THE HON’BLE SRI JUSTICE R.KANTHA RAO WRIT PETITION NO.20595 OF 2003 Between:-
The Depot Manager, APSRTC, Nellore-II Deport, Nellore and another.
…Petitioners And Pakam Bhaskar and another.
…Respondents.
THE HON’BLE SRI JUSTICE R.KANTHA RAO WRIT PETITION NO.20595 OF 2003 ORDER:
Heard the learned Standing Counsel appearing for the petitioners and Sri M.Pitchaiah learned counsel appearing for the first respondent.
This writ petition is filed under Article 226 of the Constitution of India, seeking to issue a writ of certiorari calling for the records relating to award dated 1-11-2002 passed in I.D.No.307 of 1998 by the Labour Court, Guntur and set aside the same.
The first respondent herein is the petitioner and the petitioners 1 and 2 herein are the respondents in the Industrial Dispute No.307 of 1998 filed by the first respondent on the file of the Presiding Officer, Labour Court, Guntur. For the sake of convenience, the parties herein are referred to as the petitioner and respondents as they are arrayed in the Industrial Dispute.
The brief facts relevant for disposing of the present writ petition may be stated as follows:-
While the petitioner was working as driver in APSRTC., Nellore-II Depot, Nellore District, he was made accused in Crime No.19 of 1998 and 40 of 1998 for the offences punishable under Sections 457 and 380 of I.P.C., of IV Town Police Station, Nellore on the allegation of committing theft of Rs.20,000/- (Rupees twenty thousand only) belonging to the respondent Corporation. The matter was investigated into and a charge sheet was laid against the petitioner.
In the meanwhile, simultaneous Departmental Enquiry was initiated against the petitioner for the following charges:-
1) For having involved in the attempted theft of bus cash, salaries cash of Rs.22,60,759.25 and stolen Rs.20,000/- from D.C.(E) Room of Nellore –II Depot on 31-1-98/1-2-98 which constitutes misconduct under Regulation 28(x) of APSRTC Employees (Conduct) Regulations, 1963.
2) For having remanded under police custody for 5 to 6 days from 1-2-1998 onwards, which also constitutes misconduct under Regulation 28(xxxii) of APSRTC Employees (Conduct) Regulations, 1963.
During the course of Departmental Enquiry, two Security Guards of the Corporation were examined as witnesses. Their entire evidence was to the effect that they found the petitioner and another moving near the D.C (E) Room under suspicious circumstances. They stated that on seeing them, the said two persons ran away. These two witnesses were not cross examined in the course of departmental enquiry. The enquiry officer however considering their evidence, held that the two charges were proved against the petitioner and he submitted a report to the disciplinary authority. The disciplinary authority having concurred with the findings recorded by the enquiry officer, passed an order dated 3- 6-1998 removing the petitioner from service. The petitioner preferred an appeal and the appeal was also dismissed. Later, the petitioner raised an industrial dispute, which came to be decided by the Presiding Officer, Labour Court, Guntur in I.D.No.307 of 1998.
By the time, when the orders were passed by the enquiry officer as well as the disciplinary authority and appellate authority, the criminal proceedings were pending against the petitioner for the same charges and by the time when the industrial dispute came to be disposed of by the Presiding Officer, Labour Court, guntur, the petitioner was acquitted of the two charges leveled against him by the prosecution. The Tribunal, which was dealing with the industrial dispute, on reappraisal of the evidence, reversed the findings recorded by the enquiry officer which were concurred by the disciplinary authority and appellate authority and held that both the charges were not proved against the petitioner. Consequently, the learned Tribunal directed reinstatement of the petitioner with full back wages and continuity of service with all attendant benefits. Against the said order of the Tribunal, the Corporation filed the present writ petition.
The point for determination in the present writ petition is; whether this Court in exercise of powers under Article 226 of the Constitution of India can interfere with the findings recorded by the learned Tribunal below having regard to the facts and circumstances of the present case?
It is contended by the learned standing counsel appearing for the Corporation that the proceedings in departmental enquiry are altogether different from the proceedings in criminal case and the acquittal of the petitioner in the criminal case cannot be a ground for reversing the findings recorded by the enquiry officer and disciplinary authority.
On the other hand, it is submitted by the learned counsel appearing for the petitioner that the Tribunal not only placed reliance on the judgment of an acquittal passed by the criminal court, but also reappraised the evidence available on record and arrived at a just conclusion that the charges were not proved against the petitioner. The learned counsel invited my attention to certain findings recorded by the learned Tribunal below.
Perusal of the material available on record clearly indicate that the evidence given in the departmental enquiry as well as in the criminal case was only to the effect that the witnesses who are the Security Guards in the Corporation found the petitioner and another person near the D.C (E) Room and they also found that the widow of D.C (E) Room was broken open, almirah was also broke open and tool boxes were broken open wherein the cash was kept, the almirah and tool boxes contained cash. Out of the two security guards, who were examined as witnesses in the departmental enquiry, as rightly found by the Tribunal, where one of them stated that they saw the petitioner and another at 1.30 A.M., and the other witness stated that they saw them at 3.30 A.M. The learned Tribunal also rightly observed that the Security Guards were posted on duty to guard the property of the Corporation, they were fully aware that huge cash was in the almirah and two boxes in the D.C.(E) Room and in the normal course, they ought to have noticed the sounds at the time of breaking the window, almirah and tool box and they should have caught hold of the culprits as the entire incident continued for a considerable time. Taking all these factors into consideration, the learned Tribunal held that both the charges were not proved against the petitioner.
It is true that the standard of proof in a criminal trial is proof beyond reasonable doubt and in a departmental enquiry it is preponderance of probability, but we have to find out in a departmental enquiry whether the charges were proved basing on standard of preponderance of probability. There was no iota of evidence before the Enquiry Officer indicating that the petitioner and another were involved in the commission of theft. The only evidence as already said was to the effect that they were present near the D.C (E) Room. The D.E(E) Room where the almirah was lying is very close to the staff room where the petitioner or any other employee of the Corporation is expected to be present even during odd hours. Further, no amount was recovered from the petitioner. The witnesses did not speak about any act committed by the petitioner and the other person involving the commission theft or attempting to commit theft. By mere presence of the petitioner and another coupled with the fact that they ran away from the place of occurrence, it cannot be concluded that the petitioner and another were involved in the commission of theft.
The Tribunal is entitled to reappraise the evidence in the departmental enquiry and it can come to its own conclusions. This Court can interfere with the findings recorded by the Tribunal only if they are based on irrelevant considerations or contrary to the evidence available on record. In the instant case, the findings recorded by the Tribunal are appropriate and are in accordance with the evidence before it. Further, the witnesses who were examined in the departmental enquiry and the criminal case are one and same. Basing on their evidence as rightly held by the Tribunal, it is not possible to hold that the charges are proved against the petitioner. Subsequent to the order passed by the Tribunal, the petitioner was reinstated into service and he is now continuing in service in the respondents’ corporation.
For the foregoing reasons, I absolutely see no valid grounds to interfere with the findings recorded by the Tribunal.
Accordingly, the writ petition is dismissed without any order as to costs. The Miscellaneous Petitions pending if any shall stand closed.
R.KANTHA RAO,J Date: 02-06-2014.
Shr.
THE HON’BLE SRI JUSTICE R.KANTHA RAO WRIT PETITION NO.20595 OF 2003 Date: 02-06-2014 Shr.