A. Viswanathan, George Louis and C.R. Jayasekaran vs Bharath Petroleum Ltd.

V.S. Sirpurkar, J.—This writ petition is against order of dismissal awarded against these three petitioners who were erstwhile employees of

the first respondent Bharath Petroleum Limited. Two out of the three petitioners viz., 1&3 were watchmen while the 2nd petitioner was oiler. Being

watchmen at the yard, the duty of the 1st and 3rd petitioners was to see that no theft of any material takes place in the yard. On 21.10.1989 an

employee of the company by name Sathiyaseelan got a communication informing that there would be a theft of Benzene with the connivance of the

employees who were working as watchmen and with the others who were working there in other capacity. Subsequently it so happened and there

was a theft of Benzene worth Rupees One Lakh and Thirty Thousand which was established from the readings of the depth meter. A police

Complaint came to be made, on the basis of which one person called Gaja was arrested. His confession statement was recorded and the stolen

Benzene was recovered though not fully. Prosecution was conducted on the basis of this report against as many as 8 persons out of which the

present three petitioners were acquitted. The acquittal was on the basis that there was no eye-witness examined to say that the theft was being

committed and that the investigation officer was also not examined. This view was taken by the learned Magistrate as there was no evidence to

suggest that the accused persons or any of them had any hand in the said theft. The learned Magistrate has studiously avoided to give a finding as

to whether there was a theft or not which issue in any event should not have been avoided. After the acquittal, however the first respondent

instituted an enquiry and that enquiry was allowed to go on. In that enquiry, the first respondent examined as many as eight witnesses including one

Sathiyaseelan and has also produced about 96 documents. Though there was initial injunction against the first respondent to proceed with the

enquiry, ultimately that question has been finally allowed to rest by the judgment of this court in the Second Appeal whereby the suits filed by the

petitioners have been dismissed and the first respondent is directed to proceed with the enquiry.

As has been stated earlier, the enquiry was proceeded and as a result thereof, the delinquents were found guilty. Out of them these three have

challenged the proceedings of enquiry as also the punishment of dismissal imposed on them.

At the outset Mr. Kalyanasundaram, learned senior counsell appearing for the petitioners contended that this was a case where there was

absolutely no material to hold that the petitioners or any one of them were in any manner responsible for the theft or connected with the same.

Learned counsel very heavily relied on the judgment and points out that the whole prosecution was based on the so called confession statement of

one Gaja and had to fail as the Criminal Court has rejected the confession. He further says that there was no witness examined to suggest the

direct participation of the petitioners or any one of them in the theft and they were available on the concerned day 21.10.1989 when the lorry left

the premises with the load of stolen Benzene and the lorry was brought there at the behest of the petitioners.

Mr. Karthik, Learned counsel appearing for the respondent pointed out that this was not only a case of voluminous evidence available against

the delinquents/petitioners but, in fact their participation was fully proved which would be clear from the findings in the departmental enquiry.

Learned counsel took me through the enquiry report as also the judgment of the criminal court and contended that the burden of proof in the

criminal court would certainly be more vigorous than the burden of proof required in the departmental enquiry and that though few documents were

held to be inadmissible in criminal trial, they could well be relied upon before the departmental enquiry and that the burden of proof required therein

was only a preponderance of probability.

Learned counsel also pointed out that the petition is hit by laches because though the dismissal was in the year 1996 they approached the High

Court only in 2001 that is after about five years.

In taking the last point first, the explanation of the learned senior counsel on behalf of the petitioner is that firstly they filed appeal in the year

1997 and as that did not achieve anything they also approached the Hon''ble Central Minister and that was in the year 1998 and they also sent a

number of representations to the concerned authorities and ultimately when all these did not yield any result, they had no other remedy except to

approach this court by way of this writ petition.

It is trite law that by merely making representations, the petitioners cannot gain time. If the petitioners waited hopelessly for five years, there is

no real justification in coming thereafter before this court and filing the writ petition. In fact this petition is liable to be dismissed on the ground of

unexplained latches. I do see some explanation of which I have made reference earlier in this writ petition. Yet that explanation is only for the sake

of explanation and really does not justify the filing of writ petition after five years.

Be that as it may, even on the merits, the scope of this court in entertaining the petition like this, is extremely narrow. All that the court can see is,

as to whether there is any material on record against the petitioners so as to enable the authorities to come to the conclusion to convict them. It is

not for this court to sit as appellate court as against the enquiry report and to examine the whole case again by re-appreciating the evidence.

In this case as has already been stated, the main witness Sathiyaseelan had entered the witness box and had established the theft. Learned senior

counsel appeared on behalf of the petitioner was candid enough to admit that there was actually a theft on that day. A perusal of the evidence

would also show that such claim could not simply be shaken since from the yard a lorry load of Benzene had been carried away in a lorry. That

lorry was seen leaving the premises and the number of the lorry was also given during the course of enquiry. There is also evidence of the

employees of the first respondent to suggest that on that day all the three petitioners were actually on duty and the duty of two of the petitioners

were as watchmen. As such it has to be presumed that they were responsible for prohibiting anything being taken out of the premises

unauthorisedly. There is nothing on record to suggest that the petitioners have in any manner tried to prevent the said lorry which was loaded full of

Benzene from going out of the premises. One of the petitioners viz., the 2nd petitioner is the oiler and it is pointed out in the enquiry report that

unless he was involved in the whole affair, the benzene could not have been filled up in the lorry and with the active participation of all these

persons alone the above theft could have been taken place. Number of documents have been brought on record to suggest the existing stock of

benzene and the stock of the benzene found after the theft. It is also proved that ultimately some part of the stolen benzene was seized by the

police and there is no explanation as to how that benzene left the premises. In short in a case where there was material whatsoever available, then

the discretion of the High Court cannot be that of a appellate court. All that the High Court has to see is as to whether there was any material

available for the authorities to proceed against the delinquents in this case. It is obvious that there was voluminous material available for the

authorities to proceed against the delinquent and in fact that material was good enough and sufficient enough to book all the delinquents. After all

the first and 3rd petitioners were watchmen and unless they have actively connived in the whole affair, the theft could not have taken place nor any

lorry full of stolen benzene could have left the premises. That by itself is a pointer towards their guilt. However, it is not my task to consider the

evidence afresh. I have seen the enquiry report as also the other records. It is suffice to say that there was good material available to support the

finding of guilt as also the consequent punishment. There has been no complaint made as regards the mode of enquiry nor there has been any

complaint made against the quantum of punishment also and in deed, no such plea could have been made considering the volume of benzene

stolen.

For all these reasons, I am of the firm opinion that this writ petition has no merits and the same has to be dismissed. It is accordingly dismissed.

However, there will be no order as to costs.