2000(1) ALL MR 199
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

B.P. SARAF AND P.D. UPASANI, JJ.

The Board Of Trustees Of The Port Of Bombay & Anr. Vs. Vijay Ratanrao Surve & Ors.

Appeal No. 497 of 1995,Petition No. 432 of 1991

6th December, 1999

Petitioner Counsel: MR. P. RAMASWAMY i/b. M/s. MULLA & MULLA C.B. & C.
Respondent Counsel: Mr. S.M. SHAH with Mrs. S.V. BHARUCHA,Mr. R.C. MASTER for Respondent

Constitution of India, Art 226 - Domestic enquiry - Huge theft of polyester filament yarn valued at Rs. 22 lakhs from B.P.T. container Yard - 18 charge-sheeted employees subjected to disciplinary action and their services terminated - Appeals revision and review petitions to government also dismissed Four writ petitions filed - Petitions allowed and petitioners reinstated with full back wages - Relying on fact that drivers and cleaners of vehicles were not examine before enquiry officer - Held in appeal that it was wrong to substitute findings arrived at by enquiry officer and appellate authority by applying strict rules of evidence applicable to criminal trial.

Decisions in Writ Petitions No. 432/91, W.P.No.952/92, WP 938/92, WP 356/91 dt.27-1-1995 (Bom) Reversed.

Held there was no substance in the submission of the Respondents that just because the drivers and the cleaner of the vehicles (in which the goods of theft were carried away by the accused persons as mentioned in the F.I.R. in the criminal proceedings), were not examined by the Enquiry Officer, the whole enquiry was vitiated. A Police Inspector attached to D.C.B., C.I.D., had carried out the investigation of the entire episode thoroughly, who during the course of investigation found out and discovered many things. He discovered as to who was the person, who had actively carried out the operation in the Chembur Yard and who were the persons who had connived and abetted the success of the said operation. The Respondents were the employees of the appellants in the capacity of Watchmen, Head Watchman, Assistant Shed Superintendent, Shed Superintendent, Gate Keeper, Watchmen at the Gate and Assistant Security Officer. It was their duty to see that the goods stored in the yard was securely kept. Admittedly they were on duty on the night of 13th/14th February, 1987. They are not the ones, who have removed the goods outside the premises, but as per the material on record before the Enquiry Officer, they certainly appeared to be the persons, who in spite of being present there and though it was their duty to see that no theft of the goods stored in the Yard takes places, were only spectators and did nothing to prevent the incident of theft. Independent investigation also was carried out by the B.P.T. Authorities who also arrived at the same conclusion. The statements of drivers and cleaners along with other witnesses were also recorded, wherein they had narrated the entire incident as it took place. For the purpose of criminal trial, statements of witnesses recorded under Section 161 of the Code of Criminal Procedure, 1973 are not admissible in evidence, but for the purpose of disciplinary proceedings, there is no prohibitions to look into these statements for the prupose of coming to the conclusion of the guilt or otherwise of the delinquents. It is not that the driver and cleaners were not purposely examined by the Enquiry Officer - Summonses were duly sent to them, but they could not be served on them as those persons were not traceable. Moreover, it is nobody's case that C.B.I. Inspector Mr. Gaonkar, who investigated the entire incident and who was thoroughly examined and cross-examined during the course of enquiry, had any bias against the Respondents. He had no reason to depose against the Respondents, and to implicate them by revealing their complicity in the incident of theft committed by those who are accused in the criminal proceedings which are still pending.

To point out the improbabilities and lacuna of any incident and to create doubt in the mind of the Court, is something which is done in a criminal trial because benefit of doubt, as per the criminal jurisprudence prevalent in our country always goes to the accused. However, these tactics and the same standard cannot be applied in disciplinary proceedings. The standard of proof in a criminal trial is very high and the prosecution has to prove its case beyond the shadow of reasonable doubt. It is not so in the departmental proceedings, where the standard for coming to a particular conclusion is quite different. There was some material before the Enquiry Officer to come to the conclusion, that the Respondents, who admittedly were on duty at the relevant time when the incident took place, had turned Nelson's eye to the nefarious activities of the culprits, thus facilitating them to remove the goods from the premises of the appellants which the Respondents were supposed to save and protect. [Para 15]

The statements of the drivers and cleaners were recorded earlier and just because they were not made available in spite of sending summonses to them, their statements recorded earlier did not become that untouchable so as not to be looked into for any purpose. Moreover it must be highlighted that their statements alone did not form the foundation or sole basis on which the findings of the Enquiry officer were based. Depositions of CBI inspectors formed substantive evidence who were thoroughly cross-examined by the Respondents' Advocates. There was no reason whatsoever to disbelieve or discard their evidence. The total approach of the learned Single Judge was erroneous, who indeed over stepped his authority by substituting his own findings in place of the findings of the Enquiry Officer and the appellate authorities.

