Maharashtra State Road Transport Corporation v. Bhupal Madhukar Pol

25. This Court in NOIDA Entrepreneurs Association v. NOIDA & Ors.[3] held that the criminal prosecution is launched for an offence for violation of a duty, the offender owes to the society or for breach of which law has provided that the offender shall make satisfaction to the public, whereas, the departmental inquiry is to maintain discipline in the service and efficiency of public service. It was held as under: (SCC p.392, para 11)

28. The burden of proof in the departmental proceedings is not of beyond reasonable doubt as is the principle in the criminal trial but probabilities of the misconduct. The delinquent such as the writ petitioner could examine himself to rebut the allegations of misconduct including use of personal weapon. In fact, the reliance of the writ petitioner is upon a communication dated 1.5.2014 made to the Commandant through the inquiry officer. He has stated that he has not fired on higher officers and that he was out of camp at the alleged time of incident. Therefore, a false case has been made against him. His further stand is that it was a terrorist attack and terrorists have fired on the Camp. None of the departmental witnesses have been even suggested about any terrorist attack or that the writ petitioner was out of camp. Constable D.K. Mishra had immobilized the writ petitioner whereas all other witnesses have seen the writ petitioner being immobilized and being removed to quarter guard. PW-5 Brij Kishore Singh deposed that 3-4 soldiers had taken the Self-Loading Rifle (S.L.R.) of the writ petitioner in their possession. Therefore, the allegations in the chargesheet dated 25.2.2013 that the writ petitioner has fired from the official weapon is a reliable finding returned by the Departmental Authorities on the basis of evidence placed before them. It is not a case of no evidence, which alone would warrant interference by the High Court in exercise of power of judicial review. It is not the case of the writ petitioner that there was any infraction of any rule or regulations or the violation of the principles of natural justice. The best available evidence had been produced by the appellants in the course of enquiry conducted after long lapse of time.

11. Considering these broad principles of distinction between criminal trial and domestic enquiry, in my view, finding recorded in the criminal trial would be wholly irrelevant for the purpose of examining whether the charge levelled against Respondent was proved in the domestic enquiry.

12. As observed above, Petitioners have also challenged Part-I Award dated 10.01.2017. I do not propose to delve deeper in area of correctness of the Part-I Award dated 10.01.2017 in view of opportunity of leading evidence being availed by Petitioner-Corporation. Suffice it to observe that the Industrial Court has committed an error in holding that the Enquiry Officer ought to have considered the acquittal of Respondent in the criminal case in Para 14 and 15 of its Part-I Award. The Industrial Court has recorded following findings:

14. The fact of acquittal of the Complainant in the criminal case was before the enquiry officer at the time of giving his findings but the same has not been considered by the enquiry officer at all. The enquiry officer is also giving his findings on the same charges as were in the criminal case. The incidence and documents are the same in both the criminal case as well as the departmental enquiry. The officer deciding the criminal case is a judicial officer and the enquiry officer is a quasijudicial authority. Therefore, findings and conclusions by a judicial officer will always have bearing on the findings of a quasi-judicial officer will always have bearing on the findings of a quasi-judicial authority, which the enquiry officer has failed to consider.

15. Considering the above facts and circumstances and my discussion on this issue, I hold that the enquiry conducted in this matter is perverse, without any legal and cogent evidence, probable to establish the charges against the Complainant. Hence, I hold the issue in the affirmative.

13. The above findings recorded by the Industrial Court are unsustainable as a finding recorded in a criminal trial cannot have any bearing the proof of charge in domestic enquiry. Be that as it may, since Petitioner-Corporation has adduced evidence before the Industrial Court in pursuance of Part-I Award, it is not necessary to delve deeper into the correctness of the findings recorded by the Industrial Court in Part-I Award.

14. After delivery of Part-I Award dated 10.01.2017, Petitioner-Corporation examined Shri. Prakash Eshwara Patil, Sub Inspector of Excise Department. In his examination in chief, he gave following evidence: It was also previously serving under same post of Sub- Inspector. At the relevant time I was entrusted with work of Inspection in Excise Department. In the year 2015 I was doing field work of Inspection in Excise Department. On 12-03-2015 our Department got information in respect of illegal trafficking of liquor at Gangan Bavada Kolhapur route. So I along with my team at the place Balinga Taluka Karveer were waiting to spot the said trafficking. We stopped the Bus No. M.H. 07, C-9604. On entering the Bus it was found that there was a box containing liquor below the seat of driver. The driver at the relavant time was Shri. Bhopal Pol. We took Shri. Pol into custody and allowed the Bus to go till the Depot. In respect of this incidence I have carried Punchanama. Now I am shown the Punchanama which filed on record at Ex. C-12/1. The said Punchanama bears my signature. Thereafter, we informed the said incidence to traffic controller Shri Kundan Bhise. The seized material is at present not available since it is destroyed, after the criminal. The documents in this respect are filed today along with list Ex.C- 10 at serial no. 2,3,[4] and 5. The document at Serial no. 2 is signed by Inspector Mr. S.R. Jadhav whose signature I identify. The document at Serial no.3 is signed by Inspector Shri Sanjay Patil on 27-02-2017. I identify signature of Shri. Sanjay Patil. The said documents at serial no.3 is an order to destroy the seized articles(मुद्देमाल). The details in respect of a seized articles is filed and the same is in the chart which is filed at Serial No.5 with list at Ex.C-10.

