Jharkhand High Court
Ram Ashray Kurmi vs Employees In Relation To The Management ... on 10 December, 2024
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(L) No. 1798 of 2009
Ram Ashray Kurmi, the concerned workman, son of Shri Kolai
Kurmi, resident of Gopalichak, No. 10, P.O. and P.S. Jharia, Distt.
Dhanbad. ... ... Petitioner
Versus
Employees in relation to the Management of Bastacolla Colliery of
M/s Bharat Coking Coal Ltd., having its Head office at Koyla
Bhawan, P.O. Koyla Nagar, P.S. Saraidhella, Distt. Dhanbad.
... ... Respondent
---
CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
For the Petitioner : Mr. Subham Sinha, Advocate
For the Respondent : Mr. A.K. Mehta, Advocate
---
Reserved on 25th October, 2024 Pronounce on 10th December, 2024
1. Heard the learned counsel for the parties.
2. This writ petition has been filed challenging the Award pronounced by the Central Government Industrial Tribunal No.1, Dhanbad dated 22nd July 2008 in Reference No. 302 of 2000 whereby the reference in connection with dismissal of the petitioner has been answered against the petitioner.
3. The terms of reference to the Industrial Dispute Tribunal No. 1 were as under: -
"Whether the action of the management of M/s. BCCL Bastacola Colliery in Dismissing Sri Ram Asrey Kurmi from service w.e.f. 15.9.99 is just and fair? If not, to what relief is the workman entitled?"
4. The findings of the learned Tribunal No. 1 is as under:
"14. Regarding fairness of enquiry it has been held by the Tribunal on 21.6.2006 that the domestic enquiry conducted against the concerned workman by the management is fair, proper and in accordance with the principle of natural justice as per submission made by the representative of the concerned workman.
15.The representative of the workman stated in course of hearing argument on merit that he was not present on the date of incident on 29.12.98 because he has got no concern. But it seems to be 1 not believable as per evidence produced by the concerned workman himself and management. Because of the fact that as per annexure-C it has been written by Coal Mines Piece rated Workers Association on 20.9.99 wherein it has been stated that the concerned workman is the Branch Secretary of Coal Mines Piece rated workers association of Bastacola Colliery. The concerned workman in his representation marked as Annexure-B dt. 11.1.99 at page-4 has stated that he is not leader of the union. So he has no concern regarding the alleged incident. It shows contradiction from his statement as well as from his union. Moreover, he has written Annexure-B which is a letter dt. 11.1.99 wherein he has admitted in para-8 that he has been issued letters for two times for his misconduct. Regarding his absence on the date of incident on 29.12.98 an FIR has been lodged by the management against the concerned workman with certain co-workers. It shows that the incident has been taken place and FIR No. 2222376 has been lodged. In this respect the concerned workman stated that he has been acquitted in the above case. In this respect the Ld. Lawyer for the management has argued that the concerned workman has been acquitted on the ground of hostility of the witnesses. It shows that the concerned workman is so powerful that he got hostiled to his witnesses stated in the first FIR. As per Civil Suit No. 2/99 (M/s. BCCL & another -versus- Somaru Yadav and 6 others) in which case compensation and damages has been demanded by the management against the workman amounting to Rs. 9,12,000/- regarding loss caused to the company due to the act of workman on 29.12.98.
16.Civil/Criminal case has got no concern with the departmental enquiry because in a criminal cases conviction cannot be made on presumption because prosecution has to prove his case beyond reasonable doubt. Civil Case cannot be ground for challenging departmental enquiry against the concerned workman.
17. I have gone through the entire papers submitted by the management which shows that the concerned workman was issued chargesheet dated 9/10.6.95 for which the concerned workman has submitted his reply by Ext.M-2 for dropping the chargesheet. The enquiry report shows that the concerned workman was present in the proceeding and he has fully participated in the enquiry. After concluding the enquiry he has been issued letter by the management along with enquiry report dt. 2.8.99 which has been received by him and after that he has made his representation against the above enquiry report suggesting for dismissal on 11.1.99. Management after considering his representation and after giving copy of enquiry report passed order of dismissal after considering his 2 representation dated 11.1.99. It shows that the concerned workman is indisciplined. Such persons should not be in the service of the management. If such persons are allowed to remain in the services it will create the atmosphere of indiscipline in the industry resulting loss of production and unrest in the industry."
