Bombay High Court
Jaywant Bhaskar Sawant vs Board Of Trustees Of The Port Of Bombay ... on 20 April, 1994
Equivalent citations: [1995(70)FLR368]
ORDER
1. The petitioner used to work as a Hamal in Chief Engineer's Department of Bombay Port Trust, the petitioner used to work under the Superintending Entineer Shri S. M. Naik, since inception and had an excellent record of service as admitted by Shri S. M. Naik during course of his testimony at the criminal trial of the petitioner as well as in the Departmental Enquiry. The petitioner was charged with theft before the Court of the Metropolitan Magistrate 33rd Court, Ballard Pier, Bombay in Case No. 1829/B of 1988. By an order dated 23rd December 1988, the petitioner was honourably acquitted. The learned Magistrate inter alia recorded in his judgement an under :-
"thus it appears that it is a haste of complainant which caused harassment of accused. Even Police machinary also without making proper investigation filed this charge-sheet in spite of the fact that there are no additional circums tances on record that accused (meaning thereby the petitioner) removed property from one place to other with intention to cause wrongful loss to complainant and wrongful gain to himself which is crux of offence".
In spite of the said honourable acquittal, the departmental enquiry on the basis of the same allegations was continued without attaching any weightage to the said honourable acquittal of the petitioner by the Competent Court whatsoever. In the departmental enquiry, the petitoner was charged with alleged misconduct of "having suppressed the fact of having seen the N. C. Scriber-10 with the intention of committing theft", indicating an act of dishonesty in connection with the property of the Bombay Port Trust, amounting to misconduct under Rule 22(2) (b) of the Bombay Port Trust Rules and Regulations for Non-Scheduled Staff. In the departmental enquiry, the petitioner was not charged with the actual theft but was charged with suppression of a fact with the intention of committing theft. The petitioner was dismissed from the Port Trust Service w. e. f. 22nd March, 1990. The impunged order of dismissal of the petitioner from service was passed on 19th March, 1990. A statutory appeal preferred by the petitioner against the said order was dismissed by the Chairman of the Port Trust by his order dated 3rd August, 1991.
2. The petitioner has filed this petition under Article 226 of Constitution of India as the petitioner is aggrieved by the above referred order of dismissal of the petitioner from service as well as the appellate order. It is an unfortunate litigation at the instance of humblest of the humble employee of Port Trust having excellent record of service pursued by the Respondents without any justification and without attaching any weightage to the order of honourable acquittal passed by the criminal Court. It is unfortunate that the petitioner has suffered harassment as a result of this intigration.
3. The relevant facts are briefly summarised hereinafter :
(a) As a Hamal, working in the department, the petitioner performs duty of cleaning, sweeping and dusting the floors, furnitures in the Design office of the department of Chief Engineer of the Port Trust. Sometime in November 1986, the Respondents purchased a small N. C. Scriber-10 at an estimated cost of Rs. 1 lack for purpose of being used by the Draughtsman working in the office. The said machine was used to be kept in the cupboard of Mrs. S. M. Naik. On 14th March 1988, the said machine was used by one Shri Vasta, Draughtsman Grade II till 4.45 on the Drawing Table of one Shri Vakilna. It is alleged that Shri Vasta left the machine on the same table and the said machine was not kept in the cup-board by 5.30 p.m. by which Shri Vasta left his office.
(b) On 15th March 1988, Shri S. M. Naik attended the office at about 9 O'Clock when the petitioner was cleaning the Design Office. An enquiry was made by Shri Naik from the petitioner as to where was the machine, as the machine was believed to be missing. The petitioner informed Shri Naik that the petitioner did not know where the machine was. At about 12.30 p.m. a police compliant was filed by Shri Naik or at the instance of Shri Naik regarding the missing of the said machine. The police Sub-Inspector Shri Sawant made inquiry from the petitioner. The petitioner was arrested on the same day. It is alleged that on 16th March, 1988, at about 12.30 p.m. the petitioner is supposed to have shown the said hidden machine from the unused drawer of the table of Shri S. M. Naik in presence of Shri Naik, and two panchas. On 3rd April 1988, the petitioner was suspended. The petitioner was charged with the alleged misconduct under Rule 22(2) (b) of the Bombay Port Trust rules and regulations for Non-Scheduled Staff and was also prosecuted on the charge of theft. The charge-sheet was served on the petitioner on 30th June, 1988. The learned Magistrate by his well considered and detailed judgement acquitted the accused and described the action of the complainant as well as of the police hasty. The learned Magistrate in terms quoted the admission made by the said Shri S. M. Naik in his evidence on oath as under :-
"On 15-3-1985 I did not search the drawer of my table before reporting the matter as generally that drawer is used. I cannot say whether that machine was stolen or kept in the drawer. Before reporting matter I did not take search of that drawer where machine was found on 15-3-1985. The previous service record of accused is excellent".
