JUDGMENT
Shiv Narayan Dhingra, J.
1. By this writ petition, the petitioner has challenged the validity of award dated 17.4.2006, passed by the Labour Court XIX, Delhi, whereby the reference was answered against the petitioner.
2. Briefly the facts are that on 28th October, 1994, the petitioner was working as a driver with the respondent. He was caught red-handed at ISBT, selling stolen tickets of DTC in bus number 9525. He was caught and handed over to the police and an FIR was registered against him under Section 420 of the Indian Penal Code at Police Station Kashmiri Gate. The DTC dismissed the workman after disciplinary proceedings on 3.12.1998. A criminal case was also registered against the petitioner about cheating and the petitioner was acquitted in the criminal case by the order of Metropolitan Magistrate on 14.2.2002. After his acquittal, the petitioner served a demand notice dated 18.3.2002 on the respondent DTC seeking reinstatement with full back wages. On receiving no response he raised an industrial dispute which was referred for adjudication to the Labour Court in following terms:
Whether the services of Sh. Suresh Chand, s/o Sh. Dharma Singh have been terminated illegally and/or unjustifiably by the management and if so, to what sum of money as monetary relief along with consequential benefits in terms of existing laws/Govt. Notifications and to what other relief is he entitled and what directions are necessary in this respect?
3. The Labour Court, after pleadings of the parties, framed following issues:
1. Whether the enquiry proceedings against the workman were conducted in just and fair manner?(OPM)
2. Whether the termination order of the management was justified?
3. Relief in terms of reference.
4. Vide order dated 27.3.2006, the Labour Court held that the enquiry was conducted against the workman in just and fair manner and there was no perversity and answered the reference against the petitioner. The petitioner has challenged the award of the Labour Court on the grounds that; (a) in view of the acquittal of the petitioner by criminal court, the Labour Court could not have arrived at a result different from criminal court. The Labour Court should have held the dismissal of the petitioner as illegal but it did not do so; (b) that the award of the Labour Court was based on surmises and conjectures; (c) that there was no direct evidence on record to show that the workman was selling stolen tickets in the bus; (d) that the passengers to whom tickets were sold, were not examined; (e) that the findings of the enquiry officer as well as of the Labour Court were perverse and contradictory; (f)The initiation of enquiry on the same set of facts which formed part of a criminal trial, amounted to denial of hearing and proper opportunity to the petitioner and was violative of the principles of natural justice, (g) The petitioner could not have been held guilty by the Labour Court once he had been acquitted by the criminal court, (h) The departmental enquiry should have been stayed by the respondent during the pendency of the criminal trial. The petitioner relied upon G.M. Tank v. State of Gujarat 2006 SCC (L&S) 1121.
5. It is now settled law that criminal proceedings and the departmental enquiry can proceed simultaneously and a person can be held guilty in departmental proceedings even if he has been acquitted by the criminal court. The standard of proof, which is required in the criminal case is altogether different than the standard of proof required in a departmental proceedings. The Departmental Proceedings are held to take action against the erring employee in acordance with the Service Rules, while the criminal trial is held to punish an offender who has committed an offence under Penal laws. In a departmental enquiry, the enquiry officer has to weigh the probabilities and arrived at a conclusion, while in criminal trial, the proof beyond reasonable doubts is required. It is also settled law that the strict rules of Evidence Act do not apply in departmental proceedings and only broad principles of natural justice are to be followed in a departmental proceedings. What may be inadmissible in a criminal trial, can be admissible during the departmental proceedings. There is no allergy to hearsay evidence in departmental proceedings provided that the hearsay evidence is relevant and consistent with the charges. The decision in departmental proceedings can be based on some evidence which links the delinquent with the charges. The sufficiency and adequacy of the evidence cannot be subject matter of consideration by the Tribunal or the High Courts. The Tribunal and the High Courts have only to see that prima facie case was made out against the delinquent employee and the management had not been actuated with malice in taking action against the delinquent. In State of Haryana v. Rattan Singh Supreme Court held as under:
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 passengers 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 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.(para 4)