Argument of the petitioner
5. The learned counsel for the petitioner submits that the petitioner was dismissed from service after conducting domestic enquiry. The domestic enquiry was held to be fair and proper and the petitioner has no grievance so far as the domestic enquiry is concerned.
6. He has submitted that the learned tribunal has recorded that no such plea was raised that the petitioner has been acquitted in the criminal case on the ground that the witnesses had turned hostile. The learned counsel submits that the order of acquittal was passed only on 13.11.2009 and the award is dated 22.07.2008. The learned counsel submits that the case of the petitioner before the learned tribunal was that the witnesses who had deposed in the criminal case had turned hostile. It was never the case of the petitioner that the petitioner was acquitted at that point of time. However, the petitioner has been acquitted later on 13.11.2009. He has referred to the discussions made by the learned tribunal in this regard in paragraph 15 to 17 of the impugned award.
7. The learned counsel has further submitted that a Recovery Suit was also filed by the respondent being Recovery Suit No. 02 of 1999 in which a compensation and damages was to be determined which was to be payable by the petitioner amounting to Rs.9,12,000/- relating to the loss caused to the respondent due to the act of the petitioner on 29.12.1998. The learned counsel submits that though the final judgment in Recovery Suit No. 02 of 1999 is not in his possession nor same has been brought on record but to the best of his information the recovery suit has also been dismissed. He also does not have the date of the dismissal of the suit. The learned counsel 3 submits that once the recovery suit has been dismissed, it goes to show that the management did not suffer from any monetary loss.
8. In furtherance to the argument, the learned counsel has submitted that once disciplinary proceeding is held to be fair and proper, it was incumbent upon the learned tribunal to consider the proportionality of the punishment. He submits that this aspect of the matter has not been considered by the learned tribunal.
9. His submission is that the aforesaid aspects of the matter have serious bearing and therefore, the matter be remitted back to the concerned court so that the acquittal of the petitioner, dismissal of the suit and the quantum of punishment be taken into consideration. The learned counsel has relied upon the following judgments: -
a. Mavji C Lakum versus Central Bank of India (2008) 12 SCC 726 b. S. Bhaskar Reddy & Anr. Vs. Superintendent of Police & Anr.
(2015) 2 SCC 365 c. Reserve bank of India Vs. Bhopal Singh Panchat (1994) 1 SCC 541 & Joginder Singh Vs. Union Territory of Chandigarh (2015) 2 SCC 377 (Paragraphs 15 to 17) d. Narinder Mohan Arya Vs. United India Assurance Co. Ltd (2006) 4 SCC 713 e. (2010) 9 SCC 496 Argument of the respondent
10. The learned counsel appearing on behalf of the respondent while opposing the prayer submits that so far as the point of proportionality is concerned, he has relied upon the judgment passed by the Hon'ble Supreme Court reported in (2022) 6 SCC 563 [State of Karnataka and another versus Umesh], Paragraph 16 to submit that acquittal of the accused in a criminal case does not debar the employer from proceeding in the exercise of disciplinary jurisdiction. He has also submitted that in the aforesaid judgment the allegation was only of abuse and inspite of such allegation the order of dismissal was sustained.
11. The learned counsel has further submitted that the order of dismissal in the present case was passed in disciplinary proceeding on 4 15.09.1999 the award was passed on 22.07.2008 and the judgment of the acquittal in the Criminal Case was passed on 13.11.2009 meaning thereby that on the date of his order of dismissal in the disciplinary enquiry and also on the date of passing of the award the petitioner was not acquitted in the criminal case. The learned counsel has submitted that even the set of witnesses in criminal case and the domestic enquiry were totally different.
