[Cites 12, Cited by 0]
Bombay High Court
Shri Babasaheb Rayappa Waghmare vs The Chairman, Mumbai Port Trusts on 27 March, 2026
Author: Amit Borkar
Bench: Amit Borkar
2026:BHC-AS:14698
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Shabnoor
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.1778 OF 2018
Babasaheb Rayappa
Waghmare, Age 55 yrs,
Occ. At present Nil, R/o. Astha,
Tal. Walwa, Dist. Sangli. ... Petitioner
V/s.
The Chairman,
Mumbai Port Trusts, Mumbai - 38. ... Respondent
SHABNOOR Mr. S. A. Rajeshirke for the Petitioner.
AYUB
PATHAN
Digitally signed by
SHABNOOR AYUB
Mr. Dhruva Gandhi a/w Mr. Dheer Sampat i/b M. V.
PATHAN
Date: 2026.03.27
11:42:47 +0530
Kini & Co., for the Respondent (MBPT).
CORAM : AMIT BORKAR, J.
DATED : MARCH 7, 2026
DATED : MARCH 27, 2026
JUDGMENT:
1. The present Petition is instituted under Article 227 of the
Constitution of India, whereby the Petitioner seeks to challenge the
Judgment and Award (Part I) dated 10 February 2003 and the
Judgment and Award (Part II) dated 7 March 2007 delivered by
the Central Government Industrial Tribunal No. II at Mumbai in
Reference No. CGIT-2/29 of 2001.
2. The facts giving rise to the present Petition may be briefly
stated. The Petitioner came to be appointed on 13 July 1979 as a
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Shore Worker with Respondent No.1, namely the Mumbai Port
Trust. In the course of his employment the Petitioner was classified
as an "A" Category Shore Worker. By the year 1994 he was working
as Shore Worker I/C No. 2084. It is the case of the Petitioner that
his service record until the alleged incident was without blemish
and no disciplinary proceedings had ever been initiated against
him. At the relevant time the Petitioner was residing with his wife
and two school-going children who were dependent upon his
income. On 14 February 1994 the Petitioner was assigned duty at
the New Sewree Warehouse during the second shift between 4:00
p.m. and 12:00 midnight.
3. According to Respondent No.1, at about 6:30 p.m. Security
Guard No.729, Shri Prakash Mahadev Sawant (PW-1), allegedly
noticed the Petitioner in an open area near the chowky situated on
the western side of the New Sewree Warehouse. It is alleged that
the Petitioner was carrying a chocolate coloured leather handbag
and was moving in a suspicious manner. Upon enquiry Shri Sawant
is stated to have asked the Petitioner to disclose the contents of the
bag, which according to the Respondent the Petitioner did not do.
Shri Sawant thereafter called another security guard, Shri Balu
Gangaram Dedhe, Security Guard No.815. Upon examination of
the bag it was allegedly found that four electronic parts were
contained therein. Shri Sawant then escorted the Petitioner along
with the said articles to the Shed Superintendent, Shri Hotu
Basantlal Pahuja, who in turn reported the incident to the Shivdi
Police Station. It is further the case of the Respondent that police
officials arrived at the shed on the same day and recorded the
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statement of Shri Prakash Mahadev Sawant. On the basis of the
said statement a First Information Report bearing C.R. No.26 of
1994 was registered at Shivdi Police Station at about 8:45 p.m. on
14 February 1994 for an alleged offence punishable under Section
379 of the Indian Penal Code against the Petitioner. The police
authorities thereafter conducted a panchnama in the shed between
8:00 p.m. and 8:30 p.m. in the presence of two panch witnesses,
namely Shri Sameer Ramchandra Pradhan and Shri Vijay Laxman
Mahatre. According to the said panchnama four electrical parts
weighing approximately two kilograms and valued at about
Rs.4,000/- were allegedly recovered from the bag found near the
Petitioner. Statements of Shri B.G. Dedhe, Security Guard Buckle
No.815, and Shri Basantlal Pahuja, Shed Superintendent, Dock
Department, Mumbai Port Trust, were also recorded by the police
authorities. The Petitioner thereafter came to be arrested and
taken into custody. On 15 February 1994 the Petitioner was
released on bail. On the following day, namely 16 February 1994,
although no formal order of suspension was issued, the Petitioner
was not permitted to mark his presence card and was prevented
from attending to his duties. After a period of approximately sixty
two days the presence card of the Petitioner was restored and he
was allowed to resume his work as a Shore Worker.
