Shri Ajab Multaikar vs Vasantrao Naik Vimukta Jati and Nomadic Tribes Development Corporation Ltd.

B.P. Dharmadhikari, J.—In this writ petition, filed under Article 227 of the Constitution of India, the petitioner employee is challenging the order dated 25/3/2004 delivered by learned Industrial Court, Nagpur in Revision (ULPN) No. 166 of 1996, dismissing the same. Earlier, against said order, the petitioner had filed a review application vide Misc. Application (ULPN) No. 15 of 2005 and it was dismissed by learned Member, Industrial Court on 22/1/2008 after holding that said review application was not maintainable. Thereafter, this writ petition has been filed.

The writ petition was to be disposed of finally at the stage of admission as per orders dated 30/3/2009. It appears that it was admitted on 10/9/2009 for final hearing.

In this background, I have heard learned Advocate Shri A.S. Jaiswal for petitioner employee and learned Advocate Shri R.E. Moharir for respondent employer.

Short contention of learned Advocate Shri Jaiswal is that misconduct for which petitioner employee came to be dismissed from service also formed part of Special Case under the Prevention of Corruption Act, 1988. Initially, the employee was convicted in that Special Case No. 16 of 1987 with rigorous imprisonment of One year and fine of Rs. 200/-, on 10/10/1991. This conviction was challenged by the employee in Criminal Appeal No. 397 of 1991 before this Court and vide judgment dated 15/11/1994 the employee was honourably acquitted. He contends that this judgment and its impact on punishment of dismissal or on mis-conduct as such, has not been looked into by the learned Industrial Court. According to him, for its consideration the impugned order of Industrial Court dated 25/3/2004 needs to be quashed and set aside and Revision needs to be restored back to file. To substantiate his contention, learned Counsel for petitioner has relied upon some Rulings reported at Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Another, ; Management, Pandiyan Roadways Corp. Ltd. Vs. N. Balakrishnan, ; The Managing Director State Bank of Hyderabad and Another Vs. P. Kata Rao, ; and G.M. Tank Vs. State of Gujarat and Another, .

Opposing the contention of learned Advocate Shri Jaiswal, learned Advocate Shri Moharir for respondent argues that acquittal of petitioner is totally irrelevant. Learned Counsel contends that evidence looked into by the learned Labour Court to return the finding of guilt and the standard of proof applicable before it are entirely different. The Departmental Enquiry was found to be vitiated by the Labour Court and hence, opportunity to prove misconduct was given to respondent. Accordingly, necessary witnesses were examined before the Labour Court and after appreciating that evidence, the employee is found to be guilty of misconduct. He argues that said finding is not being assailed in any way before this Court. He has relied upon the judgment of Hon''ble Apex Court, reported at 2007(4) L.L.N. 205 in case of Nelson Motis Vs. Union of India and another, , in case of (Nelson Motis v. Union of India and Anr.) and judgment of learned Single Judge of this Court, reported at 1993 (2) C.L.R. 50 in case of (Raghunath Vishnu Patil v. R.N. Gavande and Ors.) to substantiate his contention.

In brief reply, learned Advocate Shri Jaiswal has attempted to show that witnesses examined before the Labour Court to prove the misconduct, were also examined by prosecution in Special Case No. 16/1987 and their evidence has been looked into by the High Court in Criminal Appeal No. 397/1991 while acquitting the employee.

The facts, therefore, are not much in dispute. The petitioner employee was caught red handed by Anti Corruption Bureau in a trap on 25/7/1986. The said trap was at the instance of one Shri Fakirchand Fulsunge. The employee had demanded and accepted bribe of Rs. 400/from him and that amount was also recovered from full pant pocket of the employee. After receipt of this report by Anti Corruption Bureau, respondent employer summoned him at Bombay and his statement was recorded. The statement of complainant Shri Fulsunge was also recorded and then the Managing Director has prepared his report on 01/8/1986. The Managing Director, thereafter, again recorded the statement of Shri Fulsunge on 04/8/1986 and after application of mind, passed the impugned order inflicting the punishment upon employee on 04/8/1986. This order was then questioned by the employee by filing ULPA Complaint No. 425/1986 before the 2nd Labour Court, Nagpur. The said court on 29/6/1987 passed an order and held Departmental Enquiry to be unfair and vitiated. After that order, employee moved an application at Exh.46 and sought interim reinstatement and that relief of reinstatement was granted after noticing that employer was given an opportunity to prove misconduct before the Labour Court.

