DEEPAK HIRALAL GOHIL Vs. BOMBAY PORT TRUST

JUDGEMENT

(1.) BY means of this writ petition under Article 226, the petitioners seek to challenge the orders dated August 17, 1993 annexed at Exhibit 'F' and 'F -1' to the writ petition issued by the Bombay Port Trust whereby the services of the petitioners Nos. 1 and 2 stood terminated. The facts and circumstances leading to the present petition arc few and may be shortly narrated. On March 19, 1991 at about 10.30 a.m. the petitioners 1 and 2 who were working as Water Supply Lascar and Safaiwala along with one Rajaram Sawinkar who was working as a Scavenger were accosted by the security guards near shed No. 8. They were carrying heavy looking plastic bags and when the security guards approached them to interrogate, Rajaram Sawinkar fled away from the scene throwing away the bag. On search being taken of the petitioners, it was revealed that the plastic bag which was being carried by the petitioner No. 1 contained 25 packets of Hero Honda motorbike spare parts. Petitioner No. 2 was also searched and in all 13 packets were found on his person containing the spare parts. In the plastic bag which the 3rd employee, viz., Rajaram Sawinkar had thrown and ran away when searched it was found to contain 14 packets having similar type of spare parts. In all 52 packets containing Hero Honda motorbike spare parts were recovered by the security guards. Yellowgate Police Station was informed about the incident., P.I. Doiphode who made preliminary enquiry arrested the petitioners and the petitioners were taken to Yellowgate police station where F.I.R. was lodged. The police filed a charge -sheet against the petitioners and their accomplice Rajaram Sawinkar for offences punishable under Sections 381, 114 of the Indian Penal Code in the Court of the Addl. Chief Metropolitan Magistrate, 38th Court, for committing theft and abetment. By a judgment and order dated November 28, 1991 all the three accused were acquitted. The learned Magistrate came to the conclusion that the prosecution had failed to establish the guilt of the accused. In the meantime, a departmental enquiry was initiated against the said three employees and they were served with separate charge sheets all dated August 13, 1991. The Inquiry Officer came to the conclusion that the charges against the petitioners were proved. The disciplinary authority then issued show cause notices to the petitioners on January 6, 1993 and after considering the replies filed by the petitioners issued the impugned orders of dismissal against the petitioners on August 17, 1993.

(2.) DR . Kulkarni, learned counsel appearing for the petitioners, strenuously contended that the subject -matter of the disciplinary enquiry was the same as in the criminal case which ultimately ended in an acquittal. He submitted that it is settled position that where criminal Courts give a honourable acquittal, normally, it is expedient to drop the same charges or not to proceed with the domestic enquiry and if the domestic enquiry has proceeded on the same subject -matter, then in view of the honourable acquittal by the criminal Courts, the respondents should have exonerated the petitioners from the charges of misconduct, particularly because the subject -matter of both the enquiry was the same. Dr. Kulkarni contended that in the present case, the evidence on which the Inquiry Officer has placed reliance is almost the same except the fact that few witnesses who were examined in the departmental proceedings were not examined at the time of trial. Otherwise, in all other respects, the evidence is the same. Dr. Kulkarni contended that in view of the acquittal by the criminal Court, the petitioners were entitled to be exonerated and they cannot be held guilty of misconduct. Dr. Kulkarni placed reliance on the decision of a two -Judge Bench of the Supreme Court in M. Paul Anthony v. Bharat Gold Mines Ltd. and Anr. : (1999)ILLJ1094SC . Dr. Kulkarni also, referred to another decision of a two -Judge Bench of the Supreme Court in Sulekh Chand and Salak Chand v. Commissioner of Police and Ors. : 1994(4)SCALE707 . He also referred to the decision of a single Judge of this Court in Chandrakant Raoji Gaonkar v. Bombay Port Trust and Ors. 1996 III LLJ 338

(3.) MR . Ramaswamy, learned counsel for the respondent, on the other hand, contended that the object of the criminal enquiry is different from the object of the domestic enquiry. He contended that standard of proof in a criminal case is different from the standard of proof required in domestic enquiry inasmuch as standard of proof in a domestic enquiry is preponderance of probabilities which is not the case in the matter of criminal trial where the charges are required to be proved beyond reasonable doubt. He placed reliance on the following decisions of the Supreme Court (i) Corporation of Nagpur v. Ramchandra : (1981)IILLJ6SC (ii) Nelson Motis v. Union of India and Anr. : (1992)IILLJ744SC and (hi) State of A.P. v. K. Allabaksh : (2000)10SCC177 . Mr. Ramaswamy also referred to a decision of the Division Bench of the Madras High Court in Coimbatore and Periyar Dist. Dravida Panchalai v. Management of Pioneer Mills Ltd. and Anr. : (2001)IILLJ1296Mad . Mr. Ramaswamy submitted that the evidence is not the same in both inquiries. Certain important witnesses like the shop supervisor, etc., were not examined in the criminal case. Further, according to Mr. Ramaswamy, the acquittal given by the learned Magistrate was not a clean and honourable acquittal. He submitted that the petitioners were acquitted in the criminal case mainly due to non -availability of the witnesses and benefit of doubt was given to the accused as proper evidence was not produced before the Magistrate.