Board Of Trustees Of The Port Of ... vs Suryabhan Popat Londhe
2001 Latest Caselaw 670 Bom

JUDGMENT

P.V. Kakade, J.

1. The petitioners have filed this Writ Petition challenging the Award dated 22nd April, 1997, passed by the President of the Central Government Industrial Tribunal, Mumbai, whereby the order of dismissal of the respondent from service is set aside and it is further directed that the respondent-workman should be reinstated with continuity of past service with full back wages.

2.1 have heard the learned counsel for the petitioners. None present for the respondent. It may also be noted that none was present for the respondent on the last occasion also when the matter came up for hearing on 3rd February, 2000.

3. The facts involved in the dispute, in brief, are thus :--

The respondent-workman Shri Londhe joined the services of the petitioners - Bombay Port Trust on 30th July, 1997. At the time of his involvement in the incident i.e. 8th July, 1985, the respondent was working as scavenger and his duty was to clean the assigned area within the docks. The case of the petitioners is that on the said date the respondents reported for duty at 6.30 a.m. and started doing the cleansing work along with other scavengers. At about 9 a.m., one clerk Mr. Warule noticed that the respondent, who was doing the cleansing work, suddenly sat down. This aroused suspicion of Mr. Warule and he rushed towards the respondent. Mr. Warule found the respondent was taking out small ball bearing boxes from big boxes. Therefore, Mr. Warule apprehended the respondent and took him to the Assistant Shed Superintendent Office. At that office, officials of police from Yellow Gate Police Station were called, who seized two boxes of ball bearings from the respondent. The police prepared panchanama and duly arrested the respondent and registered a criminal case against him along with other co-workers. The respondent was detained in police custody for more than 48 hours and therefore a formal letter of suspension was issued to the respondent on 29th July, 1985.

The Chief Vigilance Officer conducted investigation into the allegations against the respondent and other three co-employees and charge sheet dated 5th July, 1986 was issued to the respondent and other co-employees. The respondent and the other co-employees denied the charges and hence a formal departmental enquiry was held by one Smt. Rane, who was appointed as an Enquiry Officer. The departmental enquiry commenced on 22nd October, 1986 and was concluded on 24th June, 1987. The respondent did not participate in the inquiry to defend his case nor did he avail the opportunity offered to him for his defence except on 26th October, 1986 and 17th November, 1986 on which dates he attended the inquiry. As a consequence, an ex parte domestic enquiry was held against the respondent in which oral and documentary evidence was adduced on behalf of 'the

department. The Enquiry Officer eventually found the respondent guilty and submitted his report and findings on 10th December, 1987.

The disciplinary authority viz., the Docks Manager concurred with the findings of the Enquiry Officer and issued a show cause notice to the respondent vide memo dated 19th February, 1988. The respondent submitted a reply to the said show cause notice vide his letter dated 10th March, 1988; The disciplinary authority, after the consideration of the reply of the respondent, did not find the reply satisfactory and imposed punishment of removal from service upon the respondent vide order dated 25th April, 1988.

Aggrieved by the said order of punishment, the respondent preferred an appeal to the Chairman of the Bombay Port Trust, who afforded a personal hearing to the respondent and his representative on 21st October, 1988. However, the Chairman agreed with the findings of the disciplinary authority and dismissed the appeal of the respondent vide order dated 7th November, 1988.

4. Aggrieved by the appellate order of the Chairman as also the order of removal from service, an industrial dispute was raised, whereupon the appropriate authorities made the reference to the Tribunal, who on the basis of available record before it, came to the conclusion that the order of dismissal from service of the respondent was illegal and the Tribunal thought it a fit case for reinstatement of the respondent with continuity of service and back wages and accordingly passed the impugned order. Hence this Writ Petition.

5. Before turning to the merits, it may be noted that a criminal case also proceeded against the respondent and others on the basis of the report made by the Yellow Gate Police Station. As it appears from the record, vide letter dated 15th November, 1986, the Joint Secretary of the BPT Employees Union made a request to the Enquiry Officer to stay the proceedings of domestic enquiry on the ground that in respect of the alleged charges a criminal case was already pending before the Metropolitan Magistrate, Ballard Estate. However, the said request was not considered at all. It may further be noted that the Metropolitan Magistrate discharged other co-accused but proceeded against the present respondent. Eventually by judgment dated 29th July, 1987, the respondent was acquitted.

The perusal of the Tribunal Award reveals that the said factum of acquittal weighed heavily with him to tilt the scale in favour of the respondent. The Tribunal has referred to the Magistrate's judgment and observations made thereunder and has held that the facts involved therein were sufficient to show that the property was not in the hands of the respondent and the investigating officer had never tried to take any independent panch, however, he took a BPT employee for acting as a panch and, therefore, he could not be said to be an independent panch, it was the

defence of the respondent in that case he was falsely involved. At that time no property was found with him. The Presiding Officer of the Tribunal has further observed that the testimony of Mr. Warule, who was one of the eyewitnesses, did not find favour with the learned Magistrate in criminal trial. He was found to be not reliable witness. On the basis of these observations, the learned Presiding Officer of the Tribunal has concluded that the learned Magistrate found the evidence of Mr. Warule was falsified from other evidence on record and as such the learned Presiding Officer came to the conclusion that the Appellate Authority in the domestic enquiry ignored this so called salient feature of the case which, according to him, had vitiated the finding of guilt confirmed by the Appellate Authority in the domestic enquiry.

