Padmini R. Bijoor And Ors. vs Shipping Corporation Of India ...
2001 Latest Caselaw 503 Bom

JUDGMENT

H.L. Gokhale, J.

1. This petition has been filed by one Capt. R.M. Bijoor, the original petitioner, to challenge the order dated December 17, 1986 passed by respondent No. 1 dismissing him from their services. The respondent No. 1 is a company governed under the Companies Act though wholly owned by the Union of India which is respondent No. 2. The original petitioner died during the pendency of this petition on April 13, 1998 and his wife and other heirs have come on record as petitioners in his place. The reference hereinafter to the petitioner will mean a reference to the original petitioner.

2. The petition has been opposed by respondent No. 1 through the reply affirmed by one Shri K.K. Chakrabarti on June 29, 1988. One affidavit has been filed on behalf of the petitioners on August 30, 1996 to place on record the judgment and order passed by Metropolitan Sessions Judge, Hyderabad acquitting Capt. R.M. Bijoor from the prosecution. One more affidavit has been affirmed by one Shri T.B. Karande on behalf of the 1st respondent on June 27, 2001 which is filed to place some subsequent developments on record.

3. Shri K.M. Naik has appeared for the petitioners and Shri Talsania with Shri Uttam have appeared for respondent No. l. Mr. Master has appeared for respondent No. 2.

4. The facts leading to the present petition are as follows:

The raid of the ship by the Custom Officials:

The petitioner joined the services of the 1st respondent as a Master of a ship on February 25, 1980. At the relevant time, in the year 1986 he was Master of a ship named "M.V. Samrat Ashok". This ship used to ply regularly between Visakhapatnam and Japan via Singapore and used to carry iron ore to Japan and while returning it used to return without any cargo. It so happened that the ship sailed between Visakhapatnam and Japan via Singapore in June 1986. When it returned to Visakhapatnam on the night of June 28, 1986, a team of custom officers boarded it at the outer anchor point and escorted it into the harbour. On June 29, 1986, the Customs Department resorted to rummaging and a large number of contraband articles were found on board.

5. Amongst others, appropriate departmental proceedings were resorted to by the Custom Authorities and as recorded in paragraphs 2 and 3 of the order dated May 2, 1988 passed by the Additional Collector of Customs, Visakhapatnam Wing Tank No. 4 on the Portside of the vessel was opened and searched and contraband goods were noticed. Thereafter detailed search was carried out in the presence of witnesses and officials of the ship. The total number of packages recovered from the portside of the tank were 195. Similarly Wing Tank No. 4 on the starboard side was also opened. The rummaging staff went into the same and found 386 packages kept at various places of the said tank. All the 581 packages so recovered were examined in the presence of independent witnesses and they were found to contain the following goods of foreign origin.

As recorded in that order, the captain and the ship personnel did not produce any documentary evidence to prove the legal import of those goods into India. The ship had in all 15 officers, 9 cadets and 29 ratings (cadets) on board.

Description Qty.

Value (cit)     Value (MV)    

Video Cassette Recorders

36,72,000.00 1,14,75,000,00

Video Cassette Players

12,500.00 40,000.00

Textiles 3946.35 mts.

269 PCS.

95,076.15 2,06,322.00

Calculators 59 PCS.

2,950.00 5,900.00

Other Electronic Goods

21,250.00 51,900.00

Cameras

9,600.00 19,200.00

Liquors 437 Bots.

21,850.00 62,550.00

Wrist Watches

1,275.00 2,550.00

Cassette Tapes,VideoCassette Tapes

18,510.00 37,140.00

Others

20,949.50 43,115.00

Total 38,75,760.65 (sic) 1,19,43,677.00

6. Four different proceedings:

This discovery of such a large collection of contraband goods led to four different proceedings in accordance with law. The first one was the criminal prosecution. The petitioner was arrested on July 12, 1986 though he was later on bailed out on July 16, 1986. His arrest led to a prosecution under Section 120-B of Indian Penal Code read with Section 135(1)(a)(b)(i) of the Customs Act, 1962. This resulted into conviction by the concerned Magistrate on June 10, 1991. However, the petitioner as well as all other accused were acquitted in appeal by the Sessions Court under its judgment and order dated September 29, 1995.

7. The second proceedings as far as the petitioner is concerned was one under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) leading to the detention order. The petitioner was detained under this Act in November 1986 and was finally released in November 1987. It is relevant to note that the petitioner did not challenge this detention.

8. The third proceeding was as set out above viz., the one under Section 112(6) of the Customs Act which was the adjudication by the Additional Collector of Customs. In view of the above referred illegal import being established before the officer concerned, he imposed a fine of Rs. 2 lakhs on the petitioner under Section 112(b)(i) of the Customs Act and also a fine of Rs. 50,000/ under Section 114(1) of the Customs Act under his order dated May 2, 1988. This order was also left undisturbed and was not challenged by the petitioners.