AIR 1977 SC 1512, AIR 1985 SC 300, JT 1999 (8) SC 493 Rel. on. [Para 16,18]

Cases Cited:
State of Haryana and other V. Rattan Singh, A.I.R. 1977 S.C. 1512 [Para 8]
Union of India and others Vs. B.K. Srivastava, A.I.R. 1998 S.C. 300 [Para 9]
The High Court of Judicature at Bombay Vs. Shashikant S.Patil, 1999(4) ALL MR 500 (S.C.)=JT 1999 (8) SC 493 [Para 18]


JUDGMENT

Dr. PRATIBHA UPASANI, J.:- These four appeals, arising from four Writ Petitions, as numbered above, arise out of the common Judgment dated 27th January, 1995, delivered by the Single Judge of this court. By the impugned Judgment and order, the learned Single Judge quashed and set aside the order dated 19th June, 1989, passed by Respondent No.2 in the above mentioned Writ Petitions, namely, Acting Chairman of the Bombay Port Trust and the order dated 30th January, 1990 passed by the Government, rejecting the appeals preferred by the petitioners, so also the order dated 16th April, 1991 passed by the reviewing authority and directing the Respondents in the Writ Petitions, to reinstate all the original petitioners with full back-wages.

2. The facts leading to the filing of the original Writ Petitions, have to be briefly narrated, which are as follows:

Some cartons of polyester filament yarn, which were smuggled and which were seized by the Director of Revenue Intelligence, were stored and kept in the container yard by them, by regularly drawing panchanamas on 22nd July, 1986 and 27th July,1986, under proper lock and seal. Police Inspector Mr. Gurunath Gaonkar attached to D.C.B., C.I.D., Bombay, was the Investigating Officer in this case. During the course of his investigation, he received reliable information that some persons were found to be clandestinely disposing of some smuggled articles and were making bargains for selling the same. Mr. Gaonkar, then acted promptly and rounded up one Mohd. Saddique at C.S.I. Road, Kurla and after interrogating him, found out that the said Mohd Saddique was involved in the case of theft of polyester filament yarn from the Bombay Port Trust Container Yard, Chembur, Deonar. P.I. Mr. Gaonkar pursued the matter further, when Mohd.Saddique led him to char Null, Dongri and pointed out one Majid Salim Shaikh alias Chanda as the person, who had pre-planned for committing the theft from the B.P.T. Container Yard. P.I. Mr. Gaonkar further interrogated the said Majid Salim Shaikh alias Chanda, when he volunteered to point out the person through whom he had dispatched the stolen property and took him to Dharavi Zopadpatti. There he pointed out one Rahimtulla Imam Shaikh, who on further enquiry and interrogation, disclosed that some cartons of polyester filament yarn had been stored in the Brown Box Building at Kurla-Andheri Road. The said Rahimtulla Imam Shaikh then led the panchas and the witness Mr.Gaonkar to the Brown Box Building. When the said building was searched, the cartons were found stored on the terrace. Some cartons were stored in the passage of the third floor of the said Brown Box Building. P.I. Mr. Gaonkar then discovered that the value of the said imported polyester filament yarn was worth Rs. 22 Lakhs. P.I. Mr. Gaonkar also learnt about the theft of polyester filament yarn from the two big containers from the B.P.T. Yard at Chembur, Bombay. He, therefore, contacted the concerned authorities of B.P.T. and took the panchanama of the containers of the polyester filament yarn from which the polyester filament yarn had been stolen. The number of cartons of polyester filament yarn, which were stolen was 367. Seals of the recovered cartons and the cartons in the containers, exactly tallied and were identical and it was established beyond doubt that the theft of the cartons of polyester filament yarn had been committed from the containers at B.P.T. Container Yard at Chembur. The authorities of the Bombay Port Trust also started making enquiries in the matter. The whole Chembur Container Yard where articles worth lakhs of rupees were stored and for which arrangements were made for their safety and security, had a compound wall of 6/7 feet height, upon which there was a barbed wire fencing. Because of this, nobody could enter in the premises of this yard except through the gate. Sufficient staff of Watchmen, Assistant Shed Superintendent, Shed Superintendent, Gate Keeper, Watchmen at the gate and above all an Assistant Security Officer were posted. A detailed procedure for bringing in the consignment and taking out the consignment through the gate was laid down by the Bombay Port Trust authorities. In spite of this protection and arrangement for safety and security of the goods stored in the yard, theft of such gigantic scale had taken place, where the value of the stolen goods was approximately Rs. 22 lakhs. The goods, namely, polyester filament yarn were stored in 367 cartons which could not be handled very easily. This theft, which could be called of a gigantic nature had taken place under the very nose of the security and dock staff posted as mentioned above in the yard on the 13th/14th February, 1987 and, therefore, the departmental enquiry of these persons viz., the staff, who was on duty on 13th/14th February, 1987, was commenced by the Bombay Port Trust. This staff as mentioned above, included the Watchmen, Head Watchman, Assistant Shed superintendent, Shed Superintendent, Gate keeper, Watchmen at the Gate and Assistant Security officer.