Before learned Labour Court, employer examined complainant Shri Fakirchand Fulsunge, Shri Virendra Jadhav and panch witness on trap by name Ganpat Choudhari. These witnesses were cross-examined by the employee and employee did not tender any evidence. After appreciating all this evidence, the learned Labour Court found that trap was successful and employee tested positive for Anthracene Powder. The currency notes seized from him, his hands and full pant pocket when examined in ultraviolet rays revealed presence of Anthracene Powder. The learned Labour Court also found that in cross-examination of Shri Fulsunge, the employee could not bring any material on record to discredit him and it, therefore, chose to rely upon said evidence. It also considered other evidence on record and came to conclusion that the employer succeeded in proving the misconduct. In view of these findings, the learned Labour Court also expressed that as charge was of serious nature, it would not be proper to grant employee relief of reinstatement and, therefore, upheld the punishment of dismissal inflicted on 04/8/1998.

This order was then challenged in Revision (ULPN) No. 166/1996 and in order dated 25/3/2004, the learned Member, Industrial Court considered these findings of Labour Court and found that same were not perverse or erroneous and therefore, maintained the order of dismissal. The learned Industrial Court also noticed the submission before it by the employee that Criminal Appeal filed by him before High Court was allowed and his conviction was set aside. The contentions of petitioner and respondent before this Court need to be looked into in this background.

In case of Capt. M. Paul Anthony (supra), the Hon''ble Apex Court has observed that the question of simultaneous proceedings in Departmental Enquiry and criminal trial was of perennial nature and the issue before it was about the order of dismissal passed by the employer, before decision of Criminal Case, which ultimately resulted in acquittal of the appellant. In paragraph 13, the Hon''ble Apex Court has observed that the proceedings in criminal case and in departmental proceedings are distinct and fall in different areas. In departmental proceedings, charge relating to misconduct is investigated and the mind of the Disciplinary Authority is primarily concerned with enforcement of discipline or investigate the integrity of delinquent or other staff. The standard of proof required in those proceedings is different than one required in criminal trial. In departmental proceedings, preponderance of probabilities is the standard while in criminal matter, charges are required to be proved by prosecution beyond all reasonable doubts. Hon''ble Apex Court also noticed that there may be little exception when departmental proceedings and criminal case are based on same set of facts and evidence in both the proceedings is also common without there being any variance. In paragraph 34, in facts before it the Hon''ble Apex Court noticed that criminal case and departmental proceedings were based on identical set of facts i.e. raid conducted at the residence of appellant and recovery of incriminating articles there from. The findings recorded by Enquiry Officer revealed that charges framed against said appellant were proved by police officer and panch witness, who had raided the house and effected recovery. They were the only witnesses examined by the Enquiry Officer. These witnesses were also examined in criminal case before the Court and the Court came to conclusion that no search was conducted nor was any recovery made from the residence of appellant. Thus, the Court recorded findings, which had the effect of throwing out the case of prosecution and appellant was acquitted by it. Because of these findings of the Court, the Hon''ble Apex Court found that it would be unjust and unfair and rather oppressive to allow findings recorded in departmental proceedings to stand. It is also important to note that said departmental enquiry was ex-parte.

In case of Pandiyan roadways Corporation Ltd. (supra), the Hon''ble Apex Court has considered various judgments including the one considered by me above and in paragraph 21 and 22 has recorded its findings, which are as under:

There are evidently two lines of decisions of this Court operating in the field. One being the cases which would come within the purview of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. And G.M. Tank v. State of Gujarat. However, the second line of decisions show that an honourable acquittal in the criminal case itself may not be held to be determinative in respect of order of punishment meted out to the delinquent officer, inter alia, when; (i) the order of acquittal has not been passed on the same set of facts or same set of evidence (ii) the effect of difference in the standard of proof in a criminal trial and disciplinary proceeding has not been considered (see Commr. of Police v. Narender Singh), or ; where the delinquent officer was charged with something more than the subject-matter of the criminal case and/or covered by a decision of the civil Court (see G.M. Tank, Jasbir Singh v. Punjab and Sind Bank and Noida Entrepreneurs Assn. v. Noida, para 18)

In Narinder Mohan Arya v. United India Insurance Co. Ltd. this Court held : (SCC p. 729, paras 39-41)

