Bombay High Court
Abdulla A. Latifshah vs Bombay Port Trust And Ors. on 1 August, 1990
Equivalent citations: 1991(1)BOMCR691, (1992)ILLJ226BOM
JUDGMENT
1. The petitioner joined the services of the first respondent-Bombay Port Trust on July 10, 1968 as a tally clerk. The second respondent is the Chairman and the third respondent is the Docks Manager of the Bombay Port Trust. In the year 1975, the petitioner was promoted to the post of Senior Clerk. He was suspended from duty on November 3, 1980 on the ground that he was involved in a criminal case which was pending against him. The alleged incident of theft of ball bearings valued in a criminal case which was pending against him. The alleged incident of theft of ball bearings valued Rs. 1,800/- had taken place on October 31, 1980. However he was acquitted by the learned Metropolitan Magistrate, 16th Court, Ballard Estate, Bombay by his judgment and order dated April 30, 1981 of the charge of theft punishable under Section 380 of the Indian Penal Code. There after, he was allowed too rejoin the service on May 7, 1981. Then a charge sheet was issued to him on August 11, 1982 on the allegations that on October 31, 1980 at about 11.45 a.m. he was found in possession of rexin bag containing ball bearings valued at Rs. 1,800/- for which he could not give satisfactory account and thus he committed misconduct of attempt to commit theft and dishonesty in connection with property lying in the care and custody of the Bombay Port Trust and further that on the same day he should have ordinarily been in the office till 5 p.m. but he left the duty at about 11.30 a.m. without permission and did not turn up upto 5. p.m. and thus he committed an act subversive of discipline. He replied to the said charge sheet by a letter dated September 14, 1982. He was intimated on February 15, 1984 that an enquiry would be held against him. Accordingly, an enquiry was held and a show cause notice as to punishment was issued to him on January 10, 1985. He filed reply thereto on February 18, 1985. Thereafter, an order of punishment of compulsory retirement was served on him on October 1, 1986. He filed an appeal on October 8, 1986 before the second respondent. His appeal was rejected on May 7, 1987. Feeling aggrieved, he filed Writ Petition No. 2526 of 1987 in this Court under Article 226 of the Constitution of India in which an order was passed on September 2, 1987 that the appellate authority (second respondent) should pass a speaking order. Thereafter, on April 26, 1988 the second respondent one again rejected his appeal. Therefore, he filed the present writ petition on July 26, 1988.
2. It may be mentioned here that no return was filed on behalf on the respondents opposing this writ petition.
3. Now, admittedly the petitioner was charge sheeted under Regulation 3(1) of the Bombay Port Trust Employees (Conduct) Regulations, 1976 which reads : "General" - Every employee shall, at all times, maintain absolute integrity and devotion to duty.
4. The first contention raised by Mr. Cama on behalf of the petitioner is that the above said regulation does not lay down a listed misconduct on the basis of which a charge sheet could be issued. The submission of the learned Counsel is that the heading of this regulation shows that it is "general" act in which an employee should not indulge and what is "general" cannot constitute a misconduct because misconduct should be specified in the regulation itself as a particular misconduct and when one puts a certain "act" in "general" it only means that it was not a specific misconduct. According to Mr. Cama, general act is only desirable characteristic of a public servant.
5. There is a lot of force in the contention of Mr. Cama. A similar point had come up for consideration before the Supreme Court in A. L. Kalra v. The project and Equipment Corporation of India Ltd. (1984-II-LLJ-186) in which Their Lordships of the Supreme Court were interpreting Rule 4(1)(i) and (iii) read with Rule 5(5) OF the P.E.C. Employees' (Conduct, Discipline and Appeal) Rules when it was pointed out that the gravamen of the two heads of charges is that the appellant is guilty of misconduct as prescribed in Rule 4(1)(i) and (iii). It reads as under :
"4(1) Every employee shall at all times;
(i) maintain absolute integrity;
(ii) ... ... ...
(iii) do nothing which is unbecoming of a public servant."
