{"id":187357,"date":"2010-06-07T00:00:00","date_gmt":"2010-06-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mr-a-s-manjrekar-vs-bombay-port-trust-anr-on-7-june-2010"},"modified":"2018-01-30T06:01:41","modified_gmt":"2018-01-30T00:31:41","slug":"mr-a-s-manjrekar-vs-bombay-port-trust-anr-on-7-june-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mr-a-s-manjrekar-vs-bombay-port-trust-anr-on-7-june-2010","title":{"rendered":"Mr. A. S. Manjrekar vs Bombay Port Trust & Anr on 7 June, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Mr. A. S. Manjrekar vs Bombay Port Trust & Anr on 7 June, 2010<\/div>\n
Bench: Anoop V.Mohta<\/div>\n
                                                 1\n\n\n\n                    IN THE  HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                                                        \n                            APPELLATE SIDE CIVIL JURISDICTION\n\n\n\n\n                                                                \n                             WRIT PETITION NO.  3406   OF 1997\n\n\n\n    Mr. A. S. Manjrekar                                          ....   Petitioner\n\n\n\n\n                                                               \n           vs\n    Bombay Port Trust & anr.                                     ....    Respondents\n\n\n\n\n                                                  \n    Mr. K.P. Anilkumar  for the petitioner.\n\n    Mr.   R.   S.   Pai   a\/with   Mr.Parag   Khandhar   i\/by   M\/s.Mulla   &   Mulla   for   the \n                                \n    respondents. \n                               \n                                                 CORAM: ANOOP V. MOHTA, J.\n\n                                                   DATE  : 7th June,  2010\n          \n\n    JUDGMENT:\n<\/pre>\n
    1      The petitioner has challenged the Awards dated 12.03.1996 (Part I) and <\/p>\n
    15.07.1996   (Part   II)   by   respondent   no.2,   whereby   the   action   of   the <\/p>\n
    respondent\/Bombay   Port   Trust   in   dismissing   the   petitioner   from   service   with <\/p>\n
    effect from 08.01.1990 after due inquiry was upheld.  By order dated 08.08.1997, <\/p>\n
    this Court has admitted the matter and expedited the hearing.\n<\/p>\n
    2      The matter is called out from the final hearing board. \n\n    3      Heard the parties and taken note of written submissions filed by them.\n\n<\/pre>\n
    4      The   petitioner   was   working   as   watchman   since   14.10.1982.     On <\/p>\n
    06.07.1998 when he was on duty, the police arrested as he was in unauthorised <\/p>\n
    possession of one oil tin.  The said oil tin was marked “Refined oil-United States of <\/p>\n
    America”.   He was arrested and released on bail and ultimately the  Metropolitan <\/p>\n
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\n                                                    2<\/span><\/p>\n
    Magistrate acquitted the petitioner under Section 381 of the Indian Penal Code <\/p>\n
    (IPC)  along with one Mr.Laxman Bhimji Das, the Superintendent of BPT by order <\/p>\n
    dated 10.02.1989.\n<\/p>\n
    5      In   view   of   Regulation   7.3   of   the   BPT   Employees   (CCA)     Rules   & <\/p>\n
    Regulations, 1976  vide Order dated 19.07.1989 though earlier suspension order <\/p>\n
    was   withdrawn   and   he   was   permitted   to   resume   working   with   effect   from <\/p>\n
    20.03.1989.     The   respondent\/Trust   issued   a   charge-sheet   dated   07.03.1989 <\/p>\n
    having charges of similar nature along with others.     The alleged misconduct falls <\/p>\n
    under Regulation 22(2) (b) of the BPT Rules and it also violates Regulation 3.1 of <\/p>\n
    the BPT Regulations, 1976 for lacking integrity and devotion to duty.   As reply <\/p>\n
    dated   13.04.1989   was   not   satisfactory,     a   departmental   inquiry   was   held.   The <\/p>\n
    inquiry   was   commenced   on   24.05.1989   and   completed   on   10.08.1989.     The <\/p>\n
    inquiry report found the petitioner guilty.   Therefore, a show cause notice dated <\/p>\n
    5.10.1989 was issued proposing the penalty of dismissal.  The petitioner resisted <\/p>\n
    and   denied   the   same   by   letter   dated   18.11.1989.     However,   considering   the <\/p>\n
    material available on record read with the evidence, by order dated 01.01.1990 <\/p>\n