4. In consequence of the said First Information Report, Criminal
Case No.218 of 1994 came to be instituted before the Court of the
Metropolitan Magistrate at Dadar, Mumbai. On 8 November 1994
a charge was framed against the Petitioner in the said criminal
proceedings. Between the years 1994 and 1998 no departmental
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action was initiated against the Petitioner, it being considered that
the allegations in the criminal prosecution and the contemplated
disciplinary action arose from the same factual background.
During this period the Petitioner continued to perform his duties.
However, on 10 February 1998, when the criminal trial had
reached an advanced stage, Respondent No.1 initiated
departmental proceedings by issuing a Charge Memo accompanied
by a Statement of Imputations, Articles of Charge, a list of seven
witnesses and a list of five documents. The documents included
statements of three witnesses, the First Information Report and the
panchnama. The Petitioner was called upon to submit his
explanation. On 16 February 1998 the Petitioner submitted his
written explanation denying the allegations. Thereafter, on 9 April
1998, Shri D.N. Daithankar was appointed as the Enquiry Officer
to conduct the departmental enquiry. At the first sitting of the
enquiry held on 8 May 1998 the Enquiry Officer placed on record
various documents including the Charge Memo, the Petitioner's
reply dated 16 February 1998 and the documents referred to in the
charge sheet. The enquiry proceedings thereafter continued
between 6 June 1998 and 14 July 1998. The Respondent relied
substantially upon the same material which had formed the basis
of the criminal prosecution, namely the police statements of Shri
Sawant, Shri Dedhe and Shri Pahuja recorded on 14 February
1994. During the course of cross-examination, Shri Basantlal
Pahuja produced an additional document described as a report
dated 14 February 1998. The said document had not been
included in the charge memo and was stated to be inconsistent
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with his earlier statement as well as the evidence of other
witnesses. He also produced Time Rate Labour Form No.0112/65
dated 14 February 1994. The Petitioner raised objections regarding
the admissibility of these documents on the ground that they were
not part of the original charge sheet. The Enquiry Officer
nevertheless permitted the documents to be taken on record while
reserving the question of admissibility for consideration at a later
stage. Evidence was also led during the enquiry by the
Investigating Officer Shri P.B. Yadav, Constable Uttam Kharat and
the panch witness Shri Vijay Mahatre.
5. In the meantime, on 22 July 1998, the learned Metropolitan
Magistrate, 13th Court, Dadar, Mumbai, acquitted the Petitioner in
Criminal Case No.218 of 1994. The learned trial court recorded
that there were serious material contradictions in the testimony of
the witnesses examined by the prosecution. It was further observed
that the ownership and source of the alleged goods had not been
established and that all the witnesses examined were employees of
the Mumbai Port Trust. The learned Magistrate also recorded that
the possibility of false implication could not be ruled out and
consequently held that the prosecution had failed to prove the
guilt of the Petitioner beyond reasonable doubt. Thereafter, on 24
July 1998, the Petitioner entered the witness box in the
departmental enquiry and led evidence in support of his defence.
The Petitioner also relied upon the Judgment and Order dated 22
July 1998 passed by the learned Trial Court acquitting him on the
same set of evidence. However, on 15 September 1998 the Enquiry
Officer submitted his report holding that the charges levelled
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against the Petitioner stood proved. The Enquiry Officer further
observed that the acquittal in the criminal case would not operate
as a bar to the continuation of the disciplinary proceedings.