The learned Magistrate relied upon the said evidence and held that it was just possible that somebody must have kept the machine in unused drawer after it was used and the Report was made to the police hastily merely because the machine was not kept by officer concerned in the cub-board. The learned Magistrate further held as under :-
"there is no evidence that the accused removed it"
(c) The petitioner was placed under suspension by an Order dated 12th April 1988 w. e. f. 13th April, 1988. The said order of suspension was revoked by an order communicated to the petitioner by letter dated 19th January 1989, by the Administrative Officer of the Bombay Port Trust. By an order dated 27th January 1989, the petitioner was informed that his suspension period i.e., from 13th April, 1988 to 28th January 1989 had been treated as suspension only.
(d) It is of considerable significance that the charge-sheet at the criminal trial differs in material particulars with the charge-sheet in the departmental enquiry. At the criminal trial the petitioner was charged with actual theft. In the departmental enquiry the petitioner was charged with suppression of fact of having seen the machine with an intention of committing theft and thereby committing of act of dishonesty in connection with Port Trust property. The learned counsel for the respondent has not been able to throw any light on this material contradiction. At the criminal trial the petitioner was charged with alleged actual theft. In the departmental enquiry the petitioner was charged with supression of fact with intention of committing theft in future.
4. By letter dated 18th January 1989, the Administrative Officer of the Bombay Port Trust called upon the petitioner to forward a certified true copy of the judgement delivered by the learned Magistrate, 33rd Court, Balard Pier. The petitioner furnished copy of the said judgement to the authorities.
5. On 9th November, 1989, the Enquiry Officer Shri S. S. Lad made his Enquiry Officer Shri S. S. Lad made his Enquiry report in the matter. During course of enquiry proceedings Shri Suresh Sridhar Sawant, Police Sub-Inspector was examined as one of the witnesses. It was admitted that the property in question was traced only in the cabin of Superior Officer. At the criminal trial the prosecution had relied on panchanama and two panch witnesses. During the course of departmental inquiry the said panchanama could not be proved. Only one of the two panch witnesses by name Shri V. N. Kale was examined. At the enquiry the said panch witness did not support the prosecution case of the department and was declared hostile. Even though the said panch witness was cross-examined, nothing could be established from his testimony. One Shri K. S. Vasta, Draughtsman was also examined in the departmental enquiry. During the course of his cross-examination the said Shri Vasta stated that he had no occasion to suspect the petitioner and the other staff members had also never suspected the petitioner. During the course of his cross-examination the said Shri Vasta further stated that he had forgotten to keep the machine in the cup-board. It was also admitted that the petitioner was never entrusted with the job of handling the said N. C. Scriber-10. The last witness examined during course of enquiry was Shri S. M. Naik. Shri Naik admitted that he had not taken search of his drawers before taking the matter to the police. Shri Naik admitted that the service record of the petitioner was excellent. Shri Naik further admitted that it was the negligence on the part of the Draughtsman Shri Vasta by not keeping the machine at its proper place after he had handled the same on 14th March, 1988. Merely because the petitioner was the last man to leave the office on 14th March, 1988 and first to enter the office on 15th March 1988, the petitioner could not be suspected of theft or intended theft. The Enquiry Officer did not attach any weightage to the order of honourable acquittal passed by the learned magistrate and proceeded to ananlyse the evidence in his own way as if the said order of honourable acquittal was totally irrelevant.