    the petitioner was dismissed from the service.   The Appeal was also dismissed by <\/p>\n
    the Appellate Authority on 07.12.1990.\n<\/p>\n
    6      An industrial dispute was raised and referred by the Government of India, <\/p>\n
    Ministry of Labour, for adjudication of Central Government Industrial   Tribunal <\/p>\n
    No.2.   An Award dated 12.03.1996 (Part I)   was passed.   It was held that the <\/p>\n
    departmental inquiry was in accordance with the law and did not suffer from any <\/p>\n
    breach of principles of natural justice.   Thereafter the Award dated 15.07.1996 <\/p>\n
    (Part II) was passed and thereby maintained the order of dismissal by holding it to <\/p>\n
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\n                                                         3<\/span><\/p>\n
    be just, legal and proper.\n<\/p>\n
    7       The main submission raised by the learned counsel for the petitioner by <\/p>\n
    relying on various judgments and basically contended that on similar charges the <\/p>\n
    action of dismissal is illegal, perverse and bad in law as the learned Magistrate has <\/p>\n
    acquitted the petitioner on similar charges.   The inquiry was not in accordance <\/p>\n
    with law and the principles of natural justice.\n<\/p>\n
    8       The respondent\/Trust has supported the impugned Awards on all counts <\/p>\n
    and made their submissions based upon the various Authorities.\n<\/p>\n
    (a)     The Apex Court in Commissioner of Police, New Delhi vs. Narender Sing<\/a> <\/p>\n
    [ 2006 (109) FLR 852 ] has considered the scope of judicial review in respect of <\/p>\n
    punishment imposed on an employee, held thus:\n<\/p>\n
            “It is now well settled by reason of a catena of decisions of this Court that if <\/p>\n
    an employee has been acquitted of a criminal charge, the same by itself would not <\/p>\n
    be a ground not to initiate a departmental proceeding against him or to drop the <\/p>\n
    same in the event an order of acquittal is passed …”\n<\/p>\n
    (b)     In the Management of West Bokaro Colliery of M\/s. TISCO Ltd. vs. The <\/p>\n
    concerned   Workman,   Ram   Pravesh   Singh,   [AIR   2008   SC   1162   ],   the   Apex <\/p>\n
    Court   has   again   concerned   the   scope   of   disciplinary   proceedings   as   against <\/p>\n
    acquittal in a criminal proceeding  and held thus:\n<\/p>\n
            “…       It   has   repeatedly   been   held   by   this   Court   that   the   acquittal   in   a <\/p>\n
    criminal   case   would   not   operate   as   a   bar   for   drawing   up   of   a   disciplinary <\/p>\n
    proceeding against a delinquent.  It is well settled principle of law that yardstick <\/p>\n
    and standard of proof in a criminal case is different from the one in disciplinary <\/p>\n
    proceedings.   While the standard of proof in a criminal case is proof beyond all <\/p>\n
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\n                                                     4<\/span><\/p>\n
    reasonable   doubt,   the   standard   of   proof   in   a   departmental   proceeding   is <\/p>\n
    preponderance of probabilities.”\n<\/p>\n
    (c )    In  Usha   Breco   Mazdoor   Sangh   vs.   Management   of   Usha   Breco   Ltd.<\/a>\n<\/p>\n
    [ (2008) 5 SCC 554 ], the Apex Court has observed as under:\n<\/p>\n
            “In a departmental proceeding, standard of proof is not that misconduct <\/p>\n
    must   be   proved   beyond   all   reasonable   doubt   but   standard   of   proof   is   as   to <\/p>\n
    whether the test of preponderance of probability has been met. …….”\n<\/p>\n
    (d )<\/p>\n
            In Noida Entrepreneurs Association vs. Noida & Ors.<\/a> [ (2007) 10 SCC <\/p>\n
    385],  the   Apex   Court   held   that   “the   standard     of   proof   required   in   the <\/p>\n
    departmental proceeding is not the same as required to prove a criminal charge <\/p>\n
    and even if there is an acquittal in the criminal proceedings the same does not bar <\/p>\n
    departmental proceedings….”\n<\/p>\n
    (e)     In  Workmen   of   Balmadies   Estates   vs.   Management   of   Balmadies <\/p>\n
    Estates,<\/a> [(2008) 4 SCC 517], the Apex Court again held as under:\n<\/p>\n
            ” ….  The assessment of evidence in a domestic enquiry is not required to <\/p>\n
