ORDER
S. Radhakrlshnao. J.
1. The brief facts common to all the above seven petitions are as follows.
2. The Petitioner is engaged in the activity refining and distribution of petroleum products. The Respondent No. 1 in Writ Petition No. 1605 of 1999 was employed as a Gatekeeper at Wadala - I Installation of the Petitioner. Respondent No. 1 in Writ Petition Nos. 1606 and 1611 of 1999 were employed as a Watchman at Wadala - I Installation of the Petitioner. Respondent No. 1 in Writ Petition Nos. 1607, 1608 and 1610 of 1999 were employed as a Heavy Vehicle Driver at Wadala - I Installation of the Petitioner. In Writ Petition No. 1609 of 1999 the Respondent No. 1 was employed as a Fitter at Wadala - I Installation of the Petitioner.
The Petitioner came to know that there has been regularly pilferage/ theft of petroleum products from Wadala-I Installation and in fact it appears that the Vigilance Department got the information that there would be an attempt to pilfer petroleum products on 29th July, 1986. It is the case of the petitioner that on that day the Vigilance Officer kept a close watch at Wadala-I Installation and with the help of police ultimately caught 1st Respondent in all the above Writ Petitions as well as driver and cleaner of the tanker truck which was going away with the pilfered petroleum product.
3. On 22nd August, 1986 the Vigilance Department investigated into this pilferage and theft wherein the 1st Respondent in all the aforesaid petitions gave a categorical statements in writing admitting their involvements in pilferage of petroleum products and had also given a detailed information regarding their role in committing theft. Thereafter the said employees were arrested by the police and were prosecuted for offences under section 379 read with section 114 of the Indian Penal Code.
4. On 11th August, 1986 the 1st Respondent in all the above petitions were suspended pending enquiry, Ultimately on 27th October, 1986 the 1st Respondent in all the above writ petitions were chargesheeted for misconduct of theft, fraud or dishonesty in connection with the employer's business or property and for committing acts subversive of discipline or good behaviour. After the chargesheet was furnished, the concerned employees were given full opportunity in a regular enquiry in which all the Respondents-employees had duly participated. Ultimately on 28th June,1990 the Enquiry Officer had submitted his finding whereby the Enquiry Officer had come to the conclusion that the charges levelled against the Respondents-employees were proved. Thereupon on 4th July, 1991 Disciplinary Authority of the Petitioner had issued a show cause notice to the Respondents-employees calling upon the employees as to show cause why they should not be dismissed from the services of the Petitioner-Company. Thereupon, the Respondents-employees, by their letter dated 18th July,1991 called upon the Disciplinary Authority to furnish them with a copy of the findings of the Enquiry Officer on 14th August. 1991. The Disciplinary Authority had furnished the findings of the Enquiry Officer to the said Respondents-employees. Thereafter, on 16th September, 1991 the Respondents submitted their reply to the show cause notice dated 4th July, 1991. It is pertinent to note that in the said reply the Respondents-employees had not restricted their reply only to the issue of quantum of punishment but also on merits i.e. a detailed representation was made even against the findings of the Enquiry Officer. The Disciplinary Authority considered the detailed representation of the all the Respondents-employees and on 27th December, 1991 by a detailed reasoned order came to the conclusion that charges levelled against the Respondents-employees were proved and also having regard to the gravity of the charges proved, there is no reason to take any lenient view in the said matter and accordingly the Respondents-employees were dismissed from the services of the Petitioner-Company on 27th December, 1991.
5. All these Respondents-employees had raised an industrial dispute challenging their dismissal order which was referred to for adjudication to the Central Government Industrial Tribunal [for short 'the Tribunal'). Ultimately the Tribunal by its Award dated 16th February, 1999 directed reinstatement of all the Respondents-employees with full backwages. It appears that the Tribunal had granted reinstatement with full backwages only on the ground that the learned Additional Chief Metropolitan Magistrate. Vth Court, Dadar had acquitted the Respondents-employees on 31st May, 1999.