3. In all, 20 employees were Charge-sheeted for the commission of misconduct and were issued show cause notice dated 16th December, 1987 and were suspended by the order dated 5th March, 1988 from their respective duties. The charge-sheeted employees submitted their written statements in pursuance of the show cause notice and categorically denied the allegations leveled against them. The Articles of Charges read as follows:

"(i) You have thus committed the misconduct of abetting, conniving at or attempting or committing the said theft and shown dishonesty in connection with Port Trust Work or property in terms of Rule 21(2) (b) of the B.P.T.Rules and Regulations for Non-Scheduled Staff: and

(ii) You have committed the misconduct of neglecting the assigned work in terms of Rule 22(2) (i) of the B.P.T. Rules and Regulations for Non-Scheduled staff: and also

(iii) You have violated Regulation 3.1 of the B.P.T. Employees (conduct) Regulations, 1976, and thereby rendered yourself liable to be proceeded against departmentally for a major penalty under Regulation 8 read with Regulation Nos. 12 and 13 of the B.P.T Employees (Classification, Control & Appeal) Regulations, 1976."

4. Subsequently, suspension orders were revoked by the Acting Chairman of the Bombay Port Trust and departmental enquiry was ordered. One Mr. D.N. Daithankar, Advocate, was appointed as Enquiry officer for conducting the enquiry into the alleged charges. All the formalities like supplying copies of documents, including list of witnesses etc. were complied with.

5. After recording of evidence, the Enquiry Officer Mr. Daithankar, Submitted his report to the Acting Chairman of the Bombay Port Trust on 14th June, 1988. In his enquiry report against all the charge-sheeted employees, except charge-sheeted employee No. 20 Mr. Bhosale, the charges were held to be proved, by the Enquiry Officer. Pending the enquiry, one charge- sheeted employee died. Thus 18 charge-sheeted employees were subjected to disciplinary action in pursuance of the enquiry report under the Bombay Port Trust Rules and Regulations and their services came to be terminated for the alleged misconduct by order dated 19th June, 1989.

6. These delinquents filed appeals against the said order, before the Government of India. However, they also came to be dismissed by order dated 30th January, 1990. Revision Applications filed by them against the said order, also came to be rejected by order dated 16th April,1991. Being aggrieved by the disciplinary proceedings and punishment, ranging from dismissal to compulsory retirement, the delinquents against whom all the charges were proved (except charge-sheeted employee No. 20), challenged the legality and propriety of the impugned orders in four Writ Petitions in this Court, under Article 226 of the Constitution of India. The learned Single Judge by his impugned order dated 27th January, 1995, after hearing both the sides, set aside and quashed the orders of the Government and the Acting Chairman of the Bombay Port Trust and directed reinstatement of the petitioners with full back-wages. It was also directed that the petitioners should be paid their back wages within eight weeks from the receipt of the writ. It is against this order that the present four appeals have been filed by the Board of Trustees of the Port of Bombay and another.

