[Cites 25, Cited by 0]

Bombay High Court

Gunaji Bhikaji Masavkar vs The Chairman, Mumbai Port Trust on 22 December, 2025

2025:BHC-OS:25945

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                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          ORDINARY ORIGINAL CIVIL JURISDICTION

                                      WRIT PETITION NO.174 OF 2009

             Gunaji Bhikaji Masavkar                                                     ....Petitioner
                  V/S
             The Chairman, Mumbai Port Trust                                             ....Respondent
                                       _________

             Mr. Jaiprakash Sawant for the Petitioner.
             Mr. Vishal Talsania with Ms. Janhavi Kandekar and Ms. Anjali
             Kotecha i/b M/s. Motiwalla & Co. for Respondent.
                                        __________

                                                 CORAM : SANDEEP V. MARNE, J.
                                                 RESERVED ON : 12 DECEMBER 2025
                                                 PRONOUNCED ON: 22 DECEMBER 2025

             J U D G M E N T:

1. By this Petition, Petitioner challenges Award dated 9 April 2008 passed by the learned Presiding Officer, Central Government Industrial Tribunal, Mumbai (CGIT) dismissing Reference No.CGIT-2/36 of 2007 (Old Reference No.CGIT-1/54 of 1997). The Reference was made in connection with punishment of dismissal imposed on the Petitioner by order 23 August 1991 as confirmed by the Appellate Authority by order dated 24 March 1992.

2. Brief facts leading to filing of the Petition are stated thus:

The Petitioner was appointed as a Mazdoor in the Docks Department of Mumbai Port Trust on 8 September 1975. On 5 February 1987, an incident of theft of film rolls from one pallet lying in Shed No.17, India Dock, Mumbai Port Trust was detected. The

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theft apparently occurred till 17 February 1987. On 17 February 1987, FIR was registered at Yellow Gate Police Station at the instance of Assistant Shed Superintendent of Mumbai Port Trust. On 6 March 1987, one workman Mr. Harishchandra Ghag was arrested by the police. Mumbai Port Trust placed Mr. Harishchandra Ghag and one Mr. Ramesh Jadhav under suspension. The Petitioner was questioned by the police on 26 June 1987 and was arraigned as an accused and arrested. By order dated 24 July 1987, Petitioner was placed under suspension with effect from 26 June 1987. While in police custody, Petitioner's confessional statement was recorded.

3. A common charge-sheet dated 29 July 1988 was issued by the Disciplinary Authority to the Petitioner and two other workers. Criminal prosecution was also launched. Petitioner denied the charges. The enquiry was conducted by Enquiry Officer nominated by the Disciplinary Authority. Several witnesses were examined. During pendency of disciplinary enquiry, the Petitioner was acquitted by the Additional Chief Metropolitan Magistrate by judgment and order dated 23 October 1989. The Enquiry Officer thereafter submitted common enquiry report dated 29 June 1990 holding that the charges were established against the charge-sheeted employees. The Disciplinary Authority issued show cause memo dated 27 July 1990 to the Petitioner and others proposing to impose the punishment of dismissal from service. Petitioner replied to the show-cause notice. By order dated 23 August 1991, the Disciplinary Authority imposed punishment of dismissal from service upon the Petitioner and two other workers. Petitioner preferred Appeal before the Appellate Authority, which was rejected by order dated 24 March 1992.

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4. At the instance of the Petitioner, the Central Government referred the dispute for adjudication to CGIT by order dated 30 June 1997. By separate order, disputes of Mr. Harishchandra Ghag and Mr. Ramesh Jadhav were also referred for adjudication. Petitioner led evidence before CGIT, which passed Part-I Award dated 29 April 1999 holding that the enquiry was not conducted in fair and proper manner and that the findings of the Enquiry Officer were perverse. The CGIT also passed Part-I Awards in respect of Mr. Ghag and Mr. Jadhav holding enquiry to be not fair and proper and findings of the Enquiry Officer to be perverse. It appears that the Respondent-Port Trust did not lead evidence justifying dismissal of Mr. Ghag and Mr. Jadhav. Therefore, CGIT passed Part-II Award dated 16 November 1998 directing their reinstatement. However, Respondent-Port Trust led evidences before CGIT to justify the dismissal of the Petitioner by examining three witnesses. In the meantime, Respondent-Port Trust challenged the orders passed by CGIT in the cases of Mr. Harishchandra Ghag and Mr. Ramesh Jadhav by filing Petitions before this Court, which were admitted. The Petitions in the cases of Mr. Ghag and Mr. Jadhav were allowed by order dated 9 February 2001 setting aside the Awards of CGIT.

