Ramdas S/O Ganpatrao Satpute vs Ballarpur Industries Ltd.
2007 Latest Caselaw 726 Bom

JUDGMENT

A.B. Chaudhari, J.

1. By the present petition the petitioner has challenged the award dated 11/10/1994 made by the Labour Court, Chandrapur in Reference (I.D.A.) Case No. 8 of 1990 answering the same in negative i.e. against the petitioner-employee and thus rejected his reinstatement with continuity of service and back wages.

FACTS:

2. The petitioner was working with the respondent-industry since 1968 as Machine boy. He was charge sheeted by the respondent-employer with a sole charge that in the night of 07/01/1982 he had thrown three packets of gas welding rods and three pieces of brass bush weighing about 4.00 kg. from the boundary wall of the Mill on the public road and then after finishing his duty at about 5.45 a.m. when he was collecting said articles in a bag, he was caught red handed by the watchmen who were on surveillance on him. He was then brought towards factory gate where the Security Officer recorded his statement of admission of the theft committed by him. The charge sheet was served on him on 08/01/1982 to which he had submitted his reply on the very next day i.e. on 09/01/1982 denying the charge levelled against him. In his reply he took the stand that he was assaulted by the Watchmen and was forced to make confession and put his signature thereon and was handed over to the police in the same night. An enquiry was held into the said conduct and enquiry report was submitted by the enquiry officer. In the enquiry the petitioner also examined one defence witness by name Kashinath Thakre who made a statement that the petitioner was on duty throughout and did not go anywhere to throw anything outside the factory premises. The management examined the Watchmen as well as Mr. A.I. Joseph, Security Inspector. The petitioner was found guilty of the charge levelled against him and was dismissed from service. The Labour Court, in the Reference that was made to it at the instance of the petitioner initially framed a preliminary issue regarding fairness of the enquiry and by an order dated 23/3/1994 held that the enquiry was fair and proper. Thereafter, the Labour Court heard the parties on merits and made final order on 11/10/1994 and answered the same against the petitioner by holding that termination of service of the petitioner was justified and no interference was called for. Hence, this writ petition.

ARGUMENTS:

3. Mr. Sirpurkar, learned Counsel for the petitioner made following submissions:

i) The petitioner was prosecuted by the police in a criminal prosecution for the offence of theft that was allegedly committed by him on 07/01/1982. The petitioner was convicted by the trial Magistrate and the conviction was confirmed in appeal by the learned Sessions Judge. But, his criminal revision that was filed before the High Court was allowed on 11/6/1985 and this Court found that heavy articles thrown outside the mill could not be connected with the petitioner and the said property was also not identified to be that of the respondent-employer and, therefore, there is no requisite proof to prove that the petitioner had committed the offence of theft. Mr. Sirpurkar, therefore, submitted that his acquittal in the criminal case on the same charge ought to have been considered by the learned Labour Court as the finding recorded by this Court was binding on the Labour Court and hence on this very ground the Labour Court should have answered the Reference in affirmative. In support of this, he relied upon the decision of this Court in the case of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and Anr. .

ii) He then submitted that the enquiry officer as well as the Labour Court have relied upon the confession recorded in duress and, therefore, said confession ought to have been ignored. He relied upon the decision of Rajasthan High Court in the case of Bharatpur Central Co-operative Bank Ltd. v. Judge, Labour Court and Anr. reported in 1988 II CLR 88.

iii) The case in question against the petitioner was of no evidence. Even there is no material showing any complicity of the petitioner in the said act of misconduct namely the theft and hence the Reference should have been answered in the affirmative.

iv) The petitioner had setup a defence of alibi and had examined one Kashinath Thakre, but his evidence has been unjustifiably ignored by the Enquiry Officer as well as the Labour Court.

v) The evidence in the enquiry as well as before the criminal Court being the same, the petitioner ought to have been granted relief as prayed for by him. He, thus, prayed for allowing the present petition.

4. Per contra, Mr. Mohrir, learned Counsel for the respondent made following submissions:

i) The petitioner, as a matter of fact, was convicted on the basis of evidence adduced by two Courts and in revision, he was acquitted because according to this Court, there was no eye witness showing that the petitioner had thrown the articles outside the premises of the factory and further that the property was not identified by examining any witness. He relied upon the evidence of several witnesses that was recorded in the enquiry and submitted that perusal of entire evidence adduced by the management inspires confidence and the evidence recorded in the enquiry is far different and more than that was recorded in the criminal trial.

mi) The acquittal of the petitioner by this Court in criminal revision is by itself not sufficient to exonerate him from the enquiry despite the fact that there is convincing evidence on record and probabilities of the petitioner having committed the said misconduct of theft. The consideration in the criminal case and domestic enquiry are wholly different and, therefore, in the facts of the present case if the entire evidence is seen, the misconduct is proved by overwhelming evidence.

iii) No enmity has been even suggested by the petitioner against the Watchmen or the Security Inspector Mr. Joseph so as to dub their evidence as interested one. These independent witnesses had no grudge against the petitioner.

iv) In the light of the law laid down by Hon'ble the Apex Court in various decisions which Mr. Mohrir relied upon and particularly in the light of three Judges' decision in the case of Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corporation Ltd., Haldia and Ors. , and the decision of the Supreme Court in the case of Management of Krishnakali Tea Estate v. Akhil Bharatiya Chah Mazdoor Sangh and Anr. 2004 (103) FLR 273 and particularly paragraph Nos. 25 and 26 thereof, finally, he prayed for dismissal of the writ petition.