Subsequently, on 12 November 1998, the Deputy Manager
(Hamallage Dock Department), Mumbai Port Trust issued a show
cause notice proposing the penalty of dismissal and calling upon
the Petitioner to submit his representation. On 27 November 1998
the Petitioner submitted a detailed representation opposing the
proposed penalty. In the said representation the Petitioner
contended that the findings recorded by the Enquiry Officer were
perverse and contrary to the conclusions recorded by the criminal
court on the same set of evidence. The Petitioner further pointed
out that the prosecution had failed to identify the owner of the
alleged materials and that no evidence had been produced to
establish that the alleged articles formed part of any goods
belonging to the establishment. Notwithstanding these
contentions, by an order dated 18 December 1998 the Deputy
Manager (Hamallage), in exercise of powers under Regulation 10
of the Mumbai Port Trust Employees' (Classification, Control and
Appeal) Regulations, 1976, imposed the penalty of dismissal from
service with immediate effect.
6. Being aggrieved by the said order, the Petitioner preferred a
departmental appeal which came to be rejected on 13 April 1999
by the Traffic Manager acting as the Appellate Authority under
Regulations 21 and 22 of the said Regulations. The Appellate
Authority held that the acquittal recorded by the criminal court
was on the ground of benefit of doubt and further observed that
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the departmental witnesses had stated that the alleged stolen
articles were found in the bag of the Petitioner. Thereafter the
Petitioner preferred a Review Application which came to be
rejected on 4 August 1999 by the Chairman of the Mumbai Port
Trust under Regulation 28 of the said Regulations. Subsequently,
on 4 April 2001, at the instance of the Petitioner, the Transport and
Dock Workers Union raised an industrial dispute concerning the
legality of the dismissal. The conciliation proceedings before the
Assistant Labour Commissioner, Mumbai, failed and a Failure
Report was submitted. The Ministry of Labour, Government of
India thereafter referred the dispute for adjudication to the Central
Government Industrial Tribunal No. II at Mumbai, where it came
to be registered as Reference No. CGIT-2/29 of 2001.
7. By Judgment and Award (Part I) dated 10 February 2003 the
learned Tribunal held that the domestic enquiry had been
conducted in accordance with the principles of natural justice and
that the findings recorded by the Enquiry Officer could not be said
to be perverse. The Tribunal further held that no prejudice had
been caused to the Petitioner by the production of documents
during cross-examination as the Petitioner had been afforded an
opportunity to cross-examine the witnesses. The Tribunal also
observed that the delay in initiating the departmental proceedings
was attributable to investigation regarding the alleged theft of
trust property and the possible involvement of several employees.
Thereafter, by Judgment and Award (Part II) dated 7 March 2007,
the learned Tribunal rejected the reference and held that the
punishment of dismissal imposed upon the Petitioner did not
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warrant interference. The Petitioner asserts that the dismissal from
service on the allegation of theft caused grave prejudice to his life
and reputation. It is stated that the stigma and financial hardship
resulting from the dismissal compelled his school-going children,
two of whom were studying in the S.S.C. Board, to discontinue
their education. The Petitioner's family is stated to have suffered
severe emotional distress during this period and his mother passed
away. Ultimately the Petitioner was constrained to leave Mumbai
and return to his native village. Being aggrieved by the aforesaid
Awards, the Petitioner has approached this Court by way of the
present Petition.