5. So far as Petitioner's Reference No.54 of 1997 was concerned, CGIT passed Part-II Award dated 25 June 2001 setting aside the dismissal order and directing reinstatement of the Petitioner. Respondent-Port Trust filed Writ Petition No.3185 of 2004 challenging the Part-I Award dated 29 April 1999 and Part-II Award dated 25 June 2001 in the case of the Petitioner. By judgment and order dated 26

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June 2007, Writ Petition No.3185 of 2004 filed by Port Trust challenging the Award in case of Petitioner was partly allowed and the Reference was remanded to CGIT for fresh decision.

6. In the meantime, Mr. Jadhav and Mr. Ghag filed Appeals before Division Bench challenging orders of Single Judge setting aside the Awards passed in their case. Their Appeals were decided by judgment and order dated 13 September 2007 and the References were remanded to CGIT for fresh decision. Their References were directed to be decided alongwith Reference No.54 of 1997 in relation to the Petitioner. Accordingly, Reference proceedings in respect of all the three workers resumed before the CGIT. Petitioner's Reference was renumbered as Reference No. CGIT-2/36 of 2007. Reference of Mr. Harishchandra Ghag was renumbered as Reference No. CGIT-2/46 of 2007 and Reference of Mr. Ramesh Jadhav was renumbered as Reference No. CGIT-2/47 of 2007.

7. CGIT passed three separate Awards on 9 April 2008. In respect of Mr. Harishchandra Ghag, dismissal was set aside directing his reinstatement without back-wages. In respect of Mr. Ramesh Jadhav, dismissal was set aside directing his reinstatement without backwages. However, in case of the Petitioner, the Reference was dismissed by Award dated 9 April 2008. It appears that Awards passed in the case of Mr. Harishchandra Ghag and Mr. Ramesh Jadhav are implemented by the Respondent-Port Trust.

8. Aggrieved by the Award dated 9 April 2008, Petitioner has filed the present Petition. The Petitions were admitted by order dated 8 April 2009. The Petition is called out for final hearing.

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9. Mr. Sawant, the learned counsel appearing for the Petitioner would submit that CGIT has grossly erred in dismissing the Reference of the Petitioner while allowing the References of two similarly placed employees Mr. Harishchandra Ghag and Mr. Ramesh Jadhav. That allegations against all the three employees were identical, leaving no room for the CGIT to adopt different course of action in the case of Petitioner than the one adopted in the case of the said two employees. That taking of different view in identical circumstances exhibits perversity in the findings of CGIT.

10. Mr. Sawant would further submit that CGIT has erroneously relied upon judgment of the Apex Court in Commissioner of Police Delhi vs. Narendra Singh1, where the confessional statement was not retracted by the employee and the same had remained undisputed. In the present case, the Petitioner had emphatically denied the confessional statement forcibly recorded by the police officer for false indictment of the Petitioner. That the findings recorded by CGIT about Petitioner being a custodian of articles are perverse. That the CGIT failed to consider the evidence led by Petitioner and of witnesses of Respondent recorded before CGIT.

11. Mr. Sawant would further submit that criminal case and Departmental Enquiries were based on identical allegations and same evidence. That the Magistrate C ourt has acquitted Petitioner of same allegations. That the CGIT has not given any weightage to acquittal of the Petitioner in the Criminal Case involving same allegations. However, while deciding the cases of Mr. Harishchandra Ghag,

1 AIR 2006 SC 1800

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Mr. Ramesh Jadhav, the CGIT has considered their acquittals in the criminal cases.

12. Mr. Sawant would further submit that the CGIT has erroneously relied upon confessional statement for ruling against the Petitioner. He would rely upon judgment of Division Bench of this Court in Union of India vs. S.M. Padwal2. He also relies upon judgment of the Apex Court in Roop Singh Negi vs Punjab National Bank & Ors. 3 in support of his contention that no cognizance of pre-recorded statements or confessional statements can be taken even in a departmental enquiry. He also relies on judgment of the Apex Court in Ghurey Lal vs. State of Uttar Pradesh4 in support of his contention that Court cannot give two different treatments in cases involving similar circumstances. He relies on judgment of this Court in Chandrakant Raoji Gaonkar vs. Bombay Port Trust & ors.5 in support of his contention that honourable acquittal in criminal case on merits is a ground for setting aside punishment in Disciplinary Enquiry. Lastly, Mr. Sawant would rely upon judgment of the Apex Court in Union of India vs. H.C. Goel6 in support of his contention that the Industrial Court has erred to follow basic principles of appreciation of evidence on record. Mr. Sawant would pray for setting aside the impugned Award as well as the termination order and for grant of at least similar treatment as is meted out to Mr. Harishchandra Ghag and Mr. Ramesh Jadhav.