9. The fourth proceeding was the departmental proceeding with which we are concerned in the present matter. The petitioner was served with a charge sheet on August 26, 1986. He filed a reply dated September 3, 1986. An inquiry was held on September 10, 1986. The findings were given on September 17, 1986. The petitioner was served with a notice to show cause dated October 26, 1986 to which he filed a reply dated December 5, 1986. Finally an order of termination came to be passed on December 17, 1986 which is challenged in the present petition. Mr. Naik, learned counsel appearing for the petitioner, challenged the order principally on three grounds. Firstly that the order violated principles of natural justice. Secondly that even under the inquiry that was held by the 1st respondent, the charges could not be said to have been proved and thirdly the impugned order was a retrospective order terminating the service of the petitioner from an earlier date, i e. from October 21, 1986, and was therefore bad in law. All the three submissions of Mr. Naik were controverted by Mr. Talsania by submitting that in the facts of the present case, no violation of principles of natural justice could be contended by the petitioner, the charges were duly proved and that the order could not be set aside on the alleged ground that it was a retrospective order and was therefore bad.

10. The material placed before this Court in defence by the respondent No. 1:

Now, as far as the material with respect to this proceeding is concerned, what has come on record are the following documents. Firstly the charge sheet dated August 26, 1986 has been placed on record. Thereafter the handwritten reply of the petitioner dated September 3, 1986 replying the charges, one by one is placed on record. Thereafter the inquiry proceeding dated September 10, 1986 have been placed on record. Then what we have 1 are the findings given by the Inquiry Officer, the show cause notice, the reply and the order. As far as the evidence is concerned, the statements made by three of the management witnesses, namely Shri Suban, Shri Prasad and Shri Chitale, have been placed on record. It is relevant to note that these are the statements recorded by the management prior to the present inquiry. Now what is material to note is that if we refer to the charge sheet dated August 26, 1986, at the end thereof photo copies of five different sets of documents are supposed to be enclosed herewith. These five sets of documents are as follows:

(1) Circular No. TFS/FS/55

(2) Circular No. TFS/CUST/(IND)/ 5, 6, 7, 8, 9, 10, 11 & 35

(3) Fleet Order 5/1978 dated December 27, 1978

(4) Statements of Mr. Prasad (3rd officer Mr. J.D. Chitale (R/Off.) and Mr. S. Suban (P.O. Maintenance)

(5) Letter from Indian Airlines.

Out of these five sets of documents, only the statements of the three persons mentioned above (item No. 3) have been placed on record. Then as far as the departmental inquiry is concerned, what we find is that at the end of the report of the Inquiry Officer, six annexures are mentioned. They are as follows:

(1) Deposition during proceedings of the inquiry.

(2) Notice of Inquiry Officer to the delinquent.

(3) Letter from charge sheet officer to delinquent.

(4) Explanation to charge sheet by the delinquent.

(5) Charge sheet to delinquent.

(6) Statements of officers in support of the charges.

As stated hereinabove, out of these six annexures, annexures Nos. 4, 5 and 6 are placed on record, namely explanation to the charge sheet by the delinquent, charge sheet and the statements of officers in support of the charges.

11. As far as the annexures to the charge sheet and annexures to the inquiry report are concerned, the respondents have produced all those annexures except annexure No. 1 to the inquiry report, namely depositions during the proceedings of the inquiry. Inasmuch as this is quite an old matter, we adjourned this matter to enable the respondents to produce this record. The respondents have however expressed their inability to trace it inspite of all efforts made. In para 3(c) of the reply affirmed on June 27, 2001 by one Shri Karande, it is stated as follows:

"I say, that despite best efforts, made, I am unable to locate all the enquiry proceedings and' to place them for perusal of this Hon'ble Court. I say that I have inquired from several officers who have earlier worked in this Department about the files. Despite taking all possible measures, I am unable to trace all the enquiry papers and files. Whatever records were available have been placed before this Hon'ble Court."

12. The charges levelled against the petitioners:

Now, when we refer to the charge sheet, what we find is that six charges were levelled against the petitioners.

Charge No. I This charge was regarding purchase of several VCRs and Electronic items at Singapore on May 28, 1986. As far as this

charge is concerned, the Enquiry Officer himself has held that this charge has not been proved and hence we are not going into details thereof.

Charge No. II It is alleged in this charge that during the stay of the vessel at Singapore, on May 28, 1986, the petitioner handed over an amount of Rs. 30,000/- to one Mr. S. Suban, Petty Officer, (Maintenance) of the said vessel and instructed him to purchase 6 VCRs, Model 450 for himself. This Mr. Suban has also handed over 6 VCRs to fishermen at Visakhapatnam on vessel's next call after Singapore. Mr. Suban was also instructed to mark bags containing 6 VCRs with an identification mark of "AG". It was therefore alleged that it was a premeditated action contravening Custom Regulations, and Conduct Rules.

Charge No. III In this charge, it was alleged that after the departure from Singapore on May 29, 1986 when the vessel was at sea, on June 3, 1986 the petitioner visited the Bridge of the vessel at about 21.30 hours. He was informed by the Third Officer Mr. S.K. Prasad, who was on Bridge watch, that some persons were carrying bags towards No. 4 Top Side Tank. It was further alleged that the petitioner instructed Mr. Prasad to keep quiet about the same. It was therefore alleged that the petitioner abetted in the concealment of contraband in No. 4 Top Side Tank.

Charge No. IV It is alleged that when the ship departed from Visakhapatnam on May 21, 1986, the petitioner had permitted unauthorised persons to board the vessel. This was with a view to transact illegal business of unauthorised disposal of electronic items, some of which were earlier declared by the officers and crew This unlawful occurrence was not reported to the concerned Authority.

Charge No. V On June 26, 1986 the petitioner had intentionally not permitted the ballasting (i. e. filling) of No. 4 Top Side Tank and had instructed Mr. Suresh Babu, Vessel Chief Officer, that there was no need to do so. It is alleged that this was done with a previous knowledge of existence of contraband items in this tank.