Rule 5 prescribed various misconducts for which action can be taken against an employee governed by the rule. Rule 4 bears the heading 'General'. Rule 5 bears the heading misconduct'. The draftsman of the 1975 Rules made a clear distinction about what would constitute misconduct. A general expectation of certain decent behaviour in respect of employees keeping in view Corporation culture may be a moral or ethical expectation. Failure to keep to such high standard of moral, ethical or decorous behaviour befitting an officer of the company by itself cannot constitute misconduct unless the specific conduct falls in any of the enumerated misconducts in Rule 5. Any attempt to telescope Rule 4 into Rule 5 must be looked upon with apprehension because Rule 4 is vague and of a general nature and what is unbecoming of a public servant may vary with individuals and expose employees to vagaries of subjective evaluation. What in a given context would constitute conduct becoming of a public servant to be treated as misconduct would expose a grey are not amenable to objective evaluation. Where misconduct when proved entails penal consequences, it is obligatory on the employer to specify and if necessary define it with precision and accuracy so that any ex post facto interpretation of some incident may not be camouflaged as misconduct. It is not necessary to dilate on this point in view of a recent decision of this Court in Glaxo Laboratories (I) Ltd. v. Presiding officer, Labour Court, Meerut (1984-I-LLJ-16) Where this Court held that every thing which is required to be prescribed with precision and no argument can be entertained that something not prescribed can yet be taken into account as varying what is prescribed. In short it cannot be left to the vargaries of management to be prescribed can yet be taken into account as varying what is prescribed whit precision and no argument can be entertained that something not prescribed can be entertained with precision and no argument can be entertained that something not prescribed can yet be taken into account as varying what is prescribed. In short it cannot be left to the vagaries of management to say expose facto that some act of omission or commission no where found to be enumerated in the relevant standing order is nonetheless a misconduct not strictly falling with in the enumerated misconduct in the relevant standing order is nonetheless a misconduct not strictly falling within the enumerated misconduct in the relevant standing order but yet a misconduct for the purpose of imposing a penalty. Rule 4 styled as 'General' specifies a norm of behaviour but does not specify that its violation will constitute 'misconduct'. In the case before the Supreme Court, Rule 5 Stipulated various kinds of misconducts and likewise in Regulation 3(2) onwards of the Bombay Port Trust Employees (Conduct) Regulations, 1976 various kinds of misconducts by an employee of the Bombay Port Trust are enumerated.
6. Mr. Kapadia, learned Counsel appearing on behalf of the respondents, urged that the Supreme Court judgments in Kalra's case (Supra) and the Glaxo's case have no application to the facts and circumstances obtaining in the instant case in as much as the basic test, as propounded in various judgments of the Supreme Court, has been that where an order involves penal consequences then there must be investigation based on the principles of natural justice and in implementing the principles of natural justice the only criteria which the Court is required to see is whether any prejudice has been caused to the employee which vitiates the entire enquiry. The submission of the learned Counsel is that the charges here were clearly understood by the petitioner in as much as Regulation 3(1) read with their charge sheet clearly showed that Rule 3(1) enlisted a specified charge and the petitioner cannot plead vagueness of the charge. In support of his contentions Mr. Kapadia relied upon the Supreme Court decisions in case of K. L. Tripati v. Stated Bank of India and Ors. (1984-I-LLJ-2) and Ram Kumar v. State of Haryana (1987-II-LLJ-504), as also the judgment of the Andhra Pradesh High Court in K. P. Upendra v. The Chief General Manager (Disciplinary Authority) State Bank of India, Hyderabad and Anr. 1990 L. I. C. 16 and a decision of Kerala High Court in R. Sathya Vegeeswaran v. Cochin Refineries Ltd. & Anr. 1990 I CLR 345. These decisions deal with a point as to the violation of principles of natural justice when the disciplinary authority does not give to the delinquent employee an opportunity of being heard on merits before he finds him guilty of the charges levelled against him which is separate point raised by Mr. Cama and will be dealt with little later. Mr. Kapadia appears to have relied upon these judgments to canvass a point that the so-called vague charge sheet did not deprive the petitioner here of his right of natural justice. However the question is whether in view of Regulation 3(1), can it be said that the petitioner was charged with a listed misconduct and the answer obviously is a positive "no" which is against the respondent.
7. The second contention of Mr. Cama is that the findings of the enquiry officer read with the order of the appellate authority show that they were perverse. I have no hesitation in agreeing with the submission of Mr. Cama for more than one reason. Thus, the report of the enquiry officer shows that he disposed of the entire matter stating "I do not find any major contradiction in the statements of P.W. 1, 2, 4 and 6. They have stated fact almost in the similar fashion" and held the petitioner guilty of the charges levelled against him. Then, the appellate authority noticed that "while it is true that there is no testimony that would directly substantive his (petitioner's) presence on the third floor of the 'B' Bond Warehouse at the material time and removal of the ball bearings in question, I find it difficult to believe that the ball bearings that were actually found in the bag could have materialised from nowhere or that the security staff who were acting in their normal course of duty or anyone could have planted the ball bearings at the spot to entrap the appellant in a false