2 2024 SCC OnLine Bom 738 3 2009 I CLR 160 4 (2008) 10 SCC 450 5 1995 I CLR 860 6 AIR 1964 SC 364

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13. The Petition is opposed by Mr. Talsania, the learned Senior Advocate appearing for Respondent-Port Trust. He would submit that the proceedings were remanded by judgment and order dated 26 June 2007 under a limited scope that earlier award setting aside punishment of dismissal was premised only on acquittal. The remand was made for the purpose of considering the evidence which was adduced by the party. Specific liberty was given to consider evidence produced before the Enquiry Officer. That there is specific evidence of Police Sub- Inspector Mr. Thomas D'sa in proof of charges levelled against the Petitioner. That the Tribunal has rightly appreciated the evidence on record while answering the Reference in the negative. Since Part-I Award was set aside, the Tribunal was at liberty to consider evidence led in the departmental enquiry.

14. Mr. Talsania would further submit that confessional statement made before police though inadmissible in criminal proceedings, can be considered in departmental enquiry since strict rules of evidence do not apply in departmental enquiries. He would rely upon judgments in Kuldip Singh vs. State of Punjab & Ors.7, Ajit Kumar Nag vs. General Manager (PJ) Indian Oil Corporation Ltd., Haldia and Ors. 8 and Commissioner of Police, New Delhi vs. Narender Singh 9. Even otherwise, acquittal of the Petitioner is not honorable or on merits as one of the witnesses had turned hostile. Also the prosecution had not led the evidence of the Police Sub-Inspector in whose presence confessional statement was made.




7   (1996) 10 SCC 659
8   (2005) 7 SCC 764
9   (2006) 4 SCC 265






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15. So far as comparison with the cases of Mr. Harishchandra Ghag and Mr. Ramesh Jadhav is concerned, Mr Talsania would submit that the concerned Police Officer Mr. Kachare had not given adequate evidence to prove confessional statement made by Mr. Ghag. The said Sub-Inspector Mr. Kachare had made statements only in relation to other workmen without naming Mr. Ghag. That in case of Mr. Ramesh Jadhav also, Mr. Kachare had failed to adduce adequate evidence to prove his confessional statement. That therefore, the circumstances in the cases of Mr. Ghag and Mr. Jadhav are entirely distinguishable and Awards passed in their favour cannot be a reason for automatic setting aside of the Award passed in case of the Petitioner. Mr. Talsania would pray for dismissal of the Petition.

16. Rival contentions of parties now fall for my consideration.

17. As observed during the course of narration of facts, this was the second round of adjudication before CGIT which has resulted in the impugned award dated 9 April 2008. In the previous round, Petitioner had succeeded both in Part-I as well as Part-II Awards. By Part-I Award dated 29 April 1999, the enquiry was held to be not fair and proper, and findings of the Enquiry Officer were also held to be perverse. Thereafter Respondent-Port Trust led evidence of several witnesses before CGIT to justify its action of dismissal. However, by Part-II Award dated 25 June 2001, the Reference was answered in the affirmative by setting aside the punishment of dismissal. However, it is seen that the CGIT, while passing Part-II Award, was mainly influenced by the factum of Petitioner's acquittal by the Magistrate Court for directing his reinstatement. In Writ Petition No.3185 of

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2004, this Court set aside both Part-I Award dated 29 April 1999 as well as Part-II Award 25 June 2001 vide judgment and order dated 26 June 2007. It would be apposite to reproduce the relevant part of the order passed by this Court in Writ Petition No.3185 of 2004 which reads thus:

"In my view, in the present case, the CGIT has erred in coming to the conclusion that in view of the acquittal of the accused in the criminal case, the disciplinary enquiry was liable to be dropped and that since the accused was acquitted and the material which was used against the respondent in the departmental proceedings was the same material which was placed before the Criminal Court. The CGIT further erred in holding that in such circumstances, it was not open for the Disciplinary Authority to take a contrary view. It would be relevant to reproduce the exact finding of the Tribunal.