The Enquiry Officer was right only to a limited extent when he observed that as a matter of theory the departmental enquiry could be continued notwithstanding the acquittal of the charged officer at the criminal trial. The Enquiry Officer was totally wrong when he observed in his report as under :-
"It is well settled that the findings given by a criminal Courts are irrelevant in a Civil Procedure".
If the criminal Courts passes an order of honourable acquittal, the departmental enquiry can be continued but the Enquiry Officer or Disciplinary Authority are duty bound to attach reasonable weightage to the findings recorded at the criminal trail. Ordinarily it would not be expedient to continue the departmental enquiry once the charged officer is honourably acquitted at the trial and is not acquitted merely because of benefit of doubt or some technical reason. It is however, within the discretion of the management to hold the domestic enquiry even in such a case for a cause. The Management must exercise its discretion fairly and reasonably and not arbitrarily or capriciously. If it is shown that the management has just ignored order of honourable acquittal and not attached any weightage to such orders, the Writ Court would be bound to quash and set aside the order of Disciplinary authority in an appropriate case. The Enquiry Officer was not bothered about the order of acquittal or the evidence of the witnesses in so far as the same was in favour of the petitioner.
6. By this order dated 14th December, 1989 the Deputy Chief Engineer informed the petitioner that he propose to dismiss the petitioner from service in view of the report made by the Enquiry Officer and if the petitioner desired to make any representation in respect of the proposed punishment the petitioner desired to make any representation in respect of the proposed punishment the petitioner could do so within a period of 7 days from the date of receipt of the Memorandum dated 14th December, 1989. By his letter dated 10th January 1990, the petitioner made representation to the Deputy Chief Engineer in respect of the proposed punishment. The petitioner relied on his honourable acquittal at the criminal trial. The petitioner submitted that the conclusions arrived at by the Enquiry Officer were based on conjectures and surmises and the so called findings were totally perverse. The petitioner denied that the petitioner had admitted charge of theft. The petitioner denied that the petitioner had admitted the said charge to the Police Sub-Inspector when he interrogated him in presence of panchas or members of the staff of Respondents. It appears to be the version of the petitioner that Shri Naik had admitted before the Enquiry Officer that none of the staff members was present when P. S. I interrogated him. In alternative the petitioner referred to his past service record being excellent as admitted by Shri Naik. It was also highlighted that there was free access to the cabin of Shri Naik. It was also stated in the said letter that the drawer in question was open. The Enquiry Officer had stated in his report as under :-
"On the contrary it may be stated that the charge sheeted employee would not have intended to take the machine out immediately because he knew that a police complaint was likely to be made and hence it was risky to remove the machine in such circumstances. It is possible that he could have removed the machine out after the police case was closed as undetected".
The petitioner described the above referred observation of the Enquiry Officer as unfounded and based on mere conjecture and surmise. It was obligatory on the part of disciplinary authority to consider the said representation logically and fairly and attach due weightage to the past excellent record of service of the petitioner and consider the above referred representation on each aspect set out therein. The Deputy Chief Engineer passed order of dismissal of the petitioner from the service. The said impugned order dated 19th March, 1990 is a non-speaking order and doses not show that the Deputy Chief Engineer applied his mind to any of the points made by the petitioner in his representation dated 10th January 1990.
7. Being aggrieved by the said order of dismissal the petitioner filed his statutory appeal as provided in Chapter of Appeals i.e., Part VII of Bombay Port Trust Employees (Classification, Control and Appeal) Regulations, 1976. It is the duty of the appellate authority to consider the appeal and address himself to at least three questions specially as indicated in Rule 26(2) of the above referred regulations.