6. Initially, I must note that the respondent was subjected to domestic enquiry on the ground that he had committed misconduct of violation of Regulation 3(1) of the Bombay Port Trust Employees (Conduct) Regulations, 1976 and was found liable for disciplinary proceeding under Regulation? 8 and 12 of the Bombay Port Trust Employees (Conduct) Regulations, 1976. In other words, it must be borne in mind that the prosecution of the respondent before the Metropolitan Magistrate was under the relevant provision of the Indian Penal Code, whereas the domestic enquiry was for the purpose of said misconduct of violation of certain regulations under the said Rules. It may also not out of place to note here the contents of Regulation 3(1) of the said Regulations of 1976. It reads thus :

"3. General. -- (1) Every employee shall, at all times, maintain absolute integrity and devotion to duty."

Thus, it can be seen the span of the said Regulation is much wider and all acts pertaining to the employment, which are expected from an employee, would be covered including the acts of thefts.

7. It is also to be noted that the entire process of domestic enquiry as well as appellate assessment thereof are carried out without any fault or infringement of principles of natural justice because it is seen from the record that the respondent was given every opportunity to defend himself, though initially he did not avail of the same by remaining absent, however, subsequently he did appear before the Appellate Authority with representative. In short, the only ground which is to be considered in this writ petition is that whether the respondent would be eligible for exoneration from the domestic enquiry only because he was acquitted from the criminal trial conducted against him by the Metropolitan Magistrate.

The learned Counsel for the petitioners sought to place reliance on various rulings of the Supreme Court as well as of various High Courts. In support of his submission that the judgments or observations made in the criminal trial pertaining to the same acts would not have any bearing on the conduct and decision of the domestic enquiry. He placed reliance on the

ruling of the Supreme Court in the case of Govind Das v. State of Bihar and Ors. reported in (1997) IISCC 361, wherein it is held that the acquittal of the appellant in the criminal proceedings is based on the view that the charges were not proved beyond reasonable doubt. Since the standard of proof required to prove a charge of misconduct in departmental proceedings is not the same as that required to prove a criminal charge, the acquittal of the appellant in the criminal case could not be made the basis for setting aside the order of termination of the services of the appellant passed in the disciplinary proceedings on the basis of evidence adduced in the departmental inquiry conducted in the charges levelled against the appellant.

8. If we peruse the observations made in the Award by the Presiding Officer, it is quite clear that after perusing the judgment of the learned Metropolitan Magistrate, he still has proceeded on the footing that the evidence of Mr. Warule was falsified fly other evidence. The learned Presiding Officer has proceeded to analyse the evidence discussed in the Magistrate's judgment and has come to the conclusion that the evidence was falsified. In fact, at some other place the learned Presiding Officer makes a contradictory observation which shows in clear terms that the evidence on record was not found to be sufficient to establish the guilt beyond reasonable doubt and as such it was held by the learned Magistrate that the charge was not proved beyond reasonable doubt. In other words, it is a clear verdict given by the Magistrate giving the benefit of doubt to the respondent because the evidence in that proceedings was not of the standard which was required to establish the guilt beyond reasonable doubt.

9. In fact, the learned Counsel for the petitioners cited several rulings in support of his contention from which certain legal principles can be deduced making differentiation between the criminal trial and the domestic or disciplinary enquiry viz., (i) a disciplinary proceedings is not a criminal trial; (ji) in criminal proceedings, the purpose sought to be achieved is protection of the public while in disciplinary proceedings the purpose sought to be achieved is purity and efficiency of public service; (iii) a criminal court requires high standard of proof for convicting an accused, while such a standard of proof is not required for finding a person guilty in disciplinary proceedings and it is enough if there is preponderance of probability of the delinquent's guilt; (iv) unlike in a criminal proceedings, in a disciplinary proceedings, the strict rules of evidence and the provisions of the Evidence Act do not apply; and (v) initiation of disciplinary proceedings against a civil servant acquitted in a criminal trial on the same charge is not violative of any provision of law or principles of natural justice.

10. Therefore, if we take into account these five principles in this regard vis-a-vis the reasoning adopted by the learned Presiding Officer of the Tribunal, there cannot be any doubt that he has fallen in error in relying upon the order of acquittal passed by the magisterial court while exonerating the respondent, especially when it is seen from the record that the available

evidence was sufficient for the Enquiry Officer, who conducted the domestic enquiry in proper manner and having regard to the principles of natural justice.

11. In the result, the petition is allowed. The rule is made absolute. The impugned Order of the Tribunal dated 22nd April, 1997 is hereby set aside and the Order passed by the Appellate Authority dated 25th April, 1988 is hereby confirmed.

Petition stands disposed of.

12. The Order dated 23rd June, 2000 in Notice of Motion No. 82 of 2000 comes to an end.