Maharashtra State Road Transport ... vs Tulshiram Dhondiram Pawar
2016 Latest Caselaw 2839 Bom

                                             1             WP NO.10789 of 2014

                 
              IN THE HIGH COURT OF JUDICATURE OF BOMBAY




                                                                           
                         BENCH AT AURANGABAD




                                                   
                       WRIT PETITION NO.10789 of 2014

      1.       Maharashtra State Road Transport
               Corporation, 




                                                  
               Through its Divisional Controller,
               MSRTC, Jalna,
               Tq. & Dist. Jalna.

      2.       The Divisional Traffic Officer,




                                          
               Maharashtra State Road Transport Corporation,
               Jalna, Tq. and Dist. Jalna.
                              ig                     ...PETITIONER
                            
                       VERSUS

               Shri Tulshiram s/o Dhondiram Pawar,
               Age 43 years, Occu: Service,
      

               R/o. Changale Nagar, Ambad,
               Tq. Ambad, Dist. Jalna.
   



                                                    ...RESPONDENTS

                                            ...





      Shri D.S.Bagul, Advocate for the petitioner.

      Shri G.K.Salvi, Advocate for respondent / sole.

                                            ...





                                    CORAM: P.R.BORA, J.
                                            ...

               Date of reserving the judgment: 8/6/2016

               Date of pronouncing the judgment:15/06/2016

                                           ...

       



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                                             2            WP NO.10789 of 2014

      JUDGMENT:

      1.                  Heard.       Rule.     Rule made returnable




                                                 
      forthwith.          With the consent of learned Counsel appearing

for the parties, the matter is heard finally.

2. This Writ Petition has been preferred against the

order passed by the Member, Industrial Court, Jalna, in

Miscellaneous (ULP) No.01/2012, on 15.4.2014, whereby

the Industrial Court has condoned the delay caused in

filing a complaint of unfair labour practice by the present

respondent against the present petitioners.

3. The question to be determined in the present

petition is: "can a pendency of a criminal case against an

employee and his consequent acquittal therefrom be

accepted as good and sufficient cause so as to condone the

delay occurred in filing a complaint by the said employee

against the punishment imposed on him in the

departmental proceedings held against him based on the

same incident which had given rise for institution of a

criminal prosecution against him."

3 WP NO.10789 of 2014

4. Respondent was working as a Driver at the

State Transport Depot at Ambad in Jalna Division. On

5/10/2014 an accident had occurred to the State Transport

Bus, which was being driven by the respondent. The said

accident had resulted in causing death of two persons and

injuries to some other persons. The State Transport Bus,

being driven by the respondent, was alleged to have given

dash to a Rickshaw.

ig Some damage was also alleged to

have been caused to the S.T. Bus. Based on the said

instance of accident, Departmental proceedings were

initiated against the respondent, wherein he was held

guilty for the charges levelled against him in the said

enquiry, and by way of punishment, his three increments

were permanently stopped. The order of imposing

punishment in the Departmental Enquiry was passed on

5.10.2006.

5. In connection with the road accident happened

on 5.10.2004, a criminal case was also registered against

the respondent for offenses punishable under Sections

279, 337, 338, 304A and 427 of the I.P.C. as well as under

Section 184 of the Motor Vehicles Act, 1988, in the Court

4 WP NO.10789 of 2014

of Judicial Magistrate, First Class, Yeola. The trial was

held in the said criminal case and vide judgment delivered

by the Judicial Magistrate, First Class, Yeola, on 23rd

February, 2011, respondent was acquitted of all the

charges levelled against him.

6. After being acquitted by the Court the

petitioner, on 20th August, 2011, submitted an application

to the competent officer of the M.S.R.T.C. at Jalna,

informing that he has been acquitted from the criminal

case registered against him in connection with the accident

happened on 5.10.2004 and further prayed for setting

aside the punishment imposed on him in the Departmental

proceedings based on the said incident. According to the

respondent, since his request was not considered, he

submitted an application on 19th January, 2012, to the

Divisional Controller, M.S.R.T.C., Jalna, and prayed for

setting aside the punishment imposed on him, and to pay

him the difference in the wages because of stoppage of the

increments.

