Writ Petition No. 2811 of 1991

23rd February, 1995

Petitioner Counsel: Shri. J.P.CAMA with Shri K.P.ANILKUMAR, Thakordas & Madgaonkar
Respondent Counsel: Shri V.N.LOKUR, Shri P. RAMASWAMY, Mulla & Mulla & C.B.Co.

Cases Cited:
1994 (II) CLR 737 [Para 2]
1994 (II) CLR 891 [Para 2]
AIR 1992 S.C. 1981 [Para 3]

JUDGMENT

JUDGMENT : This petition under Article 226 of the Constitution of India is directed against the order of termination of his services dated 2.1.90. The brief facts leading to this petition are as under :-

That the petitioner was working with Respondent No.2 Bombay Port Trust since 1969. It is submitted that while he was discharging his duties as officiating Labour Supervisor at Uncleared Warehouse No.1, the petitioner was chargesheeted for the misconduct alleged to have been committed by him. That on 1.1.86 at about 3.40 p.m. one lorry bearing Register No. BMT-9468 parked near the B.P.X. wall side was found loaded with cargo wooden boxes. As the driver of the lorry was asked to produce the documents in support of cargo loaded in the lorry, he failed to produce any document in respect of cargo loaded in the lorry. On inquiry, some wooden boxes containing video games were found. The police was informed and took the driver to police station with the lorry and interrogated him regarding the consignment of wooden boxes found from the lorry. It is alleged that the driver pointed out one person to the police and that was the petitioner Jijaba Namdeo Borude and stated that this person has loaded the lorry. Thereafter, a criminal complaint was lodged and a criminal case was registered being Case No.453/P/86. The petitioner and the other two persons were prosecuted for an offence punishable under section 380 r/w.34 I.P.C.. Simultaneously, the departmental proceedings were also initiated against the petitioner and he was chargesheeted for the same misconduct of doubtful integrity. Show-cause notice was issued, inquiry was held and the inquiry report was submitted by the Inquiry Officer and the respondent-Bombay Port Trust accepted the inquiry report and dismissed the petitioner from services by order dated 2.1.90. An appeal against the said order also came to be dismissed by the Respondent No.6. Therefore, this petition.

2. The impugned order of dismissal is challenged on the ground that as the criminal proceeding resulted into honourable acquittal of the petitioner, the disciplinary authority has failed to consider this aspect of the matter in the domestic enquiry. It has been submitted by Mr. Cama, learned counsel for the petitioner, that as the petitioner-delinquent is honourably acquitted in the criminal trial, normally, no departmental proceeding is to be initiated and proper weightage is to be given to the order of honourable acquittal. In the instant case, no weight has been given to the order of acquittal. Therefore, the impugned order of dismissal is vitiated. In support of his submission, Mr. Cama has relied on the following two judgments :-

1. 1994 (II) CLR-737

2. 1994 (II) CLR-891

3. It is held by the Supreme Court in the case of Nelson Motis V/s. Union of India, AIR 1992 S.C. 1981 that acquittal in criminal case cannot conclude disciplinary proceedings as the criminal proceeding is quite different from the departmental proceedings. However, the enquiry officer and disciplinary authority cannot ignore the order of honourable acquittal as irrelevant in disciplinary proceedings. The consistent view has been taken by this court in the above-cited cases and I do agree with the proposition of law. The report of the enquiry officer is vitiated by not giving proper weightage to the order of honourable acquittal. It is pertinent to note that the witnesses before the criminal trial and the domestic enquiry are the same and in the criminal trial the said witnesses did not support the prosecution. while in the domestic enquiry, the said witnesses have deposed against the petitioner. In my opinion, if the witnesses were the same both in the criminal trial as well as in the domestic enquiry and when the learned Magistrate has given honourable acquittal to the accused, the enquiry officer is bound to consider the reasoning of the learned Magistrate while giving honourable acquittal. In the instant case, the petitioner-delinquent had been honourably acquitted by the learned Magistrate as there was no evidence against the delinquent. Further, it reveals from the record that there was no direct evidence against the petitioner-delinquent regarding the alleged theft committed by him. The witnesses have deposed that only the driver of the lorry has pointed out at the petitioner-delinquent and stated before the officer that the articles were loaded in the lorry by the petitioner-delinquent. In other words, it is not a direct evidence but hearsay evidence.

4. It is a settled position of law that though the hearsay evidence is not a substantive evidence, it is admissible in domestic enquiry; but its admissibility as evidence in domestic enquiry is subjected to scrutiny and credibility. The view taken in Writ Petitions Nos. 3561/91, 432/92, 938/91 and 952/92 by this court is applicable in this case. The court has observed-

" The basic rule governing domestic enquiries require that no order entailing penal consequences can be made on the basis of ex-parte statements of witnesses or hearsay evidence. This necessary plea carries with it the right to show that the evidence against him is not worthy of credence or consideration and that he can only do it if he is given a chance to cross-examine the witnesses called against him..... It must be adhered to particularly when facts are disputed and credibility of a person who has given testimony of some information is in doubt or is challenged."

5. Admittedly, the information and indication given by the driver of the lorry who was not examined by the enquiry officer. There is no other independent evidence in support of the charge has been examined.

6. In my view, the impugned enquiry report is vitiated and the consequential order of dismissal is bad-in-law and deserves to be quashed and set aside.

In the result, this petition is allowed. The dismissal order is quashed and set aside. The respondent No.2 is directed to reinstate the petitioner-delinquent on his original post with all back wages and consequential benefits. The respondent is further directed to reinstate the petitioner within four weeks and give him back wages within eight weeks from the receipt of the writ hereof. With these this petition is allowed with no order as to costs.

Certified copy expedited.

Petition allowed.