case." He also noticed that "in the writ petition the appellant has further urged that when many persons were working in the 'B' Warehouse in the third floor at about 11.50 a.m. on the relevant day, it could not have been possible for him to commit theft on the third floor itself and come down two floors passing the security baggage. While there is some weight in this argument, in the light of the factors mentioned earlier, on balance, the testimony would seem to favour the charge of the property apprehended by the security staff along with the appellant having been removed unauthorisedly from the third floor of the 'B' Bond Warehouse." This goes to show even the appellate authority was of the view that there was no satisfactory evidence on the record to prove the charge of theft against the petitioner. In this writ petition, the petitioner tabulated the entire evidence (page 29 to 33) in the nature of the statements of the witnesses before the police and depositions in the Court of the Metropolitan magistrate and evidence given at the departmental Magistrate and evidence given at the departmental enquiry on various points such as time of apprehending the petitioner, his admission of theft and about the stolen goods. It is neither necessary nor possible to incorporated here the entire evidence in the said tabular form but it clearly shows that there were any number of contradiction and discrepancies in the evidence of the witnesses vis-a-vis their police statements, their evidence in the court and their evidence at the departmental enquiry. It is no doubt true that the standard of proof in a criminal case and at the departmental enquiry will be different as the prosecution in a criminal case has to prove its case beyond reasonable doubt but has to prove its case on the touchstone of preponderance of probability at the domestic enquiry. However, from the evidence on record I am more than satisfied that this is a case of a strong suspicion against the petitioner rather than establishing his guilt. The Supreme Court in the case of Nand Kishore Prasad v. The State of Bihar & Ors (1978-II-LLJ-84 at 87-88) had observed that "Disciplinary proceedings before a domestic tribunal are of a quasi-judicial character, therefore, the minimum requirement of the rules of natural justice is that the Tribunal should arrive at its conclusion on the basis of some evidence i.e. evidential material which with some degree of definitions points to the guilt of the delinquent in respect of the charge against him. Suspicion cannot be allowed to take the place of proof even in domestic enquiries." It is also pertinent to note here that the petitioner was tried by a competent court of a Metropolitan Magistrate who had given him an honorable acquittal. In the facts and circumstances of the case, I am of the view that it is really doubtful whether the petitioner here was guilty of the charges levelled against him. It was held by the Supreme Court in K.C.P. Employees' Association, Madras v. The Management of K.C.P. Ltd. and Ors. (1978-I-LLJ-322 at 324) that "in industrial law, interpreted and applied in the perspective of Part IV of the Constitution, the benefit of reasonable doubt on law and facts, if there be such doubt, must go to the weaker section, labour."
8. Mr. Kapadia made a faint attempt to meet this contention raised by Mr. Cama stating that the evidence of the Watchman by name Sakpal has been duly considered by the appellate authority which was not there before the Criminal Court and that the entire evidence (including that of the petitioner) was properly discussed by the appellate authority which indicated that the walking distance between the office and the shed in question was only five minutes and not fifteen minutes as argued on behalf of the petitioner. Mr. Kapadia also submitted that the evidence of the witnesses indicates that the property was found in the possession of the petitioner and that the petitioner himself admitted that he went to the shed without permission of the higher authority. I find no substance in the submission of Mr. Kapadia because it makes no difference whether the walking distance between the office and shed is of five minutes or fifteen minutes and whether the petitioner went to the shed with or without the permission of the higher authorities. It is really doubtful whether the property in question was found on the person of the petitioner and the evidence of Watchman Sakpal does not carry the case of the respondents further but on the other hand makes it more doubtful inasmuch as Sakpal's evidence shows that it was one Desai and one Mand who had seen the petitioner coming out of the shed with the bag and they caught him and so long as himself was concerned his face was exactly against the shed and not towards the shed. He further deposed that it was Desai who saw the bag and handed over the petitioner with bag in his (Sakpal's) custody. He then deposed that the petitioner was asked by the police as to from where he had committed theft of the ball bearings when the petitioner took the police to the spot but he himself did not know exactly on what floor the petitioner had taken the police. In the cross-examination Sakpal deposed that he did not see the petitioner going out of the docks nor did he see him with the bag and that he saw him when he was caught by Desai because he was facing the opposite direction. He also deposed that he did not see the petitioner committing theft of the ball bearings and when the panchas went there the bag containing the ball bearings was not in the hands of the petitioner. His evidence thereafter shows that he did not remember whether the same bag was in the petitioner's hand when the police and the security officer arrived at the spot. He admitted that Desai was his boss which is indicative of the fact that there was possibility of he giving evidence at the domestic enquiry under the influence or pressure of Desai. I say so because Sakpal, who was a very important witness being the Watchman working with the Bombay Port Trust, was not examined by the prosecution at the criminal trial but was examined at the domestic enquiry after some years which itself makes his testimony doubtful.