    be made by applying the same yardstick as a civil court could do when a lis is <\/p>\n
    brought before it.  The Evidence Act, 1872 is not applicable to the proceeding in a <\/p>\n
    domestic   enquiry   so   far   as   the   domestic   enquiries   are   concerned,   though   the <\/p>\n
    principles of fairness are to apply.  It is also fairly well settled that in a domestic <\/p>\n
    enquiry guilty may not be established beyond reasonable doubt and the proof of <\/p>\n
    misconduct would be sufficient.   In a domestic enquiry all materials which are <\/p>\n
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\n                                                        5<\/span><\/p>\n
    logically probative including hearsay evidence can be acted upon provided it has a <\/p>\n
    reasonable nexus and credibility.”\n<\/p>\n
    (f )    Similarly, in  Manager, Reserve Bank of India, Bangalore vs. S. Mani & <\/p>\n
    ors.<\/a> [2005 II LLJ   258],  the Apex Court considered the effect of acquittal in a <\/p>\n
    criminal case and held that merely acquittal of an employee in a criminal case <\/p>\n
    would not entitle him for reinstatement.\n<\/p>\n
    9       It is clear from the above that  (a) merely because an employee has been <\/p>\n
    acquitted of a criminal charge, that would not debar the employer to initiate or <\/p>\n
    continue a departmental proceeding and\/or to drop the charges so levelled in the <\/p>\n
    event an order of acquittal is passed, (b) the standard of proof in a criminal case <\/p>\n
    can be based upon principle of  “beyond all reasonable doubt”, (c) the standard of <\/p>\n
    proof is required in departmental proceeding is not the same as required to prove <\/p>\n
    a criminal charge; (d) If there is a acquittal in a criminal case the same does not <\/p>\n
    mean that the departmental proceeding so initiated should be dropped; (e) the <\/p>\n
    criminal proceeding as well as departmental proceeding can run together;     (f) <\/p>\n
    The assessment of evidence in a domestic enquiry may not be strict as per Civil <\/p>\n
    Court.  The Evidence Act, 1872 is not applicable to the proceeding in a domestic <\/p>\n
    enquiry  though   the  governing  principle   of   fairness and   the   natural   justice  just <\/p>\n
    cannot  be   overlooked.        The   relevant  material   and   the   evidence   available  on <\/p>\n
    record need to be taken note of in the domestic enquiry having reasonable nexus <\/p>\n
    and credibility including the hearsay evidence if available and (g) Merely because <\/p>\n
    there   is   acquittal   order   in   a   criminal   case,   that   itself   would   not   entitle   the <\/p>\n
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\n                                                    6<\/span><\/p>\n
    employee the order of re-instatement in each and every matter.   It also depends <\/p>\n
    upon the facts and circumstances of the case.       The order passed in criminal <\/p>\n
    proceeding may be taken note of in the departmental proceeding, but that itself is <\/p>\n
    not sufficient to dismiss the departmental proceeding and\/or not to take action <\/p>\n
    based upon the charges so levelled if it falls within the ambit of respective service <\/p>\n
    conditions.\n<\/p>\n
    10     The reliance was placed on the judgments of  M. Paul Anthony (Capt.) v.\n<\/p>\n
    Bharat Gold Mines Ltd. & anr., 1999 I CLR 1032;   Ramkrishna Shivram Gadekar <\/p>\n
    v. Board of Trustees of the Port of Mumbai &<\/a> anr., 2009 II CLR 866; Borosil Glass <\/p>\n
    Works Ltd. vs. M.G.\/Chjitala & Richard M. D’souza,<\/a> 1974 LLJ  184 and Jaywant <\/p>\n
    Bhaskar Sawant vs. Board of Trustees of the Port of Bombay & ors.<\/a>, 1994 II CLR <\/p>\n
    737.  The facts and circumstances in all the above cases are totally different and <\/p>\n
    distinguishable specially in view of above Supreme Court’s finding as recorded <\/p>\n
    above.\n<\/p>\n
    11     The   Supreme   Court   judgments   so   relied   by   the   learned   counsel   for   the <\/p>\n
    respondents were not available and were considered in subsequent judgments of <\/p>\n
    this Court.     It is clear that once there is an order of acquittal based upon the <\/p>\n
    similar charges, it is necessary for the Enquiry Officer to take note of relevant <\/p>\n