6. In Cholan Roadways Ltd. v. G. Thirugnanasambandam , Supreme Court held as under :
In Maharashtra State Board of Secondary and Higher Secondary Education v. K.S. Gandhi 5 it was held:(SCC p.748, para 37)
37. It is thus well-settled law that strict rules of the Evidence Act, and the standard of proof envisaged therein do not apply to departmental proceedings or domestic tribunal. it is open to the authorities to receive and place on record all the necessary, relevant, cogent and acceptable material facts though not proved strictly in conformity with the Evidence Act. the material must be germane and relevant to the facts in issue. In grave cases like forgery, fraud, conspiracy, misappropriation etc. seldom direct evidence would be available. Only the circumstantial evidence would furnish the proof. In our considered view inference from the evidence and circumstances must be carefully distinguished from conjectures or speculation. The mind is prone to take pleasure to adapt circumstances to one another and even in st4aining them a little to force them to form parts of one connected whole. There must be evidence direct or circumstantial to deduce necessary inferences in proof of the facts in issue. There can be no inferences unless there are objective facts, direction or circumstantial from which to infer the other fact which it is sought to establish….The standard of proof is not proof beyond reasonable doubt ‘ but’ the preponderance of probabilities tending to draw an inference that the fact must be more probable. Standard of proof cannot be put in a straitjacket formula. No mathematical formula could be laid on degree of proof. The probative value could be gauged from facts and circumstances in a given case. The standard of proof is the same both in civil cases and domestic enquiries. (Para 17).
7. The main argument of the counsel for the petitioner is that there was no eye witness of the incident. The evidence recorded during the enquiry showed that on 28th October, 1994, a call was made to the duty officer at police station that one person in the name of Suresh Chand bearing batch number 14898 have been caught, selling bogus tickets in bus number 9525 and the person was in custody of police at police post ISBT. The IO, on receiving this information, along with conductor bearing batch number 145342 and another conductor bearing batch number 21585, reached at police post. The person who had brought the petitioner to the police post did not file any written complaint. He simply handed over the petitioner to the police post. ATI M.P. Singh was called for identification of the workman. He identified and found that batch number of the workman was 14818, while he had given his batch number to the police wrongly as 14898. When he was asked as to why he gave a wrong batch number, he replied that he was under the influence of liquor, therefore, he did not know what he had done. Another witness, who appeared before the enquiry officer, told that he was posted as time keeper at Gaziabad stand of ISBT. The conductor of bus number 9525 came to him for noting the time at 6.15 pm. At about 6.30 pm, the conductor again came to him informing that some one had distributed tickets in the bus but he had not done entry in the voucher. He then went to check the bus again and found that some unpunched tickets were there in the hands of the passengers. He, along with passengers, again came to his office. In the mean while a passenger came and informed that the person who was selling the tickets was handed over to the police at police post ISBT. He went to police post and found that a person, who gave his name as Suresh Chand was handed over to police for selling stolen tickets. He told that he was working at Shahdra depot No. 1. The third witness deposed that on 28th October, 1994, ATI Sunder Singh had reached with some passengers and informed that some one had sold tickets in the bus which are unpunched. After some time, some other passengers had come and informed that the person who sold the stolen/bogus tickets has been handed over to the police. He then reached police station and found the petitioner in police custody and the petitioner was drunk at that time. One block of tickets was lying at the table at that time. The duty officer of Shahdra Depot had also reached at the police station. The petitioner was again called to police station on 31st October for identification.
8. The evidence of these witnesses sufficiently linked the petitioner with the charges. As already stated, the proof beyond reasonable doubt is not required to be seen and what is to be seen is that there was some evidence to link the petitioner with the charges. The Enquiry Officer came to conclusion that the charge against the petitioner stood proved and the Tribunal rightly came to conclusion that it was not a case of no evidence. There was sufficient evidence to show that it was the petitioner who was involved in the sale of bogus tickets.