7. As per the further contention of the respondent,

since his requests were not considered by the officers of

5 WP NO.10789 of 2014

the M.S.R.T.C., he was constrained to approach the

Industrial Court at Jalna, by filing a complaint of unfair

labour practice under the provisions of the Maharashtra

Recognition of Trade Unions and Prevention of Unfair

Labour Practices Act, 1971 (hereinafter referred to as

MRTU & PULP Act). Since delay had occasioned in filing

the complaint within the stipulated period, the respondent

filed an application seeking condonation of the delay,

which was caused in preferring the complaint of unfair

labour practice. The said application was registered as

Miscellaneous ULP No.1/2012. As stated in the said

application, the delay of 5 years and 22 days' was caused

in filing the complaint. Pendency of the criminal case has

been stated to be the only reason for not filing the

complaint within the period of limitation. The application

so filed by the respondent was vehemently opposed by the

petitioners. A detailed say was filed by the petitioners to

the said application raising an objection that pendency of a

criminal case, and acquittal of the respondent from the

said criminal case, cannot be a ground for condoning the

huge delay of more than five years. The learned

Industrial Court, however, condoned the delay caused in

6 WP NO.10789 of 2014

filing the complaint by the respondent, vide order dated

15.4.2014, which has been impugned in the present

petition.

8. Shri D.S.Bagul, learned Counsel appearing for

the petitioners, submitted that the impugned order is

against the settled principles of law, and hence deserves to

be quashed and set aside. Learned Counsel reiterated

the contentions raised in the petition, as well as in the say

which was filed by the petitioners to the delay condonation

application, before the Industrial Court that, pendency of,

and acquittal in the criminal case, cannot be a ground, or

sufficient cause, for condonation of delay. Shri Bagul

further submitted that the respondent has failed in

explaining the delay, which was caused in making a

representation by him, and thereafter, in filing a

complaint by him in the Industrial Court. Learned Counsel

submitted that though the judgment in the criminal case

was delivered on 23rd February, 2011, the respondent for

the first time approached the competent officer of the

M.S.R.T.C. at Jalna by filing an application to him on 21st

August, 2011, i.e. after the period of more than six

7 WP NO.10789 of 2014

months. Learned Counsel submitted that the said delay

has not at all been explained by the respondent. Learned

Counsel further submitted that the respondent filed a

complaint before the Industrial Court on 7th February,

2012. The delay, which has been caused in preferring

the complaint, after filing of the applications dated

28.10.2011 and 19.1.2012, has also not been explained by

the respondent.

ig Learned Counsel further submitted that

the learned Industrial Court has failed in appreciating the

judgments relied upon by the petitioners.

9. Shri G.K.Salvi, learned Counsel appearing for

the respondents, supported the impugned judgment.

Learned Counsel submitted that once the Court below has

accepted the explanation given by the present respondent

as sufficient, this Court may not disturb the said finding.

To substantiate the said contention, the learned Counsel

relied upon the judgment of the Honourable Apex Court in

the case of N. Balakrishnan vs M. Krishnamurthy ( AIR

1988 SUPREME COURT 3222).

10. I have carefully considered the

submissions advanced by the learned Counsel appearing

8 WP NO.10789 of 2014

for the respective parties. I have perused the impugned

judgment as well as the other material placed on record.

Section 5 of the Limitation Act provides that an appeal or

an application may be admitted after the prescribed

period, if the appellant or the applicant satisfies the court

that he had sufficient cause for not preferring the appeal

or making the application within such period. There

cannot be any duality of opinion that the words "sufficient

cause" in Section 5 should receive a liberal construction so

as to advance substantial justice, nevertheless, as held by

this Court in Sow Kamalabai, W/o Narasaiyya Shrimal and

Narsaiyya, S/o Sayanna Shrimal Vs. Ganpat Vithalroa

Gavare ( 2007 (1) Mh. LJ 807) the expression "sufficient

cause" cannot be erased from Section 5 of the Limitation

Act, 1963, by adopting excessive liberal approach which

would defeat the very purpose of Section 5. There must

be some cause, which must be termed as sufficient one,

for the purpose of delay condonation.

11. In the instant matter, the respondent had

sought condonation of delay of the period of more than

five years on the sole ground that a criminal case was

9 WP NO.10789 of 2014

pending against him and he was awaiting the decision

thereof for the reason that the departmental proceedings

were initiated against him and he was held guilty in the

said proceedings on the basis of the same incident giving

rise for institution of a criminal case against him.

12. The question is: can a pendency of a criminal

case, and consequent acquittal of the respondent

therefrom,

be accepted as good and sufficient reason to

condone the delay which has occurred in filing a complaint

by him against the punishment imposed on him in the

form of withholding three increments in the departmental

proceedings held against him based on the same incident

which had given rise for filing of a criminal case against

him.