7. Advocate Mr. Ramaswamy, appearing for the appellants i.e. The Board of Trustees of the Port of Bombay, vehemently argued that the learned Single Judge erred in coming to the conclusion that the enquiry held against the respondents was in breach of the principles of natural justice. He further argued that the learned Single Judge failed to appreciate that strict rules of Evidence Act were not applicable to the departmental proceedings and that it was not proper on the part of the learned Single Judge to hold that there was no evidence before the Enquiry Officer to hold that the Respondents were guilty of the charges levelled against them. He also argued that the learned Single Judge erred in coming to the conclusion that since the drivers and cleaners of the vehicles, in which the stolen 367 cartons were loaded, were not examined before the Enquiry Officer, their statements ought not to have been looked into for coming to the conclusions that such an incident, as was narrated by them, had actually taken place. Mr. Ramaswamy forcefully argued that it was not that there was no material before the Enquiry Officer and that it was also not a case that the principles of natural justice were in any way violated. He also argued that there was sufficient material before the Enquiry Officer to come to the conclusion that the charges levelled against the Respondents/employees of the appellants had been proved and, therefore, the order of the learned Single Judge directing the appellants to reinstate them with back-wages, setting aside the order of the disciplinary authority and the Government, was erroneous.

8. Mr. Ramaswamy, to substantiate his arguments, relied upon A.I.R. 1977 S.C. 1512 (State of Haryana and another v. Rattan Singh). In this case, a bus conductor of the State Transport undertaking was charge-sheeted for not collecting fares from certain passengers and on his guilt being established, there was simple termination of his services because of his long services and young age. It was contended, in this case, on behalf of the bus conductor, who was charge-sheeted that because statements of passengers, who claimed to have paid bus fare to the conductor, but to whom allegedly tickets were not issued by him, were not recorded by the Inspector of the flying squad, the order that followed was invalid. Negativating this contention, Mr. Krishna Iyer, J. (as He then was), speaking for the Bench observed that the evidence of the Inspector was some evidence which had relevance to the charge against the bus conductor. Therefore, order of simple termination of service was a valid order. He further observed in para 4 of the Judgment as follows:

"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, fair play is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of 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 passages 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 governing regular court proceedings but in a fair common sense 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."

9. Mr. Ramaswamy further relied upon A.I.R. 1998 S.C. 300 (Union of India and others v. B.K. Srivastava) to drive home the point that once the Disciplinary Authority duly considered the report of the Enquiry Officer and examined whole of the enquiry proceedings and was satisfied that the charges were proved, it could not be said that there was abuse of powers by Disciplinary and Appellate Authority and that if the Tribunal set aside the enquiry report and the dismissal order, it has to be said that the Tribunal wrongly exercised its jurisdiction. In this case, one B.K. Srivastava, who was serving as Cashier in the office of the CDA (Pensions), Allahabad was charge-sheeted for not maintaining absolute integrity and devotion to duty and for acting in a manner unbecoming of a Government servant in violation of Rules 3(1) (i), 3(1) (ii) and 3(1) (iii) of C.C.S. (conduct) Rules, 1964. The charge against him was that of misappropriating a huge amount. Criminal prosecution also was initiated against him. In the departmental enquiry proceedings, the Enquiry officer held the charges against him as proved. On the basis of the enquiry report, the Controller General of Defence Accounts, who was the Disciplinary Authority, imposed upon the said Srivastava, the penalty of dismissal from service. The Respondent Mr. Srivastava appealed. His appeal was dismissed by the Secretary (Defence Finance) & FA and the order imposing penalty of dismissal on him was affirmed. The Respondent challenged the order before the Administrative Tribunal. The Tribunal while setting aside the enquiry report and orders of Disciplinary and Appellate Authorities, directed that the Respondent be treated as having continued in service till his date of superannuation and at the same time gave liberty to the appellants, namely Union of India to proceed against the Respondent in a departmental enquiry from the stage of appointment of another Enquiry officer onwards. The Tribunal held that proper opportunity was not granted to the Respondent by the Enquiry Officer and that the report of the Enquiry officer was not furnished to him and that there was no evidence to sustain the charges against the Respondent.