In view of the said acquittal the Tribunal came to the conclusion that the charges against the Respondents-employees cannot be sustained. The Tribunal also came to the conclusion that no need to give any opportunity to the Petitioner to Justify its action to dismiss the Respondents-employees from their services in view of the aforesaid acquittal in a criminal trial. The Tribunal also had upheld the arguments advanced on behalf of the Respondents-employees that the enquiry against them was not fair and proper and also that the findings of the Enquiry Officer were not furnished to the Respondents-employees before the show cause notice was issued to them.
6. Aggrieved by the aforesaid Award dated 16th February, 1999 whereby the Respondents-employees were directed to be reinstated with full backwages is challenged in all these writ petitions.
7. Mr. Talsanla, the learned Counsel appearing on behalf of the Petitioner-Company brought to my notice the findings of the Enquiry Officer, which read as under :
'FINDINGS AGAINST CHARGES :-
It is established/proved as detailed hereinabove that the Defendant Shri H. B. Khan had unauthorisedly entered the premises of Wadala I Terminal in the night of 29/30.7.1986 after completing his duty on 29.7.1986 in second shift and was a party to the pilferage/involved in the pilferage of approximately 12.8. KL. of M. S. worth of Rs. 1 Lakh on the night of 29/30.7.1986 (around 3.30 a. m. on 30.7.86) in contractor's tank truck MMK - 1557 with the help of other co-workmen/employees of the Corporation. He himself had opened the valves of the pipeline and closed the same after the said tank truck was filled with product from tank No. 82 with the help of tank truck driver/co-workers, which was' allowed to go out of the premises of the terminal.
2. The above action on his part amounts to serious misconducts as under:-
a. Theft, fraud or dishonesty in connection with employer's business or property.
b. Act subversive of discipline or good behaviour in the premises of the Terminal.'
Similar findings were also given with regard to the other workmen.
8. As mentioned hereinabove to the show cause notice dated 4th July, 1991 with regard to the proposed punishment Issued to the Respondents-employees, they had given a reply by their letter dated 16th September, 1991. It is pertinent to note that each of these representations against the show cause notice by the Respondents-employees not only dealt with the quantum of punishment but also on merits pointing out that the Enquiry Officer's findings were not proper and that the Respondents-employees have pleaded various facts to justify that they were not guilty as the charges framed against them.
9. After the said representations were made to the Petitioner-Company, the Disciplinary Authority by its order dated 27th December, 1991 after considering the representations and the findings of the Enquiry Officer came to the conclusion that the charges levelled against the Respondents-employees were proved in the enquiry and as they were of serious nature same warranted severe penalty of dismissal. The Disciplinary Authority has also observed in its order that he had considered the past record and the other extenuating circumstances the Disciplinary Authority had recorded and that he found no reason to take any lenient view in the matter and accordingly imposed a penalty of dismissal from the services of the Corporation on all the Respondents-employees.
10. It may be noted here that in the meanwhile on 31st May. 1999 the learned Additional Chief Metropolitan Magistrate, 5th Court Dadar had dismissed the prosecution's Criminal Case No. 174 of 1997 filed against these Respondents-employees as well as other accused with regard to the incident of pilferage of the petroleum products on 29/30 July, 1986. The learned Additional Chief Metropolitan Magistrate came to the conclusion that the prosecution had failed to prove their case against the accused with regard to the offences punishable under Sections 380, 381 r/w section 34 of the Indian Penal Code. Accordingly all the accused in the said criminal case were acquitted. The learned Additional Chief Metropolitan Magistrate in the said judgment dated 31st May, 1990 In para 15.6 has observed as under :
'6. There is no evidence that all the accused conspired to commit the offence of theft of petrol of the complainant before the incident. in other words, there is no evidence of prosecution that minds of all the accused united so to commit the offence of theft of petrol before the incident.'