"26(2) In the case of an appeal against an order imposing any of the penalties an order imposing any of the penalties specified in Regulation 8 or enhancing any penalty imposed under the said regulation, the appellate authority shall considered :-
(a) Whether the procedure laid down in these regulations has been complied with, and if not whether such non-compliance has resulted in the failure of justice;
(b) Whether the findings of the disciplinary authority are warranted by the evidence in adequate or severe; and pass orders -
(i) Confirming, enhancing reducing or setting aside the penalty; or
(ii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case;
Provided that :-
(i) If the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in Clause (v) to (ix) of Regulation 8 and in inquiry under Regulation 12 has not already been held in the case, the appellate authority shall, subjects to the provisions of Regulation 17, itself holds such inquiry or direct that such inquiry be held in accordance with the provisions of Regulation 12 and thereafter, on a consideration of the proceed ings of such inquiry and after giving the appellant a reasonable opportunity, as far as may be in accordance with the provisions of sub-regulation (4) of Regulation 13 of making a representation against the penalty proposed on the basis of the evidence adduced during inquiry, make such orders as it may deem fit;
(ii) If the enhanced penalty which the appellate authority proposed too impose is one of the penalties specified in clauses (v) to (ix) of Regulation 8 and and inquiry under Regulation 12 had already been held in the case, appellate authority shall, after giving the appellant a reasonable opportunity, as far as may be in accordance with the provisions of Sub-regulation (4) of Regulation 13, of making a representation against the penalty proposed on the basis of the evidence adduced during such inquiry, make such order as it may deem fit; and
(iii) no order imposing an enhanced penalty shall be made in any other case unless the appellant has been given a reasonable opportunity, as far as may be in accordance with the previsions of Regulation, of making a representation against such enhanced penalty"
8. At this stage it appears to be appropriate to quote Rule 22(2) (b) of Bombay Port Trust Rules and Regulations for Non-Scheduled Staff also. The said rule reads as under :-
"22 (1)...... (2) An employee may be suspended, demmoted and/or reduced in grade, removed and/or reduced in grade, removed or dismissed, without notice or any compensation" in lieu of notice, for any of the following acts or omissions :-
(a).............
(b) Abetting, conniving at or attempting or committing of there, fraud or dishonesty in connection with Port Trust Work or property.
9. The Appellate Authority did not grant any personal hearing to the petitioner. The Appellate Autority did not expeditiously decide the appeal. The petitioner addressed reminder letter dated 24th January, 1991 to the Chairman of the Port Trust. Shri Vijay R. Tawde, the Advocate for the petitioner also addressed letter to the Chairman of the Port Trust stating therein that the petitioner would proceed to file a writ petition if the pending appeal was not decided immediately. In these circumstances by impugned order dated 3rd August 1991, the Chairman of the Bombay Port Trust decided the above referred appeal without dealing with any of the contentions raised in the Memo of Appeal and without addressing himself to any of the three questions referred to in Regulation 26(2) of the above referred regulations. By the said order the Chairman of the Port Trust rejected the appeal merely by observing that the points raised by the petitioner in the appeal were dealt with thoroughly and appropriately by the Enquiry Officer and the Disciplinary Authority. As a matter of fact the Disciplinary Authority had not dealt with the questions as to whether in any event the punishment awarded was excessive in view of the fact that the petitioner had an excellent past record of service. The petitioner had raised many points in his memorandum of appeal but none was dealt with in the said Appellate Order. None of the contentions raised by the petitioner in the representation dated 10th January, 1990 was referred to or dealt with by the Disciplinary Authority in his order dated 19th March, 1990. Thus the poor man suffered injustice throughout.