In appeal to the Supreme Court, the Supreme Court observed as follows :

"We are, however, of the view that the Tribunal was not right in its approach. It has acted more as a Court of appeal which it was not entitled to do so. We have been taken through the enquiry proceedings and we find that numerous adjournments were granted to the respondent and on many dates of hearing, he was stated to be on leave on account of ill-health. Respondent was given opportunity to inspect the record which he did. It cannot be said that as he was not given photo copies of certain documents, he had been prejudiced in the defence of his case. After examining the evidence on record, the Enquiry officer came to the conclusion that the charges stood proved against the respondent. It is not that there was no evidence before the Enquiry officer."

The Apex court further observed :-

"The Disciplinary Authority duly considered the report of the enquiry officer and after examining whole of the enquiry proceedings was satisfied that the charges stood proved. He accepted the enquiry report and taking into account all aspects of the case and especially the extreme gravity of charges which show that Shri B.K. Srivastava who was entrusted with the sensitive matter of cash exhibited complete lack of integrity and misappropriated the same" imposed upon him the penalty of dismissal from service. The Appellate Authority also examined the case afresh, considered the contentions of the respondent and by reasoned order was also satisfied that the respondent was guilty of the charges for which he was imposed the penalty."

The Appex court also negatived the contention of the Respondent that fair treatment was not given to the Respondent in the enquiry. It held that there was no abuse of power and that there was lawful exercise of powers by the Disciplinary and Appellate Authorities. It further reiterated that the Tribunal could not sit in appeal against the order of the Disciplinary and Appellate Authorities in exercise of its powers of judicial review.

10. Having heard Mr. Ramaswamy, appearing for the appellants and having gone through both the judgments cited by Mr. Ramaswamy, we find no reason to disagree with the proposition advanced by him. In the present case, the report reveals that while conducting the enquiry, the Enquiry officer had duly complied with all the formalities of the departmental proceedings and there was no room to say that there was in any way, any violation of the principles of natural justice. The delinquents filed appeals against the suspension order dated 5th March, 1988 issued by Respondent No.2. However, the same came to be rejected. Thereafter, enquiry was held and the enquiry report dated 23rd May, 1988 was submitted by the Enquiry Officer. Accepting the said report, order dated 19th June, 1989 came to be passed by the appellants removing the Respondents from service. Appeals against the said order also were rejected by the present appellants by their order dated 2nd February, 1990. Thereafter, Review Petitions came to be filed by the Respondents, which also came to be rejected. The matter did not stop there and additional and supplementary Review Petitions also came to be filed which also came to be rejected by the Reviewing Authority by its orders on different dates against different Respondents. Thereafter, Writ Petitions were filed by the Respondents which came to be allowed by the learned Single Judge by his impugned order dated 27th January, 1995. Thus, it will be seen that the Respondents have availed of all the legal forums and avenues. They actively participated in all these proceedings, and fair treatment was given to them at all stages in all these proceedings. Except the impugned Judgment and order of the learned Single Judge of this Court, the Respondents did not succeed at any stage. If one peruses the impugned order, it will be seen that the learned Single Judge seems to have been carried away by the submissions made by the petitioners therein that conclusion of guilt arrived at by the Enquiry officer and the Disciplinary Authorities was based entirely on hearsay evidence and that the drivers and cleaners were not examined by the Enquiry Officer and, therefore, they were deprived of cross-examining them. We are not impressed by this finding of the learned Single Judge. As rightly argued by Mr. Ramaswamy, appearing for the appellant, in a domestic enquiry strict and sophisticated rules of evidence under the Evidence Act do not apply. So long as there is some material before the Enquiry Officer, whereby reasonable and logical conclusion of guilt could be arrived at, it cannot be said that such a material is not sufficient.