Charge No. VI In this charge, it is alleged that the petitioner had left the vessel without taking permission from the Head Office. This was done on five different occasions.

13. Petitioner's reply to the chargesheet:

(i) The petitioner had filed his handwritten but detailed reply to this charge sheet on September 3, 1986 and it is in his own handwriting. As far as charge No. 1 is concerned, the petitioner had denied having received any amount from any person at Visakhapatnam between May 6, 1986 and May 21, 1986. He also denied having purchased items at Singapore. As far as charge No. 2 is concerned, the petitioner had denied having handed over an amount of Rs. 30,000/- to Mr. Suban and having given him the instructions as alleged. With respect to Charge No. 3, the petitioner has stated that he did not remember as to exactly at what time he visited the Bridge or that Third Officer Mr. Prasad had informed him as claimed in the charge sheet with respect to any activity on the day. He however has accepted that he had inquired about the light being seen on the day. With respect to charge No. 4, the petitioner stated that he. had not permitted any unauthorised persons to board the vessel on May 26, 1986 at the time of departure from Visakhapatnam. He has however accepted that as soon as the vessel cast off, numerous fishing boats, which were already inside the channel, came alongside and as many as 20 to 3D persons who looked like fishermen (and were half naked) boarded the vessel by means of lines attached with a hook and started running helter skelter on deck and through the accommodation. It is further stated that as the vessel was in the process of leaving the harbour, the entire crew could not be deployed but announcement was made on the public address system to all officers and crew to lock their respective cabins to prevent theft of their personal belongings. It is further stated that as soon as the pilot disembarked the vessel, the speed was increased. At that time, the petitioner received a call from his wife who was stating that somebody was banging on the cabin door and was stating that somebody had died and that one boat had broken into two. The petitioner has also admitted that some persons came on the Bridge and started shouting for the captain to reduce the speed since somebody had died in the water. He also accepts that he reduced the speed and thereafter the persons who had boarded left the ship. He has specifically stated in the reply as follows:

"I saw some persons carrying gunny bags and some bundles with them."

Thereafter it is stated "These men being very dangerous, it is not possible to report the matter to any authority in Visakhapatnam."

(ii) With respect to charge No. 5, namely that the petitioner instructed not to fill the particular tank with water, the petitioner had tried to give one explanation or the other and stated that he did not have previous knowledge of the existence of contraband in the tank. In reply to Charge No. 6, the petitioner stated that he was aware that this vessel was involved in smuggling of electronic goods and it was caught earlier on two occasions and therefore he was not keen on joining this vessel. He has however accepted that he did travel to Bombay to solve his own problems. It was a short absence of 24 hours. There is no denial of the allegation that the permission of the superiors was not taken while leaving the ship. Lastly, in this reply, it is stated that with respect to charges Nos. 2,3,4 and 5 he may be permitted to ask certain questions to the persons concerned who have made allegedly false statements against him in their statements.

14. The inquiry proceedings:

Then we have the proceedings of the inquiry. As far as Charge No. 1 is concerned, the Enquiry Officer has recorded that this charge could not be substantiated. As far as Charge No. 2, namely handing over certain amount to Shri Suban for effecting certain purchases, is concerned, Shri Suban was kept present at the time of this inquiry. Shri Suban made a statement in the presence of the petitioner wherein he repeated that an amount of Rs. 30,000/- was handed over to him for purchase of 6 VCRs as claimed. He has further stated that he purchased 6 VCRs for the captain and two for himself. Thereafter Shri Suban has stated that captain had instructed him to give his two VCRs to fishermen when they come on to the vessel at Visakhapatnam before berthing. Now as far as the recording of the statement of Shri Suban in these proceedings is concerned, what we find is that when Shri Suban was making his statement and when he stated that he did receive Rs.30,000/-, Capt. Bijoor interrupted and had stated that he (i. e. Suban) used to make his purchases of his own. Similarly after the deposition of Shri Suban, it is recorded as follows:

"To a question whether he knew any financier from Visakhapatnam, he replied in the negative."

Thus it is seen that as far as Charge No. 2 is concerned, Shri Suban has maintained his statement and Capt. Bijoor had asked him a couple of questions and had made his own clarificatory remark.

15. As far as Charge No. 2 is concerned, it was based on the statement of Third Officer Shri Prasad. Shri Prasad was present in the inquiry and he confirmed whatever was stated by him earlier. After the deposition of Shri Prasad, Capt. Bijoor had been asked some question as to why he did not declare his private property and did not investigate regarding personal disposition of contraband items. On that, Capt. Bijoor replied that he wanted smooth functioning of the Ship and hence did not make any complaint against any person. As far, as this charge is concerned, we do not find any question being asked by Capt. Bijoor to Shri Prasad though he was very much present in the inquiry.

16. Charge No. 4 was with respect to allowing unauthorised persons to come on to the ship when it was leaving Visakhapatnam on May 21, 1986. Here what we find is that

statement of Capt. Bijoor is recorded first and thereafter the statement of Radio Officer Shri J.D. Chitale, whose statement is relied upon against Capt. Bijoor. Shri Chitale in his statement has clearly stated that Capt. Bijoor used to discuss with him about the illegal transactions and operations and not about how to stop this menace but how they should take advantage of the situation and make fast money. Then in the report we have a recording as follows:

"To a question whether Shri Chitale had anything against Capt. Bijoor, Capt. Bijoor replied that there was nothing.