9. The petitioner relied upon 2006(3) LLN 158 M.V. Bijlani v. Union of India and Ors. 2006 SCC (L&S) 1121, G.M. Tank v. State of Gujarat and Ors, Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and Anr. 1999 LLR 499. I find that, all these above judgments, replied upon by the petitioner, are all altogether on different footing and facts. The principles of law in respect of a domestic enquiry and criminal proceedings are well settled.
10. In JM Tank’s case(supra), the employee was hon’ble acquitted in criminal trial after recording of entire evidence. The evidence produced before the Criminal trial and before the enquirjy officer was similar. Under these circumstances, the Supreme Court has observed that findings given by the enquiry officer contrary to the one given by the criminal court in such cases, was unjust, unfair and oppressive. However, in the present case a perusal of order of the MM would show that the evidence of the prosecution was closed by the MM because no one appeared on behalf of the prosecution and the acquittal was recorded because of non production of evidence. The trial had concluded long after the incident while the enquiry was held immediately after the incident and concluded in short time. The entire evidence was recorded by the enquiry officer, while no evidence was produced before the criminal trial. The findings of the criminal court were given on the basis of not recording evidence, will not affect the result of enquiry.
11. In 2006(3) LLN 158 M.V. Bijlani v. UOI (supra), there was no charge agains the delinquent about mis appropriation of 4 KS of telegraphic cable wire. The charge was for non maintence of ACE * registers. The disciplinary authority proceeded against the mis-utilization of the amout of cable wires after receipt of the report from CBI(Anti Corruption Bureau). The Supreme Court observed that the appellant should have been charged for mis-utilization of the store he had handled if he was to be departmentally proceeded against on that basis. The Enquiry Officer proceeded as if in departmental enquiry, the appellant was charged with misappropriation of the property. The Supreme Court held that the evidence recorded by the enquiry officer and inference drawn by him, were not commensurate with the charges and, therefore, allowed the appeal. The Supreme Court observed as under:
It is true that the jurisdiction of the Court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e. beyond all reasonable doubts, we cannot lose sight of the fact that the enquiry officer performs a quasi judicial function, who upon analyzing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the chargers on the basis of material on record. While doings so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with. (para 25)
The report of the enquiry officer suffers from the aforementioned vices. The orders of the disciplinary authority as also the appellate authority which are based on the said enquiry report, thus, cannot be sustained. We have also noticed the way in which the Tribunal has dealt with the matter. Upon its findings the High Court also commented that it has not delved deep into the contentions raised by the appellant. The Tribunal also, thus, failed to discharge its functions properly. ( para 26)
12. In 1999 LLR 499, the Supreme Court held that there was no bar that conduct of simultaneous two proceedings, one by way of disciplinary proceedings and other in criminal court. But if the facts and evidence in both the proceedings are same and the charge in criminal case against the delinquent of grave nature which involved complicated questions of law and facts, it would be desirable to stay the departmental proceedings till the conclusion of criminal case. It is note worthy that in the present case, the petitioner did not challenge the findings of the enquiry officer or his dismissal from service soon after the action of the disciplinary authority. He was removed from service on 3.12.1998 after enquiry and he raised an industrial dispute after March, 2002, after the pronouncement of acquittal order. At no stage, he had prayed the court for stay of the proceedings. If he was aggrieved by non staying of the proceedings by the enquiry officer, he was at liberty to approach the court at that stage. Even after his dismissal, he had not raised this dispute and slept over the matter. He only wanted to take benefit of the acquittal made by the criminal court in criminal case. This acquittal was not a clear cut exoneration of the petitioner since the criminal court acquitted him for want for evidence and not on merits. I find this case is not applicable in the facts and circumstances of the present case.
13. In view of my above discussion, I find no force in the writ petition. The writ petition is hereby dismissed.