CONSIDERATION:

5. Having heard the learned Counsel for the respective parties at length and having gone through the entire record including the impugned award, at the outset, it is necessary to decide the point regarding the effect of petitioner's acquittal in a criminal revision upon the result of domestic enquiry. The legal position in this context is settled by Hon'ble the Apex Court in the case of Management of Krishnakali Tea Estate (supra) in paragraphs 25 and 26 which are quoted below:

...25. Learned Counsel for the respondents in regard to the above contention relied on a judgment of this Court in the case of Capt. M. Paul Anthony (supra). In our opinion, even that case would not support the respondents herein because in the said case the evidence led in the criminal case, as well as in the domestic enquiry was one and the same and the criminal case having acquitted the workmen on the very same evidence, this Court, came to the conclusion that the finding to the contrary on the very same evidence by the domestic enquiry would be unjust, unfair and rather oppressive. It is to be noted in that case the finding by the Tribunal was arrived in an ex parte departmental proceedings. In the case in hand, we have noticed before the Labour Court the evidence led by the management was different from that led by the prosecution in the criminal case and the materials before the Criminal Court and the Labour Court were entirely different. Therefore, it was open to the Labour Court to have come to an independent conclusion de hors the finding of the Criminal Court. But at this stage it should be noted that it is not as if the Labour Court in the instant case was totally oblivious of the proceedings before the Criminal Court. The Labour Court has in fact perused the order of the Judicial Magistrate and the exhibits produced therein and came to an independent conclusion that the order of the criminal case has no bearing on the proceedings before it which finding of the Labour Court, in our opinion, is justified. It may be some use to us to refer at this stage to a judgment of this Court in the case of State of Rajasthan (supra) wherein it is held thus:

There is yet another reason. The approach and the objective in the criminal proceedings and the disciplinary proceedings is altogether is distinct and different. In the disciplinary proceedings, the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings the question is whether the offences registered against him under the Prevention of Corruption Act (and the Indian Penal Code, if any) are established and, if established, what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing that enquiry and trial in both the cases are entirely distinct and different....

26. From the above, it is seen that the approach and the objectives of the criminal proceedings and the disciplinary proceedings are altogether distinct and different. The observations therein indicate that the Labour Court is not bound by the findings of the Criminal Court.

6. Perusal of above observations show that Hon'ble the Apex Court has clearly distinguished the ratio of the judgment in the case of M. Paul Anthony (supra) which is heavily relied upon by the learned Counsel for the petitioner. For the same reasons given by Hon'ble the Apex Court in the above cited case, I prefer to distinguish the ratio of the judgment in the case of M. Paul Anthony (supra) in this case also.

7. Now, coming to the decision rendered by three Judges of Hon'ble the Supreme Court in the case of Ajit Kumar Nag (supra), it would be appropriate to quote relevant portion from paragraph 11. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused beyond reasonable doubt., he cannot be convicted by a court of law. In a departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of preponderance of probability. Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation. We are, therefore, unable to uphold the contention of the appellant that since he was acquitted by a criminal court, the impugned order dismissing him from service deserves to be quashed and set aside.

8. The above two decisions, therefore, in my opinion, clearly lay down that the findings recorded by the criminal Court are not necessarily binding on the Labour Court or the result in the domestic enquiry need not be changed due to the finding of acquittal in a criminal case. Now, though it was not necessary for me to go through the evidence that was tendered in the enquiry, in writ jurisdiction, I preferred to go through the entire evidence and even that of the defence witness Kashinath Thakre. The evidence of M. I. Joseph, Security Inspector shows that he saw the petitioner during his round at about 12 'O' clock in the night near boundary wall of the Mill and no sooner the petitioner saw this witness, hurriedly he went towards the gate where machine No. 4 is located. Mr. Joseph suspected something wrong and, therefore, decided to put surveillance. At about 2.00 a.m. he was told by Safdar Khan, Watchman that somebody has thrown some material outside the wall of the Mill on the public road and therefore, Mr. Joseph asked all the Watchmen on duty to keep watch as to who comes to lift the said material from the road. At about 5.30 a.m. Watchman Jang Bahadur who was on surveillance, caught hold of the petitioner red- handed while collecting the articles and putting the same in a bag. He blew whistle, as a result, witness Joseph, Watchman Kashinath ran towards the scene and they brought the petitioner near the Transport gate where the petitioner admitted his guilt and prayed for apology. He confessessed and also signed the statement accordingly. In the cross examination, he specifically denied the story put up by the petitioner to him that confession was recorder under threat. To my mind, his evidence is trustworthy. Watchman Safdar Khan has fully corroborated the evidence of Shri Joseph. Witness Jang Bahadur, Watchman has narrated the entire incident. He was asked three questions in the cross examination by the petitioner. By asking these three questions, the petitioner's representative made his version concrete rather than shaking the testimony of this witness. The other witnesses have also corroborated the evidence of these witnesses. Now coming to the evidence of Kashinath Thakre, a defence witness, in the first place it is noteworthy that his name was never cited by the petitioner in his explanation to the charge-sheet. Secondly, to a query made by me to the learned Counsel for the petitioner as to whether the plea of alibi was taken by his client in the criminal case, the learned Counsel could not confirm whether such a plea was taken by him. That apart, in the cross examination, the defence witness admitted that he did not keep continuous watch on the movements of the petitioner. His evidence is, therefore, rightly rejected by the Enquiry Officer as well as by the Labour Court.

9. In view of the above discussion, I find that even on merits, there is ample evidence on record against the petitioner and misconduct has been proved in all probabilities. Nowhere the petitioner has explained as to why he was collecting articles on the public road which have been described by the witnesses of the management when he was caught red-handed. For all these reasons I do not find any substance in the writ petition, the same is, therefore, dismissed with no order as to costs. Rule discharged.