12. He has further submitted that once the disciplinary enquiry was held to be fair and proper, the scope is very limited and primarily the proportionality of punishment was to be taken into consideration. The allegations against the petitioner are very serious in the sense that the petitioner had taken the unit of the respondent at ransom. He had incited other workmen and put the life of a few in jeopardy and had caused damages to the establishment of the respondent. Approximately, 197 persons were trapped inside the mine though for a short period.
Rejoinder argument of the petitioner.
13. In response, the learned counsel for the petitioner has submitted that there was no allegation of abuse against the petitioner and so far as substantial loss to the respondent company is concerned, the civil suit seeking damages and loss has been dismissed and therefore, such arguments of the respondent are not sustainable.
14. The learned counsel for the respondent has relied upon judgment passed by Hon'ble Supreme Court in the case of Ram Lal vs. The State of Rajasthan in Civil Appeal No. 7935 of 2023. Findings of the Court.
15. After hearing the learned counsel for the parties and upon going through the materials on record, this Court finds that the concerned workman faced three Domestic Enquiries arising out of three different charge sheets. The allegation in connection with three different charge sheets are relating to different incident and charge sheets were dated 9/10.06.1995, 08/09.09.1998 and 02.01.1999. The charges were as follows:
5A) Charge sheet dated 9/10.06.1995 was issued alleging that the concerned workman prevented various workmen working in the second shift from performing their duties and cause hinderance and obstacle in the mines. His acts were considered as misconduct under clauses 26.1.4, 26.1.8, 26.1.10 and 26.1.15 of the certified standing order of the company. All such acts were committed at 9 pit workings of Chandmari section of Bastacola Colliery which was under the charge of Sri S.C. Mitra, the then Assistant Colliery Manager.
B) The second charge was based on incident dated 08.09.1998. It was alleged that the concerned workman entered into the chamber of Sri A.K. Singh, Senior Mining Engineer, Bastacola Colliery while he was discussing the production plan of 8 pit workings, Chandmari Section with his subordinate officers at about 8:45 AM and the concerned workman asked him to allow his attendance marked disregarding his late coming to duty and when Sri A.K. Singh expressed his inability to do so, in view of the fact that attendance was already closed at 8:30 AM, the concerned workman became furious started shouting with loud voice and abused Sri Singh. The concerned workman was charged under clause 26.1.4 and 26.1.10 of the certified standing order for commission of misconduct of riotous and disorderly behavior, threatening, abusing and habitual insubordination.
C) The third charge sheet was relating to the incident on 29.12.1998. It was alleged that at about 5:00 AM the concerned workman motivated, excited and abated the five workers all miners/loaders to climb up the top of the headgears of Victory and Chandmari sections of Bastacola Colliery, to put pressure on the management for withdrawal/cancellation of the transfer orders issued to nine workmen and thereby stopped the winding operations causing 197 employees trapped in the mine facing the danger on account of inflow of gas and water spreading alarming situation in the colliery. At the intervention of Jharia Police and CISF Jawans, 83 persons could be evacuated from Victory 1 and 2 pits by 11 AM on 29.12.1998. After departure of the police, the concerned workman motivated the aforesaid workman to climb up the headgear top again and the workmen trapped inside the mine continued to remain till 3:00 PM on 29.12.1998 when subsequent attempts made by CISF could get them evacuated.
In this process the management company suffered losses which was said to be tune of Rs. 9,12,882/-. This act of the concerned workman had caused disruption in industrial relation and caused serious repercussion on the administration. In connection with the incident on 29.12.1998, the charge sheet dated 02.01.1999 was issued under clauses of the certified standing order. The 6 third charge sheet reveals that he was charged under following clauses: -
"26.1.2 - Habitual negligence or neglect of duty, malingering, slowing down of work or inciting others to do so.
26.1.4 - Gambling, drunkenness, intoxication, riotous or disorderly behavior, threatening, or coercing other workmen or interference with the work of other workmen.
26.1.10 - Habitual indiscipline, or willful insubordination or disobedience of any lawful or reasonable order of higher authority.