8. Mr. Rajeshirke learned Advocate appearing for the Petitioner
contends that the issuance of the charge sheet and the initiation of
departmental proceedings after a delay of nearly four years from
the date of the alleged incident is arbitrary, unreasonable and
actuated by mala fides. It is submitted that the very allegations
which formed the basis of the disciplinary proceedings were also
the subject matter of the criminal prosecution and were founded
upon the same set of evidence. In the said criminal proceedings,
the learned Metropolitan Magistrate acquitted the Petitioner upon
recording a finding that the possibility of false implication of the
Petitioner could not be ruled out. It is further submitted that when
the criminal trial had reached its concluding stage and it became
apparent that the prosecution case was unlikely to succeed, the
Respondent, in an attempt to overcome the deficiencies in the
prosecution case, initiated departmental proceedings after an
unexplained and inordinate delay of four years. The Petitioner
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further submits that even during the course of the enquiry
proceedings, the Respondent sought to rely upon a purported
report dated 14 February 1994 allegedly prepared by the Deputy
Manager. According to the Petitioner, the said document was never
produced either before the Criminal Court during the course of the
trial or at the earlier stage of the departmental proceedings, and
was introduced only at a belated stage with a view to fill the
lacunae in the case of the Respondent. The Petitioner further
submits that no fair or reasonable opportunity of hearing was
afforded to him in respect of the said document. It is contended
that the document was taken on record and relied upon in
evidence without granting the Petitioner an effective opportunity
to challenge its authenticity, genuineness and evidentiary value,
thereby causing serious prejudice to his defence. The Petitioner
also submits that several witnesses examined during the enquiry
proceedings did not depose as to the source from which the
alleged four electronic parts were removed or as to the ownership
of the said articles. It is urged that the alleged misconduct forming
the foundation of the departmental proceedings was identical to
the offence alleged in the criminal prosecution, which had
culminated in the acquittal of the Petitioner. According to the
Petitioner, the Central Government Industrial Tribunal failed to
appreciate that the acquittal recorded by the learned Metropolitan
Magistrate was not merely on the basis of benefit of doubt, but
was based on a clear observation that there existed a possibility of
false implication of the Petitioner. It is therefore submitted that the
said finding ought to have been accorded due weight while
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considering the legality of the disciplinary action.
9. In support of the aforesaid contentions, the learned Advocate
for the Petitioner places reliance upon the judgment of the
Supreme Court in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd.
& Anr., (1999) 3 SCC 679, as well as the judgment of this Court in
Chandrakant Raoji Gaonkar v. Bombay Port Trust & Ors., 1995 SCC
OnLine Bom 646. It is submitted that the aforesaid decisions lay
down the principle that where the charges in the criminal
proceedings and the departmental enquiry arise out of the same
transaction and are based on identical evidence, and the employee
has been honorably acquitted by the criminal court, the
continuation of departmental proceedings or reliance upon the
same set of evidence would be unsustainable in law.
10. Per contra, Mr. Gandhi learned Advocate appearing for the
Respondent submits that the Management of the Mumbai Port
Trust opposed the claim of the workman by filing its Written
Statement before the Tribunal. It is contended that under the
applicable Service Regulations every employee is under an
obligation to perform his duties with diligence, sincerity and
honesty. It is submitted that the Petitioner was found in possession
of electronic spare parts belonging to the Port Trust valued at
approximately Rs.4,000/-, which he had allegedly attempted to
remove without authorization. In these circumstances disciplinary
proceedings were initiated against him by issuance of a charge
sheet. It is further submitted that the Inquiry Officer, upon
consideration of the documentary evidence and the oral testimony
of the witnesses, and applying the principle of preponderance of
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probabilities, arrived at a finding that the workman was guilty of
the charges levelled against him. On the basis of the findings
recorded in the enquiry report, the disciplinary authority imposed
the penalty of dismissal from service. According to the Respondent,
the findings recorded by the Inquiry Officer are founded upon the
