules has conferred upon the petitioner as a delinquent and, therefore the delinquent is well within his rights to expect the appellate authority to reconsider the entire matter being the final fact finding authority. 7. I am not at all satisfied with the manner in which the appeal is decided and disposed of. It is a settled position of law that an appellate order if it is in agreement with that of the disciplinary authority may not be a speaking order but the authority passing the same must show that there had been proper application of mind on his part as regard the compliance of the requirement of the law while exercising his jurisdiction under the Rules. 7.1 In case of Apparel Export Promotion Council vs. A.K. Chopra [1991 (1) SCC 759], it has been stated as under: “The High Court appears to have overlooked the settled position that in departmental proceedings, the disciplinary authority is the sole judge of facts and in case an appeal is presented to the appellate authority, the appellate authority has also the power/and jurisdiction to re-appreciate the evidence and come to its own conclusion, on facts, being the sole fact-finding authorities.” (Emphasis supplied) 7.2 In case of Narinder Mohan Arya vs. United India Insurance Co Ltd. & Ors., [ AIR 2006 SC 1748 ], in Paragraph No. 36 and 37 the Hon’ble Apex Court has observed as under: “36. The order of the appellate authority demonstrates total non-application of mind. The appellate authority, when the rules require application of mind on several factors and serious contentions have been raised, was bound to assign reasons so as enable the writ court to ascertain as to whether he had applied his mind to the relevant factors which the statute requires him to do. The expression ‘consider’ is of some significance. In the context of the rules, the appellate authority was required to see as to whether (i) the procedure laid down in the rules was complied with; (ii) the Enquiry Officer was justified in arriving at the finding that the delinquent officer was guilty of the misconduct alleged against him; and (iii) whether penalty imposed by the disciplinary authority was excessive. 37. In R.P. Bhatt vs. Union of India [ (1986) 2 SCC 651 ] this Court opined: “The word “consider” in Rule 27(2) implies “due application of mind”. It is clear upon the terms of Rule 27(2) that the Appellate Authority is required to consider (1) whether the procedure laid down in the Rules has been complied with; and if not, whether such non-compliance has resulted in violation of any provisions of the Constitution or in failure of justice; (2) whether the findings of the disciplinary authority are warranted by the evidence on record; and (3) whether the penalty imposed is adequate; and thereafter pass orders confirming, enhancing etc. the penalty, or may remit back the case to the authority which imposed the same. Rule 27(2) casts a duty on the Appellate Authority to consider the relevant factors set forth in clauses (a), (b) and (c) thereof. There is no indication in the impugned order that the Director General was satisfied as to whether the procedure laid down in the Rules had been complied with; and if not, whether such non-compliance had resulted in violation of any of the provisions of the Constitution or in failure of justice. We regret to find that the Director General has also not given any finding on the crucial question as to whether the findings of the disciplinary authority were warranted by the evidence on record. It seems that he only applied his mind to the requirement of Clause (c) of Rule 27(2) viz. whether the penalty imposed was adequate or justified in the facts and circumstances of the present case. It seems that he only applied his mind to the requirement of Clause (c) of Rule 27(2) viz. whether the penalty imposed was adequate or justified in the facts and circumstances of the present case. There being non-compliance with the requirements of Rule 27(2) of the Rules, the impugned order passed by the Director General is liable to be set aside.” 7.3 In a recent pronouncement of the Supreme Court in the matter of Divisional Forest Officer, Kothagudem & Ors. vs. Madhusudhan Rao reported in (2008) 3 SCC 469 , the Supreme Court has observed in paragraph No. 20 as under: “20. It is no doubt also true that an appellate or revisional authority is not required to give detailed reasons for agreeing and confirming an order passed by the lower forum but, in our view, in the interests of justice, the delinquent officer is entitled to know at least the mind of the appellate or revisional authority in dismissing his appeal and/or revision. It is true that no detailed reasons are required to be given, but some brief reasons should be indicated even in an order affirming the views of the lower forum.” 7.4 In the facts and circumstances of the case, it would also be appropriate for me to quote the well known judgment of the Apex Court in Bachhittar Singh vs. State of Punjab. It was a case where a Constitution Bench of the Apex Court had to consider the effect of an order passed by a Minister on a file, which order was not communicated. This is how the Apex Court dealt with the effect of the noting by a Minister on a file: [ AIR 1963 SC 395 (Para No. 9)]. ‘9. The question, therefore, is whether he did in fact make such an order. Merely writing something on the file does not amount to an order. Before something amounts to an order of the State Government two things are necessary. The order has to be expressed in the name of the Governor as required by clause (1) of Article 166 and then it has to be communicated. As already indicated, no formal order modifying the decision of the Revenue Secretary was ever made. Until such an order is drawn up the State Government cannot, in our opinion, be regarded as bound by what was stated in the file. As already indicated, no formal order modifying the decision of the Revenue Secretary was ever made. Until such an order is drawn up the State Government cannot, in our opinion, be regarded as bound by what was stated in the file. As long as the matter rested with him the Revenue Minister could well score out his remarks or minutes on the file and write fresh ones.’ (emphasis supplied) 8. In this view of the matter, I am left with no other option, but to remit the matter to the appellate authority viz., Member Secretary of Respondent No. 1 – Board for fresh consideration of the appeal in accordance with law, rules and regulations. I deem it fit and proper to dispose of this petition with the following directions. I. The appellate authority viz., Member Secretary of Respondent No. 1 Board shall reconsider the entire appeal of the petitioner afresh. II. Since it is an appeal, the appellate authority shall also give reasonable opportunity to the petitioner to make good his case in person. The appellate authority shall hear the petitioner in this regard. III. It will be open for the petitioner to add few grounds of challenge, if at all thought fit in the facts and circumstances of the case. IV. After giving an opportunity of hearing to the petitioner, the appellate authority shall record reasons in brief at least to prima-facie indicate as to what has been considered by him; what has weighed with him and, what is his final conclusion in this regard. V. The appellate authority shall issue a notice to the petitioner of the date of hearing and on that particular date petitioner may remain present to make his submissions, if thought fit, otherwise it will be open for the appellate authority to proceed in accordance with law and decide the appeal afresh. This exercise shall be undertaken by the appellate authority within a week from the date of receipt of the writ of this Court and shall complete the same with final orders within six weeks from thereafter. VI. In the event, if the order passed by the appellate authority is adverse, it will be open for the petitioner to challenge the same on all grounds available to the petitioner. 9. Petition is disposed of in terms of the directions issued above. VI. In the event, if the order passed by the appellate authority is adverse, it will be open for the petitioner to challenge the same on all grounds available to the petitioner. 9. Petition is disposed of in terms of the directions issued above. It is clarified that this petition is disposed of on this small issue and I have not expressed any opinion so far as the merits of the matter are concerned. Rule is made absolute to the aforesaid extent. P P P P P