26.1.15 - Causing willful damage to work in progress or to the property of the employer.
26.1.20 - Any breach of the Mines Act, 1952 or any other Act or any Rules, Regulations or bylaws thereunder or of any Standing Orders.
26.1.27 - Conduct within the mine's premises or its precincts which endanger, life or safety of any person. 26.1.31- Wrongfully confining forcible detaining any workmen/employee of the company."
16. After receipt of the reply from the petitioner, the management appointed Enquiry Officer and Presenting Officer in respect of three charge sheets and the Departmental Enquiries were conducted against the petitioner and upon completion of the enquiry proceedings the petitioner was held guilty and was dismissed from service vide letter dated 15.09.1999. The matter regarding dismissal of the petitioner was referred to the industrial tribunal for adjudication.
17. Before the learned tribunal, the enquiry proceedings were held to be fair and proper vide order dated 21.06.2006 and the order dated 21.06.2006 itself reveal that the concerned workman himself filed a petition praying that he did not want to challenge the fairness of the Domestic Enquiry held by the management. Consequently, the reference was posted for hearing of arguments. Neither the order dated 21.06.2006 is under challenge in this writ petition nor any argument challenging the order dated 21.06.2006 has been advanced during the course of hearing.
718. Since the Domestic Enquiry was held to be fair and proper, the records were to be scrutinized by the learned tribunal within the four corners of the scope under Section 11 A of Industrial Disputes Act. This Court also finds that the enquiry proceeding as found in the records reveal that the concerned workman was granted full opportunity to defend himself. Evidences were led by both the parties and the petitioner fully participated in the enquiry including cross- examination of witnesses.
19. The concerned workman was found guilty in all the three Departmental Enquiries and the enquiry reports were forwarded to the workman to which the workman filed his representation and ultimately, he was dismissed from service vide letter dated 15.09.1999.
20. The enquiry report in connection with charge sheet dated 9/10.06.1995 reveals that three witnesses were examined from the side of the management and four witnesses were examined from the side of the concerned workman. Upon discussing the materials on record, the Enquiry Officer held the concerned workman guilty vide enquiry report dated 21.05.1999.
21. With respect to the charge Memo Dated 8/9.09.1998 two witnesses were examined on behalf of the management and two witnesses were examined on behalf of the workman and the Enquiry Officer discussed the materials and found the concerned workman guilty of charges in the enquiry report dated 18.05.1999.
22. So far as the third charge memo relating to the incident dated 29.12.1998 is concerned, the management examined 6 witnesses and the petitioner also examined 6 witnesses. The Enquiry Officer in the enquiry report 29.06.1999 found that all the charges were proved except the charge under clause 26.1.2 under the certified standing order was not proved. The management had examined witnesses namely Jai Karn Vishwakarma (MW1), Jay Narayan Prasad Kuwar (MW2), Amresh Kumar Singh (MW3), Subhash Chandra Mitra (MW
4), Ram Naresh Prasad Singh (MW 5) and Umesh Prasad (MW6). So 8 far as the workman is concerned, he examined defence witnesses Ram Kumar Kurmi (DW 1), Gulab Chanda Harijan (DW2), Lalta Gareri (DW3), Baasdev Ahir (DW 4), Chain Ahir (DW 5), Seshnath Ahir (DW6).
23. In connection with the same incident as was involved in the third chargesheet relating to the incident dated 29.12.1998, a criminal case was also instituted in which the petitioner has been acquitted after passing of the impugned award and a copy of the judgement of acquittal dated 13 th November, 2009 has been placed during the course of arguments of this case. A civil suit was also filed seeking recovery of damages in connection with the same incident and it has been submitted by the petitioner that the suit has been dismissed but the judgement in the suit was neither placed before the learned tribunal nor has been placed before this Court for consideration.