11. We also do no find any substance in the submission of the Respondents that just because the drivers and the cleaner of the vehicles (in which the goods of theft were carried away by the accused persons as mentioned in the F.I.R. in the criminal proceedings), were not examined by the Enquiry Officer, the whole enquiry was vitiated. Mr. Gaonkar, who was a Police Inspector attached to D.C.B., C.I.D., had carried out the investigation of the entire episode thoroughly, who during the course of investigation found out and discovered many things. He discovered as to who was the person, who had actively carried out the operation in the Chembur Yard and who were the persons who had connived and abetted the success of the said operation. The Respondents were the employees of the appellants in the capacity of Watchmen, Head Watchman, Assistant Shed Superintendent, Shed Superintendent, Gate Keeper, Watchmen at the Gate and Assistant Security Officer. It was their duty to see that the goods stored in the yard was securely kept. Admittedly they were on duty on the night of 13th/14th February, 1987. They are not the ones, who have removed the goods outside the premises, but as per the material on record before the Enquiry Officer, they certainly appeared to be the persons, who in spite of being present there and though it was their duty to see that no theft of the goods stored in the Yard takes place, were only spectators and did nothing to prevent the incident of theft. Independent investigation also was carried out by the B.P.T. Authorities who also arrived at the same conclusion. The statements of drivers and cleaners along with other witnesses were also recorded, wherein they had narrated the entire incident as it took place. For the purpose of criminal trial, statements of witnesses recorded under Section 161 of the Code of Criminal Procedure, 1973 are not admissible in evidence, but for the purpose of disciplinary proceedings, there is no prohibitions to look into these statements for the purpose of coming to the conclusion of the guilt or otherwise of the delinquents. It is not that the driver and clearners were not purposely examined by the Enquiry Officer. Summonses were duly sent to them, but they could not be served on them as those persons were not traceable.

12. Moreover, it is nobody's case that C.B.I. Inspector Mr. Gaonkar, who investigated the entire incident and who was thoroughly examined and cross-examined during the course of enquiry, had any bias against the Respondents. He had no reason to depose against the Respondents, and to implicate them by revealing their complicity in the incident of theft committed by those who are accused in the criminal proceedings which are still pending.

13. Mr. Deshmukh, who was appearing for Respondent No.1 in Appeal No. 488 of 1995 and Mr. Ganguli, who was appearing for Respondent No.1 in Appeal Nos. 525/95 and 526/95 tried to argue that since the drivers and cleaners were not examined, the entire enquiry is vitiated as the Respondents did not get any opportunity of cross-examining them. We do not agree with this. Mr. Gaonkar, who was Investigating officer attached to D.C.B., C.I.D. had carried out the entire investigation and had deposed in detail about the whole drama that took place on the night of 13th/14th February, 1987. He was thoroughly cross-examined by all the Respondents at length. His evidence as recorded by the Enquiry Officer was a substantive evidence. There was no reason whatsoever to disbelieve Mr. Gaonkar and the Enquiry Officer was right in relying upon his evidence in toto. We have already given our reasons for rejecting the contention of the Advocates for the Respondents at length. His Evidence as recorded by the Enquiry Officer was a substantive evidence. There was no reason whatsoever to disbelieve Mr. Gaonkar and the Enquiry Officer was right in relying upon his evidence in toto. We have already given our reasons for rejecting the contention of the Advocates for the Respondents that the enquiry was vitiated because of non-examination of drivers and cleaners.

14. It has to be reiterated that once it is revealed that there was some evidence before the Enquiry officer and the enquiry was conducted fairly, following the principles of natural justice, it cannot be said that the findings are bad in law.

15. Mr. Deshmukh was reiterating again and again that the incident of theft as described was impossible to happen. He went on vividly describing, in minute detail, the entire incident and was attempting to argue that it was impossible for any one to commit theft in such a way and it was not at all possible that the persons who were on duty had not noticed the thieves if the incident had taken place, the way it was described. We find this argument of Mr. Deshmukh to be Judicious. To point out the improbabilities and lacuna of any incident and to create doubt in the mind of the Court, is something which is done in a criminal trial because benefit of doubt, as per the criminal jurisprudence prevalent in our country always goes to the accused. However, these tactics and the same standard cannot be applied in disciplinary proceedings. The standard of proof in a criminal trial is very high and the prosecution has to prove its case beyond the shadow of reasonable doubt. It is not so in the departmental proceedings, where the standard for coming to a particular conclusion is quite different. There was some material before the Enquiry Officer to come to the conclusion, that the Respondents, who admittedly were on duty at the relevant time when the incident took place, had turned Nelson's eye to the nefarious activities of the culprits, thus facilitating them to remove the goods from the premises of the appellants which the Respondents were supposed to save and protect.