15. Thus, Shri. Prakash Eshwara Patil adduced evidence before the Industrial Court that he had intercepted the bus driven by Respondent alongwith his team. That the box containing liquor bottles was found below the seat of the driver. He identified his Panchnama drawn by him. Thus in addition to specific evidence of the Sub Inspector of Excise Department, the panchnama of seizure was also proved in the enquiry.

16. The Industrial Court has proceeded to discard the panchnama by recording following findings:-

11. To justify the action of the Respondent, impugned in this Complaint and to prove the charges against the Complainant as alleged in the charge-sheet, the Respondent Corporation has examined the Sub-Inspector of the Excise Department who checked the bus on the relevant date and found box containing liquor below the seat of the Complainant. The said witness in his chief examination has stated that he has carried Panchbnama, which bears h is signature. He has filed documents to show seizure of the box containing liquor bottles and destruction of the same after completion of criminal case. In his cross-examination he has stated that on the basis of his Panchnama, criminal case was initiated against the Complainant and the same was numbered as summary criminal case S.C.C. No. 3440/2015. He has admitted that, on 29/12/2015 the said criminal case is finally decided and the Complainant was acquitted as the charges were not proved against him. He has also categorically admitted that, in the said criminal case said Panchnama in question was not proved and establihsed. No appeal is preferred against the said order by the department. On the basis of this admission by the said witness, it is clear that, the Panchnama in question is not proved and establihsed. From the cross-examination of the Complainant who examined himself in rebuttal, nothing has been extracted to establish the charges against him. It is clear from the record that the charge-sheet issued upon the Complainant dated 09/05/2015 based all the incidence and allegations against the Complainant on the Panchnama and criminal case filed against the Complainant. The chargesheet make charges upon the Complainant by holding him responsible for the said incidence but also the charge-sheet does not mention that the Complainant had purchased the bottles or the same was found from his custody. Therefore there is no evidene to show that the Complainant was responsible for the alleged misconduct. There is no other evidence on behalf of the Respondent Corporation to hold the Complainant responsible for the alleged incidence in the charge-sheet. The Panchanama and the criminal case based on which the Complainant is charge-sheeted is not establihsed and proved and further the Complainant is acquitted from the criminal case.

17. Above findings recorded by the Industrial Court are perverse in that failure to prove panchnama before Criminal Court is totally irrelevant factor as the panchamana has been proved before the Industrial Court by examining the Sub- Inspector of Excise Department. The Industrial Court discarded the panchnama which was proved before it by relying upon findings recorded by Criminal Court. This is impermissible in law. On the basis of proof of panchnama as well as evidence adduced by the witness of the Excise Department, recovery of bottles from the cabin of driver of the bus driven by respondent is proved.

18. The Industrial Court has recorded a finding that no charge is levelled against Respondent that he purchased the bottles or that the same were found in custody. In my view this findings are also totally unwarranted. Once the recovery is made from Driver’s Cabin behind his seat, the burden of proving that the same was not in Respondent’s custody shifted on the Respondent, who has not led any evidence to prove that the bottles belonged to some other person. Otherwise, the factum of recovery of liquor bottles from cabin of the bus which was being driven by respondent is sufficient to raise a probability that the bottles belong to Respondent. It is required to be borne in mind that a harsh penalty of removal or dismissal or compulsory retirement is not imposed on Respondent. For the charge of keeping liquor bottles in the cabin of the bus driven by him, an insignificant penalty of reduction basic pay by one stage with cumulative effect is imposed on him. In my view, the charge levelled against the Respondent is proved on the touchstone of preponderance of probability. In a domestic inquiry, even if there is some evidence, the same is sufficient for proof of the charge. It would be apposite to refer to the following observations made by the Apex Court in its judgment in Kuldeep Singh v. Commr. of Police, (1999) 2 SCC 10:

10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with. (emphasis supplied)

19. The Industrial court has erred in setting aside the penalty order. Respondent was driving a bus of the Maharashtra State Road Transport Corporation. It was not necessary for Petitioner-Corporation to prove that the Respondent purchased the liquor bottles. His defence that someone else kept the bottles his cabin cannot be accepted as he cannot let his driver cabin to be used for illicit smuggling of liquor bottles. It must be borne in mind that such illicit smuggling of liquor is an offence under the provisions of the Bombay Prohibition Act 1949. Respondent ought to have been careful in ensuring that the cabin of bus driven by him is not used for such illegal activity. Therefore, even if his defence that someone else placed liquor bottles in his cabin, was to be believed, he could not be absolved of the charge level against him. On the contrary if the charge of purchase and smuggling of liquor was to be proved, that charge would entail harsher penalty.

20. I therefore find the order passed by the Industrial Court to be indefeasible. The petition therefore succeeds. Judgment an order dated 13.7.2017 passed by the Industrial Court is set aside. Rule is made absolute in above terms. There shall be no order as to costs.