10. In my opinion the contentions raised in the petition have not been adequately dealt with in the affidavit in reply.
11. The learned counsel for the Respondents submitted that the departmental proceedings could be continued in law notwithstanding the acquittal of the petitioner by the Criminal Court. The learned counsel for the respondent relied on the judgement of the Hon'ble Supreme Court in the case of Nelson Motis v. Union of India & Anr. reported in 1992 II CLR 825. In this case, the Hon'ble Supreme Court held that nature and scope of a criminal case was very different from that of a departmental disciplinary proceeding and an order of acquittal could not conclude the departmental proceedings. It is undoubtedly well settled law that there is no legal bar to the continuation of disciplinary proceeding in an appropriate case merely because of the charge-sheeted employee having been acquitted at the criminal trial. At times the accused is given benefit of doubt. Some times the accused may be acquitted on a technical ground like lack of sanction. If, however, the accused is honourably acquitted by the Criminal Court, the departmental, authorities are under an obligation to attach considerable weightage to the verdict of the Criminal Court. Normally it would not be expedient to continue the departmental inquiry of the said facts once the charge-sheeted employee is honourably acquitted at the criminal trial. It is, however, possible in the real of theory that the departmental authori ties may be justified in continuing the inquiry for a cause notwithstanding the honourable acquittal of the accused. It is, however, totally erroneous to observe as observed by the Enquiry Officer in his report that the findings recorded at the criminal trial are totally irrelevant in the departmental inquiry. The learned counsel for the petitioner rightly invited attention of the Court to the observations a made by Fazal Ali, J., in the judgement of the Supreme Court in the case of Corporation of the City of Nagpur v. Ramchandra G. Moda, . It was held by the Hon'ble Supreme Court in this case as under :-
"The question whether or not the departmental inquiry pending against the employee involved in the criminal case should be continued even after his acquittal in criminal cases is a matter which is to be decided by the depart ment after considering the nature of the findings given by the Criminal Court. Normally where the accused is acquitted honourably and completely exonerated of the charges it is not expedient to continue a departmental inquiry on the very same charges or grounds or evidence. However, merely because the accused is acquitted, the power of the authority concerned to continue the department all inquiry is not taken away nor its discretion in any way fettered".
In my opinion the enquiry Officer, Disciplinary Authority and the Appellate Authority did not at all apply their mind to the verdict of honourable acquittal and complete exoneration of the petitioner from the charge of the criminal Court for total want or evidence and have totally ignored the findings and judgement of the criminal Court altogether under a misconception that such honourable acquittal is totally irrelevant. Such an order of acquittal is not totally irrelevant in a civil proceeding or the departmental enquiry. No public authority is allowed to misuse its power. Public authorities must exer cise their statutory discretion fairly and reasonably.
12. The learned counsel for the petitioner also referred to the judgement of the High Court of Madras in the case of Shaik Kasim v. Superintendent of Pose Offices, and the judgement of High Court of Madhya Pradesh in the case of Qamarali Wahid Ali v. State of M. P. . Thus the impugned order suffer from clear and patent error of law apparent on the face of the record. I have no hesitation in holding that the observations made by the Enquiry Officer in his report duly approved by the Disciplinary Authority and Appellate Authority to the effect that the petitioner may have intended to remove the machine from the drawer of Mr. Naik later on after the police case was closed as undetected are totally imaginary and purely conjectural.
13. The learned counsel for the petitioner has submitted that the judgement and order dated 23rd December 1988, passed by the learned Metropolitan, Magistrate, 33rd Court, Ballard Pier, Bombay, in Case No. 1329/B of 19988 does not about to the judgement and order of honourable acquittal of the petitioner. The learned counsel for the petitioner has submitted that on true interpretation of the said judgement it must be held that the petitioner was acquitted merely because the prosecution could not prove the charge. It is not possible for the Court to accept this submission. The learned magistrate did not acquit the petitioner on the ground of benefit or doubt or for some technical reason. The learned Magistrate in terms held that "there was no evidence to show that the complaint was filed in haste as a result where of the accused had suffered harassment. " The learned Magistrate in terms held that even the evidence of the complainant Shri S. M. Naik did not support the prosecution case. The order of acquittal in this case was an order honourable acquittal.
14. The learned counsel for the petitioner relied on the judgement of the Hob'ble Supreme Court in the case of J. K. Cotton Spining and Weaving Company, Ltd. v. Its Workmen, reported in (1965) 2 LLJ 153 in support of his submission concerning the effect of order of acquittal passed by the Criminal Court in so far as departmental proceedings are concerned. In the above referred case the workmen was charged with theft of Company's property. The workmen was convicted of theft in a criminal Court. Pending the appeal by the workman was found guilty of the charge levelled agains them. Subsequently the workman was acquitted in appeal. In this case Industrial Tribunal held that he domestic inquiry was fair and proper and the findings recorded therein were not influenced by earlier order of conviction passed by the criminal Court. To my mind the ration of this judgement has no application to the facts of this case. In my opinion this judgement is clearly distinguishable. I have already observed in the earlier part of this judgement that the management is bound to attach weightage to the order of honourable acquittal passed by the criminal Court and normally it is not expedient to continue the departmental inquiry on the same charge.
