Telangana High Court
D. Rajender vs The Director Vigilance And Security on 31 July, 2024
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
1
THE HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION Nos.3988 and 9139 of 2010
COMMON ORDER:
These writ petitions assail the Award dated 26.10.2009 passed by the Labour Court, Hyderabad, in ID No.77 of 2006. By the impugned Award, the Labour Court directed reinstatement of D.Rajender (for short, workman) with continuity of service, however, without backwages and attendant benefits. Aggrieved by the very reinstatement and continuity of service, the Road Transport Corporation (for short, the Corporation) filed WP No.3988 of 2010; and challenging non-granting of backwages, the workman filed WP No.9139 of 2010.
2. The case, in a nutshell, is that the workman was appointed as Security Guard in the Corporation on 11.10.1980. On the ground that he committed theft of Diesel from the buses in the garage, he was removed from service by an order dated 06.07.2006 after a departmental enquiry. It is alleged and reported by Security Inspector of Nizamabad Region, vide Report dated 04.02.2006 that the 1st respondent had attempted to steal 33 liters of Diesel from four parked vehicles in the garage of Kamareddy Depot in the intervening night of 03.02.2006. One Mr. A. Rasheed, mechanic of Kamareddy Depot while attending the Vehicle No.AP 11-Z-1375 had noticed that the workman was sucking diesel through plastic pipe from the diesel tank of above mentioned vehicle into a 5 liter plastic can. Having 2 heard the same, Rasheed, Shankar, Mechanical Foreman kept an eye on the workman and found that he was going from another parked vehicle outside the main gate with plastic pot and they tried to catch the workman, and he ran away by keeping the plastic pot in the bushes beside the compound wall of Jyothirmal Hospital adjacent to bus stand. Based on the report of Security Inspector of Nizamabad Region, the workman was placed under suspension and a charge sheet was issued on 06.02.2006. A case in Crime No.28 of 2006 came to be registered on 09.02.2006 in Kamareddy Police Station for the offence punishable under Section 381 IPC. The charges in the Charge Sheet read as follows:
Charge 1: For havingdeserted your duty post i.e., main gate of Kamareddy Depot garage on 04.02.2006 early hours constitutes misconduct interim of Reg.28(xxvii) of APSRTC Employees (Conduct) Regulations, 1963.
Charge 2: for having pilfered 33 liters of HSD oil from 4 buses AP 9Z-6811, AP11 Z-1461, AP11Z-3771 and AP 11Z-1375 when they were parked in Kamareddy depot garage on the night of 03.02.2006, 04.02.2006 and found having taken away one plastic pot containing about 18 liters of HSD Oil unauthorized from the Kamareddy depot garage at about 01:30 hrs on 04.02.2006 and for having kept the plastic pot containing HSD oil in the bushes in the premises of Kamareddy bus station, after noticing that you were being chased by the Mechanical Staff, which constitutes misconduct in terms of Reg.28 (x) of APSRTC Employees (Conduct) Regulations, 1963.
Charge 3: For having pilfered HSD oil from the buses AP 9Z-6811, AP11 Z- 1461, AP11Z-3771 and AP 11Z-1375 by inserting plastic pipe into the diesel tanks of the buses when they were parked near the security branch room in Kamareddy depot garage on the night of 03.02.2006, 04.02.2006 and drawn HSD oil into three plastic items i.e., two cans of 10 liters capacity and 5 liters capacity and one plastic pot of 20 liters capacity by sucking through plastic cans 3 beside the Security branch room of Kamareddy depot garage with a malafide intention of taking them away unauthorized from the Kamareddy depot garage, which constitutes misconduct in terms of Reg.28 (xxxi) of APSRTC Employees (Conduct) Regulations, 1963.
The documents connected with the charges leveled were supplied to the petitioner; and he submitted explanation. An enquiry was ordered by nominating the Assistant Manager (Enquiries) of Nizamabad Region as Enquiry Officer. The statements of prosecution witnesses V. Shankar, Assistant Engineer (Mechanical) of Kamareddy Depot and K. Ahmed, Security Inspector of Nizamabad were recorded and examined in the presence of the workman; and the prosecution witnesses confirmed the irregularities committed by the workman. The workman vouchsafed with the enquiry conducted thereby confirming that the principles of natural justice have been followed. A copy of enquiry findings holding the workman guilty of the charges was sent to the workman, and he submitted his comments/objections to the report. After perusing the comments/objections of the workman, the Corporation came to a provisional conclusion of imposing the punishment of removal from service and a Show Cause notice was issued to the workman. The workman submitted his explanation, which was considered and the punishment of removal from service was imposed vide proceedings dated 06.07.2006. The appeal preferred by the workman was rejected on merits vide proceedings dated 07.10.2006. Bypassing the revision remedy, the workman 4 approached the Labour Court by filing ID No.77 of 2006. The Labour Court, vide the impugned Award dated 26.10.2009, directed reinstatement of the workman, with continuity of service, but without backwages. Challenging the Award of the Labour Court, both the workman and the Corporation are before this Court raising several grounds.