material available on record and cannot be said to be arbitrary or
biased. It is further contended that the Petitioner was afforded
adequate opportunity to defend himself during the course of the
enquiry proceedings and that the enquiry was conducted in a fair
and proper manner in consonance with the principles of natural
justice. It is therefore submitted that the findings recorded in the
enquiry report cannot be characterised as perverse or illegal and
that the claim of the workman is devoid of merit. The Respondent
further submits that a copy of the judgment delivered in the
criminal proceedings was placed on record by the First Party. It is
submitted that a perusal of the said judgment shows that the
learned Metropolitan Magistrate had considered the evidence of
Shri Prakash N. Sawant, the Security Guard who was present at
the relevant time. The said witness deposed that the Second Party,
namely the workman, was found carrying a chocolate coloured bag
and that when he was stopped for enquiry he appeared confused,
whereupon the matter was reported to the Superintendent and the
police authorities were called. It also came on record before the
learned Magistrate that the articles in question were stored in the
godown belonging to different owners. The said witness was
unable to specify from which particular place the electronic items
were allegedly removed by the Second Party, though he stated that
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he had seen the said articles in the store house. The other witness,
Shri B.G. Dethe, who supported the testimony of Shri Prakash
Sawant regarding the possession of the articles by the Second
Party, was disbelieved by the learned Magistrate on the ground
that he was also an employee of the Mumbai Port Trust. The
learned Magistrate discarded the prosecution evidence by
observing that there was no proper panchnama and that none of
the witnesses had actually seen the accused removing the articles.
On the basis of these observations the learned Magistrate held that
the prosecution had failed to establish the guilt of the accused
beyond reasonable doubt and accordingly recorded an order of
acquittal.
11. However, it is submitted on behalf of the Respondent that
the standard of proof required in departmental proceedings is that
of preponderance of probabilities, which is materially distinct from
the strict standard of proof required in criminal trials. It is
contended that the Second Party was found in possession of the
articles in question and that the charge of misconduct stood duly
established in the departmental enquiry. Having regard to the
seriousness of the misconduct proved against the workman, it is
submitted that the punishment of dismissal cannot be regarded as
disproportionate. It is further contended that there exists no legal
prohibition against conducting departmental proceedings merely
because the criminal court has recorded an acquittal.
12. In support of the aforesaid submissions, the learned
Advocate for the Respondent places reliance upon the judgment of
the Supreme Court in Noida Entrepreneurs Association v. Noida &
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Others, (2007) 10 SCC 358, and the judgment of this Court in A.S.
Manjrekar v. Bombay Port Trust & Anr., 2010 (5) Mh.L.J. It is
submitted that the said decisions recognise the principle that
departmental proceedings may proceed independently of criminal
proceedings and that the standard of proof applicable in such
proceedings is that of preponderance of probabilities.
13. I have considered the rival submissions advanced on behalf
of the parties and have carefully examined the material placed on
record.
14. I begin by stating two legal positions which guide the entire
examination of the dispute. The first principle is that criminal
proceedings and departmental proceedings operate on different
legal standards. In a criminal prosecution the burden on the State
is very strict. The prosecution must establish the guilt of the
accused beyond reasonable doubt. Unless that high standard is
satisfied the accused cannot be convicted. In contrast, a
departmental enquiry is not governed by such a strict standard.
The enquiry authority is required only to examine whether the
charge appears to be established on the basis of preponderance of
probabilities. It means that the authority must see whether the
available material makes the allegation more probable than not.
The second principle is that an acquittal recorded by a criminal
court does not automatically put an end to disciplinary
proceedings. There can be situations where the acquittal occurs for
reasons such as witnesses turning hostile, absence of technical
evidence, or some procedural defects in the prosecution case. In
such cases the disciplinary authority may still arrive at its own
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conclusion on the basis of the material available in the enquiry.