13. The Industrial Court has held the said cause to

be good and sufficient for condoning the delay and has

accordingly condoned the delay. As has been submitted

by the learned Counsel appearing for the respondent, once

the Industrial Court has accepted the explanation as

sufficient, this Court shall not disturb the said finding. In

support of his said contention, learned Counsel has placed

10 WP NO.10789 of 2014

reliance on the judgment of the Honourable Apex Court in

the case of N. Balakrishnan (cited supra). I have

carefully perused the entire text of the aforesaid

judgment. In the said matter, delay of 883 days had

occurred in filing the application by the appellant for

setting aside ex parte decree. The said delay was caused

due to failure of the Advocate of the appellant in the said

matter to inform the appellant as well as his failure to take

appropriate action. The reason so stated was found to be

satisfactory by the trial Court and hence the delay was

condoned by the trial Court. However, the Madras High

Court in its revisional jurisdiction set aside the order

passed by the trial Court whereupon the appellant

approached the Honourable Apex Court and the

Honourable Apex Court set aside the order of the High

Court and restored the order passed by the trial Court.

The Apex Court, in paragraph No.9 of the aforesaid

judgment has observed thus:

" It is axiomatic that condonation of delay is a matter of discretion of the court Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable

11 WP NO.10789 of 2014

explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is

satisfactory. Once the court accepts the explanation as sufficient it is the result of positive exercise of discretion

and normally the superior court should not disturb such finding, much less in reversional jurisdiction, unless the exercise of discretion was on whole untenable grounds or arbitrary or perverse. But it is a different matter when the first Court refuses to condone the delay. In such cases,

the superior Court would be free to consider the cause shown for the delay afresh and it is open to such superior Court to come to its own finding even untrammeled by the conclusion of the lower court."

14.

If the observations made by the Honourable

Apex Court as aforesaid are carefully perused, what has

been said by the Apex Court is that, "normally, (emphasis

supplied) the superior Court should not disturb the finding

recorded by the trial Court." Before making such

observation, the Apex Court has categorically said that the

length of delay is no matter, acceptability of the

explanation is the only criteria. The Court has further

observed that some times delay of shortest range may be

uncondonable due to want of acceptable explanation

whereas, in other cases, delay of very long range can be

condoned as the explanation thereof is satisfactory. Thus,

the question of delay condonation would depend upon the

peculiar fact situation of each case.

12 WP NO.10789 of 2014

15. In so far as the facts involved in the instant

case are concerned, the only ground put forth by the

respondent for occurrence of delay of five years in filing

the complaint by him is that a criminal case was pending

against him, and he was awaiting the decision thereof for

the reason that the departmental proceedings were

initiated against him and he was held guilty in the said

proceedings on the basis of the same incident.

16. It has to be, therefore, examined whether the

aforesaid cause can be accepted to be a sufficient cause

for condoning the delay which has occurred in filing the

complaint by the respondent.

17. It is the contention of the learned Counsel for

the respondent that the criminal Court has acquitted the

respondent and, therefore, he has every right to challenge

the punishment imposed on him in the departmental

proceedings instituted on account of the same incident,

and to get set aside the said punishment. The

submission so made is apparently un-acceptable. It is

well settled that the principles underlying the appreciation

of the evidence adduced, in a criminal case, are not strictly

13 WP NO.10789 of 2014

applicable to the departmental proceedings. In the

circumstances, acquittal from criminal case cannot be a

ground for challenging the findings recorded in the enquiry

proceedings, and the consequent punishment imposed in

the said proceedings. Consideration of the punishment

imposed in a departmental proceeding would only arise if

the punishment is based on conviction by the criminal

Court and the said conviction gets set aside by the

appellate Court. Where enquiry is independent of the

criminal proceedings, acquittal in a criminal Court is of no

help. Acquittal of a person by a Criminal Court would not

have any impact on the disciplinary proceedings already

concluded by the Department. The Honourable Apex

Court, in paragraph no.11 of its judgment, in the case of

Divisional Controller, Karnataka State Road Transport

Corporation Vs. M.G.Vittal Rao ((2012) 1 SCC 442), has

observed thus:

"11. The question of considering reinstatement after decision of acquittal or discharge by a competent criminal Court arises only and only if the dismissal from services was based on conviction by the criminal Court in view of the provisions of Article 311 (2)(b) [sic Article 311(2) second proviso (a)]* of the Constitution of India, or analogous provisions in the statutory rules applicable in a case. In a case where enquiry has been held independently of the

14 WP NO.10789 of 2014

criminal proceedings, acquittal in a criminal Court is of no help. The law is otherwise. Even if a person

stood acquitted by a criminal Court, domestic enquiry can be held, the reason being that the standard of

proof required in a domestic enquiry and that in a criminal case are altogether different. In a criminal case, standard of proof required is beyond reasonable doubt while in a domestic enquiry it is the

preponderance of probabilities that constitutes the test to be applied. "

[* Ed.: Article 311(2) second proviso (a) reads as follows: [Art.311(2) shall not apply - (a) where a person is dismissed or

removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge."]

