Suryabhan Popat Londhe vs Board Of Trustees Of The Port Of ...
2003 Latest Caselaw 681 Bom

JUDGMENT

D.V. Chandrachud, J.

1. This appeal, is directed against the judgment of a learned Single Judge dated 23rd August 2001, by which the award of the Central Government Industrial Tribunal has been set aside. By the award rendered on 22nd April 1997 on a reference under Section 10 of the Industrial Disputes Act, 1947, the Industrial Tribunal directed that the appellant be reinstated in the service of the Port Trust with continuity of service and backwages.

2. The appellant joined the service of the Respondent on 30th July 1977.On 8th July 1985, he was assigned the duty to clean an assigned area within the Docks at the Port of Mumbai. On that day at about 6.30 a.m., the appellant reported for duty and commenced the worked assigned to him outside the office of the Assistant Shed Superintendent, along with other workmen. At about 9 a.m., a clerk in the employment of the Port Trust by the name of Shivaji Warula noticed that the appellant suddenly sat down on the floor while cleaning it. The behaviour of the appellant aroused the suspicion of the clerk who proceeded towards the appellant to investigate into the matter. The appellant was found to be taking out ball bearing boxes from out of bigger boxes which were lying in the docks. The appellant was apprehended and was taken to the office of the Assistant Shed Superintendent who reported the matter to the Yellow Gate Police Station. The case of the Respondent employer is that the Police seized boxes of ball bearings found on the appellant, arrested him and registered a criminal complaint. Since the appellant was detained for more than 48 hours, he was suspended on 29th July 1985 under the Regulations of the Port Trust.

3. After a preliminary investigation, a chargesheet dated 5th July 1986 was issued to the appellant and to certain other co-workers. A departmental enquiry was convened in which the appellant did not avail of the opportunity to defend himself, save and except for two days when he remained present. Evidence was recorded. The Enquiry Officer found the appellant guilty of the charge of misconduct. The Disciplinary Authority issued a notice to show cause to the appellant on 19th February 1988 to which the appellant submitted his reply of 10th March 1988. By an order dated 25th April 1988, the appellant was removed from service. The appellant thereupon filed an appeal before the Chairman of the Port Trust and after a personal hearing on 21st October 1988, the appeal came to be dismissed by an order dated 7th November 1988.

4. An industrial dispute having been raised by the appellant, a reference was made to the Central Government Industrial Tribunal under Section 10 of the Industrial Disputes Act, 1947. In the meantime, the criminal proceedings in which the appellant was prosecuted for an offence under Section 381 read with Section 114 of the Penal Code together with three other workmen came to be decided and the accused were acquitted on 29th July 1987. The Industrial Tribunal substantially relied upon the order of acquittal passed by the Metropolitan Magistrate, 16th Court, Ballard Pier, Bombay in setting aside the order of termination and in directing that the appellant be reinstated with backwages.

5. Aggrieved by the order of the Industrial Court, the Port Trust moved this Court in writ proceedings under Article 226 of the Constitution. By a judgment and order dated 23rd August 2001, the petition filed by the Port Trust was allowed and the award of the Industrial Tribunal has been set aside. The learned Single Judge was of the view that the appellant was not entitled to be exonerated in the domestic enquiry merely because he was acquitted in the course of the criminal trial. The learned Judge held that the Magistrate had given the benefit of doubt to the appellant because the evidence in the criminal proceedings was not of the standard which was required to establish guilt beyond reasonable doubt. The learned Single Judge held that the Industrial Tribunal had fallen in error by basing its decision on the reference on the order of the learned Magistrate, especially when it was apparent on the record that the available evidence was sufficient for the Enquiry Officer to hold the appellant guilty of misconduct. The Enquiry Officer, it was noted, conducted the domestic enquiry in a proper manner and consistent with the principles of natural justice.

6. Learned Counsel appearing on behalf of the appellant assailed the judgment of the learned Single Judge and submitted that the learned Judge has erred in interfering with the award of the Industrial Tribunal.

7. We do not find any merit in that submission. The award of the Industrial Tribunal would reveal that the findings of the Metropolitan Magistrate in the order of acquittal dated 29th July 1987 have been extensively relied upon by the Tribunal. Having regard to the well settled position in law, the acquittal of the appellant in the criminal case could not have been made the basis for setting aside the order of removal from service passed in disciplinary proceedings on the basis of the evidence recorded in the course of the departmental enquiry. Once there was sufficient material on the record before the Enquiry Officer to sustain the charge of misconduct, the finding of misconduct could not have been interfered with on the ground of an acquittal in the criminal case. In a similar case, Govind Das v. State of Bihar, , where the employee had been acquitted in the course of a criminal trial on the ground that the charges were not proved beyond reasonable doubt, the Supreme Court held that this could not furnish a basis for holding that the workman was not guilty of misconduct in the departmental proceedings. The Supreme Court held thus :

"We find that the acquittal of the appellant is based on the view that the charges are 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, in these circumstances, could not, in our opinion, be made the basis for setting aside the order for 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. The basis and foundation of a criminal trial is distinct from disciplinary proceedings conducted by the employer. The prosecution of the accused in a criminal trial is for a breach of the criminal law. On the other hand in departmental proceedings, the employer proceeds against the employee for a misconduct defined with reference to service regulations. The standard of proof, the mode of enquiry and the rules governing the departmental enquiry and criminal trial are entirely different. These principles are well settled and reference may only be made to a judgment of two learned Judges of the Supreme Court in State of Rajasthan v. B. K. Meena, .

9. In the present case, we have also perused the judgment of the learned Metropolitan Magistrate, 16th Court, Ballard Pier, Bombay dated 29th July 1987. The Metropolitan Magistrate was of 'the view that the prosecution in that case had not proved its case beyond reasonable doubt. The learned Single Judge was, in our view, correct, having regard to the settled position in law, in coming to the conclusion that the order of acquittal in the criminal proceedings would not operate to nullify the order of the Disciplinary Authority removing the appellant from service on the basis of a finding of misconduct arrived at in duly constituted disciplinary proceedings.

10. Having regard to these circumstances, we do not find any merit in the appeal. The appeal is accordingly dismissed.