These principles have been explained by the Supreme Court in
State of Rajasthan v. Heem Singh (2021) 12 SCC 569 and also in
State v. S. Samuthiram (2013) 1 SCC 598. In this context it is also
necessary to notice the settled legal position regarding the effect of
an acquittal in criminal proceedings upon disciplinary action. The
Supreme Court in Heem Singh has explained this position in clear
terms. The Court observed that when a criminal court records an
acquittal, that by itself does not automatically bring the
disciplinary proceedings to an end. The two proceedings operate in
different fields. Therefore, merely because the employee is
acquitted in a criminal case, it does not mean that the
departmental enquiry arising from the same incident must also
fail. The Supreme Court explained that there may be situations
where the prosecution in the criminal case fails because the
witnesses turn hostile or because the prosecution is unable to
establish the charge beyond reasonable doubt. In such cases the
criminal court may grant acquittal. However that acquittal does
not necessarily mean that the allegations were completely false.
For that reason the disciplinary authority may still examine the
conduct of the employee in departmental proceedings. In that
context the Supreme Court also referred to its earlier decision in
Southern Railway Officers Association v. Union of India (2009) 9
SCC 24. The Court clarified that the mere fact that an employee
has been acquitted in a criminal trial cannot by itself become a
ground to interfere with the punishment imposed in disciplinary
proceedings. Even an order of dismissal can legally stand despite
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such acquittal.
15. The Supreme Court also discussed what is often described in
service law as an "honourable acquittal". In S. Samuthiram the
Court explained that expressions like "honourable acquittal", "fully
exonerated" or "acquitted of blame" are not found in the Code of
Criminal Procedure or in the Penal Code. These expressions have
developed through judicial decisions. The Court observed that an
acquittal can be treated as honourable only in a situation where
the criminal court carefully examines the entire evidence and
reaches a clear conclusion that the prosecution has failed to prove
the charges. In other words, the court finds that the allegations
themselves are not established. Even in such a situation
reinstatement of the employee does not automatically follow
unless the relevant service rules specifically provide for such a
consequence. The Supreme Court also reiterated the basic
distinction between criminal proceedings and departmental
enquiries. In criminal law the burden on the prosecution is very
strict. The prosecution must prove the guilt of the accused beyond
reasonable doubt. If such strict proof is not available, the accused
must be acquitted. Departmental proceedings function on a
different footing. In such proceedings the authority is required to
see whether the charge appears probable on the basis of the
available material. This principle is often described as the test of
preponderance of probabilities. Because the standards of proof are
different, it is possible that a person may be acquitted in a criminal
case due to lack of proof beyond reasonable doubt, yet the
employer may still arrive at a conclusion of misconduct on the
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basis of the material placed before the enquiry authority. The
Supreme Court also pointed out that an acquittal in a criminal trial
may occur for various reasons. Sometimes the witnesses do not
support the prosecution. In some cases important witnesses are not
examined. In other cases there may be technical defects in the
prosecution evidence. When an acquittal results from such
circumstances it cannot be treated as a complete exoneration of
the accused. Therefore, the mere fact that an employee has been
acquitted in a criminal case does not automatically invalidate the
disciplinary action taken by the employer.
16. I, therefore, turn to the judgment of the criminal court. The
learned Metropolitan Magistrate, after conducting the trial,
examined the evidence produced by the prosecution and recorded
certain important findings. The judgment shows that there were
serious contradictions in the testimony of the prosecution
witnesses. The court also noticed that the prosecution had failed to
establish from where exactly the alleged goods were removed and
to whom those goods actually belonged. In other words the
prosecution could not demonstrate that the articles were the
property of the employer or that they had been removed from any
particular location within the premises. The learned Magistrate
further observed that there existed a possibility that the petitioner
had been falsely implicated in the incident. These observations
cannot be brushed aside as minor technical remarks. They go
directly to the core of the prosecution story. When a criminal court,
after considering the entire evidence, records such conclusions, the
acquittal cannot be treated as a mere technical acquittal. It
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indicates that the prosecution case itself suffered from
weaknesses. The authority must at least carefully examine whether
the departmental case is truly independent of the weaknesses
pointed out by the criminal court.