The learned Additional Chief Metropolitan Magistrate has also observed that there is no direct evidence that the accused removed the property on the relevant date, time and place with the common intention.
11. Perused the Impugned award of the Tribunal dated 16th February, 1995. The learned Tribunal comes to the conclusion that as the acquittal by the learned Additional Chief Metropolitan Magistrate was an honourable acquittal and not an acquittal on technical ground and in view thereof the Tribunal holds that as the Criminal Court had acquitted the Respondents-employees they automatically are entitled to reinstatement as if there was no blot on their services and also that there is no need to hold any further enquiry.
12. The learned Tribunal also holds that the Respondents-employees were not furnished with the copy of the Enquiry Report before the show cause notice and also that the said show cause notice itself as the Disciplinary Authority had concurred with the findings of the Enquiry Officer and non-furnishing copy of the Enquiry Report would be denial of fair opportunity to the Respondents-employees. Therefore, on both these grounds the learned Tribunal found fault and came to the conclusion that Respondents-employees are entitled to reinstatement with full backwages. Accordingly the impugned Award was passed by the learned Central Government Industrial Tribunal on 16th February, 1999.
13. Mr. Talsania, the learned Counsel for the Petitioner made following broad submissions -
a) In a domestic enquiry strict rules of evidence will not apply;
b) In a domestic enquiry hearsay and circumstantial evidence is admissible;
c) In a domestic enquiry the Management can always rely upon confessional statements of employees;
d) An order of acquittal passed by the Criminal Court by Itself would not conclude a domestic enquiry;
e) In the instant case the acquittal was only on a technical ground and that the same was not an honourable acquittal;
f) No prejudice has been caused to the Respondents-workers by not furnishing copy of the Enquiry Report before the issuance of show cause notice for punishment.
14. Mr. Talsania, the learned Counsel appearing on behalf of the Petitioner pointed out another important factor that the Respondents-employees had at no stage disclosed the order of acquittal by the Criminal Court either during the enquiry proceedings or even before the Disciplinary Authority while answering the show cause against their dismissal.
15. In support of his submissions the learned Counsel for the Petitioner, Mr. Talsania relied upon a Judgment of the Apex Court in the case of Union of India v. Sardar Bahadur, In para 15 of the said Judgment the Hon'ble Supreme Court has observed in very clear terms as under :-
'15. ................ A disciplinary proceeding is not a criminal trial. Thestandard proof required is that of preponderance of probability and not proof beyond reasonable doubt. If the inference that Nand Kumar was a person likely to have official dealings with the respondent was one which a reasonable person would draw from the proved facts of the case, the High Court cannot sit as a Court of Appeal over a decision based on it. Where there are some relevant materials which the authority has accepted and which materials may reasonably support the conclusion that the officer is guilty, it is not the function of the High Court exercising its jurisdiction under Article 226 to review the materials and to arrive at an independent finding on the materials. If the enquiry has been properly held the question of adequacy or reliability of the evidence cannot be canvassed before the High Court. .............'
16. Mr. Talsania, the learned Counsel for the Petitioner referred to another Judgment of the Apex Court in State of Haryana and Anr. v. Rattan Singh,. In paragraph 4 of the said Judgment the Apex Court has observed as under :-
'4. It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. ............The simple point is, was there some evidence or was there no evidence- not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the Court to look into because it amounts to an error of law apparent on the record. .................'
17. Mr. Talsania, thereafter, brought to my notice a Judgment of the Supreme Court in the case of J. D. Join v. Management of State Bank of India andAnr.,'. in paragraph 15 the Supreme Court has held as under :-
'15. The learned Tribunal, it appears, was oblivious of the fact that it was examining the evidence in a domestic enquiry, and not the evidence in a criminal prosecution entailing conviction and sentence.
In paragraph 24 of the said Judgment it is clear that confessional statements of the Appellant were also relied on that is to say the confessional statements were also admissible in a domestic enquiry.