9. Thirdly, Mr. Cama contended that after the findings were issued by the enquiry officer and before the punishment order was passed, there was no second show cause notice issued to the petitioner on merit nor any opportunity given to him to represent his case on merits before the disciplinary authority i.e. the Docks Manager. This is an admitted fact because the record shows that on receipt of the report from the enquiry officer, the Docks manager issued a memorandum dated January 10, 1985 (page 83 of the petition) stating that he had perused the report and the findings of the enquiry officer and other related records and he agree with the findings of the enquiry officer and proposed to remove the petitioner from service with immediate effect and called upon him to show cause why the proposed penalty of removal from service should not be imposed upon him. In other words, the disciplinary authority had issued a show cause notice as to the penalty and not the second show cause notice on merits. The submission of Mr. Cama is that on account of failure on the part of the disciplinary authority of not issuing the second show cause a notice on merits there was total violation of the principles of natural justice. In support of his contention Mr. Cama relied upon to judgments of the Supreme Court in Institute of Chartered Accountants v. L. K. Ratna and Ors. and Union of India and Ors. v. E. Bashyan (1988-II-LLJ-249)
10. In reply, Mr. Kapadia emphatically urged that the second show cause notice on merits is not mandatory and the question of breach of principles of natural justice in a situation like this would not arise. Mr. Kapadia also submitted that under the regulations in question the petitioner was entitled to file an appeal against the order of imposing punishment on him and it was open for him to raise all contentions before the appellate authority who would take care of the principles of natural justice. In support of his submission, Mr. Kapadia relied upon five judgments of the Supreme Court and one of Andhra Pradesh High Court and one of Kerala High Court in cases of (i) Associated Cement Companies Ltd. v. T. C. Srivastava and Ors. (1984-I-LLJ-105) K. L. Tripathi v. State Bank of India and Ors. (supra) (iii) Ram Kumar v. State of Haryana (supra) (iv) Kailash Chander Asthana v. State of U. P. and Ors. (1988-II-LLJ-219) (v) Union of India and another v. Tulsiram Patel (1985I-LLJ-206) (vi) K. P. Upendra v. The Chief General Manger (Disciplinary Authority), State Bank of India, Hyderabad and Anr. (supra) and (vii) R. Sathya Vegeeswaran v. Cochin Refineries Ltd. (supra) Mr. Kapadia also brought to my notice two judgments of this Court in case of Manipur Vasantkumar Kini v. Union of India and Anr., Writ Petition No. 1667 of 1981, decided on June 16, 1989 by Bharucha, J. and in case of Mulraj Jamnadas Ashar v. Bank of India Writ Petition No. 3258 of 1989, decided on February 1, 1990 by Pendse, J. and urged that the Supreme Court judgment in the case of Institute of Chartered Accountants of India (supra) was considered by both Bharucha, J. and Pendse, J. and they had rejected the contention of Mr. Cama and that the judgment of the Supreme Court in Union of India v. E. Bashyan (1988-II-LLJ-249) was also considered by Bharucha, J. who had opined that the observations made by the Supreme Court in the course of an order referring the matte to a larger bench cannot be treated as binding obiter dicta for the referral is more often than not made because a contrary view has already been taken.
11. I am informed at the Bar that the case of Union of India and Ors. v. E. Bashyan (supra) which was referred to the larger bench of the Supreme Court is still not decided and that an appeal has been preferred challenging the Judgment of Bharucha, J. in Writ Petition No. 1667 of 1981 which appeal is also pending in this Court and that Pendse, J. had not given a judgment but had made only on oral at the time of admission of Writ Petition No. 3258 of 1989. Under the Circumstances, I am not inclined to give a ruling a on the point made by Mr. Cama that on account of failure on the part of the respondents to issue second show cause notice on merits to the petitioner, the principles of natural justice were violated. The issue is kept open.
12. Fourthly, Mr. Cama urged that the domestic enquiry against the petitioner could not have been held after the petitioner was acquitted in the criminal proceeding. In the alternative, Mr. Cama submitted that if at all it could be done, good reasons should have been given for such extraordinary course of action. In this connection, we may usefully refer to a Madras High court judgment in George Verghese v. The Food Corporation of India (1984-I-LLJ-299) in which it was held "it will not be open to the Department to resurrect the same old charges on which the employee faced a criminal trial and was acquitted, to proceed departmentally". Before the Madras High Court, a ruling of the Supreme Court in Corporation of Nagpur City, Civil Lines, Nagpur v. Rama Chandra (1981-II-LLJ-6) was cited and it was urged that despite an acquittal in a criminal case it is open to the department to hold a domestic enquiry. The learned single Judge of the Madras High Court rejected that contention pointing out that in the case before the Supreme Court, the criminal charge was pending at that time and no charges were framed and it was under those circumstances that a question arose as to what would be the consequence of acquittal in a criminal case in which connection it was observed that if ever the charge failed and if there was sufficient evidence and good ground to proceed with the enquiry, it could certainly be done. I respectfully endorse the view taken by the learned single Judge of the Madras High Court. The Supreme Court in the said case of