17. The case of the employer rests broadly on three connected
assertions. The first assertion is that the petitioner was found in
possession of certain electronic spare parts. The second assertion is
that the departmental enquiry relied upon the same witnesses
whose statements had also formed part of the criminal
prosecution. The third assertion is that the enquiry officer applied
the standard of preponderance of probabilities and concluded that
the charge of misconduct stood proved. If a worker is actually
found carrying goods belonging to the establishment without
authority, such conduct can raise suspicion and may justify
disciplinary action. If the ownership of those goods is clearly
proved and the circumstances demonstrate unauthorized removal,
an inference of misconduct may follow on the civil standard
applicable to departmental proceedings. However when the record
in the present matter is examined carefully certain important gaps
become visible. The witnesses examined before the police and
those examined during the enquiry were unable to clearly state
from which place the alleged articles were removed. They were
also unable to establish who owned those goods. The panchnama
prepared during the investigation also appears uncertain and does
not connect the articles with any specific property of the
establishment. These deficiencies were noticed by the criminal
court and formed the basis for acquittal. Despite these defects the
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enquiry officer treated the same material as sufficient to establish
guilt. This situation therefore raises two concerns which cannot be
ignored by this Court.
18. The first concern relates to delay. The alleged incident took
place in February 1994. The charge sheet initiating departmental
proceedings was issued almost four years later. Such a long delay
in initiating disciplinary action requires a explanation. It is true
that sometimes delay may occur because the employer is
conducting a detailed investigation or waiting for the outcome of
criminal proceedings. In such circumstances delay alone may not
invalidate the proceedings. However in the present case the record
does not disclose any satisfactory explanation for the long period
of inaction. Learned counsel for the petitioner argued that this
delay suggests that the employer realized the weakness of the
criminal case and therefore initiated disciplinary proceedings only
at a later stage. This Court does not attribute motives, yet the
absence of a explanation cannot be overlooked. When serious
charges are framed after many years without any justification, the
delay becomes a relevant factor while assessing the fairness of the
disciplinary action. In the present case the unexplained delay adds
to the doubts already created by the weaknesses in the evidence.
19. The second concern relates to the introduction of certain
documents during the enquiry proceedings. During cross
examination a document described as a report dated 14 February
1994 and a labour form were suddenly produced. These
documents had not been included in the original charge sheet.
They had also not been produced before the criminal court during
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the trial. They surfaced only at a later stage in the departmental
enquiry. The petitioner objected to their introduction. The
grievance of the petitioner is that he was not given a opportunity
to challenge those documents before they were relied upon by the
enquiry officer. The principle of fair hearing requires that every
material relied upon against an employee must be disclosed to
him. Only then can the employee test its authenticity, question the
witness who prepared it, and present his defence. If documents are
produced suddenly at a late stage and are treated as evidence
without giving opportunity to examine them, the fairness of the
enquiry becomes doubtful. This issue becomes even more serious
when the documents appear to address gaps which had led to the
criminal acquittal.
20. It is correct that departmental proceedings can continue even
after a criminal acquittal. The existence of that principle does not
mean that the disciplinary authority can ignore the findings of the
criminal court altogether. When the criminal court has carefully
examined the same evidence and has recorded that the
prosecution failed to establish ownership, source and involvement,
the disciplinary authority must demonstrate how the same
deficiencies are overcome in the departmental enquiry. The record
before this Court does not show any fresh evidence that connects
the alleged articles with the establishment or proves that the
petitioner had removed them from any identifiable place. The
departmental findings therefore appear to rest on the same
material that had been rejected by the criminal court.
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21. The Industrial Tribunal while upholding the enquiry relied
on two principal reasons. First, the Tribunal held that the
petitioner had the opportunity to cross examine the witnesses and
therefore no prejudice was caused by the production of documents
during cross examination. Second, the Tribunal accepted the
explanation that delay in initiating the enquiry was due to the
investigation of theft involving several employees. Upon careful
examination these reasons do not appear satisfactory. A mere
opportunity to cross examine cannot cure the prejudice caused by
late production of documents. If a document is produced suddenly
without notice the employee cannot verify its its authenticity.