"8. It is seen from the record workman Mr.Masavkar along with nine others were charge sheeted vide 397/P of 1987 under section 380 read with 114 of Indian Penal Code and were acquitted by the Additional Chief Metropolitan Magistrate, 38th Court, Ballard Pier, Bombay on 23rd October 89. Their Lordships of the Bombay High Court in Chandrakant Raoji Gaonkar vs. Bombay Port Trust and Ors. 1995 I CLR 860, ruled that Hon'ble acquittal in the criminal case on the merits, if charges in criminal case and disciplinary proceedings are common, effect of acquittal in criminal case warrants the dropping of disciplinary inquiry. In Abdul Hakim Ahmad v. District Superintendent of Police 1978 CLR, Their Lordships of the Gujarat High Court held that on the basis of the same material and on the basis of re-appreciation of same evidence which was there before the criminal court, without anything more it is not open to the disciplinary authority to take contrary view and if this is permitted then it would render the judicial system nugatory."

In my view, the Tribunal clearly has committed an error of law which is apparent on the face of record. The Apex Court in the case of Commissioner of Police, Delhi (supra) has observed in the said judgment that the confession by an accused was admissible even in departmental proceedings. In view of the said ratio laid down by the Apex Court, in my view, CGIT ought to have taken into consideration the evidence on record and thereafter could have recorded its findings after appreciating the said statement which was recorded by the police under Section 27 of the Evidence Act. The CGIT, therefore, has erred in neglecting the statement merely because it was recorded under Section 27 of the Evidence Act. It has also erred in neglecting the evidence of Inspector who had carried out the investigation in the criminal case. In my view, therefore, the Awards Part I and Part II passed by the CGIT are liable to be set aside. The Tribunal has

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recorded a finding that the inquiry which was held was fair and proper. It has, however, proceeded to record a finding that the finding of the Enquiry Officer was perverse. This finding which has been given in Part I Award will have to be set aside. Similarly, the Part II Award also will have to be set aside. The matter will have to be remanded back to the CGIT so that it may decide the said reference on the basis of evidence which is already adduced by both the parties and which is on record and thereafter, record its findings after taking into consideration the ratio of the judgment in the case of Commissioner of Police, Delhi (supra) and Ajit Kumar Nag (supra) on merits and in accordance with law.

It is clarified that both the parties will not be permitted to lead any further evidence and that the Presiding Officer, CGIT, shall decide the said issues on the material which is already on record. It is clarified that CGIt shall also take into consideration the evidence which has been held in the inquiry before the Disciplinary Authority. Since the evidence is already on record and the parties are not permitted to lead any further evidence, the CGIT shall decide the said issues."

18. Thus, while setting aside Part-I Award dated 29 April 1999 and Part-II Award dated 25 June 2001, this Court permitted the Tribunal to consider the evidence even in the departmental enquiry. Parties were not permitted to lead any further evidence. Thus, when the Reference was remanded to CGIT for fresh decision, it had before it two sets of evidence viz. evidence led before Enquiry Officer as well as evidence led before the Tribunal in the first round. This Court had expressly permitted CGIT to take into consideration the evidence laid before Enquiry Officer.

19. Accordingly, the Tribunal proceeded to re-determine the issue of perversity since it was not now necessary to go into the issue of fairness in the enquiry once again. The issue of fairness in the enquiry got concluded on account of permission granted by this Court to take into consideration even evidence led before the Enquiry Officer.

20. The Tribunal accordingly considered the evidence of Sub- Inspector Mr. Thomas D'sa, who was the Investigating Officer and had

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arrested the Petitioner. He was examined before the Enquiry Officer. It would be apposite to reproduce the evidence of Mr. D'sa before the Enquiry Officer which is as under:

On 17.6.1987 the case in CR No. 81/87 was entrusted to me. At that time I was working in the Yellow Gate Police Station as PSI. During the course of investigation it was found that one Gunaji Bhikaji Masavkar, BPT employee was wanted in the said case. I made efforts to trace him at his local address in Bombay and also at his native place but he was not found. On 26.6.87 he was traced in Thane district and brought to Bombay. He was interrogated and kept under interrogation. On 27.6.87 he was placed on remand. On the same day Shri Gunaji Masavkar made voluntary statement that he alongwith Harichandra Ghag, Ashok Chavan and six others had committed theft of film rolls from 17, I.D. on 15.2.87 and that he will point out the six boxes and the shop keeper and the place where the same was sold out / kept. Accordingly, a panchnama to that effect was drawn. The accused, Shri Gunjai Masavkar led the police and panchas to one shop Mahalakshmi Steel Emporium at Bora Bazar, Fort, Bombay and asked for one Gopi. The Shop keeper then directed and pointed out a building nearby bearing no. 4/16, first floor, formerly known as King Lane (present name is M. K. Amin Marg) Masavkar then led us to the place and after checking four shops / offices stopped in front of office no. 13 and pointed out one person present in the office. When questioned, the said person gave his name as Gopal Sinha Rajput. Gopal Sinha Rajput on demand produced six cardboard boxes containing film rolls. When counted in front of the panchas it was totally 648 film rolls. The card board boxes along with the film rolls were taken charge under the panchnama. I also recorded the statement of Gopal Sinha Rajput and Shri Roshanlal Gammelmal Jain of Mahalakshmi Steel Emporium. Subsequently, I recorded the statement of Mr. Pillai of the firm who had imported the films. I also recorded the statement of Shri Gunaji Masavkar.