18. Mr. Talsania, the learned Counsel for the Petitioner thereafter brought to my notice a Judgment of the Supreme Court in the case of Kuldip Singh v. State of Punjab and Ors.,3 In paragraph 10 of the said Judgment the Supreme Court has held that the rules of evidence do not apply to departmental enquiries. in the said paragraph the Supreme Court had referred to the observations of the Constitution Bench of the Supreme Court in Pooran Mat v. Director of inspection (Investigation), which reads as under :-
'The test to be applied, both in civil and in criminal cases, in considering whether evidence is admissible is whether it is relevant to the matters is issue. If it is. it is admissible and the Court is not concerned with how it was obtained.'
19. Mr. Talsania, the learned Counsel for the Petitioner also referred to another Judgment of the Supreme Court in the case of Nelson Motis v. Union of India,, wherein in paragraph 5 the Supreme Court has held as under :-
' 5. So far the first point is concerned, namely whether the disciplinary proceeding could have been continued in the face of the acquittal of the appellant in the criminal case, the plea has no substance whatsoever, and does not merit a detailed consideration. The nature and scope of a criminal case are very different from those of a departmental disciplinary proceeding and an order of acquittal, therefore, cannot conclude the departmental proceeding. Besides, the Tribunal has pointed out that the acts which led to the Initiation of the departmental disciplinary proceeding were not exactly the same which were the subject matter of the criminal case.'
20. The learned Counsel for the Petitioner Mr. Talsania thereafter cited another Judgment of the Supreme Court in the case of Govind Das v. State of Bihar and Ors.,. In paragraph 2 of the said Judgment the Supreme Court has held as under :-
'2. The only ground which has been urged by the learned Counsel for the appellant in support of this appeal is that since the appellant has been acquitted in the criminal case, the order for termination of his services should have been set aside. The learned Counsel has placed before us a copy of the judgment of the Criminal Court whereby the appellant was acquitted. We have gone through the said judgment. We find that the acquittal of the appellant is based on the view that the charges are not proved beyond reasonable doubt. Since the standard of proof required to prove a charge of misconduct in departmental proceedings is not the same as that required to prove a criminal charge, the acquittal of the appellant in the criminal case, in these circumstances, could not, in our opinion, be made the basis for setting aside the order for termination of the services of the appellant passed in the disciplinary proceedings on the basis of evidence adduced in the departmental inquiry conducted in the charges levelled against the appellant. We. therefore, find no merit in this appeal and the same is accordingly dismissed.........'
21. Mr. Talsania also referred to another Judgment of the Supreme Court in the case of Depot Manager, A. P. S. R. T. Corpn. v. Mohd. Yousuf Miya,, wherein in paragraph 6 the Hon'ble Supreme Court has held as under :-
'6............The approach and the objective in the criminal proceedings andthe disciplinary proceedings is altogether distinct and diferent. In the disciplinary proceedings, the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings, the question is whether the offences registered against him under the Prevention of Corruption Act (and the Indian Penal Code, if any) are established and, if established, what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial in both the cases are entirely distinct and different. Staying of disciplinary proceedings pending criminal proceedings, to repeat, should not be a matter of course not a considered decision. Even if stayed at one stage, the decision may require reconsideration if the criminal case gets unduly delayed.'
The Supreme Court further held as under :-
'.............. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. Offence generally implies infringement of public, as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of Evidence Act. Converse is the case of departmental enquiry. The enquiry in a departmental proceedings relates to conduct or breach of duty of the delinquent office to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. The enquiry in a departmental proceedings relates to conduct or breach or duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position, The enquiry in the departmental proceedings relates to the conduct of the delinquent officer and proof in that behalf is not as high as in an officer in criminal charge. ...............'