18. In Nelson Motis Vs. Union of India ( 1992 4 SCC

711), the Honourable Supreme Court has held that,

" The nature and scope of a criminal case are very different from those of a departmental disciplinary proceeding and an order of acquittal, therefore, cannot conclude the departmental

proceeding".

19. It is further a settled position of law that

acquittal in a criminal case cannot be held to be a bar to

hold the departmental enquiry for the same misconduct for

the reason that in a criminal trial, standard of proof is

different as the case is to be proved beyond reasonable

doubt whereas in the departmental proceeding, such a

15 WP NO.10789 of 2014

strict proof of misconduct may not be required. Acquittal

of an employee cannot be construed as a clear exoneration

of the said employee for the allegations levelled and

proved against him in the departmental proceedings. As

held by the Honourable Apex Court in State Bank Of India

& Ors vs R.B. Sharma ((2004) 7 SCC 27), The purpose of

departmental enquiry and of prosecution are two different

and distinct aspects. The criminal prosecution is launched

for an offence for violation of a duty the offender owes to

the society, or for breach of which law has provided that

the offender shall make satisfaction to the public. So

crime is an act of commission in violation of law or of

omission of public duty. The departmental enquiry is to

maintain discipline in the service and efficiency of public

service.

20. The three Judge Bench of the Honourable Apex

Court in Ajit Kumar Nag. Vs. Indian Oil Corpn. Ltd. ((2005)

7 SCC 764) in paragraph No.11 has observed thus:

"11. In our judgment, the law is fairly well settled. Acquittal by a criminal Court would not debar an employer from exercising power in accordance with the Rules and

16 WP NO.10789 of 2014

Regulations in force. The two proceedings, criminal and departmental, are entirely different. They operate in

different fields and have different objectives. 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."

Thus, there can be no doubt regarding the settled

legal proposition that as the standard of proof in both the

proceedings i.e. the criminal prosecution and departmental

proceedings is quite different, acquittal of the employee in

a criminal case cannot be the basis for taking away the

effect of departmental proceedings.

21. In view of the aforesaid legal principles

enunciated and reiterated above, pendency of a criminal

case, and consequent acquittal therefrom arising from the

same incident on the basis of which the departmental

17 WP NO.10789 of 2014

proceedings were held and punishment was imposed on

the respondent employee, cannot be accepted to be a

sufficient cause for condoning the delay of five years

caused in filing a complaint by the respondent employee

before the Industrial Court. The learned Industrial Court

has failed in appreciating these aspects. In no case, the

reason put forth by the respondent in justification of the

delay caused of five years in filing a complaint by him in

the Industrial Court can be said to be good and sufficient

reason. The conclusion arrived at by the Industrial

Court, therefore, cannot be sustained.

22. The decision in the case of N. Balakrishnan

( cited supra), relied upon by the respondent, may not be

of any help to take further the cause of the respondent. In

the aforesaid judgment, the Honourable Apex Court has

held that, `Normally, the superior Courts shall not disturb

the finding recorded by the trial Court if the trial Court has

recorded its satisfaction on the grounds stated for

condonation of delay as good and sufficient'. In the

instant case, the learned Industrial Court has accepted the

pendency of a criminal case to be a good and sufficient

18 WP NO.10789 of 2014

reason for condoning the delay caused in filing the

complaint by the present respondent. In view of the legal

principles enunciated and reiterated above, pendency of a

criminal case, and consequent acquittal, cannot be

accepted to be a sufficient cause. As such, the order

passed by the Industrial Court has to be set aside.

Hence, the following order:

ORDER

1) The order dated 15.4.2014, passed by the Industrial Court, Jalna, in Miscellaneous ULP Delay No.01/2012, is quashed and set aside. Consequently, the

Miscellaneous (ULP) No.1/2012 on the file of Industrial

Court at Jalna stands rejected.

In the circumstances, no order as to costs.

Rule made absolute in above terms.

(P.R.BORA)

JUDGE AGP/10789-14wp