After the completion of the enquiry I submitted the charge th sheet in 16 Court, Ballard Pier.

I am shown copies of Panchnama dated 27.6.87 drawn by me, in two pages, statement of Shri Pillai, statement of Shri Masavkar and confirmed that the contents are correct. They are taken on record as Ex. 8, Ex. 7 and Ex. 11 shown copies of the statements of Shri G.S. Rajput and Shri R. D. Jain dated 27.6.87. I confirmed the contents of the same. They are being taken on record as Ex. 9 and Ex. 10 respectively. Miss. Kunda Samant had objected to these two documents being taken on record on the ground that the persons whose statements are stated to have been recorded by this witness have to be confirmed by the concerned persons. These two documents are, therefore, taken on record only in support of the evidence tendered by this witness.

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P.W. 10 cross-examined by Miss Kunda Samant, DC for the CSE Q.1 I put it to you that there was no complaint from BPT against CSE Shri Masavkar before you called him for interrogation. What you have to say?

A. No Q.2 I put it to you that you had not conducted panchnama (Ex. 8) in the presence of panchas and the CSE Shri Masavkar. What you have to say?

A. It is not correct Q.3 I put it to you that CSE Shri Masavkar has not made any statement in the presence of panchas. What you have to say?

A. Mr. Masavkar made a voluntary statement before the panchas and the police.

Q.4 I put it to you that accused Shri Masavkar did not lead the panchas for the police to a shop in Bora Bazar as stated by you. What you have to say?

A. It is not correct.

Q.5 I also put it to you that no property in question was collected at the instance of the CSE from Shri Gopal Sinha Rajput. What you have to say? A. Property was recovered at the instance of the CSE from Shri Rajput. Q.6 I also put it to you that you made a false panchnama against the CSE. What you have to say?

A. It is not correct.

Q.7 I put it to you that Shri G. B. Masavkar did not visit the shop of Gopalsingh Rajput prior to this incident as stated in Ex. 9. What you have to say?

A. He did not visit the shop of the receiver, Shri Rajput at the previous place.

Q.8 I put it to you that you have obtained the statement of the CSE under duress. What you have to say?

A. It is not correct.

Q.9 I put it to you that you have no evidence against the CSE except the self incriminating statement from the CSE what you have to say? A. There is sufficient evidence against the CSE other than his own statement.

Q.10 I put it to you that the CSE was attending his duties for four months after the date of the incident. What you have to say to this?

A. I am not aware of it.

Q.11 I put it to you that you have made a false case against the CSE Shri

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Masavkar. What you have to say?

A. It is not correct.

21. The CGIT has considered the said evidence of Mr. Thomas Francis D'sa in paragraph 8 of the impugned Award and has recorded following findings:

Now, as per the observations, if we peruse the findings as per the directions given by the Hon'ble High Court in Writ Petition No.3185 of 2004 and if we peruse the proceedings of the enquiry which is on the record in the form of the copy of it, we find, it is filed by Mb.P.T. at Exhibit 7. In the said enquiry, Inquiry Officer has recorded evidence of Sub-Inspector Mr. Thomas F. D'Souza who was Investing Officer in that criminal case and who arrested concerned Workman involved in the Reference. In the evidence he stated that, during the course of investigations he found that, concerned Workman with the help of other employees made efforts to commit theft of the Pallet film rolls from Shed No.17 which is situated near Gate No.17. He states that, he made efforts to trace the concerned Workman by visiting his local address and also by visiting his native place. However, he could not trace the concerned Workman. He states that on 26 th June, 1987 he traced the concerned Workman in Thane District and brought him to Mumbai and he detained him and kept him under interrogation. He states before Inquiry Officer that, on 27th June, 1987 he was placed on remand and on the same day he made voluntary statement under Section 27 of Criminal Procedure Code saying that, he along with Harishchandra Tukaram Ghag, Ashok Chavan and 6 others committed theft of Pallet film rolls from Shed No.17 on 15.2.1987 and volunteered that he will point out those boxes and the shop keeper and place of that shop to whom it was sold. Accordingly Panchnama to that effect was drawn by this Investigation officer Mr. Thomas F.D'Souza. He further states that, accused led him to one shop by name Mahalaxmi Steal Emporium at Bora Bazar, Mumbai and asked one Gopalsinha to produce the articles sold by them. Accordingly said Shop owner produced six card board boxes containing pallet film rolls when counted they were totaling to 648 film rolls. Said card board boxes alongwith film rolls were taken in to custody with the help of concerned workman and statement of Gopalsinha, Shopkeeper was recorded and afterwards a case was filed against the concerned Workman along with others. In the cross said witness before Enquiry officer stick with his deposition and case made by him. Except giving suggestions to that witness, no specific case is put up by the Defence Counsel of the concerned Workman. So from the witnesses examined before the Enquiry Officer we find this workman was involved and police were having evidence against him.