22. Mr. Talsanla, the learned Counsel appearing for the Petitioner also referred to and relied upon a Judgment of this Court in the case of Raghunath Vishnu Patil v. R. N. Gavande and Ors.,. In para 21 of the said Judgment this Court has observed as under :-
'21. ......... In any event, a finding of acquittal by a Criminal Court cannotbe binding on a disciplinary inquiry. The standard of proof in a disciplinary inquiry. All that is required to be seen is whether there is evidence before the Inquiry Officer and that evidence is sufficient to bring home the charge against the delinquent. If the evidence before the Inquiry Officer satisfies the above test he is not bound by a contrary finding arrived at by a Criminal Court.'
23. Mr. Talsanla, the learned Counsel for the Petitioner relied upon a judgment of this Court in an unreported judgment in Satish Ganesh Saphtarshi and Ors, v. M/s. Kirloskar Oil Engines Ltd.,. in the said Judgment this Court has held that it ts now well settled principle of law that findings which are arrived at by the Court in the course of a criminal trial are not necessarily conclusive of the charge of misconduct in a disciplinary enquiry. In the same judgment this Court has considered the judgment of the Supreme Court in the case of State of Andhra Pradesh & Ors. v. S. Sree Rama Rao,, wherein the Bench of three learned Judges have held as under:-
'The Enquiry Officer appears to have stated that the judgment of the Magistrate holding a criminal trial against a public servant could not always be regarded as binding in a departmental enquiry against that public servant. In so stating the Enquiry Officer did not commit any error. The first ground on which the High Court interfere with the order of the punishing authorities is therefore wholly unsustainable.'
In the said Judgment the learned single Judge held that the object of the criminal trial is to punish or deal with offenders who have committed a violation under the penal law of the land. On the other hand, the disciplinary enquiry is for the purpose of dealing with a breach of the service regulations of the employer. The standard of proof in a criminal trial is proof beyond reasonable doubt. In the case of a departmental enquiry the Standard of proof is proof on a preponderance of probabilities. The rules of evidence which apply to a criminal trial are not attracted in the case of a departmental enquiry.
24. Mr. Talsania, the learned Counsel for the Petitioner also referred to another Judgment of the Allahabad High Court in the case of M/s. The General Electric Co. of India Ltd., Naini v. The Labour Court, Allahabad and Ors.,. in this case also the learned Judge of the Allahabad High Court has held that the acquittal in a criminal case is not relevant to the domestic enquiry or the proceedings before the Labour Court.
25. Mr. Talsania, the learned Counsel for the Petitioner further referred to another judgment of the Division Bench of the Andhra Pradesh High Court in the case of Chief Reg. Manager S. B. I., Visakhapatnam & Anr. a. S, Eswara Rao,. In the said Judgment the learned Division Bench had approved the observations of another Division Judgment of the Andhra Pradesh High Court in the case of General Manager, A. P. S. R. T. C. v. K. Seshagiri Rao wherein it has been observed as under:-
The conclusion deducible from the precedents is that even if the charges were the same in a criminal proceeding and in a disciplinary proceedings and the former ends in acquittal by the Criminal Courts it is open to the disciplinary authority to continue departmental proceedings if the authority is satisfied that there are sufficient evidence and good grounds to proceed with the inquiry. The authorities, are however, to be governed by the Rule of caution that they shall advert to and take into account the fact of acquittal; but they are not precluded from initiating or continuing the disciplinary proceedings, if that course if warranted by the circumstances of the case.'
26. The learned Counsel for the Petitioner also referred to another Apex Court Judgment in the case of Sulekh Chand and Salek Chand v. Commissioner of Police and Ors.,. In para 2 of the said Judgment the Apex Court has held as under :
'2. ..... Therefore, once the acquittal was on merits the necessaryconsequence would be that the delinquent is entitled to reinstatement as if there is no blot on his service and the need for the departmental enquiry is obviated. It is settled law that though the delinquent official may get an acquittal on technical grounds, the authorities are entitled to conduct departmental enquiry on the self same allegations and take appropriate disciplinary action .....'