Corporation of Nagpur City had also observed (p. 8), "Normally where the accused is acquitted honourably and completely exonerated of the charges it would not be expedient to continue a departmental inquiry on the very same charges or grounds or evidence, but the fact remains, however, that merely because the accused is acquitted, the power of the authority concerned to continue the departmental inquiry is not taken away nor is its discretion in any way fettered". Relying upon these observations, Mr. Cama submitted that if at all the respondents here decided to hold the domestic enquiry against the petitioners despite his acquittal, good and sound reasons should have been given because, as was pointed out by the Supreme Court, normally after an acquittal in a criminal trial the domestic enquiry was not be held. It is important to note that the respondents here have not come out with any explanation, leave aside good and sound reasons, for holding the domestic enquiry against the petitioner despite his acquittal in criminal trial. It is only at the stage of the arguments that Mr. Kapadia canvassed that before the Criminal Court there was no evidence of Watchman Sakpal which was available to the respondents at the time of he domestic enquiry on the basis of which they decided to hold the domestic enquiry against the petitioner. I am not able to persuade myself to agree with the submission of Mr. Kapadia for the simple reason that Sakpal who was in the employment of the respondents was very much available to them a the time of the criminal trial and since he was a watchman and in a way instrument in apprehending the petitioner at the time of committing the theft of ball bearings, he was quite an important prosecution witness and the police should have definitely recorded his statement and produced him in the criminal court for giving evidence. It is rather surprising that such an important witness was withheld by the respondents or the prosecution from the criminal court which leads one to draw adverse inference against the respondents. Mr. Kapadia urged that the respondents could not be blamed if the police did not record the statement of Sakpal and did not examine him in the Criminal Court. I find absolutely no substance in the argument of Mr. Kapadia because if Sakpal was instrumental in apprehending the petitioner, the police would not have failed in their duty to record his statement and adduce his evidence in the Criminal Court. The evidence of Sakpal, therefore, at the domestic enquiry after some years of the incident has to be considered with a pinch of salt. But that apart, as pointed out in para 8 of this judgment, Sakpal's evidence at the domestic enquiry was of absolutely doubtful nature and it would not carry the case of the respondents any further.
13. Mr. Kapadia brought to may notice a Division Bench judgment of this Court in Shakthi Capacitors v. Heramb Bhaskar Sahasrabuddhe and Anr. (1988-II-LLJ-284) and emphatically urged that acquittal by a criminal court does not disentitled an employer from proceedings with the domestic enquiry as the objects of the two enquiries are different. While there is no dispute about the proposition of law made by Mr. Kapadia, I am afraid, the ruling cited by him does not help him at all as in that case the respondent-employee came to be acquitted by the Criminal Court by giving him the benefit of doubt and it was under that circumstance that it was held that a departmental enquiry could be held despite his acquittal. In my opinion, it makes a lot of difference if an accused person is honourably acquitted and completely exonerated of the charges levelled against him and if he was given the benefit of doubt at the criminal trial. In the instant case, there was honorable acquittal of the petitioner at the criminal trial and, therefore, normally the respondents could not have started and proceeded with the departmental enquiry unless there were strong and sound reasons to do so which reasons are pointed out to this Court in an affidavit by the respondents. As a matter of fact, there was no return filed by the respondents to oppose this writ petition. Mr. Kapadia also pointed out a judgment of this Court in C. D. Fernandes v. Union of India and Ors. 1988 (II) CLR 89 in this connection. In my judgment, this ruling also does not help Mr. Kapadia because there the petitioner were acquitted in the proceedings held under the Customs Act which had no bearing on the departmental enquiry which was conducted under the Standing Orders. Mr. Kapadia the relied upon a Supreme Court judgment in Kusheshwar Dubey v. M/s. Bharat Coking Coal Ltd. and Ors. (1988-I-LLJ-470) which judgment again does not help him inasmuch as what was held by the Supreme Court there was (pp. 472-473) :
"While there could be no legal bar for simultaneous proceedings being taken, yet, there may be cases where would be appropriate to defer disciplinary proceedings awaiting disposal of the criminal case. In the latter class it would be open to the delinquent employee to seek such an order of stay or injunction from the Court. Whether in the facts and circumstances of a particular case there should not be such simultaneity of the proceedings would then receive judicial consideration and the Court will decide in the given circumstances of a particular case as to whether the disciplinary proceedings should be interdicted, pending criminal trial. As we have already stared, it is neither possible nor advisable to evolve a hard and fast, straight-jacket formula valid for all cases and of general application without regard to the particularities of the individual situation ... In the instant case, the criminal action and the disciplinary proceedings are grounded upon the same set of facts and, the disciplinary proceedings should have been stayed."