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22. Thus there was direct evidence of an eye witness who adduced evidence of Petitioner taking him to the shop-Mahalaxmi Steel Emporium at Bora Bazar, Fort, Mumbai. At Petitioner's instance, the shopkeeper took the team to a building. Petitioner showed the spot where the six cardboard boxes containing film rolls were kept.

Discovery of 648 film rolls was made at the instance of the Petitioner. Even in the cross-examination, the witness was firm in deposing that the stolen property was recovered at the instance of the Petitioner.

23. Thus there is direct evidence on record of Sub-Inspector Mr. Thomas Francis D'sa, before the Enquiry Officer, made by a panchanama prepared under Section 27 of the Indian Evidence Act, 1872, which is not admissible in evidence in criminal trial beyond the aspect of recovery. However, this rule would not apply to departmental enquiry where the test is of preponderance of probability. When an employee takes the investigating officer to the shop where the stolen property was stored for sale, the deposition of the officer can be considered in the departmental inquiry. Recovery of stolen property at the instance of the delinquent employee is sufficient to prove the charge of theft by applying the test of preponderance of probability.

24. The Industrial Tribunal has considered the evidence of Sub- Inspector Mr. Thomas Francis D'sa to be sufficient for upholding the punishment of dismissal. I do not find any element of perversity in the finding recorded either by the Enquiry Officer based on evidence before him or by the CGIT who has once again gone through the evidence on record. In exercise of jurisdiction under Article 227 of Constitution of India, this Court cannot enter into realm of re-

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appreciation of evidence. What Mr. Sawant expects me to do is to record a conclusion different than the one recorded by Enquiry Officer and by CGIT. In absence of an element of perversity in the findings recorded by the Enquiry Officer and CGIT, this Court cannot interfere in the said findings. There is some evidence on record to show that Petitioner was involved in the incident of theft. That much of evidence is sufficient to satisfy the test of preponderance of probability.

25. Petitioner strenuously relies on the acquittal order passed by the learned Magistrate. However, it is well settled position of law that mere acquittal in criminal case cannot be a reason for setting aside punishment order in disciplinary enquiry. The standard of proof in the criminal prosecution is "proof beyond reasonable doubt" whereas the standard of proof in the domestic enquiry is "preponderance of probability". In Ajit Kumar Nag (supra), the Apex Court has held that 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 Apex court held that mere acquittal by a Criminal Court would not deprive the employer from exercising power in accordance with rules and regulations enforced. Further in NOIDA Entrepreneurs Association vs. NOIDA and Ors.10, the Apex Court held that criminal prosecution is launched for an offence and for violation of a duty which the offenders owes to the society, whereas a departmental enquiry's objective is to maintain discipline in the service and efficiency of public service.

26. In Union of India and Ors vs. Dalbir Singh11, the Apex Court has surveyed the case law on the issue of distinction between the 10 (2007) 10 SCC 385 11 (2021) 11 SCC 321

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burden of proof in criminal prosecution and domestic inquiry and has held in paragraphs 24, 25 and 28 as under:

24. This Court in Ajit Kumar Nag v. Indian Oil Corpn. Ltd. [Ajit Kumar Nag v. Indian Oil Corpn. Ltd., (2005) 7 SCC 764 : 2005 SCC (L&S) 1020] held that 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. 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". It was held as under : (SCC p. 776, para 11)

"11. As far as acquittal of the appellant by a criminal court is concerned, in our opinion, the said order does not preclude the Corporation from taking an action if it is otherwise permissible. 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 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". 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 [Ajit Kumar Nag v. Indian Oil Corpn. Ltd., 2004 SCC OnLine Cal 59] dismissing him from service deserves to be quashed and set aside."

