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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE CIVIL JURISDICTION
WRIT PETITION NO. 3406 OF 1997
Mr. A. S. Manjrekar .... Petitioner
vs
Bombay Port Trust & anr. .... Respondents
Mr. K.P. Anilkumar for the petitioner.
Mr. R. S. Pai a/with Mr.Parag Khandhar i/by M/s.Mulla & Mulla for the
respondents.
CORAM: ANOOP V. MOHTA, J.
DATE : 7th June, 2010
JUDGMENT:
1 The petitioner has challenged the Awards dated 12.03.1996 (Part I) and
15.07.1996 (Part II) by respondent no.2, whereby the action of the
respondent/Bombay Port Trust in dismissing the petitioner from service with
effect from 08.01.1990 after due inquiry was upheld. By order dated 08.08.1997,
this Court has admitted the matter and expedited the hearing.
2 The matter is called out from the final hearing board.
3 Heard the parties and taken note of written submissions filed by them.
4 The petitioner was working as watchman since 14.10.1982. On
06.07.1998 when he was on duty, the police arrested as he was in unauthorised
possession of one oil tin. The said oil tin was marked “Refined oil-United States of
America”. He was arrested and released on bail and ultimately the Metropolitan
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Magistrate acquitted the petitioner under Section 381 of the Indian Penal Code
(IPC) along with one Mr.Laxman Bhimji Das, the Superintendent of BPT by order
dated 10.02.1989.
5 In view of Regulation 7.3 of the BPT Employees (CCA) Rules &
Regulations, 1976 vide Order dated 19.07.1989 though earlier suspension order
was withdrawn and he was permitted to resume working with effect from
20.03.1989. The respondent/Trust issued a charge-sheet dated 07.03.1989
having charges of similar nature along with others. The alleged misconduct falls
under Regulation 22(2) (b) of the BPT Rules and it also violates Regulation 3.1 of
the BPT Regulations, 1976 for lacking integrity and devotion to duty. As reply
dated 13.04.1989 was not satisfactory, a departmental inquiry was held. The
inquiry was commenced on 24.05.1989 and completed on 10.08.1989. The
inquiry report found the petitioner guilty. Therefore, a show cause notice dated
5.10.1989 was issued proposing the penalty of dismissal. The petitioner resisted
and denied the same by letter dated 18.11.1989. However, considering the
material available on record read with the evidence, by order dated 01.01.1990
the petitioner was dismissed from the service. The Appeal was also dismissed by
the Appellate Authority on 07.12.1990.
6 An industrial dispute was raised and referred by the Government of India,
Ministry of Labour, for adjudication of Central Government Industrial Tribunal
No.2. An Award dated 12.03.1996 (Part I) was passed. It was held that the
departmental inquiry was in accordance with the law and did not suffer from any
breach of principles of natural justice. Thereafter the Award dated 15.07.1996
(Part II) was passed and thereby maintained the order of dismissal by holding it to
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be just, legal and proper.
7 The main submission raised by the learned counsel for the petitioner by
relying on various judgments and basically contended that on similar charges the
action of dismissal is illegal, perverse and bad in law as the learned Magistrate has
acquitted the petitioner on similar charges. The inquiry was not in accordance
with law and the principles of natural justice.
8 The respondent/Trust has supported the impugned Awards on all counts
and made their submissions based upon the various Authorities.
(a) The Apex Court in Commissioner of Police, New Delhi vs. Narender Sing
[ 2006 (109) FLR 852 ] has considered the scope of judicial review in respect of
punishment imposed on an employee, held thus:
“It is now well settled by reason of a catena of decisions of this Court that if
an employee has been acquitted of a criminal charge, the same by itself would not
be a ground not to initiate a departmental proceeding against him or to drop the
same in the event an order of acquittal is passed …”
(b) In the Management of West Bokaro Colliery of M/s. TISCO Ltd. vs. The
concerned Workman, Ram Pravesh Singh, [AIR 2008 SC 1162 ], the Apex
Court has again concerned the scope of disciplinary proceedings as against
acquittal in a criminal proceeding and held thus:
“… It has repeatedly been held by this Court that the acquittal in a
criminal case would not operate as a bar for drawing up of a disciplinary
proceeding against a delinquent. It is well settled principle of law that yardstick
and standard of proof in a criminal case is different from the one in disciplinary
proceedings. While the standard of proof in a criminal case is proof beyond all
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reasonable doubt, the standard of proof in a departmental proceeding is
preponderance of probabilities.”