14. Fifths, Mr. Cama canvassed that delayed charge-sheet or a stale charge-sheet cannot be proceeded with since the enquiry held on it suffers from breach of natural justice. Before appreciating the contention raised by Mr. Cama it may be recalled here that the alleged incident of theft had taken place on October 31, 1980 in which criminal case the petitioner was acquitted on April 30, 1981. In fact, thereafter he joined duties on May 7, 1981 and then August 11, 1982 a charge-sheet was issued to him and he was intimated on February 15, 1984 that an enquiry would be held against him. In other words, fifteen months after the petitioner rejoined the duty he was charge-sheeted and eighteen months thereafter an enquiry was held against him. Thus, from the day of the incident, the enquiry was held against the petitioner after three years and four months. Now, in support of his argument Mr. Cama pointed out certain observations made by the Supreme Court in J. D. Shrivastava v. State of Madhya Pradesh and Ors. (1984-I-LLJ-344) that "dependence on such stale entries in the confidential reports cannot be placed for retiring a person compulsorily, particularly when the officer concerned has been promoted subsequent to such entries." Mr. Cama said that in our case after the petitioner rejoined the service he was granted increments. Mr. Cama also invited my attention to another judgment of the Supreme Court in Brij Mohan Singh Chopra v. State of Punjab (1987-I-LLJ-522) in which it was held (p. 526) :
"It is now well settled that while considering the question of premature retirement it may be desirable to make an overall assessment of the Government servants record, but while doing that, more value should be attached to the confidential reports pertaining to the years immediately preceding such consideration. It is possible that a new entrant to a service may have committed mistakes and for that reason he may have earned adverse entries and if those entries of early years of service are taken into considerations for prematurely retiring a Government employee them perhaps no employee would be safe even though he may have brilliant record of service in later years .... Old and stale entries should not be taken into account while considering the question of premature retirement; instead the entries of recent past of five to ten years should be considered in forming the requisite opinion to retire a Government employee in public interest. It would be unreasonable and unjust to consider adverse entries of remote past and to ignore the good entries of recent past .... If entries for a period of more than 10 years past are taken into account it would be an act of digging out past to get some material to make an order against the employee."
Thereafter, Mr. Cama relied upon a Division Bench judgment of this Court in Prabhakar G. Jadhav v. The State of Maharashtra & Anr. 1990 (I) CLR 287 in which the petitioner was suspended on January 21, 1986. He approached this Court and this Court directed on February 20, 1986 that enquiry should be completed expeditiously. On July 4, 1986, a charge-sheet was given to the petitioner who filed his explanation on August 20, 1986. It was thereafter on May 22, 1987, enquiry officer was appointed, Till June 15, 1987, the petitioner did not hear anything from the enquiry officer and the suspension continued. On such facts this court held :
"If in such circumstances, the petitioner approaches this Court and makes a grievance on this question of undue delay in the matter of holding enquiry against him, it cannot be said that his grievance is unjustified. Even assuming that the charges against the petitioner are serious, that is no reason why the inquiry should be unduly delayed. Having issued the aforesaid two circulars and laid down certain guidelines, it was expected of the Government and its relevant departments to have scrupulously followed the same in the instant case, all the more so when the petitioner had made a grievance on the vary suspension order by filing earlier writ petition."
In view of this legal position, the point made by Mr. Cama has substance and I find no substance in the reply of Mr. Kapadia that Bombay Port Trust is a Public Sector Organisation and in a such a huge organisation employing thousand of employees, particularly in view of large scale cases of pilferage of which judicial notice can be taken and in view of large number of domestic inquiries, it cannot be said that there is delay in prosecuting the petitioner.
15. And lastly, Mr. Cama submitted that delay in initiating the enquiry without any explanation enables the charge-sheeted employee to assume that the enquiry was abandoned or was not going to be held. There is lot of force the argument of Mr. Cama as can be seen from a judgment of the Madras High Court in P. F. George v. State of Tamil Nadu and Anr. (1980-I-LLJ-513) in which it was observed that delay leads to the inference that the department had abandoned or given up the charges. In another case of Athithyaraman v. Commissioner, Hindu Religious and Charitable Endowments Departments it was held that the failure to hold actual enquiry for a considerable number of years since the date of framing of the charges, in the absence of any acceptable explanation from the department, will result in the order of penalty being held invalid. Then, the Mysore High Court in Andrews v. District Educational Officer, Bangalore (1967-I-LLJ-378) observed that the charges having been framed earlier and the petitioner's explanation obtained in relation thereto, if no action had been taken in respect of the charges, the Government servant will be entitled to assume that the charge have been abandoned or given up. I am in respectful agreement with the view taken by the Madras High Court and the Mysore High Court. In this connection, we may also usefully rely upon the observations made by the Supreme Court in State of Punjab v. Dewan Chubilal that "When pending the departmental enquiry on charges of inefficiency and dishonesty, if the delinquent officer had been allowed to cross the efficiency bar, that will lead to the inference that all the reports rendered against the officer before his crossing the efficiency bar cannot be considered at the disciplinary enquiry." It may be once again recalled here that in the instant case after the petitioner had rejoined the service he had earned increments and as such there is no merit in the argument of Mr. Kapadia that merely because the petitioner had worked for five years did not prevent the Bombay Port Trust from terminating his services after an enquiry.