27. Under the aforesaid circumstances, the learned Counsel for the Petitioner strongly submitted that in the instant case the Central Government Industrial Tribunal had erred in setting aside the order of dismissal and granting reinstatement with full backwages and other benefits inasmuch as the said order of the Tribunal is solely based on the order of acquittal passed by the learned Additional Chief Metropolitan Magistrate. The learned Counsel also strongly contended that merely because it was an acquittal by a Criminal Court could not necessarily mean that a disciplinary proceeding cannot be proceeded with or that the delinquent-employee cannot be found guilty of the charges against him. The learned Counsel also emphasised that in this case none of the delinquent employees had pointed out the judgment of the acquittal passed by the learned Additional Chief Metropolitan Magistrate before the dismissal order was passed against the delinquent-employee. Mr. Talsania, the learned Counsel for the Petitioner contends that in any event the order of acquittal passed by the learned Additional Chief Metropolitan Magistrate was on a technical ground in the sense the learned Magistrate had not even dealt with the role and involvement of the delinquent employees inasmuch as he has strongly relied on the basis that there was no theft at all in the sense the prosecution had failed to prove the offence of theft committed by the driver and cleaner and as such the learned Magistrate comes to the conclusion as the very basis of theft was not established in view of the delivery challan purportedly issued by the Petitioner as shown before the learned Metropolitan Magistrate. Mr. Talsania also very strongly relied on the voluntary confessional statements of the delinquent-employees wherein in detail the delinquent employees have disclosed their respective roles with regard to the incident of pilferage. In fact each delinquent employee has given a separate confessional statement and these statements are not stereotype and each one of them contend individually different particulars pertaining to each one of them. It is very pertinent to note that some of the details mentioned in those confessional statements would only be within the knowledge of the delinquent employees and not within the knowledge of the employer. Therefore, Mr. Talsania contended that these confessional statements are genuine and credence has to by given. Another pertinent aspect Mr. Talsania pointed out that none of the delinquent employees had ever retracted these statements after giving these statements almost immediately after the incident. Mr. Talsania, therefore, contended that now the delinquents at the stage of enquiry could not be allowed to take a stand that they were induced to sign such confessional statements. If that be so the delinquent employees would have retracted the same immediately. For the first time during the departmental enquiry in the reply to the show cause notice the delinquent employees have taken a stand that they were not aware of the confessional statements and/or that they were Induced to make these statements on the belief that they would not be prosecuted for the criminal offence of theft etc. Mr. Talsania also submitted that on the date when the statements were made, the delinquent employees were very much aware that they were being prosecuted for the criminal charges and that police were investigating the same. Therefore to say that they were not aware or that they would get the benefit of being not prosecuted does not hold any water. Another important aspect Mr. Talsania also pointed in this case is that the learned Additional Chief Metropolitan Magistrate has strongly relied upon an invoice- cum cash receipt found with the accused No. 1 driver of the tanker of the vehicle. According to Mr. Talsania the said invoice-cum-cash receipt, was only attached to the panchnama and was taken on record and marked X for Identification. The said document has not been proved and solely on the basis of that invoice-cum-cash receipt the learned Additional Chief Metropolitan Magistrate comes to the conclusion that the driver and the cleaner have driven the vehicle with petroleum product which were duly purchased by them validly. Mr. Talsania also pointed out that the learned Additional Chief Metropolitan Magistrate had ignored and not accepted the statements of prosecution witnesses No. 9 stating that Exhibit 'C' - Delivery Challan which was prepared by the said clerk of the Hindustan Petroleum Corporation Ltd-, but was not signed by the officer and as such the same was a bogus one. Mr. Talsania, therefore, contended that the learned Additional Chief Metropolitan Magistrate had erred holding that there is no direct evidence involving the accused and that they had acted with common Intention to commit theft. Mr. Talsania, therefore, contended that at the most the learned Additional Chief Metropolitan Magistrate m'ght have found that the accused be given the benefit of doubt as the very offence was not at all conclusively proved by the prosecution. Whereas the role of the delinquent employees was not considered in depth by the learned Additional Chief Metropolitan Magistrate. Mr. Talsania again repeated that the criminal trial proceeds on a different footing altogether and the disciplinary proceedings are on a different footing, therefore the same ought not to be linked.