It is also interesting to note the further statement in the report:

"Shri Chitale further stated that he was surprised to see in his 19 years of sea career such cordial relations between ship's staff and customs officials."

Again on this charge, one Shri K.S. Lamba, Purser was examined. He mentioned that Capt. Bijoor used to encourage him in indulging in smuggling and which was of course denied by Capt. Bijoor.

17. As far as Charge No. 5 alleging that Capt. Bijoor did not permit ballasting of No. 4 Top Side Tanks on June 26, 1986 is concerned, we have the statement of Shri Suresh Babu, Vessel's Chief Officer confirming what is alleged in this charge. Shri Babu had maintained that he had been instructed by Capt. Bijoor not to ballast this particular lank. We do not find any cross examination on this charge.

18. As far as Charge No. 6 is concerned, it is recorded that Capt. Bijoor admitted that it was a mistake on his part to leave the vessel without obtaining permission from the Head Office and thereafter he stated that he did this on four occasions.

19. The report of the Inquiry Officer:

(i) Then we have the report of the Enquiry Officer on Charge No. 1, the Enquiry Officer has held that the charge was not proved.

(ii) On Charge No. 2 with respect to handing over the amount of Rs. 30,000/- to Shri Suban, the report states as follows:

"Cross examination of both Capt. Bijoor and Shri Suban indicated that Capt. Bijoor was not stating the truth. It is considered that Capt. R.M. Bijoor is guilty of this charge."

(iii) On Charge No. 3, it is recorded as follows:

"The statement of Third Officer, Shri S.K. Prasad and cross examination at Visakhapatnam leave no doubt that Capt. R.M. Bijoor had noticed and had full knowledge of the concealment of contraband goods in No. 4 Top Side Tank at Sea.

Charge No. 3 is held to be proved.

(iv) On charge No, 4, the inquiry report refers to the oral evidence of Radio Officer Shri Chitale and Shri Lamba, Purser and refers to the admission of Capt. Bijoor that fishermen from various boats had boarded the vessel. This charge is also held to be proved.

(v) Charge No. 5 was on non-ballasting of No. 4 Top Side Tank on June 26, 1986. On this charge, it is recorded as follows:

"Shri Suresh Babu who was called in to give oral evidence, maintained that he had been specifically instructed by Capt. R.M. Bijoor not to ballast No. 4 Top Side Tank."

This charge is also held to be proved.

(vi) As far as Charge No. 6 is concerned, again it is held to be proved in view of admission of Capt. Bijoor.

(vii) Finally in conclusion, the Enquiry Report states as follows:

"From the statements of various officers serving under Capt. R.M. Bijoor and cross examination of these officers at Visakhapatnam as well as at Bombay, it is quite evident that smuggling activities on board m.v. Samrat Ashok were being conducted with full knowledge and support of the Master Capt. R.M. Bijoor.

Thereafter the concluding part states as follows:

"It is considered that the entire smuggling operation was an open secret on board the vessel. It is quite evident that Capt. R.M. Bijoor had a close nexus with the financiers and customs officials and was personally involved in smuggling activities and is guilty of grave misconduct. It is therefore, considered that exemplary action should be taken against Capt. R.M. Bijoor."

20. Show cause notice, petitioner's reply and the termination order:

Thereafter we have the show cause notice dated October 29, 1986 which calls upon the petitioner to show cause as to why his services should not be terminated with effect from October 21, 1986. In paragraphs 2 and 7 of this notice, it is specifically stated as follows:

"2. A very large quantity of contraband goods consisting of VCRs and other electric goods was detected by the customs authorities (Visakhapatnam) which was deliberately concealed in No. 4 Topside Tanks of the vessel.

7. Complying with the principles of natural justice, you were called for a domestic inquiry on September 10, 1986, wherein you were requested to give your replies on the various charges levelled against you as stipulated in our letter of August 26, 1986 and the explanation offered by you was duly recorded by the Enquiry Officer and copy of the same was handed over to you".

21. Then we have the reply of the petitioner dated December 5, 1986 on record. With reference to above-referred paragraph 2 of the notice, the petitioner has stated as follows:

"The fact mentioned in your letter para 2 is true. I was really not aware of the same."

Then with reference to paragraph 7 of the notice, what he has stated is as follows:

"Reference paras 3,4,5,6,7 are true but regret to inform you that I have not received the copy of my explanation recorded by Enquiry Officer on September 10, 1986."

Thus in his reply, Capt. Bijoor admitted that large quantity of contraband goods was found by the customs officials on this vessel; that it was deliberately concealed in No. 4 Top Side Tank and that he had been called for the inquiry complying with the principles of natural justice and the explanation offered by him was duly recorded, etc.

22. Lastly we have the termination order dated December 17, 1986 on record which is issued by the General Manager of respondent No. l. In this case, the punishing authority is different from the disciplinary authority. The order records that the services of the petitioner stand terminated with effect from October 21, 1986.