Under certain circumstances, a decision of a civil court is also binding upon the criminal court although, converse is not true. (See Karam Chand Ganga Prasad v. Union of India). However, it is also true that the standard of proof in a criminal case and civil case is different.... (Only relevant part extracted)

In case of Managing Director, State Bank of Hyderabad and Anr. (supra), the Hon''ble Apex Court has considered the judgment in case of Capt. M. Paul Anthony (supra) in paragraph 20. In paragraph 27 there, the contention about use of confession made by accused in criminal proceedings has been looked into and in said paragraph, the earlier judgment of Hon''ble Apex Court in case of G.M. Tank (supra) is also considered. Learned Advocate Shri Jaiswal has also relied upon this judgment of Hon''ble Apex Court, but as it has been considered in this later judgment, it is not necessary for this Court to again mention said judgment. In paragraph 27, while quoting paragraphs 30 & 31 from its 2006 judgment, the Hon''ble Apex Court has noted that the nature of evidence in departmental proceedings and in criminal case is same nature of case lodged against employee on the basis of evidence and material collected against him during enquiry and investigation and as reflected in charge- sheet, the factors mentioned are one and the same. In other words as expressed by Hon''ble Apex Court, the charges, witnesses, evidence and circumstances were one and the same. The raid conducted at appellants residence, recovery of articles there from, was the subject matter of both and Investigating Officer and other departmental witnesses were the only witnesses examined by the Enquiry Officer. Thus, findings in case of Capt. M. Paul Anthony appear in paragraph 30 in case of G.M. Tank v. State of Gujrat and Ors. (supra). Thereafter, in paragraph 31, it has been noticed there that when such facts and evidence were same, the employee should succeed. It has also observed that distinction usually drawn between departmental and criminal proceedings on the basis of approach and burden of proving would not be applicable in such circumstances. Though, the findings reached in domestic enquiry were found to be valid by the courts below, the honourable acquittal of the employee during pendency of proceedings challenging the dismissal, is required to be taken note of as per these decisions.

The judgment relied upon by employer in case of Noida Entrepreneurs Association (supra), particularly paragraph 12, shows that purpose of departmental enquiry and of prosecution is distinct. The Hon''ble Apex Court has also pointed out necessity of completion of departmental proceedings expeditiously and it has also mentioned that each case requires consideration in the backdrop of its own facts and circumstances and there is no bar to proceed simultaneously with departmental enquiry and criminal trial. In paragraph 16, the judgment in case of Capt. M. Paul Anthony (supra) has been reproduced with approval and then in paragraph 17, its earlier judgment about law relating to acquittal in criminal case and its effect on department proceedings has been considered. The said earlier judgment in case of Union of India v. Biharilal reported in 1997(3) L.L.N. 73 considers the case of a temporary government servant, who was kept under suspension and it has observed that acquittal by criminal court does not automatically give him right to be reinstated in service. The Hon''ble Apex Court has noticed that in terms of service rules applicable to that employee, it was open to appropriate competent authority to take a decision whether enquiry in the conduct was required to be held before directing reinstatement or appropriate action was required to be taken as per law.

In the case of Nelson Motis (supra), in paragraph 5, the aspect of different scope of departmental enquiry and criminal prosecution has been considered.

The judgments above show that when the finding of guilt in departmental enquiry is reached by Enquiry Officer on the basis of very same evidence, which has been looked into by a competent court while ordering acquittal of such employee in criminal trial, such finding reached by Enquiry Officer cannot prevail and the employee needs to be reinstated. The evidence which has been considered here by Labour Court and Industrial Court is already briefly commented upon by me above. Perusal of judgment of acquittal dated 15/11/1994 delivered by this Court shows that in paragraph 19, this Court found that sanction accorded for prosecution of employee (at Exh.32 there) was invalid. However, that is not only the ground on which acquittal has been ordered and this is clear from sentence appearing in said paragraph which reads -On this count too, the conviction is liable to be set aside. Thus, an additional factor has been looked into by this Court, to support the acquittal. The reasons of acquittal are contained in paragraph 16 and this Court has found that the case of complainant, at whose instance raid was conducted, could not be accepted. The court has found that demand of Rs. 500/-by a Clerk (present employee), only to forward the application to Regional Manager as alleged by the complainant, cannot stand to reason. Thus, observations in paragraph 16, are as under:

Considering the facts and circumstances of the case, it does not stand to reason that a clerk would demand Rs. 500/-, only to forward the application to Regional Manager. As regard the thrusting of the notes in the pocket, suggestions were given to the witnesses, but they denied. Only because they denied the suggestions, they cannot be said to be truthful witnesses. We have to consider various circumstances while appreciating the evidence of the witnesses. As I have earlier observed that though it is alleged that the notes were handed over to the accused and accused kept the same in the pocket of the pant this aspect is negative by the report of the Chemical Analyzer regarding the trace were of the anthracene powder. Similarly, there is contradictory versions regarding the demand alleged to have made initially in the office and thereafter on the road. This aspect has not been supported by the panch witness. Thus, giving conscious thought to the evidence on record, it is difficult to believe the story put forth by the complainant that the accused had demanded the amount of Rs. 500/-and settled to Rs. 400/-and accepted the same on 25/7/1986. The evidence of the prosecution has not been considered by the Trial Court in true and correct perspective and arrived at a wrong finding of conviction. The prosecution has not proved beyond reasonable doubt that the accused demanded the amount of Rs. 400/-and accepted the same. As such the conviction and sentence is liable to be set aside.

These observations, therefore, show that on the basis of correct perspective, the High Court found that the very basis of complaint was not made out. It needs to be mentioned that complainant Shri Fulsunge examined before Labour Court was also examined by the prosecution along with panch witness Shri Ganpat Choudhari in criminal prosecution. Shri Vasant Jadhav is the additional witness, who was examined before the Labour Court and said Jadhav was not examined before the Sessions Court in Special Case. The observations reproduced above and as contained in paragraph 16, therefore, clearly show that the difference in standard of proof, which regulate criminal trial has weighed with this Court to disbelieve the complainant Shri Fulsunge. This Court has expressed that demand of Rs. 500/-only to forward application to the Regional Manager cannot be accepted as sound reason. The Labour Court has appreciated evidence of Shri Fulsunge and noticed that the currency notes seized from said employee revealed presence of anthracene powder. Hands of employee (petitioner before this Court) also showed presence of said powder and full pant pocket of the employee also showed presence of that powder. In other words, Labour Court found that currency notes with Anthracene powder applied to it, handed over by Shri Fulsunge to the employee were accepted by the employee, who placed the same in his full pant pocket. This evidence and its appreciation by the Labour Court has been accepted by the learned Industrial Court also. This finding of Labour Court is not stated to be either erroneous or perverse. The only contention is High Court has acquitted the employee honourably. The reason for acquittal of employee by High Court is the impossibility of demand of Rs. 500/-by such employee found by this Court. This finding of High Court is because of the requirement of law to prove the guilt beyond reasonable doubt. It is apparent that said standard is not applicable before the Labour Court. The finding of Anthracene powder on hands of employee is not required to be considered by High Court in said Appeal. Correct standard of proof is used by the Labour Court and Industrial Court.

The judgment cited above, show that when evidence of very same witnesses is considered by the Enquiry Officer and by the criminal court, the appreciation thereof by criminal court may prevail. Hear, the evidence has been appreciated by a competent court of law and not by Enquiry Officer. Those judgments are, therefore, not clinching insofar as issue before me is concerned. Apart from this, it is to be noticed that judgment of acquittal was in existence since 15/11/1994 and learned Industrial Court has decided the revision of employee on 25/3/2004. The arguments about acquittal by High Court were also advance before learned Member, Industrial Court. In these circumstances, the effort of petitioner to secure order of remand just to produce the copy of judgment of High Court before Industrial Court cannot be countenanced. The said copy could have been produced before the Industrial Court at any time because revision itself was filed in 1996. The order of Labour Court dismissing ULPN complaint is also after the order of acquittal by High Court. The said judgment could have been produced even before the Labour Court.

In view of these findings, I am unable to accept the contention that the matter needs to be remanded back to the Industrial Court, Nagpur to consider the judgment dated 15/11/1994 delivered by this Court in Criminal Appeal No. 397/1991. I find that the said judgment does not have any bearing insofar as consideration of controversy by the Labour Court or the Industrial Court is concerned.

With the result, there is no merit in the writ petition. Writ Petition is accordingly dismissed. Rule discharged. However, in the circumstances of the case, there shall be no order as to costs.