24. The petitioner has heavily relied upon his acquittal in the criminal case and dismissal of the civil suit claiming damages and has also submitted that the learned tribunal has not properly exercised its powers under section 11A of Industrial Disputes Act, 1947. On the other hand, it is the case of the respondents that no ground for interference has been made out. For the aforesaid purpose both the parties have relied upon numerous judgement which are discussed as follows: -
I. In the judgement passed by Hon'ble Supreme Court in the case of Mavji C. Lakum v. Central Bank of India, (2008) 12 SCC 726 it has been held that even if the inquiry is found to be fair, that would be only a finding certifying that all possible opportunities were given to the delinquent and the principles of natural justice and fair play were observed. That does not mean that the findings arrived at were essentially the correct findings.
It has been held that if the Industrial Tribunal comes to the conclusion that the findings could not be supported on the basis of the evidence given or further comes to the conclusion that the 9 punishment given is shockingly disproportionate, the Industrial Tribunal would still be justified in reappreciating the evidence and/or interfering with the quantum of punishment. It has been further held that there can be no dispute that power under Section 11-A has to be exercised judiciously and the interference is possible only when the Tribunal is not satisfied with the findings and further concludes that punishment imposed by the management is highly disproportionate to the degree of guilt of the workman concerned. Besides, the Tribunal has to give reasons as to why it is not satisfied either with the findings or with the quantum of punishment and that such reason should not be fanciful or whimsical but there should be good reasons.
There can be no dispute with regards to the aforesaid proposition of law laid down by the Hon'ble Supreme Court dealing with the manner in which the tribunal has to exercise power under section 11A of the Industrial Disputes Act, once the domestic enquiry has been held to be fair and proper. II. The learned counsel for the petitioner has also relied upon the judgement passed in the case of Kranti Associates (P) Ltd. v. Masood Ahmed Khan, (2010) 9 SCC 496 to submit that in paragraph 47 of the said judgement the Hon'ble Supreme court has emphasised the importance and the manner of recording reasons.
There is no dispute with regards to the law laid down. III. The learned counsel for the petitioner has also relied upon the judgement passed in the case of Narinder Mohan Arya v. United India Insurance Co. Ltd., (2006) 4 SCC 713 to submit that the dismissal of the suit for damages arising out of the same incident is relevant.
IV. The judgement passed in the case of S. Bhaskar Reddy v.
Supt. of Police, (2015) 2 SCC 365 has been cited to submit that when disciplinary proceedings and the criminal trial are based 10 on the same set of charges, acquittal in the criminal case would result in reinstatement. Upon perusal of the said judgement, this court finds that it was a case of Honourable acquittal in the criminal case and the meaning of Honourable acquittal has been explained by referring to an earlier judgement [Reserve Bank of India versus Bhopal Singh Panchal] in the following words in paragraph 22 of the report as under: -
"22. The meaning of the expression "honourable acquittal" was discussed by this Court in detail in Inspector General of Police v. S. Samuthiram, the relevant paragraph from the said case reads as under:
"24. The meaning of the expression 'honourable acquittal' came up for consideration before this Court in RBI v. Bhopal Singh Panchal. In that case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. The expressions 'honourable acquittal', 'acquitted of blame', 'fully exonerated' are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression 'honourably acquitted'. When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted."
(emphasis supplied) In the said judgement of S. Bhaskar Reddy (supra) reliance was also placed on paragraph 23 the report which has referred to the judgement passed in the case of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. (1999) 3 SCC 679, wherein the Hon'ble Supreme Court has considered the impact of acquittal in the criminal case on the disciplinary proceedings and has referred to the situation when on the same set of charges and on the same set of evidences the delinquent is acquitted in the criminal case after full trial and has held as under:
11"34. ...........The same witnesses were examined in the criminal case but the Court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the 'raid and recovery' at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand.
35. Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case."
V. In the case of Joginder Singh v. Union Territory of Chandigarh, (2015) 2 SCC 377 the matter related to appointment and undisputedly, there was no allegation of concealment of the fact that a criminal case was registered against the candidate and it was found that the candidate had honestly disclosed in his verification application submitted to the selection authority that there was a criminal case registered against him and that it ended in an acquittal on account of compromise between the parties involved in the criminal case and he could not be denied an opportunity to qualify for any post including the post of a Constable. In the aforesaid backdrop, it was examined as to whether the acquittal was an Honorable acquittal. It was found that in the said case the complainant did not support the case of the prosecution as he failed to identify the assailants and further admitted that the contents of Section 161 CrPC statement were not disclosed to him and his signatures were obtained on a blank sheet of paper by the investigating officer. Further, the eyewitness of the case, who was also injured, had failed to identify the assailants. Both the witnesses were declared hostile on the request of the 12 prosecution and the learned Additional Sessions Judge held that the prosecution had not been able to prove in any way the allegations against the appellant and the Hon'ble Supreme Court was of the view that the acquittal of the accused from the criminal case was an honourable acquittal.
In the aforesaid case the eye witnesses and the seizure witness had turned hostile and had even denied to have given statement to the police under section 161 Cr.P.C. and the acquittal was after full fledged trial and was held to be Hon'ble acquittal. VI. In the judgement passed in the case of State of Karnataka v.
Umesh, (2022) 6 SCC 563 the Hon'ble Supreme Court has drawn distinction between the principles governing a criminal case and a disciplinary proceeding by holding that the principles which govern a disciplinary enquiry are distinct from those which apply to a criminal trial. In a prosecution for an offence punishable under the criminal law, the burden lies on the prosecution to establish the ingredients of the offence beyond reasonable doubt. The accused is entitled to a presumption of innocence. The purpose of a disciplinary proceeding by an employer is to enquire into an allegation of misconduct by an employee which results in a violation of the service rules governing the relationship of employment. Unlike a criminal prosecution where the charge has to be established beyond reasonable doubt, in a disciplinary proceeding, a charge of misconduct has to be established on a preponderance of probabilities. The rules of evidence which apply to a criminal trial are distinct from those which govern a disciplinary enquiry. The acquittal of the accused in a criminal case does not debar the employer from proceeding in the exercise of disciplinary jurisdiction.
VII. In the judgement passed in the case of Ram Lal v. State of Rajasthan, (2024) 1 SCC 175 the legal position with regards to impact of acquittal in the criminal case on the disciplinary 13 proceedings and the manner it has to be scrutinized has been summarized as follows: -
"Legal position
10. We have examined both the questions independently. We are conscious of the fact that a writ court's power to review the order of the disciplinary authority is very limited. The scope of enquiry is only to examine whether the decision- making process is legitimate. (See SBI v. A.G.D. Reddy) As part of that exercise, the courts exercising power of judicial review are entitled to consider whether the findings of the disciplinary authority have ignored material evidence and if it so finds, the courts are not powerless to interfere. (See United Bank of India v. Biswanath Bhattacharjee)
11. We are also conscious of the fact that mere acquittal by a criminal court will not confer on the employee a right to claim any benefit, including reinstatement. (See State of T.N. v. S. Samuthiram)
12. However, if the charges in the departmental enquiry and the criminal court are identical or similar, and if the evidence, witnesses and circumstances are one and the same, then the matter acquires a different dimension. If the Court in judicial review concludes that the acquittal in the criminal proceeding was after full consideration of the prosecution evidence and that the prosecution miserably failed to prove the charge, the Court in judicial review can grant redress in certain circumstances. The Court will be entitled to exercise its discretion and grant relief, if it concludes that allowing the findings in the disciplinary proceedings to stand will be unjust, unfair and oppressive. Each case will turn on its own facts. (See G.M. Tank v. State of Gujarat, State Bank of Hyderabad v. P. Kata Rao and S. Samuthiram)"(emphasis supplied) Paragraph Nos. 28 and 29 of the said Judgment deals with the meaning of "benefit of doubt" and "honourably acquitted" and also concept of charge proved, not proved and disproved in the following manner: -
"28. Expressions like "benefit of doubt" and "honourably acquitted", used in judgments are not to be understood as magic incantations. A court of law will not be carried away by the mere use of such terminology. In the present case, the Appellate Judge has recorded that Ext. P-3, the original marksheet carries the date of birth as 21-4-1972 and the same has also been proved by the witnesses examined on behalf of the prosecution. The conclusion that the acquittal in the criminal proceeding was after full consideration of the prosecution evidence and that the prosecution miserably failed to prove the charge can only 14 be arrived at after a reading of the judgment in its entirety. The Court in judicial review is obliged to examine the substance of the judgment and not go by the form of expression used.
29. We are satisfied that the findings of the Appellate Judge in the criminal case clearly indicate that the charge against the appellant was not just, "not proved"- in fact the charge even stood "disproved" by the very prosecution evidence. As held by this Court, a fact is said to be "disproved", when, after considering the matters before it, the court either believes that it does not exist or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. A fact is said to be "not proved" when it is neither "proved" nor "disproved" (see Vijayee Singh v. State of U.P.).
25. In the present case, admittedly, there was a criminal case lodged in connection with the incident of 29.12.1998 for which disciplinary proceedings were also under taken. When seen in the light of the aforesaid judgments, this Court has enlisted the witnesses who were examined in the disciplinary proceeding relating to the incident of 29.12.1998 and has compared with the list of witnesses who were examined in the criminal case. A copy of the judgment of acquittal of the concerned workman dated 13th November, 2009 has been produced before this Court on behalf of the concerned workman. This Court finds that the charge was framed against the concerned workman for offence under section 143, 149, 353, 342 and 427 of the Indian Penal Code and there were altogether six accused who faced the trial including the concerned workman. In the criminal case altogether four witnesses were produced from the side of the prosecution namely Mahendra Pandit (P.W.1), Nakul Sah (P.W.2), Rajballav Paswan (P.W.3) and Harinath Singh (P.W.4) and all these witnesses turned hostile and denied to have seen or known about the incident and consequently, all the six accused persons including the petitioner were acquitted by the learned Judicial Magistrate First Class, Dhanbad vide judgment dated 13.11.2009 and it was held that prosecution had completely failed to prove the charges against the 15 accused persons. This court finds that none of the witness was common between the criminal case and the disciplinary proceedings and the scope of enquiry in the criminal case and the disciplinary proceedings were also different. The records of the case reveal that the depositions of the prosecution witnesses in the criminal case were placed before the learned labour court to submit that the prosecution witnesses in the criminal case had turned hostile. However, the judgment of the acquittal was passed only after passing the impugned award.
26. Since the judgment of acquittal has been placed before this Court during the course of hearing, it has been submitted that the concerned workman has been acquitted in the criminal case arising out of the same incident and this Court has gone through the records received from the court concerned as well as the judgment of acquittal passed in the criminal case and finds that both the Criminal Case and the Disciplinary Proceedings initiated against the petitioner arising out of the incident dated 29.12.1998 arise out of the same incident but there are completely different set of witnesses. The name of the witnesses in the Criminal Case and the name of witnesses in the Disciplinary Enquiry in connection with the incident dated 29.12.1998 have already been mentioned above. Moreover, the fact remains that there were three enquiries with respect to three different incidents at three different point of time and the petitioner was found guilty in all the three domestic enquiries but the criminal case was in connection with only one incident of 29.12.1998.
27. In the judgment passed by the Hon'ble Supreme Court in the case of Ram Lal (supra) it has been held that mere acquittal in a criminal proceeding does not confer any right, claim, benefit including reinstatement. However, where charges in the departmental enquiry and criminal court are identical, evidence, witnesses and circumstances are also same and where judicial acquittal in criminal proceeding was after full consideration of prosecution evidence and prosecution miserably failed to prove the charge, the court can 16 interfere with the order passed by the Disciplinary Authority where the findings of the Disciplinary Authority are found to be unjust, unfair and oppressive. It has been held that each case depends on its own facts. It has been also held that the expression 'benefit of doubt' and 'honourably acquitted', used in judgment cannot be understood as magical words and court in exercise of judicial review is obliged to examine substance of the judgment and not go by the form of expression used.
28. This Court finds that four witnesses which were produced before the criminal court on behalf of the prosecution were recorded to have said that they had no idea about the incident and they had not made any statement before the police and after being hostile when they were cross-examined from the side of the prosecution, even then they did not support the prosecution case and having recorded as aforesaid, the learned Judicial Magistrate First Class, Dhanbad held that the prosecution has failed to prove the charge against the concerned workman. Thus, the charge stood 'not proved' and it cannot be said to have been 'disproved' when seeing in the light of the expression used in paragraph 29 of the judgment passed in the case of Ram Lal (supra). Therefore, the acquittal of the concerned workman in the criminal case has no bearing in the Disciplinary Proceedings involved in the present case. This is over and above the fact that the set of witnesses in the criminal case were totally different from the set of witnesses in the domestic enquiry.
29. In view of the aforesaid findings, the acquittal in the criminal case with respect to the incident of 29.12.1998 has no bearing in the domestic enquiry. The set of witnesses in the domestic enquiry had supported the case of the management and the petitioner also had due opportunity to cross examine them and also led evidence of his witnesses. The learned counsel for the petitioner has not shown any material from the domestic enquiry proceedings, which are available in the records received from the learned court, that upon appreciation of such material the finding of guilt of the petitioner in all the three 17 domestic enquiries suffered from any perversity or illegality which called for any interference by the learned court or even by this Court at this stage in writ jurisdiction.
30. The concerned workman has also argued that a Recovery Suit being No. 2 of 1999 seeking damages amounting to Rs. 9,12,000/- was filed against the concerned workman and the said Recovery Suit was dismissed but the said Recovery Suit was neither placed before the learned court nor before this Court. The reasons for dismissal of the suit and the nature of adjudication the evidences place on record etc have not been placed either before this Court or even before the learned court who has passed the impugned. This Court also finds that damages arising out of the incident of 29.12.1998 was only one amongst the other charges in the connected domestic enquiry.
31. This Court finds that the concerned workman was held guilty in connection with as many as three different charge sheets relating to three different incidents had three different point of time. The nature of allegation proved against the concerned workman was very serious inasmuch as his conduct had put the life of other workmen in the mines in risk although, they were subsequently rescued.
32. The case of the concerned workman before the learned court was that the workman was not present on the date of the incident on 29.12.1998 because he had no concern, but this plea was rejected by the learned court. It was also argued that the witnesses in the criminal case arising out of the incident of 29.12.1998 had turned hostile but by the order of acquittal has been passed after passing of the impugned award. This Court has at length considered consequence of acquittal of the accused in the criminal case including the petitioner as mentioned above and has found that the acquittal in the criminal case has no bearing in this matter and in fact the set of witnesses were totally different from that of the domestic enquiry arising out of the incident of 29.12.1998.
33. With respect to the quantum of punishment, the learned court recorded that the concerned workman is indisciplined and such 18 persons should not be in service of the management and if such persons are allowed to remain in service, it will create the atmosphere of indiscipline in the industry resulting in loss of production and unrest in the industry and ultimately upheld the action of the management of B.C.C.L., Bastocola Colliery dismissing the concerned workman with effect from 15.09.1999 to be just fair and proper and held that the concerned workman was not entitled to any relief.
34. In view of the aforesaid findings based on the materials placed on record and having gone through the impugned award and the connected records of domestic enquiries received from the concerned court and as discussed above, this Court finds that the award passed by the learned Presiding Officer Industrial Tribunal No. 1, Dhanbad in Reference Case No. 302 of 2000 does not suffer from any material illegality or perversity and accordingly does not call for any interference. So far as the quantum of punishment is concerned, this Court is of the view that considering the nature of allegations proved against the workman, the punishment of dismissal was inconsonance with the three set of charges with regards to three different incidents proved and the punishment of dismissal is not at all disproportionate, much less shockingly disproportionate to the charges levelled and proved against the petitioner.
35. As a cumulative effect of the aforesaid findings, there is no merit in this writ petition which is accordingly dismissed.
36. Pending interlocutory application, if any, is dismissed as not pressed.
(Anubha Rawat Choudhary, J.) Rakesh/-
19