JIJABA NAMDEO BORUDE Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS petition under Article 226 of the Constitution of India is directed against the order of termination of his services dated 2-1-1990. 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 was 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 judgements : -. 1994 (II) CLR-737 2. 1994 (II) CLR-891

(3.) IT is held by the Supreme Court in the case of (Nelson Motis v. Union of India) A. I. R. 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 consistant 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.