15. The learned counsel for the petitioner submitted that the Disciplinary Authority ought to have applied his mind to the excellent past record of the service of the petitioner and all other factors pointed out against the report of the enquiry officer in the representation made by the petitioner on 10th January 1990. The impugned order of Disciplinary Authority does not disclose any reason whatsoever for imposing the extreme penalty of dismissal on the petitioner and for ignoring the past service record of the petitioner and the criticism of the petitioner against the report of the Enquiry Officer. There may be no specific regulation compelling the Disciplinary Authority to consider the past record of the charge-sheeted employee. It is, however, axiomatic that punishment to be awarded must be commensurate with the findings and the past excellent record if service could not have been ignored altogether by the Disciplinary Authority while passing the order of dismissal. The impugned order of the Disciplinary authority thus suffers from non-application of mind in respect of the relevant points urged by the petitioner in his letter of representation dated 10th January, 1990. The said impugned order of dismissal is thus violative of the obligation imposed on the Disciplinary Authority under the Bombay Port Trust Employees (Classification, Control and Appeal) Regulations, 1976. The learned counsel for the petitioner submitted with considerable force that the Appellate Autority ought to have granted personal hearing to the petitioner before deciding the appeal. It is not necessary to decide this question in this case. Perhaps in all cases, not necessary. The fact remains that the Appellate Authority has not given a single reason for dismissing the appeal. The fact remains that the appellate authority has not addressed itself to the three questions including the question of quantum of punishment while deciding the appeal as obligated under Regulation 26(2) of Bombay Port Trust Employees (Classification, Control and Appeal) Regulations, 1976. It is true that in a given case where the order passed by the Appellate Authority is a affirmance, the Appellate Authority may not always record reasons while dismissing the appeal. In this case neither the Enquiry Officer nor the Disciplinary Authority had considered the past excellent record of the service of the petitioner nor attached any weightage whatsoever to the verdict of honourable acquittal. In this case the appellant raised arguable contentions in the Memo of Appeal. The use of the Expression "consider" in Regulation 26(2) shows that the Appellate Authority must record his reasons while deciding the appeal and deal with at least the main contentions urged in the memo of appeal, if not all the contentions. The appellate order is thus violative of Regulation 26(2) of the above referred regulations and is also violative of the principle of natural justice. On this aspect the learned counsel for the petitioner has invited attention of the Court to the judgement of the Hon'ble Supreme Court in the case of Ram Chander v. Union of India, . In this case A. P. Sen, J. speaking for the Bench of the Hon'ble Supreme Court held that the Appellate Authority must give a hearing to the Government Servant concerned and pass a reasoned order. It is obvious from the ration of the said judgement that the reasoned decisions alone can promote public confidence in the administrative process. Consideration of fair play and justice also required that ordinarily a personal hearing should be granted to the appellant by the Appellate Authority. The learned counsel for the petitioner rightly relied on para 24 of the said judgement.
16. The learned counsel for the petitioner has invited attention of the Court to the judgement of the Hon'ble Supreme Court in the case of Ram Kumar v. State of Haryana, reported in 1987 (Supp) SCC 582. In this case it was urged before the Hob'ble Supreme Court on behalf of the appellant that the Punishing Authority had not applied its mind before passing the impugned order. The Hon'ble Supreme Court held that the High Court had rightly pointed out that the punishing authority had passed a lengthy order and it was difficult to say that the relevant aspects of the case. In this case, appellate Authority applied there mind to the aspect as to whether any weightage should be attached to the order of honourable accquittal. In this case neither the Disciplinary Authority nor the Appellate Authority applied their mind to the admission made by Mr. Naik in his evidence that the petitioner had an excellent record of past service. If the relevant aspects have not been looked into by the original authority and the appellate authority merely confirms the order passed by the original authority without dealing with the contentions raised in Memorandum of Appeal. Both the orders would be assailable. It cannot be said that the appellate authority has discharged tis obligations as contemplated under the rules. I have not doubt Supreme Court in the case of Ram Chander v. Union of India, is of considerable assistance for deciding this case and the above referred judgment cited by the learned counsel for the petitioner in the case of Ram Kumar v. State of Haryana, is clearly distinguishable. The learned counsel for the petitioner also relied on the judgement of High Court of Madras in the case of M. Karupian v. The Principal District Munisif Arivalur & Ors. reported in 1991 LIC 280. In this case it was held by the High Court of Madras that the order passed by the Appellate Authority clearly disclosed consideration of all facts and application of mind and the impugned order was clearly a speaking order. In the instant case the appellate order cannot be considered as a speaking order by any stretch of imagination.