25. This Court in NOIDA Entrepreneurs Assn. v. NOIDA [(2007) 10 SCC

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385] held that 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, whereas, the departmental enquiry is to maintain discipline in the service and efficiency of public service. It was held as under : (SCC p. 392, para 11) "11. A bare perusal of the order which has been quoted in its totality goes to show that the same is not based on any rational foundation. The conceptual difference between a departmental enquiry and criminal proceedings has not been kept in view. Even orders passed by the executive have to be tested on the touchstone of reasonableness. [See Tata Cellular v. Union of India [(1994) 6 SCC 651] and Teri Oat Estates (P) Ltd. v. State (UT of Chandigarh) [(2004) 2 SCC 130].] The conceptual difference between departmental proceedings and criminal proceedings have been highlighted by this Court in several cases. Reference may be made to Kendriya Vidyalaya Sangathan v. T. Srinivas [(2004) 7 SCC 442], Hindustan Petroleum Corpn. Ltd. v. Sarvesh Berry [(2005) 10 SCC 471] and Uttaranchal RTC v. Mansaram Nainwal [(2006) 6 SCC 366].

'8. ... 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. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in the criminal cases against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. Offence generally implies infringement of public duty, as distinguished from mere private rights punishable under criminal law. When the trial for a criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Evidence Act, 1872 [in short "the Evidence Act"]. The converse is the case of departmental enquiry. The enquiry in a departmental proceedings relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. ... Under these circumstances, what is required to be seen is whether the

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departmental enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances.' [Ed. : As observed in A.P. SRTC v. Mohd. Yousuf Miya, (1997) 2 SCC 699, pp. 704-05, para 8.] "

28. The burden of proof in the departmental proceedings is not of beyond reasonable doubt as is the principle in the criminal trial but probabilities of the misconduct. The delinquent such as the writ petitioner could examine himself to rebut the allegations of misconduct including use of personal weapon. In fact, the reliance of the writ petitioner is upon a communication dated 1-5-2014 made to the Commandant through the enquiry officer. He has stated that he has not fired on higher officers and that he was out of camp at the alleged time of incident. Therefore, a false case has been made against him. His further stand is that it was a terrorist attack and terrorists have fired on the camp. None of the departmental witnesses have been even suggested about any terrorist attack or that the writ petitioner was out of camp. Constable D.K. Mishra had immobilised the writ petitioner whereas all other witnesses have seen the writ petitioner being immobilised and being removed to quarter guard. PW 5 Brij Kishore Singh deposed that 3-4 soldiers had taken the self-loading rifle ("SLR") of the writ petitioner in their possession. Therefore, the allegations in the charge-sheet dated 25-2- 2013 that the writ petitioner has fired from the official weapon is a reliable finding returned by the departmental authorities on the basis of evidence placed before them. It is not a case of no evidence, which alone would warrant interference by the High Court in exercise of power of judicial review. It is not the case of the writ petitioner that there was any infraction of any rule or regulations or the violation of the principles of natural justice. The best available evidence had been produced by the appellants in the course of enquiry conducted after long lapse of time.

27. It is also seen in the present case that the acquittal of the Petitioner in the criminal case is primarily on account of the panch witness turning hostile. The prosecution had failed to lead sufficient evidence before the Criminal Court to cross the threshold of proof beyond reasonable doubt which has resulted in acquittal of the Petitioner. In the present case however, there is direct evidence of Police Sub-Inspector proving involvement of Petitioner in the theft. Therefore, mere acquittal of the Petitioner in the criminal case is of no avail. Reliance by Petitioner on judgment of this Court in Chandrakant Raoji Gaonkar (supra) is inapposite. The law has

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developed and the Apex Court has repeatedly held that mere acquittal in the criminal case does not result in automatic setting aside of punishment in the domestic enquiry. Even otherwise, the judgment in Chandrakant Raoji Gaonkar is rendered in peculiar facts of that case where even in domestic enquiry, sufficient evidence was not found to support the punishment inflicted on the employee.

28. So far as reliance by Mr. Sawant on judgment of the Apex Court in Roop Singh Negi (supra) is concerned, the case involved reliance by the Enquiry Officer on pre-recorded statements without actual examination of any witness in the enquiry. The Apex Court referred to its decision in Union of India vs. H.C. Goel (supra) and held that there was no evidence to support the punishment in the Departmental Enquiry. The judgment is clearly distinguishable on facts as the present case involves sufficient evidence of witness examined in the enquiry establishing Petitioner's involvement in the act of theft.