    factors before dealing with the similar charges again and\/or while passing the <\/p>\n
    order against the same employee, but subject to service conditions.  The employer, <\/p>\n
    if   not   debarred   from   continuing   with   the   departmental   enquiry   and\/or   is   not <\/p>\n
    under   obligation   to   drop   the   proceeding   and\/or   reinstate   such   employee <\/p>\n
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\n                                                       7<\/span><\/p>\n
    immediately   after   acquittal   order   and   specially   considering   the   facts   and <\/p>\n
    circumstances of the case and looking to the nature of charges so levelled and as <\/p>\n
    in   the   present   case,   after   holding   due   inquiry,   by   following   the   principles   of <\/p>\n
    natural justice, if the petitioner found to be guilty as charges were prov ed and as <\/p>\n
    those amount to misconduct falls within the ambit of the service conditions so <\/p>\n
    referred above, the submissions so raised by the learned counsel for the petitioner, <\/p>\n
    are unacceptable as after going through the charges so raised and the reasoning <\/p>\n
    so   recorded   by  the  Enquiry  Officer   and  by  the   Presiding   Officer   in  both   these <\/p>\n
    Awards and   as  there   is no   perversity   and  there   is  no   illegality,   the   Awards   so <\/p>\n
    passed, in my view, in the present facts and circumstances are well within the <\/p>\n
    frame work of law and the record and need no interference.\n<\/p>\n
    12      This   Court,   under   Articles   226\/227   of   the   Constitution   of   India   is   not <\/p>\n
    sitting as an Appellate Court and\/or to review the order  of acquittal pqassed by <\/p>\n
    the   Magistrate.     The   Court   needs   to   consider,   whether   action   taken   by   the <\/p>\n
    respondent\/Trust is well within the frame work of respective service conditions <\/p>\n
    and the principles of natural justice.  If it found the case against the petitioner and <\/p>\n
    in favour of the respondent and specially the Tribunal Member has considered <\/p>\n
    even the order of acquittal and passed the order  and  maintained the order  of <\/p>\n
    dismissal,   the   submission   that   the   writ   Court   bound   to   set   aside   the   order   of <\/p>\n
    dismissal is unacceptable though the acquittal order was not challenged by the <\/p>\n
    respondent\/Trust.\n<\/p>\n
    13      The  well   reasoned  order   given  by the  Inquiry Officer  on 26.09.1989  by <\/p>\n
    holding that Charge No.1 against the petitioner\/worker was proved and further <\/p>\n
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\n                                                       8<\/span><\/p>\n
    report   is   not   perverse   and   maintained   the   dismissal   action   of   the   Trust.     The <\/p>\n
    relevant observation, apart from the FIR and\/or failure to prove the panchanama <\/p>\n
    as panch witness turned hostile to the prosecution and thereby the prosecution <\/p>\n
    unbale   to   corroborate   only   the   relevant   witness   P.W.   3-Ashok,   referring   to   a <\/p>\n
    Circular of the Trust based upon the conditions dated 6.7.1987, is as under:\n<\/p>\n
                    “17     .. It clearly speaks out that even if the  cargo  or  any <\/p>\n
           other property and\/or any other material belonging to and\/or in the <\/p>\n
           custody   of   the   port   trust   is   found   lying   in   abandoned   condition, <\/p>\n
           intact or loose it should not be touched for shifting from one place to <\/p>\n
           another place for the purpose of safe storage prior to lodgment of a <\/p>\n
           complaint with the police.  It is further observed that contravention <\/p>\n
           of the above stipulation shall be charged for violation of the order <\/p>\n
           and or for contending the theft of the cargo from the docks.   It is <\/p>\n
           tried to suggest that this circular was not brought to the notice of <\/p>\n
           security department.   No doubt there is no endorsement that it is <\/p>\n
           sent to the security department.  But it can be seen that this circular <\/p>\n
           is important one.   It was sent to shed superintendent staff offices <\/p>\n