17. The learned counsel for the petitioner also submitted that the findings recorded by the Enquiry Officer are perverse. The said findings are vitiated in law by reason of non-consideration of relevant material on record and the past excellent record of service of the petitioner and the above referred order of honourable acquittal. The Enquiry Officer attached too much importance to the evidence of the Police Sub-Inspector even though the said evidence was not supported by the panchas and there were several anomalies in the said evidence. It is not for this Court to record fresh findings of fact in respect of the charge levelled and decide factual matters as a Court of facts. I have already observed in the earlier part of my order that at least some of the observations made by the Enquiry Officer are clearly conjectural.
18. It is of some significance to point out that witness Vasta (PW-5) was specifically asked a question during course of his cross-examination as under :-
"Q. 6 I put it to you have no occasion to suspect the charge-sheeted employee? A. Yes. Nor the other staff members had suspected the CSE".
The evidence of witness Naik (PW-4) is also of considerable significance Shri Naik was the complainant before the Criminal Court and was the principal witness in the departmental enquiry. Shri Naik admitted in his evidence that the machine was not kept at its proper place as a result of negligence of Vasta. It was specifically put to Mr. Naik that he had no evidence agains the charge-sheeted employee in respect of removal and placement of the machine in the drawer and Mr. Naik admitted that he had no evidence in his possession in this behalf. The Enquiry Officer found the petitioner guilty of the charge mainly because of alleged admission of the petitioner to the effect that he had committed theft. The petitioner states that he had made no such admission. No member of the staff states that the petitioner had made any such admission. Out of the two panch witnesses, only one panch witness was examined and the said panch witness also does not state that the petitioner had made any such admission. Merely because the police officer alone made such an imputation against the petitioner, the petitioner could not have been found guilty of the charge. It is also of considerable significance that the complaint filed by Mr. Naik with the police was against unknown person and it is unfortunate that the police arrested the innocent man for no fault of his merely on suspicion which was found to be unfounded by the learned Magistrate.
19. The learned counsel for the respondent submitted that the evidence of the investigating Police Officer could be relied upon by the Enquiry Officer and the findings recorded by the Enquiry Officer cannot be therefore, considered as perverse. It is not necessary to decide this question conclusively in this writ petitioner in view of the conclusions of this Court on various other contentions urged on behalf of the petitioner. It is of some significance that the person on whose table the said machine was kept by Mr. K. H. Vasta i.e., Mr. Vakilna was not even examined. I do not propose to scrutinise the evidence led by the management before the Enquiry Officer in any more detail. It is eno ugh to point out some of the anomalies in the evidence by the management during course of domestic inquiry.
20. It is unfortunate that the petitioner has become a victim of unfounded suspicion of the police authorities although no member of staff of Port Trust had suspected the petitioner in respect of alleged theft. It is not disputed that alleged theft never took place as suspected.
21. In the result the petition succeeds. The rule is made absolute in terms of prayers (a) to (c). The impugned order of dismissal of pettioner from service as well as the appellate order referred to hereinabove are declared null and void. The respondents shall treat the petitioner as if in service throughout with continuity of service. The petitioner shall be entitled to all back wages in full as well as all of the benefits. The respondent No. 1 shall pay the amount of back wages within one month from today.
22. The petitioner shall be allowed to resume duty forthwith and with immediate effect. The petitioner shall be entitled to report of duty on and from 25th April, 1994. The respondents are directed to pay a sum of Rs. 1,000/- as cost of the petition to the petitioner.
23. The learned counsel for the Respondents applies for stay of operation of this order. Having regard to the gross facts of this case application for stay is refused.
24. Issue of certified copy is expedited.