3. A counter affidavit is filed on behalf of the Corporation in WP No.9139 of 2010. The essence of the counter affidavit is that the Labour Court arrived at a finding that the charges leveled against the workman were proved and considering the findings of the Criminal Court, took a lenient view and set aside the order of removal and directed reinstatement of the petitioner. It is also contended that the Labour Court on the one hand expressed as to why all the employees bore grudge against the workman to falsely testify against him that he committed theft of HSD Oil; and having found that acquittal in Criminal Case could not be taken into consideration in a Domestic enquiry as such acquittal would be on a technical ground, the Labour Court ought not to have directed reinstatement of workman. It is also contended that the Labour Court has already taken a lenient view by way of directing reinstatement of the workman, and therefore this Court may not grant a further relief of backwages particularly when the workman did not prove that he was not employed during the period of removal from service, and therefore the writ petition filed by the workman is devoid of merit and liable to be dismissed. 5
4. Heard learned counsel Sri V. Narasimha Goud for the workman; and Sri R. Anurag, learned Standing Counsel for the Corporation.
5. The essence of the contentions raised by Sri V. Narasimha Goud, learned counsel for the workman is that the Labour Court erred in holding the domestic enquiry as valid, because the enquiry officer has considered the statements given by the witnesses numbering about 15 who are not at all examined in the domestic enquiry. It is also contended that the Labour Court having considered the judgment of Criminal Court in C.C.No.427 of 2007 that it is not possible for a person to run fast with 18 liters Can in hand, erred in holding the workman guilty of the charges and the same is perverse. It is also contended that the Labour Court has not followed the law laid down by the Hon' ble Supreme Court in Capt M. Paul Anthony v. Bharath Gold Mines, Ltd., 1 rendered in similar set of facts. It is also contended that the Labour Court failed to appreciate that the statements recorded ex parte during the course of preliminary enquiry cannot be treated as an evidence in domestic enquiry for arriving at a finding unless those persons are examined in the confronted enquiry, so that the workman would have had the opportunity to cross-examine them to bring to light the veracity of their statements. It is also contended that the Labour Court having considered the Criminal Court judgment, ought to have granted backwages and other attendant benefits. Learned counsel 1 (1999) 3 SCC 679 6 has drawn the attention of the Court to paragraphs 34, 35, and 36 of Capt. M. Paul Anthony (1 supra), which read as follows:
"34. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely, 'the raid conducted at the appellant's residence and recovery of incriminating articles therefrom.' The findings recorded by the Inquiry Officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by Police Officers and Panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the Inquiry Officer and the Inquiry Officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. 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.
36. For the reasons stated above, the appeal is allowed, the impugned judgment passed by the Division Bench of the High Court is set aside and that of the learned Single Judge, in so far as it purports to allow the Writ Petition, is upheld. The learned Single Judge has also given liberty to the respondents to initiate fresh disciplinary proceedings. In the peculiar 7 circumstances of the case, specially having regard to the fact that the appellant is undergoing this agony since 1985 despite having been acquitted by the criminal court in 1987, we would not direct any fresh departmental inquiry to be instituted against him on the same set of facts. The appellant shall be reinstated forthwith on the post of Security Officer and shall also be paid entire arrears of salary, together with all allowances from the date of suspension till his reinstatement, within three months. The appellant would also be entitled to his cost which is quantified as Rs.15,000/-."
6. Learned Standing Counsel Sri R. Anurag appearing for the Corporation would contend that the Labour Court erroneously considered the observation of the Criminal Court that it is not possible to run with a Can of 18 liters; and the Labour Court failed to appreciate the evidence of the workman that he carried the Can till the gate and upon finding that he was being chased, he hid the Can in the bushes adjacent, and ran away. It is also contended that the Labour Court failed to consider that the workman has been inflicted with a number of punishments for his irregularities in his 18 years of service. Learned Standing Counsel while supporting his arguments on the outcome of criminal proceeding vis-à-vis disciplinary proceeding, relied on Ram Lal v. State of Rajasthan 2 and had drawn the attention of this Court to paragraph 23 sub-heading "Effect of Acquittal in the Criminal Proceeding", wherein the Hon' ble Supreme Court held at paragraphs 24, 25 as follows:
2
2023 (16) SCALE 77 8 "24. ....... However, what we are supposed to see is the substance of the judgment. A reading of the entire judgment clearly indicates that the appellant was acquitted after full consideration of the prosecution evidence and after noticing that the prosecution has miserably failed to prove the charge"
25. ..... 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 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."
