Sri M.G. Vittal Rao vs The Divisional Controller, Ksrtc, Bangalore Central Division K.H. Road, Shanthinagar, Bangalore-360027

There is a delay of 7 days in filing the appeal. Being satisfied for the cause shown, delay is condoned.

The correctness of the order of the learned Single Judge in modifying the order of dismissal into that of termination is called in question by the appellant in this writ appeal.

On the basis of certain charges levelled against the appellant which were identical to the charges in a criminal case, an enquiry was held against him. The Enquiry Officer submitted his report and on the basis of the said report, the Disciplinary Authority dismissed the appellant from service on 14.2.1997. The said of order of dismissal was questioned before the Labour Court. During the pendency of the proceedings before the Labour Court, the proceedings before this Court in Crl.R.P.No. 299/1994 were concluded. By order dated 9.7.1997, this Court acquitted the appellant and others holding that the allegation of conspiracy and theft were not proved, Thereafter, on 17.2.2005, the Labour Court passed an order of dismissal. The said order was questioned before the learned Single Judge by filing a writ petition in W.P.No. 14354/2007. The learned Single Judge after referring to the decision of this Court in Crl.R.P.299/1994 and also observing that the case of the appellant was identical to the one in W.P.No. 6376/2007 and W.P.No. 15623/2005 and connected matters held that, since there was no corroborative evidence as to whether the appellant was really involved in the theft, modified the order of dismissal into the order of termination and further taking into consideration that the appellant had retired from service, directed the respondent to pay terminal benefits up to the date of his dismissal. The order of termination is questioned in this writ appeal.

We have heard the learned counsel for the appellant and the learned counsel for the respondent-Corporation.

It is submitted by the learned counsel for the appellant that, the appellant was not at all involved in the theft. Particularly, when a reference was made to the decision of this Court in Crl.R.P.No. 299/1994, the only order that could have been passed is to re-instate the appellant rather than to modify the order of dismissal into order of termination. In the circumstances, he submits that the appellant ought to be re-instated with all consequential benefits.

Per contra, learned counsel for the respondent-Corporation submits that, in spite of the order passed in Crl.R.P.No. 299/1994, an enquiry was held, wherein this charges were proved. The Disciplinary Authority on the basis of the enquiry report was justified in dismissing the appellant. But, however, the learned Single Judge in exercise of his discretion modified the said order into an order of termination and therefore, it does not call for interference in this writ appeal.

Having heard both sides and on perusal of the materials on record, what is evident is that, the order of dismissal was passed on 14.2.1997 by the Disciplinary Authority and during the pendency of the proceedings before the Labour Court, an order of acquittal was passed on 9.7.1997 by this Court in Crl.R.P.299/1994. As already stated, as the charges in the disciplinary proceedings as well as the charges in the criminal proceedings were identical, this Court, on appreciation of the evidence on record has categorically held that fee presence of the appellant herein No. 3 in the Crl.R.P.No. 299/1994 was not established at the time of theft and further there was no direct evidence to prove that the accused was found inside the cash room or they were in fact in possession of notes, set aside the order of conviction as well as the sentence of the appellant and three other persons and acquitted the appellant. Though the said order of this Court was brought to the notice of the Labour Court, it has not appreciated the implication of the order of acquittal passed by this Court and has erroneously upheld the order of dismissal. In this context, it would be relevant to, refer the decision of this Court in the case of C.D. Ventaramana Shetty -vs- The State of Karnataka by its Secretary to Government and Others) reported in ILR 2006 KAR 4374, (DB) wherein after making references to the decisions of the Apex Court reported in Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Another, and also the case of G.M. Tank -vs- State of Gujarat and Others), has opined that, if the charges of (sic) and criminal charge are framed on the same set of charge in the disciplinary and criminal proceedings and in the criminal case the delinquent employee is honourably acquitted, then the decision rendered by the judicial officer must be preferred to the findings and reasons recorded by the enquiry officer in enquiry proceedings as his jurisdiction is quasi judicial in nature.

By following the above dicta, we are of the view that the Labour Court ought to have given sufficient weightage to the order passed by this Court in Criminal Revision Petition and thereby passed an appropriate order rather than upholding the order of dismissal of the appellant passed by the Disciplinary Authority.

We also find that the learned Single Judge has made a reference to the judgment of this Court made in Criminal Revision Petition and has categorically held that the Management failed to establish that the appellant was really involved in the theft and has also considered the acquittal of the appellant from the Criminal Court. Then, in our considered view, the learned Single Judge could not have modified the order of dismissal into order of termination. If the appellant is acquitted in the criminal proceedings and in view of decision of the Division Bench of this Court, the appellant would have been re-instated into service with ail consequential benefits. At this stage; the learned counsel for the appellant submits that he has been retired from service on 31.7.2007. Since we are quashing the award of the Labour Court and reversing the decision of the learned Single Judge, we direct that the appellant be re-instated with all consequential benefits, Keeping in mind the fact that the order of dismissal is passed on 14.2.1997 and the appellant retired on 31.7.2007, for the said period the appellant shall be entitled to 50% of the hack wages and consequential benefits of retirement.

For the aforesaid reasons, the appeal is allowed.