           having 200 copies for distribution.  That clearly goes to show that it <\/p>\n
           must have been sent to the security department or even if not sent <\/p>\n
           they are widely published on the notice boards and the worker must <\/p>\n
           be aware of this type of circulars.  As this is so there was no reason <\/p>\n
           for the worker to touch the tin which was according to him thrown <\/p>\n
           by unknown person and ran away.\n<\/p>\n
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\n                                                      9<\/span><\/p>\n
                  18       It is tried to submit that from the testimony of Das it <\/p>\n
          reveals   that   many   of   the   tins   were   already   taken   away   by   the <\/p>\n
          consignee.   It  means  they  are  available in the  market.   From the <\/p>\n
          marking of the tin it reveals that the tins were not for sale.  Not only <\/p>\n
          that it is not the case of the worker that  he purchased the tin from a <\/p>\n
          particular   shop.     He   was   found   in   possession   of   that   tin   in   the <\/p>\n
          premises of the BPT.   That speaks against the worker.   The tin was <\/p>\n
          not found at its proper place where other consignment was lying.\n<\/p>\n
          That itself goes to show that it was removed by somebody.  It am not <\/p>\n
          here   to   decide   whether   there   was   a   theft   or   not.     But   the   fact <\/p>\n
          remains   that   the   tin   was   in   possession   of   the   worker   which   is <\/p>\n
          contrary   to   the   circular   issued   by   the   BPT.     Further   from   that <\/p>\n
          testimony of Ashok Raorane it has to be said that the tin was in the <\/p>\n
          bag of the worker and was from the shed of the BPT.”\n<\/p>\n
    14    In the impugned order, the learned Judge has taken note of the order of <\/p>\n
    acquittal so relied upon and dealt with the aspects in detail. Even otherwise, once <\/p>\n
    the departmental inquiry is conducted  in accordance with law and the reasoning <\/p>\n
    supports the case of respondent\/Trust that the petitioner is guilty of charges and <\/p>\n
    that amounts to misconduct as contemplated under the Service Conditions and, <\/p>\n
    therefore, the punishment so imposed as per the service conditions just cannot be <\/p>\n
    set aside after so many years merely because there was acquittal order passed by <\/p>\n
    the Magistrate specially in the present facts and circumstances of the case as the <\/p>\n
    learned Judge has even considered those aspects in detail.     The Court cannot <\/p>\n
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\n                                                   10<\/span><\/p>\n
    compel  the  employer  to  continue  such employees against whom, after holding <\/p>\n
    due inquiry, they able to prove the charges independently and irrespective of the <\/p>\n
    criminal proceedings.  If both the proceeding can run together, it also means the <\/p>\n
    different and respective principles of assessments  of evidence and material apply <\/p>\n
    and if, after due inquiry, the employer in view of the departmental inquiry report <\/p>\n
    uses discretion and take action of dismissal of such employee within the frame <\/p>\n
    work of service conditions, I see there is no reason that Court should interfere <\/p>\n
    with  the same  as there  is  no  case  of perversity and\/or  any illegality.   In  such <\/p>\n
    circumstances.   The   scope   of   judicial   review   is   quite   limited   and   restricted.\n<\/p>\n
    Therefore, in my view, there is no case of interference.\n<\/p>\n
    15     In view of above, the Petition is dismissed.  No order as to costs.\n<\/p>\n
                                                           (ANOOP V. MOHTA, J.)<\/p>\n
                                                                  ::: Downloaded on – 09\/06\/2013 15:58:53 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Mr. A. S. Manjrekar vs Bombay Port Trust & Anr on 7 June, 2010 Bench: Anoop V.Mohta 1 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-187357","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nMr. A. S. 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