16. Mr. S.M. Shah appearing for Respondent Nos. 1 to 10 in Appeal No. 497 of 1995 also argued that findings of the Enquiry officer were perverse as there was no corroborative evidence before the Enquiry Officer since drivers and cleaners were not examined. We reject this contention of Mr. Shah. In fact, we have observed that the entire matter was argued before us in such a way that it gave us the impression as if we were hearing Criminal Appeal. The learned Advocates appearing for the Respondents, Mr. Ganguli, Mr. S.M. Shah and Mr. Deshmukh, all were making submissions as if they were arguing a criminal case before us. This is certainly not the correct approach. We are hearing appeals against the Judgment and order passed in Writ Petitions, which were filed under Article 226 of the Constitution of India. The statements of the drivers and cleaners were recorded earlier and just because they were not made available in spite of sending summonses to them, their statements recorded earlier did not become that untouchable so as not to be looked into for any purpose. Moreover it must be highlighted that their statements alone did not form the foundation or sole basis on which the findings of the Enquiry Officer were based. Depositions of Mr. Gaonkar and Mr. Thukral formed substantive evidence who were thoroughly cross-examined by the Respondents' Advocates. There was no reason whatsoever to disbelieve or discard their evidence.

17. Having heard all the Advocates at length and having gone through the record thoroughly, we find that the learned Single Judge has over-stepped his authority by upsetting the findings of the Enquiry Officer and Appellate Authorities. We find sustenance to say so from the latest Judgment of the Apex Court reported in JT 1999 (8) SC 493 : (1999(4) ALL MR 500 (S.C.)) (The High Court of Judicature at Bombay, through its Registrar v. Shashikant S. Patil and another). In this case, disciplinary proceedings were initiated against the Joint Civil Judge (Junior Division) of the Maharashtra Judicial Service with respect to an incident, which took place when he was functioning as a Judicial Magistrate of First Class at Ahmednagar. The Enquiry Officer, who conducted the enquiry, exonerated him of the charges levelled against him. But the Disciplinary committee of the High Court, after scrutiny of the report of the Enquiry officer was not disposed to approve the findings therein. The Committee differed from the findings and proposed to proceed into the matter. A notice was thereupon issued to the Judicial Officer calling upon him to show cause as to why the finding of the inquiry officer on the crucial points be not repudiated and a major penalty of dismissal from service be not imposed on him. The Disciplinary committee of the High Court thereafter, considered the representation made by the said delinquent officer and rejected the same as it arrived at the conclusion that the charges framed against him stood proved. The Committee then decided to recommend imposition of penalty of compulsory retirement on him. The Governor later issued orders on the said recommendation compulsorily retiring the delinquent officer. Thereafter, the Division Bench of the High Court quashed the order of imposition of compulsory retirement of the said delinquent officer mainly on the premise that the Disciplinary Committee had not put forward adequate reasons for differing from the findings of the Inquiry Officer. It was further held that the Disciplinary Committee did not discuss how the Inquiry Officer went wrong and why his findings were not acceptable to the Committee. The legal proposition propounded by the Division Bench of the High Court was as follows:

"It is an established principle in disciplinary jurisprudence that when the disciplinary authority differs from the findings of the Inquiry officer, it has to discuss the entire case threadbare and establish that each finding of the Inquiry Officer was totally improbable that in the light of the materials the only conclusion that can be arrived at by an ordinary prudent man, is the conclusion arrived at by the Disciplinary Authority."

Negativing this proposition, the Apex Court in a hard hitting judgment observed in para 16 as follows :

"The Division Bench of the High Court seems to have approached the case as though it was an appeal against the order of the administrative/disciplinary authority of the High Court. Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such inquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very fact of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But we cannot overlook that the departmental authority (in this case the Disciplinary Committee of the High Court) is the sole Judge of the facts, if the inquiry has been properly concluded. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution."

18. In view of above discussion, we hold that the total approach of the learned Single Judge was erroneous, who indeed over stepped his authority by substituting his own findings in place of the findings of the Enquiry officer and the appellate authorities. We, therefore, allow these appeals and set aside the impugned order.

19. Appeals accordingly allowed in the above stated terms. No order as to costs.

Appeals allowed.