16. Mr. Kapadia submitted that in the earlier Writ Petition No. 2526 of 1987 filed by the petitioner, an order was passed by Variava, J. on September 2, 1987 in terms of minutes of the order according to which the second respondent was directed to again consider the appeal of the petitioner and make a fresh order after considering all the contentions that may be urged by the petitioner without that being the precedent and without prejudice to the rights and contentions of the respondents. The submissions of the learned Counsel is that in view of the minutes of the order, the petitioner is estopped from raising the contentions that the charge-sheet was vague and stale and the second show cause notice was not issued and in view of the acquitted by the Criminal Court, no disciplinary enquiry could be held. According to Mr. Kapadia, the very fact that this Court specifically directed the appellate authority to proceed only from the stage of the appeal indicated that the petitioner could not go behind the said order of this Court and moreover in the memo of appeal filed before the appellate authority, non of these contentions were raised. I am not able to persuade myself to agree with any of the submissions of Mr. Kapadia for the simple reason that the appellate authority was directed to make a speaking order and that would not mean that the petitioner was debarred from raising various law points which he did in this writ petition. The petitioner cannot be estopped from raising the legal contentions now merely because he had not done so before the appellate authority. It may be mentioned here that even if the petitioner were to raise these legal contentions before the appellate authority and the appellate authority were to deal with them his findings would not bind this Court and this Court would independently consider these legal contentions. Therefore, no prejudice can be said to have been caused to the respondents merely because the petitioner had not raised the legal contentions before the appellate authority. It is also important to bear in mind that while exercising writ jurisdiction under Article 226 of the Constitution, this Court does not act as an appellate court scanning and scrutinising the finding arrived at by the appellate authority.
17. Mr. Kapadia then urged that in cases of compulsory retirement, the only test applicable is whether the employer acted in a bona fide manner in removing the employee for his corrupt, inefficient and undesirable acts an in support of his contention Mr. Kapadia relied upon a judgment of the Gujarat High Court in R. M. Dalal v. State of Gujarat and Anr. 1990 (I) CLR 151 in which it was held that "considering the criteria laid down for the purpose, the decision of the government to compulsorily retire the petitioner on attaining the age of 55 years is not mala fide, arbitrary or based solely on collateral grounds and as such the decision cannot be interfered with in exercise of the jurisdiction under Article 226 of the Constitution of India." I am afraid, this ruling of the Gujarat High Court does not go to the rescue of Mr. Kapadia because the Gujarat High Court was dealing with a case of compulsory retirement at the age of 55 just before the time of the superannuation and to as and by way of punishment. Compulsory retirement before superannuation in public interest is altogether different from compulsory retirement as and by way of a major penalty as envisaged in Regulation 8 of the Bombay Port Trust Employees (Conduct) Regulations, 1976. It will be well to remember that the petitioner in the instant case was compulsory retired at the age of 41 as and by way of punishment which cannot be compared with compulsory retirement before superannuation in public interest in which case what is taken into consideration is the bona fide belief of the Government of the necessity to pass an order of compulsory retirement in pubic interest.
18. Lastly, Mr. Kapadia canvassed that the punishment inflicted on the petitioner here is proportionate, commensurate with the nature of the offence inasmuch as looking at the nature of the offence and the surrounding facts and circumstances, the order of compulsory retirement was passed under which the petitioner was entitled to all the retirement, benefits including pension and, therefore, the punishment was proper. Without meaning any disrespect to Mr. Kapadia I may say that he forgot a very vital aspect of the matter that the petitioner was retired at the age of 41 depriving him of his very source of livelihood. Loss of seventeen years of wages and other benefits flowing from such long remaining service is too heavy a penalty for an attempted act of theft of property worth Rs. 1,800/- assuming for the sake of argument that the petitioner had indulged in the said act of misconduct and that he was guilty of the charges levelled against him. In the facts and circumstances of this case, I am of the opinion that the petitioner could not have been visited with an economic death sentence at that premature age of 41 and he could have been let of on lighter punishment such as withholding of his promotion or recovering from his pay of the whole of part of any pecuniary loss caused by him to the Bombay Port Trust or withholding his increments or reduction to a lower stage in a time-scale of pay for a specified period or reduction scale of pay for a specified period or reduction to a lower time-scale of pay, grade or post which should ordinarily be a bar for the promotion to the time-scale of pay, grade or post from which he was reduced etc. which would have served the ends of justice, if at all the petitioner was proved guilty of the charges levelled against him.
19. Before parting with the judgment, I would like to deal with two aspects of general importance viz. right to livelihood which is equivalent to right to life and just and fair procedure. The Supreme Court in the case of the Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendra Nadkarni (AIR) 198 S. C. 109 had pointed out that "Article 21 which mandates that no one shall be deprived of his life or liberty except in accordance with the procedure prescribed by law. The expression 'life' does not merely cannot animal existence or a continued drudgery through life. The expression 'life' has a much wider meaning. Where therefore the outcome of a departmental enquiry is likely to adversely affect reputation on livelihood of a person, some of the finer graces of human civilisation which make life worth living would be jeopardised and the same can be put in jeopardy only by law which inheres fair procedure." In another case of Olga Tellis and Ors. v. Bombay Municipal corporation and Ors. the Supreme Court observed :
"The sweep of the right to life conferred by Art. 21 is wide and far-reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right of livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to be point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right of livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what marks life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and he shall have deprived him of his life."