29. Petitioner's reliance on judgment of Division Bench of this Court in Union of India vs. S.M. Padwal (supra) again does not assist his case. In case before the Division Bench, the Disciplinary Authority had relied on confessional statements made by other accused before Investigating Officer for proving the charge against the Respondent therein. In the present case, Petitioner's own confessional statement is relied on. However, it is not that the charge is held to be proved merely on the basis of confessional statement. There is direct evidence of the Inspector indicating involvement of Petitioner in the act of theft.

30. This takes me to the last ground strenuously pressed by Mr. Sawant of differential treatment meted out to the Petitioner as

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compared to Mr. Harishchandra Ghag and Mr. Ramesh Jadhav. I have gone through the Awards passed by CGIT in the cases of Mr. Ghag and Mr. Jadhav. No doubt, the two Awards are passed on the same day i.e. 9 April 2008, when Award in the case of Petitioner was also passed. In the case of Mr. Harishchandra Ghag and Mr. Ramesh Jadhav, the Investigating Officer was one Mr. Kachare. Mr. Thomas D'sa who had investigated Petitioner's case did not state anything about the role of Mr. Ghag and Mr. Jadhav. So far as the Investigating Officer Mr. Kachare is concerned, he did not describe the exact role of Mr. Ghag and Mr. Jadhav. Furthermore, the Petitioner had made a confessional statement before Sub Inspector Mr. Francis D'sa which was not the case of Mr. Ghag and Mr. Jadhav, who did not give any confessional statement before the Sub-Inspector Mr. Kachare. Thus, the CGIT did not find any evidence for proving charge of theft against Mr. Ghag and Mr. Jadhav. As against this, there is direct evidence in the form of confessional statement as well as specific evidence of Sub- Inspector Mr. Thomas D'sa establishing Petitioner's involvement in the act of theft. Petitioner's reliance on judgment of the Apex Court in Ghurey Lal (supra) is in apposite. The present case does not involve meting of differential treatments to two persons. Also, the ratio in Ghurey Lal dealing with a murder trial cannot be imported in relation to departmental inquiry. In the present case the evidence recorded in the case of Petitioner is totally different than the evidence produced in the case of Mr. Ghag and Mr. Jadhav.

31. It is also well settled principle that hearsay evidence is not allergic to departmental enquiries. In State of Haryana vs. Ratan

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Singh12, the Apex Court has held in paragraph 4 as under:

4. It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible.

There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case-law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. However, the courts below misdirected themselves, perhaps, in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The 'residuum' rule to which counsel for the respondent referred, based upon certain passages from American Jurisprudence does not go to that extent nor does the passage from Halsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence -- not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record. We find, in this case, that the evidence of Chamanlal, Inspector of the Flying Squad, is some evidence which has relevance to the charge levelled against the respondent. Therefore, we are unable to hold that the order is invalid on that ground.

(emphasis added)

32. In the present case, the Inspector who recorded Petitioner's statement has been examined in the domestic enquiry. There is sufficient evidence on record though the test required is only "some evidence". In Kuldip Singh vs. Commissioner of Police 13, the Apex Court has held in paragraph 10 as under:

10. A broad distinction has, therefore, to be maintained between the 12 (1977) 2 SCC 491 13 (1999) 2 SCC 10

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decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with.

(emphasis added)

33. In my view, the findings recorded by the CGIT while dismissing the Reference of the Petitioner do not warrant any interference in exercise of jurisdiction by this Court under Article 227 of Constitution of India. Petitioner's heartburn of Industrial Tribunal granting partial relief in favour of his two cohorts cannot be a reason for upsetting the finding of guilt recorded by the Enquiry Officer, which is well supported by the evidence on record. Relief granted to a colleague involved in theft due to lack of evidence in his case cannot be a reason to let off Petitioner as well by discarding the evidence available in the case of the Petitioner. Mistakes committed in not recording some evidence in the case of co-accused in the case cannot enure to the benefit of the Petitioner.

34. Consequently, I find the Award of CGIT to be unexceptionable. The Petition must fail. It is accordingly dismissed. Rule is discharged. Considering the facts and circumstances of the case, there shall be no order as to costs.

Digitally signed by SUDARSHAN SUDARSHAN RAJALINGAM (SANDEEP V. MARNE, J.) RAJALINGAM KATKAM KATKAM Date: