Deepak Hiralal Gobil And Anr. vs Bombay Port Trust
2001 Latest Caselaw 667 Bom

JUDGMENT

1. By means of this writ petition under Article 226, the petitioners seek to challenge the orders dated August 17, 1993 annexed at Exhibit 'F' and 'F-1' to the writ petition issued by the Bombay Port Trust whereby the services of the petitioners Nos. 1 and 2 stood terminated. The facts and circumstances leading to the present petition arc few and may be shortly narrated. On March 19, 1991 at about 10.30 a.m. the petitioners 1 and 2 who were working as Water Supply Lascar and Safaiwala along with one Rajaram Sawinkar who was working as a Scavenger were accosted by the security guards near shed No. 8. They were carrying heavy looking plastic bags and when the security guards approached them to interrogate, Rajaram Sawinkar fled away from the scene throwing away the bag. On search being taken of the petitioners, it was revealed that the plastic bag which was being carried by the petitioner No. 1 contained 25 packets of Hero Honda motorbike spare parts. Petitioner No. 2 was also searched and in all 13 packets were found on his person containing the spare parts. In the plastic bag which the 3rd employee, viz., Rajaram Sawinkar had thrown and ran away when searched it was found to contain 14 packets having similar type of spare parts. In all 52 packets containing Hero Honda motorbike spare parts were recovered by the security guards. Yellowgate Police Station was informed about the incident., P.I. Doiphode who made preliminary enquiry arrested the petitioners and the petitioners were taken to Yellowgate police station where F.I.R. was lodged. The police filed a charge-sheet against the petitioners and their accomplice Rajaram Sawinkar for offences punishable under Sections 381, 114 of the Indian Penal Code in the Court of the Addl. Chief Metropolitan Magistrate, 38th Court, for committing theft and abetment. By a judgment and order dated November 28, 1991 all the three accused were acquitted. The learned Magistrate came to the conclusion that the prosecution had failed to establish the guilt of the accused. In the meantime, a departmental enquiry was initiated against the said three employees and they were served with separate charge sheets all dated August 13, 1991. The Inquiry Officer came to the conclusion that the charges against the petitioners were proved. The disciplinary authority then issued show cause notices to the petitioners on January 6, 1993 and after considering the replies filed by the petitioners issued the impugned orders of dismissal against the petitioners on August 17, 1993.

2. Dr. Kulkarni, learned counsel appearing for the petitioners, strenuously contended that the subject-matter of the disciplinary enquiry was the same as in the criminal case which ultimately ended in an acquittal. He submitted that it is settled position that where criminal Courts give a honourable acquittal, normally, it is expedient to drop the same charges or not to proceed with the domestic enquiry and if the domestic enquiry has proceeded on the same subject-matter, then in view of the honourable acquittal by the criminal Courts, the respondents should have exonerated the petitioners from the charges of misconduct, particularly because the subject-matter of both the enquiry was the same. Dr. Kulkarni contended that in the present case, the evidence on which the Inquiry Officer has placed reliance is almost the same except the fact that few witnesses who were examined in the departmental proceedings were not examined at the time of trial. Otherwise, in all other respects, the evidence is the same. Dr. Kulkarni contended that in view of the acquittal by the criminal Court, the petitioners were entitled to be exonerated and they cannot be held guilty of misconduct. Dr. Kulkarni placed reliance on the decision of a two-Judge Bench of the Supreme Court in M. Paul Anthony v. Bharat Gold Mines Ltd. and Anr. . Dr. Kulkarni also, referred to another decision of a two-Judge Bench of the Supreme Court in Sulekh Chand and Salak Chand v. Commissioner of Police and Ors. 1994 Suppl (3) SCC 674. He also referred to the decision of a single Judge of this Court in Chandrakant Raoji Gaonkar v. Bombay Port Trust and Ors. 1996-III-LLJ (Suppl)-338 (Bom)

3. Mr. Ramaswamy, learned counsel for the respondent, on the other hand, contended that the object of the criminal enquiry is different from the object of the domestic enquiry. He contended that standard of proof in a criminal case is different from the standard of proof required in domestic enquiry inasmuch as standard of proof in a domestic enquiry is preponderance of probabilities which is not the case in the matter of criminal trial where the charges are required to be proved beyond reasonable doubt. He placed reliance on the following decisions of the Supreme Court (i) Corporation of Nagpur v. Ramchandra (ii) Nelson Motis v. Union of India and Anr. and (hi) State of A.P. v. K. Allabaksh . Mr. Ramaswamy also referred to a decision of the Division Bench of the Madras High Court in Coimbatore and Periyar Dist. Dravida Panchalai v. Management of Pioneer Mills Ltd. and Anr. 2001-II-LLJ-1296 (Mad-DB). Mr. Ramaswamy submitted that the evidence is not the same in both inquiries. Certain important witnesses like the shop supervisor, etc., were not examined in the criminal case. Further, according to Mr. Ramaswamy, the acquittal given by the learned Magistrate was not a clean and honourable acquittal. He submitted that the petitioners were acquitted in the criminal case mainly due to non-availability of the witnesses and benefit of doubt was given to the accused as proper evidence was not produced before the Magistrate.

4. At the outset, it may be mentioned that it is now a settled position of law that disciplinary proceedings can be legally continued even where the employee is acquitted in the criminal case as the nature and proof required in a criminal case are different from those in the departmental proceeding. In Nelson v. Union of India (supra), the Supreme Court observed 1992-II-LLJ-744 at p. 745:

"5. So far the first point is concerned, namely, whether the disciplinary proceeding could have been continued in the face of the acquittal of the appellant in the criminal case, the plea has no substance whatsoever and does not merit a detailed consideration. The nature and scope of a criminal case are very different from those of a departmental disciplinary proceeding and an order of acquittal, therefor, cannot conclude the departmental proceeding. Besides, the Tribunal has pointed out that the acts which led to the initiation of the departmental disciplinary proceeding were not exactly the same which were the subject matter of the criminal case."

5. In Corporation of Nagpur v. Ramchandra (supra), the same issue was considered by the larger Bench of the Supreme Court and it was observed as under 1981-II-LLJ-6 at pp. 8, 9:

"The other question that remains is if the respondents are acquitted in the criminal case whether or not the departmental inquiry pending against the respondents would have to continue. This is a matter which is to be decided by the department after considering the nature of the findings given by the criminal Court. Normally where the accused is acquitted honourably and completely exonerated of the charges it would not be expedient to continue a departmental inquiry on the very same charges or grounds or evidence, but the fact remains, however, that merely because the accused is acquitted, the power of the authority concerned to continue the departmental inquiry is not taken away nor is its discretion in any way fettered. However, as quite some time has elapsed since the departmental inquiry had started the authority concerned will take into consideration this factor in coming to the conclusion if it is really worthwhile to continue the departmental inquiry in the event of the acquittal of the respondents. If, however, the authority feels that there is sufficient evidence and good grounds to proceed with the inquiry, it can certainly do so."

6. Dr. Kulkarni, however, contended that even though simultaneous continuance with the criminal proceedings and the departmental proceedings are permissible but where the facts and evidence in both the proceedings were the same without there being any iota of differences, the distinction which is usually drawn as between the departmental proceedings and criminal case on the basis of the approach and burden of proof could not be applicable. He placed heavy reliance on the following observations of the Supreme Court in M. Paul Anthony v. Bharat Gold Mines Ltd. (supra) 1999-I-LLJ-1094 at p. 1103:

"34. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely, the raid conducted at the appellant's residence and recovery of incriminating articles therefrom. The findings recorded by the Inquiry Officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by Police Officers and Panch Witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the Inquiry Officer and the Inquiry Officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the Court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the "raid and recovery" at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings, to stand."

7. In M. Paul Anthony's case the objection of the learned counsel of the appellant was that though the proceedings continued in both fora, once a judicial pronouncement is rendered, the findings of the departmental proceedings shall have to go, even though the judgment of the criminal Court is later in point of time. The Supreme Court, while holding so, took two vital aspects into account in that case. Firstly, the findings in the departmental proceedings were ex parte and the Supreme Court was of the opinion that the appellant was punished in total violation of the principles of natural justice and that in a criminal case, on identical set of facts, it was found that there was no such recovery made from the residence of the appellant and the whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, Supreme Court held that where the appellant is acquitted by a judicial pronouncement with a finding that the raid and recovery at the residence of the appellant was not proved, it would be unjust and unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand. In para 22, the Supreme Court summarised the legal position as under:

"22. The conclusion which are deducible from various decisions of this Court referred to above are:

(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.

(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusions of the criminal cases.

(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge-sheet.

(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.

(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest."

8. In the instant case, as it shall be presently seen, the acquittal was granted to the petitioners on technical grounds like non-examination of relevant witnesses and non-production of the seized goods before the Court and not on merits of the case. But before referring to the order of acquittal, we shall briefly refer to certain decisions cited by the learned counsel appearing for the parties. In Sulekh Chand and Salak Chand v. Commissioner of Police (supra), the appellant was promoted from the post of A.S.I. to S.I. but he was confirmed with effect from the latter date on the ground that he was charged for offence punishable under Section 5(2) of the Prevention of Corruption Act and that he was kept under suspension and he was also communicated of the adverse remarks. Therefore, his case was considered and he was promoted in 1989. It was noticed by the Supreme Court that reasons which prevailed with the D.P.C. were the prosecution under Section 5(2) of the Prevention of Corruption Act and departmental inquiry against the appellant. It was observed by the Supreme Court as under:

"It is not in dispute that the proposed departmental enquiry also is related to the self same offence under Section 5(2) of the Prevention of Corruption Act. The judgment acquitting the appellant of the charge under Section 5(2) became final and it clearly indicates that it was on merits. Therefore, once the acquittal was on merits the necessary consequence would be that the delinquent is entitled to reinstatement as if there is no blot on his service and the need for the departmental enquiry is obviated. It is settled law that though the delinquent official may get an acquittal on technical grounds, the authorities are entitled to conduct departmental enquiry on the self same allegations and take appropriate disciplinary action. But as stated earlier, the acquittal was on merits. The material on the basis of which his promotion was denied was the sole ground of the prosecution under Section 5(2) and that ground when did not subsist, the same would not furnish the basis for DPC to overlook his promotion. We are informed that the departmental enquiry itself was dropped by the respondents. Under these circumstances, the very foundation on which the D.P.C. had proceeded is clearly illegal. The appellant is entitled to the promotion with effect from the date immediate junior was promoted with all consequential benefits."

9. In State of A.P. v. K. Allabaksh (supra), a sub-Inspector of Police was convicted of the offence under Section 302 of I.P.C. for causing death of a prisoner in the police station. The High Court, on an appeal filed by the accused, acquitted him for want of evidence. All material witnesses for proving the prosecution case have turned hostile including P.W.I. the son of the deceased. In appeal, the Supreme Court expressed that though the High Court has come to the correct conclusion that the prosecution has failed to prove the case against the respondent, acquittal should not be construed as a clear exoneration of the accused as the allegations call for departmental proceedings, if not already initiated against him.

10. The position that emerges from the above discussion is that where the Court acquits a person on the grounds like want of sanction, non-availability of prosecution witnesses benefit of doubt, a defective charge and such other technical reasons, there will be no difficulty in holding that his employer would be permitted to examine the matter further but if it is entirely the question of appreciating the same evidence and reaching a complete different conclusion thereon, and acquittal is a clean and honourable acquittal then the Courts have been reluctant to permit the employer to overlook or ignore the decision of the Criminal Court. Therefore, it is clear that the fact that the employee was prosecuted on the same charge and was acquitted by itself is not sufficient to hold that the domestic enquiry in the very same charge is not maintainable. It has been repeatedly held by the Courts that the purpose and scope of two proceedings if different and, therefore, we are unable to accept the contention of Dr. Kulkarni that when the delinquent employee is acquitted of the criminal offence, departmental proceedings held against him necessarily will have to be quashed or the order passed on the basis of such enquiry is required to be set aside. We feel that it is not possible to lay down a formula of any universal application in such cases and each case will have to be considered in the light of the broad principles recognised by the Supreme Court.

11. On a careful examination of the judgment of the Magistrate, it is seen that the petitioner Nos. 1 and 2 were acquitted mainly on the ground of failure or prosecution to observe technical formalities. The learned magistrate has observed that packets seized from the possession of the accused were not produced in the Court. The two packets which were taken as samples were produced, but they were without any identification. Further, the person with whom the rest of the packets were handed over by the police was not examined as witnesses. So also in the case of the third accused i.e. Sawinkar, the Marwari whose shop was pointed out by him has not been examined. Thus, the acquittal was mainly due to the inability of the prosecution to produce vital evidence. By no stretch of imagination the order of acquittal can be said to be a clean or honourable acquittal. It is also seen from the report of the inquiry officer that in the departmental proceedings the management had examined the Shed Superintendent Sachhidanand Rane who was not examined in the criminal trial. It is also seen that apart from Rane, the management has also led evidence of Sudhakar Parab, PW-2 and CD, Salkar who was panch in the criminal case. The report of the Enquiry Officer also discloses that identity of the stolen goods was properly established by the management. We feel that the observations of the Supreme Court in para 34 of M. Paul Anthony's case has no application to the facts of the present case. In our opinion, the petitioners have failed to make, out any ground for interference with the impugned order of dismissal.

12. In the result, in view of the foregoing discussion, the petition is dismissed with no order as to costs.