The Supreme Court had further observed :
"Article 39(a) of the Constitution, which is a Directive Principles of State Policy, provides that the State shall, in particular, direct its policy towards securing that the citizens, men and women equally, have the right to an adequate means of livelihood. Act. 41 which is another Directive Principle, provides, inter alia, that the State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work in cases of unemployment and of undeserved want. Article 37 provides that the Directive Principles, though not enforceable by any Court, are nevertheless fundamental in the governance of the country. The principles contained in Arts. 39(a) and 41 must be regarded as equally fundamental in the understanding and interpretation of the meaning an content of fundamental rights. If there is an obligation upon the State of secure to the citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life. The State may not, by affirmative action, be compellable to provide adequate means of livelihood or work to the citizens. But, any person, who is deprived of his right to livelihood except according to just and fair procedure established by law, can challenge the deprivation as offending the right to life conferred by Art. 21."
In my opinion, right to work includes right not to be deprived of work without just and fair procedure established by law. The Supreme Court in Maneka Gandhi v. Union of India had held that "Article 21 confers a fundamental right on every person not to be deprived of his life or liberty except in accordance with the procedure prescribed by law and it is not enough to constitute compliance with the requirement of that Article that some semblance of a procedure should be prescribed by law, but that the procedure should be reasonable, fair and just." Bearing in mind these principles of law enunciated by the Supreme Court, I would like to point out that in the instant case the Bombay Port Trust has not been just, fair and reasonable to the petitioner.
20. Thus, the facts and circumstances of this case show that after the day of the alleged incident of theft, the domestic enquiry was initiated against the petitioner after a lapse of three years and four months. But that is not the end of the story. The enquiry went on for five months upto July 20, 1984 and six months thereafter the petitioner was issued with a show cause notice on January 10, 1985 as to the penalty. The petitioner showed a cause on February 18, 1985 and the disciplinary authority took 19 months thereafter to inform him as to the punishment of compulsory retirement. The petitioner filed an appeal before the Chairman of the Bombay Port Trust within a week but the appellate authority took seven months to reject his appeal on May 7, 1987. In other word, the Bombay Port Trust, its Dock Manager and the Chairman took six years, six months and six days to compulsorily retire the petitioner after the alleged incident of theft. The facts of the case disclose that at every stage of the proceedings initiated against the petitioner their was delay and sometimes considerable delay. The facts do not disclose that the petitioner was in any way responsible for such delay. There is no explanation whatsoever forthcoming from the respondents as to such inordinate delay. The facts further disclose that after the petitioner was acquitted by the Criminal Court and was allowed to rejoin duty there was enough delay in initiating the proceeding against him and thereafter taking a final decision in the direction of punishing him for which also there is no explanation offered by the respondents. In my judgment, the cardinal principle of the service and the constitutional jurisprudence is the dispensation of quick justice to a delinquent employee which if not done would violate his fundamental right to life enshrined in and guaranteed by Article 21 of the Constitution. That is so because right to life means right to live a meaningful life and not a vegetable life. An employee who is sought to be deprived of his means of livelihood is entitled to just, fair and reasonable procedure and not the one that tends to delay justice because justice delayed is justice denied and more particularly in the cases of employees who are discharged or dismissed or whose services are terminated or, as in the present case, compulsorily retired. In such cases the back of the employee is already broken by deprivation of his very source of livelihood. It is not only he but also his entire family, including innocent children and wife and other dependents, suffers the agony of the absence of means of livelihood i.e. work and none of them can wait for such a long time till the litigation gets finally over. It is important to remember that although speedy dispensation of justice is not specifically enumerated as a fundamental right, it is implicit in the broad sweep and content of Article 21 of the Constitution and reasonably expeditious delivery of justice is an integral and essential part of the fundamental right to life. The manner and the method in which the respondents dealt with the petitioner here is very much indicative of the unreasonable, unfair and unjust attitude of the respondents. Everything does not appear to be just and reasonable with them. I feel, and I wish I am wrong, that the respondents acted maliciously against the petitioner perhaps because of his trade-union activity.
21. In this view of the matter, the petition succeeds and the same is allowed. The impugned order compulsorily retiring the petitioner is quashed and set aside and the respondents are directed to reinstate him in his original position with all consequential benefits and the continuity of service and full back wages. The respondents are further directed to work out the arrears of the back wages due to the petitioner within one month from to say and pay to him the said amount on or before September 1, 1990 failing which they shall be liable to pay interest at the rate of 15 per cent per annum on the amount due and payable to the petitioner.
22. Rule is accordingly made absolute with cost of Rs. 3,000/- by the respondents to the petitioner.
23. At this stage, Mr. Kapadia makes a prayer that the execution of this order may be stayed for two weeks. The prayer is granted.