7. Learned Standing Counsel places reliance in the judgment of the Hon' ble Supreme Court in Vishnu Dutt Sharma v. Daya Sapra (Smt) 3, and draws the attention of the Court to paragraphs 5, 13, and 19 which read as follows:
"8. There cannot be any doubt or dispute that a credit can maintain a civil and criminal proceeding at the same time. Both the proceedings, thus, can run parallel. The fact required to be proved for obtaining a decree in the civil suit and a judgment of conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case vis-à-vis a civil suit, indisputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt, in a civil suit "preponderance of probability" would serve the purpose for obtaining a decree"
13. What would be the effect of ajudgment passed in the criminal proceedings in relation to the subject matter for which a civil proceedings has also been initiated is the question. In a criminal proceeding, although upon discharge of initial burden by the complainant, the burden of proof 3 (2009) 13 SCC 729 9 may shift on an accused, the court must apply the principles of "presumption of innocence as a human right". The statutory provisions containing the doctrine of reverse burden must therefore be construed strictly. Whereas a provision containing reverse burden on an accused would be construed strictly and subject to the strict proof of the foundational fact by the complainant to a civil proceeding so such restriction can be imposed.
19. Reverse burden or evidentiary burden on an accused, thus, would require strict interpretation and application. However, in a civil suit such strict compliance may not be insisted upon. If that be so, it may not be correct to contend that a judgment rendered in a criminal proceeding would make continuation of a civil proceeding an abuse of the process of court."
8. Learned Standing Counsel seeks to draw support from the judgment of the Hon' ble Supreme Court in Union of India v. Parma Nanda 4 wherein the Supreme Court observed at paragraph 27 as follows:
"27. We must unequivocally state that the jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated with an appellate jurisdiction. The Tribunal cannot interfere with the findings of the Inquiry Officer or competent authority where they are not arbitrary or utterly perverse. It is appropriate to remember that the power to impose penalty on a delinquent officer Is conferred on the competent authority either by an Act of legislature or rules made under the proviso to Article 309 of the Constitution. If there has been an enquiry consistent with the rules and in accordance with principles of natural justice what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority. The 4 (1989) 2 SCC 177 10 adequacy of penalty unless it is malafide is certainly not a matter for the Tribunal to concern itself with. The Tribunal also cannot interfere with the penalty if the conclusion of the Inquiry Officer or the competent authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matter."
9. Having considered the respective submissions, and perusing the material on record and also the judgments relied on by both the learned counsel, it is pertinent to note that admittedly the workman was charged with the offence of theft of 33 liters of Diesel from parked vehicles in the Corporation Depot. An employee by name Rasheed is said to have noticed the act of pilferage of diesel from the parked bus in the Depot where Rasheed was working, and allegedly certain other employees along with Rasheed kept an eye on the workman and found him moving out with a Can in his hands. The employees chased the workman and tried to catch hold of him but he ran away by hiding the Oil Can in the bushes. Admittedly, a Charge sheet was issued to the workman and a criminal case was also filed against him. It may be noted that the charges before the Criminal Court and the Disciplinary authority are with respect to the same offence of alleged theft committed by the workman. The Disciplinary authority conducted an enquiry in which the workman participated, and the enquiry culminated in removal of the workman from service on the ground that the charges against him were proved. On the other hand, the Criminal Court after due trial by examining the witnesses, who testified 11 before the disciplinary authority as well, came to the conclusion that the charges against the workman are not proved beyond reasonable doubt and thereby acquitted him of the charges. No doubt the stringency of proof in a Criminal Case which basically is governed by the principle of establishing the guilt "beyond reasonable doubt", as a norm, may not apply to disciplinary proceedings, however, in the facts of the instant case, the rationale laid down in the judgments relied on by the learned Standing Counsel are not applicable in toto in the present case, as, in the considered opinion of this Court, the observations in C.C.No.427 of 2007, dated 17.07.2009, by the Special Judicial Magistrate of First Class (Mobile) at Kamareddy, assume significance. The Magistrate observed at paragraph 14 as follows:
"14. According to PW-2 he gave complaint on 4.2.2006 and police came to the scene at 4 p.m. If really the police came on 4.2.2006 what prevented them to register the case on 4.2.2006 when a complaint was given by the PW-2 on the same day, no satisfactory explanation was given in this regard. Further there is a delay of 4 days in sending the FIR to Court which is at a distance of half kilometer, no satisfactory explanation was given by the police in this regard. The prosecution has not examined the IO who filed the charge sheet and he was given up by the prosecution for the reasons best known to them. It is only the I.O. that would be in a position to explain the whole sequence of evidence. It is rather next to impossibility for any witness in this case to be in a position to cvouch for the whole gamut of the case. It is only the I.O. that could have been to supplement one event with the other. The non-examination of material witnesses is fatal to the case of prosecution. Furthermore, no confession-cum-seizure panchanama also conducted by the police when the material objects were very much available at the scene. As per the contents of Ex.P-3 the 12 material objects available nearby the bus stand in a bushes. Admittedly the incident took place on 4.2.2006 and the panchanama was conducted on 9.2.2006 and the bus stand is very busy locality where several people moving from that side, it is not possible that 33 litres of diesel which was kept nearby the bus stand are still at scene till 9.2.2006. The evidence of PW-4 and 5 is not believable and the police concocted the story of conducting scene of offence panchanama instead of conducting seizure panchanama though the accused is very much available on 4.2.2006 also on later dates. The non-conducting of seizure panchanama is also fatal to the case of the prosecution and the prosecution failed to prove the guilt of the accused beyond reasonable doubt."
10. It is pertinent to note that it is the observation of the learned Magistrate after due trial that there is unexplained delay of four days in registering the case by the police, and that seizure panchanama was not conducted, and that material witnesses were not examined and these lacunae are fatal to the case of prosecution. It was further observed by the Criminal Court that the evidence of PWs.4 and 5 is not believable and that the police concocted the story of conducting scene of offence panchanama instead of conducting seizure panchanama though the accused is very much available on 4.2.2006 and also on later dates. It may further be noted that admittedly the punishment imposed on the workman by the disciplinary authority was the direct outcome of the charge of theft, however, on the contrary, the lacunae in evidence of witnesses before the Criminal Court in substantiating the charges leveled against the workman resulted in acquittal of the workman. Further, the Labour Court while 13 weighing the proportionality of the punishment imposed vis-à-vis the charges leveled, has rightly considered the findings of the learned Magistrate and observed that the punishment of removal from service is disproportionate. Further, the judgments in Vishnu Dutt (3 supra) and Parma Nanda (4 supra) relied upon by the learned Standing Counsel for the Corporation lay down the periphery of the Tribunal while interfering with a punishment imposed by the disciplinary authority for the reason that the Tribunal cannot act as an appellate authority, however, in the facts of the present case, it may be noted that for the very same charges, trial has taken place before the Criminal Court, and it is the specific observation of the Criminal Court that there is no explanation as to why there was a delay of four days in lodging an FIR, more so, when there were witnesses who allegedly saw the workman committing the pilferage, and when the police also came on the same day i.e., 04.02.2006. Furthermore, it may be noted that the Labour Court observed that "Except alleging grudge the petitioner did not given any details that lead the Corporation witnesses to give evidence against him", thereby considered all the facets of evidence and findings arrived at by the disciplinary authority and the Criminal Court. It may be noted that the punishment of removal from service was imposed by the disciplinary authority on the alleged criminal act of theft, whereas the criminality could not be established before the Criminal Court with the same set of facts and witnesses who testified 14 before both the authorities. In that backdrop, in the facts of the present case, the Labour Court, after due enquiry, weighed the proportionality of punishment imposed vis-à-vis the charges leveled vis-à-vis the plea of the workman and evidence of witnesses vis-à-vis the outcome of the Criminal Case, and by considering the observation made by the learned Magistrate in the Criminal case and, keeping in view the 18 years of service rendered by the workman, held that the punishment of removal from service is disproportionate, thereby directed reinstatement of the workman with continuity of service, however, without backwages. In that view of the matter, I do not find any ground to interfere with the impugned Award dated 26.10.2009 passed by the Labour Court in ID No.77 of 2006.
11. Accordingly, both the writ petitions are dismissed. No costs. Miscellaneous applications, pending if any, shall stand closed.
_____________________________ Justice Nagesh Bheemapaka 31st July, 2024 ksm