(c ) In Usha Breco Mazdoor Sangh vs. Management of Usha Breco Ltd.
[ (2008) 5 SCC 554 ], the Apex Court has observed as under:
“In a departmental proceeding, standard of proof is not that misconduct
must be proved beyond all reasonable doubt but standard of proof is as to
whether the test of preponderance of probability has been met. …….”
(d )
In Noida Entrepreneurs Association vs. Noida & Ors. [ (2007) 10 SCC
385], the Apex Court held that “the standard of proof required in the
departmental proceeding is not the same as required to prove a criminal charge
and even if there is an acquittal in the criminal proceedings the same does not bar
departmental proceedings….”
(e) In Workmen of Balmadies Estates vs. Management of Balmadies
Estates, [(2008) 4 SCC 517], the Apex Court again held as under:
” …. The assessment of evidence in a domestic enquiry is not required to
be made by applying the same yardstick as a civil court could do when a lis is
brought before it. The Evidence Act, 1872 is not applicable to the proceeding in a
domestic enquiry so far as the domestic enquiries are concerned, though the
principles of fairness are to apply. It is also fairly well settled that in a domestic
enquiry guilty may not be established beyond reasonable doubt and the proof of
misconduct would be sufficient. In a domestic enquiry all materials which are
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logically probative including hearsay evidence can be acted upon provided it has a
reasonable nexus and credibility.”
(f ) Similarly, in Manager, Reserve Bank of India, Bangalore vs. S. Mani &
ors. [2005 II LLJ 258], the Apex Court considered the effect of acquittal in a
criminal case and held that merely acquittal of an employee in a criminal case
would not entitle him for reinstatement.
9 It is clear from the above that (a) merely because an employee has been
acquitted of a criminal charge, that would not debar the employer to initiate or
continue a departmental proceeding and/or to drop the charges so levelled in the
event an order of acquittal is passed, (b) the standard of proof in a criminal case
can be based upon principle of “beyond all reasonable doubt”, (c) the standard of
proof is required in departmental proceeding is not the same as required to prove
a criminal charge; (d) If there is a acquittal in a criminal case the same does not
mean that the departmental proceeding so initiated should be dropped; (e) the
criminal proceeding as well as departmental proceeding can run together; (f)
The assessment of evidence in a domestic enquiry may not be strict as per Civil
Court. The Evidence Act, 1872 is not applicable to the proceeding in a domestic
enquiry though the governing principle of fairness and the natural justice just
cannot be overlooked. The relevant material and the evidence available on
record need to be taken note of in the domestic enquiry having reasonable nexus
and credibility including the hearsay evidence if available and (g) Merely because
there is acquittal order in a criminal case, that itself would not entitle the
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employee the order of re-instatement in each and every matter. It also depends
upon the facts and circumstances of the case. The order passed in criminal
proceeding may be taken note of in the departmental proceeding, but that itself is
not sufficient to dismiss the departmental proceeding and/or not to take action
based upon the charges so levelled if it falls within the ambit of respective service
conditions.
10 The reliance was placed on the judgments of M. Paul Anthony (Capt.) v.
Bharat Gold Mines Ltd. & anr., 1999 I CLR 1032; Ramkrishna Shivram Gadekar
v. Board of Trustees of the Port of Mumbai & anr., 2009 II CLR 866; Borosil Glass
Works Ltd. vs. M.G./Chjitala & Richard M. D’souza, 1974 LLJ 184 and Jaywant
Bhaskar Sawant vs. Board of Trustees of the Port of Bombay & ors., 1994 II CLR
737. The facts and circumstances in all the above cases are totally different and
distinguishable specially in view of above Supreme Court’s finding as recorded
above.
11 The Supreme Court judgments so relied by the learned counsel for the
respondents were not available and were considered in subsequent judgments of
this Court. It is clear that once there is an order of acquittal based upon the
similar charges, it is necessary for the Enquiry Officer to take note of relevant
factors before dealing with the similar charges again and/or while passing the
order against the same employee, but subject to service conditions. The employer,
if not debarred from continuing with the departmental enquiry and/or is not
under obligation to drop the proceeding and/or reinstate such employee
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immediately after acquittal order and specially considering the facts and
circumstances of the case and looking to the nature of charges so levelled and as
in the present case, after holding due inquiry, by following the principles of
natural justice, if the petitioner found to be guilty as charges were prov ed and as
those amount to misconduct falls within the ambit of the service conditions so
referred above, the submissions so raised by the learned counsel for the petitioner,
are unacceptable as after going through the charges so raised and the reasoning
so recorded by the Enquiry Officer and by the Presiding Officer in both these
Awards and as there is no perversity and there is no illegality, the Awards so
passed, in my view, in the present facts and circumstances are well within the
frame work of law and the record and need no interference.