22. Another aspect which requires consideration is the
proportionality of punishment. Dismissal from service is the most
severe penalty that can be imposed upon a workman. It not only
deprives him of his employment but also carries a stigma that
affects his reputation. The petitioner had served the establishment
for many years and there is nothing on record to show any prior
misconduct. When the evidence supporting the charge itself
appears doubtful and when the criminal court has already raised
the possibility of false implication, the imposition of the maximum
penalty requires convincing material. Such material is not
available in the present case.
23. After examining the entire record, the submissions of the
parties and the applicable legal principles, the findings recorded by
the criminal court are not based on a mere technical benefit of
doubt. They indicate weaknesses in the prosecution case. Those
weaknesses were not properly explained during the departmental
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enquiry. The unexplained delay and the introduction of additional
documents at a belated stage further undermined the fairness of
the enquiry. These factors together caused prejudice to the
petitioner. In these circumstances the conclusion reached in the
departmental proceedings cannot be sustained.
24. The Petitioner has stated on oath in the memo of the present
Petition that after his dismissal from service he was unable to
secure any other employment. According to the Petitioner, the
allegation of theft made against him had caused a stigma to his
name. Because of this allegation, it became difficult for him to
obtain work elsewhere. The Petitioner has further stated that due
to these circumstances he was compelled to leave Bombay and
return to his village, where he remained without regular
employment. This statement has been made on oath before the
Court and, therefore, it carries value unless it is rebutted by the
employer.
25. The Respondent employer has not produced any material
before this Court to demonstrate that the Petitioner was gainfully
employed after his dismissal. No evidence have been placed on
record to show that the Petitioner had secured any alternative
source of income during the intervening period. In these
circumstances, this Court finds no reason to disbelieve the
statement made by the Petitioner that he remained without
employment after his dismissal and that he had to return to his
native place due to the stigma attached to the allegation. The
failure of the employer to produce any contrary evidence also
supports this conclusion. Therefore, it would be appropriate to
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proceed on the footing that the Petitioner did not have gainful
employment during the intervening period after his dismissal.
26. In view of the discussion recorded hereinabove, and taking
into consideration the fact that the Petitioner has attained the age
of superannuation during the pendency of the present Petition, the
following order is passed:
(i) The Writ Petition is allowed;
(ii) The Judgment and Award (Part I) dated 10 February
2003 and the Judgment and Award (Part II) dated 7 March
2007 passed by the Central Government Industrial Tribunal
No. II, Mumbai in Reference No. CGIT-2/29 of 2001 are
quashed and set aside;
(iii) The order dated 18 December 1998 passed by the
Deputy Manager (Hamallage Dock Department), Mumbai
Port Trust, dismissing the Petitioner from service is quashed
and set aside;
(iv) In view of the fact that the Petitioner has retired during
the pendency of the Petition, reinstatement is not possible.
The Petitioner shall be deemed to have continued in service
till the date of his superannuation with continuity of service
for all purposes;
(v) The Petitioner shall be entitled to full back wages from
the date of dismissal till the date of superannuation, along
with all consequential benefits, including increments and
continuity for the purpose of pensionary and retiral benefits;
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(vi) The Respondent shall compute and pay to the
Petitioner all retiral dues, including pension, gratuity and
other admissible benefits, by treating the Petitioner as having
been in continuous service till the date of his retirement.
Arrears of back wages and retiral benefits shall be paid
within a period of twelve weeks from the date of this
judgment;
(vii) In the event, the aforesaid amounts are not paid within
the stipulated period, the same shall carry interest at the rate
of six percent per annum from the date of this judgment
until realization;
27. Rule is made absolute in the aforesaid terms. There shall be
no order as to costs.
(AMIT BORKAR, J.)