23. Submissions on behalf of the petitioners:

Mr. Naik, learned counsel appearing for the petitioners, submitted that as seen from what is narrated above, according to him, the inquiry was conducted in violation of principles of natural justice. His first submission in this behalf was that the normal procedure for any such inquiry is that first the management witnesses are examined, then the delinquent employee is given an opportunity to cross examine and thereafter the delinquent and his supporting witnesses are examined. If we see the inquiry report and the proceedings, what we find is that this well established procedure is given a complete go-by. Mr. Naik states that the record of the enquiry discloses hardly any cross examination of any of the witnesses by the petitioner. It is also seen that it is he who has been cross examined from time to time which is what is specifically stated in the proceedings as well as in the report. Besides, it is also seen that at times he is asked to explain his stand first and then management witnesses are examined. Therefore, Mr. Naik submits that firstly the normal procedure is not followed, the petitioner is not permitted to ask any questions and the record indicates a complete violation of the principles of fair play in deciding as to whether the employee concerned had indulged in any misconduct. He also drew our attention once again to the reply filed by the petitioner on April 3, 1986 wherein he had made a specific request that he ought to be permitted to ask questions on charges No. 2 to 5 regarding which statements of some of the officers of the 1st respondent had been recorded. As stated above, as far as charge No. 3 is concerned it is seen that it is the delinquent who has been examined first. Then there is also a reference to the cross examination at Visakhapatnam and we do not have any record of those prior proceedings along with the present inquiry proceedings. Thereafter what we find is that the entire inquiry is completed within one day, i.e. on September 10, 1986, and Mr. Naik submits that there is hardly any reason to come to the conclusion to which the inquiry officer has arrived at and Mr. Naik therefore submits that (sic) the inquiry was vitiated and the findings were perverse and the order had to be interfered.

24. Mr. Naik relied upon a number of authorities to advance his submissions. Firstly he referred to and relied upon a Division Bench Judgment of this Court in the case of Cosmos India Rubber Pvt. Ltd. v, Mumbai Mazdoor Sabha, 1993-III-LLJ (Suppl)-18. That was a case arising out of a complaint under the Maharashtra Recognition of Trade Unions and, Prevention of Unfair Labour Practices Act, 1971 (MRTU & PULP Act for short). The complaint was concerning violation of principles of natural justice in the conduct of a domestic inquiry. Mr. Naik pressed into, service the observations in para 10 of that judgment wherein the Court emphasised the employee's right of cross examination and held that depriving the employee of this right and depriving him of his opportunity of adducing, evidence was in disregard of principles of" natural justice. Then Mr. Naik referred to a judgment of a single Judge of Punjab and Haryana High Court in the case of Kanwal Singh v. Presiding Officer, Labour Court, Chandigarh, 1999 (4) LLN 602, which is also to a similar effect, namely that denial of opportunity to cross examine results into denial of principles of natural justice. Thereafter he referred to a Judgment of a single Judge of Gauhati High Court in the case of Amal Ch. Chakraborty v. State of Tripura, 1999 LIC 1043. In that matter, the delinquent was charged for misconduct on the ground of submission of false claim for leave travel, concession. Though letters written by Station Master, Railways and Manager, Indian Airlines were relied upon, the Officers concerned were not examined by the prosecution. The Court held that it resulted into denial of a fair opportunity. Then he relied upon a judgment of a single Judge of Karnataka High Court in the case of Vysya Bank Ltd. v. Namadeva Pai, 1994-II-LLJ-954, where also non examination of a witness in person was held to be leading to denial of principles of natural justice. Thereafter he relied upon a judgment of the Apex Court in U.P. Warehousing Corporation v. Vijay Narayan Vajpayee, , wherein the Apex Court had laid down that the employment of a public employee could not be terminated without a due inquiry. The requirement of reasonable opportunity was again emphasised in State of U.P. v. C.S. Sharma, by the Apex Court . Mr. Naik then emphasised the observations in paras 16 and 17 of the judgment in the case of Parthasarthi v. State of A.P., wherein the Apex Court held that the Court will not inquire as to whether the person concerned was really prejudiced. What is important to be seen is whether the person concerned is likely to be prejudiced. He lastly relied upon the observations of the Apex Court in the case of State of M.P. v. Chintaman Sadashiva Waishampayan, AIR 1961 SC 1623, where at the end of paragraph 10, the Apex Court has observed that the delinquent should be given the opportunity to cross examine the witnesses examined against him and no material should be relied upon without being given an opportunity to explain. Similar are the observations in Calcutta Dock Labour Board v. Jaffar Imam, 1965-II-LLJ-112 (SC).

25. Submissions on behalf of the respondent No. 1.

Mr. Talsania, learned counsel for respondent No. 1, on the other hand, submitted that here we are concerned with a departmental inquiry. What one has to see is as to whether the delinquent had a notice of the proceeding against him; that he was aware of the charge, as to whether the persons deposing against him were kept present and whether the employee concerned understood as to what was being done with respect to the charges levelled against him. Once this was established, if the employee concerned was a high officer knowing English language very well and once it is also seen that he was aware that he had a right of cross examination, merely because the inquiry notes were not traceable, the delinquent employee should not be permitted to take advantage of that. The statement of the delinquent himself recorded in writing on September 3, 1986 and whatever was emerging from even the available record was sufficient for one to come to the conclusion that the charges levelled against the employee concerned were established. They were established by a proper procedure. In the facts of the present case, the employee did get an adequate opportunity and the submission of Mr. Talsania was that he had been afforded with that opportunity and thereafter only the conclusion had been arrived at.

26. Mr. Talsania, learned counsel for respondent No. 1 drew our attention to the following observations of the Apex Court in the case of Union of India v. Sardar Bahadur, , of the report, the Court observed as follows at p. 6 of LLJ:

".........A disciplinary proceedings is not a criminal trial. The standard of proof required is that of preponderance of probability and no proof beyond reasonable doubt......... Where there are some relevant materials which the authority has accepted and which materials may reasonably support the conclusion that the officer is guilty, it is not the function of the High Court exercising writ jurisdiction under Article 226 to review the materials and to arrive at an independent finding on the materials, If the enquiry has been properly held the question of adequacy or reliability of the evidence cannot be canvassed before the High Court..."

Then he relied upon the observations in subsequent judgment in K.L. Tripathi v. State, Bank of India, . In para 37 of the judgment, the Apex Court observed as follows at p. p. 13 & 14 of LLJ:

"It is true that all actions against a party which involve penal or adverse consequences must be in accordance with the principles of natural justice but whether any particular principle of natural justice would be applicable to a particular situation or the question whether there has been any infraction of the application of that principle has to be judged, in the light of the facts and circumstances of each particular case. The basic requirement is that there must be a fair play in action and the decision may be arrived at in a just and objective manner with regard to the relevance of the materials and reasons. We must reiterate again that rules of natural justice are flexible and cannot be put on any rigid formula. In order to sustain a complaint any variation of principles of natural justice on the ground of absence of opportunity of cross examination, it has to be established and that the prejudice has been caused to the Appellant by the procedure followed."

Thereafter he placed reliance on a judgment of the Apex Court in Union of India v. Parma Nanda, where the Apex Court has again referred to the observations in Sardar Bahadur's case (supra) and reiterated that disciplinary matters cannot be equated with an appellate jurisdiction. Mr. Talsania therefore submitted that the jurisdiction of the Court in a proceeding under Article 226 was in the nature of judicial review. All that the Court has to see is whether there was such relevant material on record and whether on the basis of that material the guilt of the employee concerned had been established. He submitted that the High Court was not expected to sit in appeal over the findings of the departmental authority. As far as the violation of principles of natural justice is concerned, he submitted that it is not a straight jacket formula and thereafter emphasised the requirements which have been recently laid down by the Apex Court in State Bank of Patiala v. S.K. Sharma, . In that matter, the Apex Court had laid down in all 7 principles which ought to govern one's approach towards such inquiry. The Court observed that in cases falling under no notice/no hearing and no fair hearing, the complaint of violation of procedural provision should be examined from the point of view of prejudice as to whether such violation has prejudiced the delinquent concerned. Mr. Talsania submitted that in the instant case, undoubtedly, the petitioner had a notice of the proceeding he had participated therein and hence he could not say that he was not heard or he did not have an opportunity.

27. Then coming to the allegations on merits, Mr. Talsania submitted that as far as charge No. 6 is concerned, it has been proved on the admission of the petitioner himself where he has accepted that he left the vessel without permission on not less than four occasions. Charge No. 1 has been dropped by the Enquiry Officer himself. As far as the other four charges, namely charges Nos. 2,3,4 and 5 are concerned, on charge No. 2 there was a deposition of Shri Suban which was made available to the petitioner in advance. Shri Suban had stated before the Enquiry Officer that he had received Rs. 30,000/- for making purchases as directed by the petitioner. The petitioner was very much present when the statement of Shri Suban was recorded. Nothing prevented him from contradicting or questioning Shri Suban with respect to the statement that he was making. If Capt. Bijoor chose not to ask any question, it cannot mean that he was denied an opportunity to cross examine. This is because if the entire report as well as the proceedings are seen, at number of places the officer has referred to the cross examination by Capt. Bijoor. Mr. Talsania again emphasised the high position which Capt. Bijoor held as also the fact that he knew English language and was aware of that in a situation like this, when already number of proceedings had taken place against him, if the Enquiry Officer chose to accept the statement of Shri Suban, he should not be faulted. Now as far as Charge No. 3, namely certain persons coming on to the vessel after it left Singapore on May 29, 1986 and Shri Prasad making a grievance that Capt. Bijoor took no steps inspite of informing him, is concerned, here also Shri Prasad was very much available during the inquiry. His statement was there. Now this charge No. 3 when read with Charge No. 5, namely that the petitioner prevented Shri Suresh Babu from filling the tanks on arrival at Visakhapatnam, it shows the full knowledge of Capt. Bijoor as to what were the articles in those tanks. Shri Suresh Babu was also examined during the inquiry and we do not find any question having been asked of Shri Suresh Babu. Here also the submission of Mr. Talsania is that a number of items were brought on to the ship by unauthorised persons and their movements were seen by Shri Prasad. That was reported to Capt. Bijoor when the ship was leaving Singapore and on reaching Visakhapatnam also. Since Capt. Bijoor knew what was there in the particular tank, he prevented the same from being filled with water. The statement of Shri Prasad and Shri Suresh Babu on charges Nos. 3 and 5 go undisputed in the background of all these happenings and the inquiry officer chose to accept these two statements. The submission of Mr. Talsania is that the same should not be disturbed.

28. As far as charge No. 4 is concerned, the same is with respect to some persons coming on to the vessel when it was about to leave Visakhapatnam. Now as far as this allegation is concerned, Radio Officer Shri Chitale was examined. His statement was also there. His statement recorded earlier was also available to Capt. Bijoor. Capt. Bijoor is specifically asked whether Shri Chitale had anything against Capt. Bijoor and he replied that there was none. Shri Chitale stated that he had cordial relations with Capt. Bijoor and both of them used to discuss as to how the situation should be exploited in the best way. He also stated that he had never seen such cordial relations as under the petitioner between the staff of the ship, and the customs officers. As far as unauthorised persons coming on to the ship is concerned, the statement of Capt. Bijoor given in his own handwriting admits that such persons came on to the ship. Mr. Talsania therefore submits that independent of whatever somebody else has said, Capt. Bijoor has himself stated in his own handwritten statement that such unauthorised persons came on to the ship and his wife informed him that somebody was banging on the cabin door and shouting outside the cabin saying that one boat had crashed and somebody had died. All these happenings took place in his presence and despite knowledge of the same Capt. Bijoor did not report to the higher officer. He has also stated in his reply that he saw some persons carrying gunny bags and then he stated that they were dangerous persons and therefore it was not possible for him to report to higher authorities. Now the question is whether he was such an innocent person and/or whether he was conniving and participating in the entire transaction. The fact remains that while leaving Visakhapatnam he had full knowledge of these things happening.

The further fact is that he also knew certain persons coming on to the ship when leaving Singapore and bringing articles on to the ship, one has to see this coupled with the fact that he prevented the tanks being filled with water when the vessel reached back to Visakhapatnam. All these actions on the part of Capt. Bijoor establish his participation, knowledge and understanding as to what was happening and therefore the submission of Mr. Talsania is that this material is sufficient for the Enquiry Officer to come to the conclusion that all these charges were established. Mr. Talsania accepted that the depositions during the proceedings were not traceable. He submitted that in fact if they were found, they would have clearly established that the inquiry was properly held. However, in his submission, in the absence of those depositions whatever material was available on record was sufficient to establish that the petitioner had notice of the proceedings and he participated therein and no prejudice could be said to have been caused to him. He understood what was being conducted. Thereafter on recording the statement, the conclusions had been reached.

Mr. Talsania submits that surely the conclusion should not be categorised as perverse, or without any basis to support. In any event, he submits that there is sufficient relevant material and it is accepted by the management; the Court should not sit in appeal against such a finding.

29. Mr. Talsania then submitted that all these persons involved in this incident, namely Shri Prasad and Shri Suban, were also dismissed along with the petitioner. It is not a case that the petitioner was singled out. The entire crew of the ship was removed. Only two of them, namely one Mr. N. Dhananjay and Srinivas Rao, were not removed from service. This was because no specific material was available against them. Thus Mr. Dhananjay chose to come back, but has been permitted to comeback after his acquittal in December 1995 and that too without giving him any benefit whatsoever for the intervening period. The other person Mr. Srinivas Rao, who was placed in similar situation, on his own did not turn back inspite of his acquittal in 1995. Mr. Talsania submitted that this was a grave incident where every member of the crew participated in smuggling. Items worth crores of rupees were smuggled into India and therefore if the 1st respondent had taken necessary action against all of them for the material that was available, the Court should not fault the action taken by it either on the ground of violation of principles of natural justice or on the ground of absence of any material as alleged by the petitioner.

30. Mr. Talsania also relied upon the duty manual of the ship board staff wherein the duties and responsibilities of the Master are provided in Clause 14 thereof. The Master of the ship is to have a final word in the affairs of the ship. It is his duty to ensure the safety. He is not supposed to delegate his responsibilities to others. Then as far as the ballasting is concerned, under Clause 14.6, ballasting is to receive his personal careful attention. Under Clause 14.9, he is responsible for maintaining discipline, high morale and proper decorum amongst all staff on board his ship. And not last but the least, under Clause 14.11 no unauthorised persons are to be allowed on the Bridge of the vessel. Then under Clause 14.15, when the ship is being guided under the charge of a pilot, the Master is not absolutely absolved from the responsibility for the safe navigation. Under Clause 14.20, he is personally incharge of navigation when entering or leaving port. Under Clause 14.23, he is to make a careful inspection of the ship. Under Clause 14.25, he is to safeguard against thefts/pilferages on board. Thus on going through these rules, it is quite clear that the Master enjoys a pre-eminent position on the ship. He cannot say that he is not responsible for such a huge contraband coming on to the ship and that somebody else would be responsible.

31. Mr. Talsania referred us to the circulars issued by the respondent No. 1 laying down the conduct rules. Absenting from duty or ship without permission is a clear misconduct under them. Mr. Talsania therefore submitted that as far as charge No. 6 is concerned, it clearly gets established on the admission of the petitioner himself and even when one allegation is established, that is sufficient for the management to take the necessary action. In this behalf, Mr. Talsania referred us to the observations of the Apex Court in para 25 in the case of Union of India v. Partna Nanda (supra). In that para, the Apex Court has quoted with approval the remarks of MATHEW, J. in Sardar Bahadur's case from 1972-I-LLJ-1 and at p. 7 of that report, the learned Judge has referred to an earlier judgment of State of Orissa v. Bidyabhushan Mohapatra, AIR 1963 SC 77 : 1963-I-LLJ-239, wherein it is held that if the order of a punishing authority can be supported on any finding as to substantial misdemeanour for which the punishment can be imposed, it is not for the Court to consider whether the charge proved alone would have weighed with the authority in imposing the punishment. Mr. Talsania therefore submitted that charge No. 6 is independently sufficient for the Court to come to the conclusion that there was a dereliction of duty when the petitioner abandoned the duty on not less than four occasions and remained absent without permission.

32. The third submission of Mr. Naik was that the order of termination was bad also for the reason that it was given effect to retrospectively. He relied upon the judgment of the Calcutta High Court wherein the Court held that in the event such a retrospective effect is given, the entire order is bad. That was a judgment in the case of Sudhir Ranjan Haldar v. State of West Bengal, 1961-II-LLJ-283, wherein a Division Bench held that the order of dismissal directed to take effect not from the date of the order but from the date of the order of suspension must be held invalid in law. The Court held that once such an order is invalid, it cannot be cured or corrected also. The reasoning of the Court was that if an authority passes an order with retrospective effect, it may not be easy to separate the retrospective portion from prospective' portion and therefore it is difficult to say from which other date the authority would have made the order effective. This submission of Mr. Naik was countered by Mr. Talsania by referring to a judgment of the Apex Court in R. Jeevaratnam v. State of Madras, . That was also a similar case wherein by a subsequent order, the authority had directed dismissal of the employee concerned from an earlier, date when he was suspended. In para 4 of the judgment, the Apex Court held that the two parts of the order, namely one of dismissal and the dismissal to be operative retrospectively, were separable. The Court did hold that the retrospective part was invalid but that did not affect the first part of the order dismissing the employee on the same analogy. Mr. Talsania submitted that the judgment of the Calcutta High Court in the case of Sudhir Ranjan Haldar (supra) was not a good law, and in the facts of the case though the respondents had their justification for passing the order, in any event, it ought to be held to be valid from the date which it was passed. Mr. Talsania tried to defend the decision also on the ground that on the earlier date some notings had been made.

33. The fact however remains that the petitioner had been given a notice to show cause as to why he should not be terminated. The notice having been given, there was every chance that his plea would have been entertained and that being so, the management cannot say that they will bring this order into force on a date even prior to the date of that notice. However, Mr. Talsania submits that the order deserves to be protected in any case from the date on which it was issued. He relied upon the judgment of a Division Bench of this Court, (although in a different context of lock-out) wherein the Division Bench held that illegality cannot be expected to be perpetuated all the time. That was in the case of Premier Automobiles v. G.R. Sapre, 1979 (39) FLR 440. In that matter, the notice of lock-out was not given sufficiently in advance as required by the statute. The Court held that to that extent it was invalid, but the invalidity ceased to be operative after that period was over. Mr. Talsania pressed that analogy into service.

Conclusions

34. Having noted all these submissions, it seems that as far as the inquiry is concerned, though there are certain inadequacies in the conduct thereof, it cannot be the petitioner was prejudiced by those infirmities in the conduct of the inquiry. He was fully aware of the charges that were levelled against him. As far as charge No. 4 is concerned, there was a clear admission of the fact that unauthorised persons did come on to the vessel. This is in his statement in writing. As far as charges No. 3 and 5 are concerned, they are interrelated inasmuch as charge No. 3 is concerning movements of some unauthorised persons on the ship when it left Singapore and charge No. 5 is related to the petitioner preventing the tank being filled with water knowing fully well that contraband goods were inside. Charge No. 2 was with respect to payment of Rs, 30,000/- to Shri Suban for purchase of VCRs. There is no denial of the fact that huge contraband of over a crore of rupees was found in the ship. The petitioner cannot feign ignorance of this fact. It is not a criminal proceeding where on the benefit of doubt, the accused would be entitled to acquittal. It was a departmental proceeding. All the officers on board the ship were proceeded against in the departmental inquiry. Prior thereto, in the adjudication before the Customs Authorities also, the petitioner was held responsible for bringing in these very contraband goods and was fined to the tune of Rs. 2,50,000/-. That order was not challenged. He was detained under COFEPOSA. That order was not challenged though the detention was for over a year. As far as his conviction by the Magistrate is concerned, that was undoubtedly set aside by the Sessions Court, but as seen from the order that was also essentially by giving a benefit of doubt. That acquittal cannot be pressed into service to submit that the petitioner was totally and departmental inquiry be completely brushed aside.

35. In fact what we have observed is that failure of respondent No. 1 to place on record the notes of inquiry is sought to be pressed to the best advantage by the counsel for the petitioner. We do not know who is responsible for these papers not being traced out. Undoubtedly the respondents are responsible for the manner in which their own papers are missing and which would sometimes lead somebody to draw an inference against the management. But in the facts of the present case although such an inference was sought to be pressed by Mr. Naik, we are not inclined to draw that inference mainly because the material on record is otherwise also sufficient and overwhelming to come to the conclusion of guilt of the petitioner with respect to the charges that were levelled against him. As stated earlier time and again, he was a person having knowledge of English language quite well, he was a high officer, he was understanding what was going on. Certainly it cannot be said to be a gross case of no notice or no opportunity and therefore any prejudice being caused to the petitioner. In these circumstances, the inquiry cannot be faulted.

36. As far as the order of termination is concerned, it is undoubtedly a retrospective order and to that extent only it would be bad. The order will take effect from the date on which it was passed namely December 17, 1986, and not from the date it was sought to be given effect to, namely October 21, 1986. On that footing, whatever limited benefits are available to an employee will be available to the heirs of the petitioner though Mr. Talsania states that even on the above footing nothing would be particularly due to the deceased employee since he did not have a valid continuous discharge certificate.

37. The petition is accordingly dismissed though we are not awarding any costs.