12 This Court, under Articles 226/227 of the Constitution of India is not
sitting as an Appellate Court and/or to review the order of acquittal pqassed by
the Magistrate. The Court needs to consider, whether action taken by the
respondent/Trust is well within the frame work of respective service conditions
and the principles of natural justice. If it found the case against the petitioner and
in favour of the respondent and specially the Tribunal Member has considered
even the order of acquittal and passed the order and maintained the order of
dismissal, the submission that the writ Court bound to set aside the order of
dismissal is unacceptable though the acquittal order was not challenged by the
respondent/Trust.
13 The well reasoned order given by the Inquiry Officer on 26.09.1989 by
holding that Charge No.1 against the petitioner/worker was proved and further
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report is not perverse and maintained the dismissal action of the Trust. The
relevant observation, apart from the FIR and/or failure to prove the panchanama
as panch witness turned hostile to the prosecution and thereby the prosecution
unbale to corroborate only the relevant witness P.W. 3-Ashok, referring to a
Circular of the Trust based upon the conditions dated 6.7.1987, is as under:
“17 .. It clearly speaks out that even if the cargo or any
other property and/or any other material belonging to and/or in the
custody of the port trust is found lying in abandoned condition,
intact or loose it should not be touched for shifting from one place to
another place for the purpose of safe storage prior to lodgment of a
complaint with the police. It is further observed that contravention
of the above stipulation shall be charged for violation of the order
and or for contending the theft of the cargo from the docks. It is
tried to suggest that this circular was not brought to the notice of
security department. No doubt there is no endorsement that it is
sent to the security department. But it can be seen that this circular
is important one. It was sent to shed superintendent staff offices
having 200 copies for distribution. That clearly goes to show that it
must have been sent to the security department or even if not sent
they are widely published on the notice boards and the worker must
be aware of this type of circulars. As this is so there was no reason
for the worker to touch the tin which was according to him thrown
by unknown person and ran away.
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18 It is tried to submit that from the testimony of Das it
reveals that many of the tins were already taken away by the
consignee. It means they are available in the market. From the
marking of the tin it reveals that the tins were not for sale. Not only
that it is not the case of the worker that he purchased the tin from a
particular shop. He was found in possession of that tin in the
premises of the BPT. That speaks against the worker. The tin was
not found at its proper place where other consignment was lying.
That itself goes to show that it was removed by somebody. It am not
here to decide whether there was a theft or not. But the fact
remains that the tin was in possession of the worker which is
contrary to the circular issued by the BPT. Further from that
testimony of Ashok Raorane it has to be said that the tin was in the
bag of the worker and was from the shed of the BPT.”
14 In the impugned order, the learned Judge has taken note of the order of
acquittal so relied upon and dealt with the aspects in detail. Even otherwise, once
the departmental inquiry is conducted in accordance with law and the reasoning
supports the case of respondent/Trust that the petitioner is guilty of charges and
that amounts to misconduct as contemplated under the Service Conditions and,
therefore, the punishment so imposed as per the service conditions just cannot be
set aside after so many years merely because there was acquittal order passed by
the Magistrate specially in the present facts and circumstances of the case as the
learned Judge has even considered those aspects in detail. The Court cannot
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compel the employer to continue such employees against whom, after holding
due inquiry, they able to prove the charges independently and irrespective of the
criminal proceedings. If both the proceeding can run together, it also means the
different and respective principles of assessments of evidence and material apply
and if, after due inquiry, the employer in view of the departmental inquiry report
uses discretion and take action of dismissal of such employee within the frame
work of service conditions, I see there is no reason that Court should interfere
with the same as there is no case of perversity and/or any illegality. In such
circumstances. The scope of judicial review is quite limited and restricted.
Therefore, in my view, there is no case of interference.
15 In view of above, the Petition is dismissed. No order as to costs.
(ANOOP V. MOHTA, J.)
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