28. As far as the Issue of non-furnish ing of the enquiry report before issue of show cause notice, the learned Counsel for the Petitioner states that the delinquent-employees were not prejudiced in any manner whatsoever. In fact reply to the show cause notice not only deals with the aspect not to be punished with punishment of dismissal but the same also deals with the issue on merits in the sense that the enquiry report was hot to be acted upon and that they were not guilty of any misconduct. Mr. Talsania under these circumstances submitted that there is no prejudice whatsoever caused to the delinquent employees and as such the Tribunal has erred in interfering on the ground that the said report was not furnished prior to the show cause notice. In that behalf the learned Counsel Mr. Talsania also relied upon a judgment of the Supreme Court in the case of Managing Director. E. C. I. L. Hyderabad v. B. Karunakar. '. In the said Judgment in para 31 the Supreme Court has held as under :
'31. Hence, in all cases where the Inquiry Officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the Court and Tribunal should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal, and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no different to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished ............'
29. Ultimately in this case the report was furnished before the dismissal of the delinquent employees and employees were given sufficient opportunity to make their submissions. Accordingly these delinquent-employees have made a detailed representation against the show cause notice which contains submissions not only with regard to quantum of punishment but also with regard to the merits of the findings that is to say the reply was full of submissions challenging the findings of the Enquiry Officer and also with regard to quantum of punishment. Therefore, Mr. Talsania submitted that there was no prejudice whatsoever caused to the delinquent-employees by not being furnished with copy of the enquiry report. Mr. Talsania submitted that the order of dismissal passed against the eloquent employees ought to be upheld and the order passed by the Central Government Industrial Tribunal granting reinstatement with backwages ought to be set-aside.
30. Mr. Abhay Kulkani, the learned Counsel for the employees in all the aforesaid writ petitions, mainly contended that as the learned Additional Chief Metropolitan Magistrate has already acquitted all these employees by a detailed order, hence the delinquent employees were automatically entitled to reinstatement with backwages as has been rightly hold by the Tribunal. Mr. Kulkarni referred to the fact that the learned Additional Chief Metropolitan Magistrate has rightly relied upon the Challan i.e. Invoice-cum-Receipt. Mr. Kulkarni also contended that the delinquent employees, in this case, have obtained an honourable acquittal and as such they ought to be reinstated and an order of dismissal passed by the disciplinary authority was unsustainable. Mr. Kulkarni also referred to the practice of sale and delivery of petroleum products from the Wadala Installation and other Installations of the Petitioner-Corporation.
31. Mr. Kulkarni, the learned Counsel for the Respondents referred to and relied upon a judgment of the Supreme Court in M. Paul Anthony (Capt.) v. Bharat Gold Mines Ltd. and Anr., Mr. Kulkarni contended that as laid down in the said Supreme Court judgment, if the criminal case as well as the departmental proceedings were based on identical set of facts, then, if the prosecution case were to be thrown out then the departmental proceedings also should come to an end and that there cannot be any finding contrary to the order of criminal trial. Similarly, Mr. Kulkarni also referred to and relied upon a judgment of the Supreme Court in Sulekh Chand and Salek Chand v. Commissioner of Police & Ors.,. The learned Counsel relied on this judgment for the purpose of pointing out that if there was an acquittal on merit by a Criminal Court as a necessary consequence the delinquent is entitled to reinstatement as if there was no blot on his service and no need for departmental enquiry also. Mr. Kulkarni contended that in the instant case the acquittal by the learned Additional Chief Metropolitan Magistrate was an honourable acquittal and on merits, therefore, the delinquent employees were entitled to get reinstatement with full backwages.
32. Mr. Kulkarni thereafter brought to my notice a Division Bench judgment of the Andhra Pradesh High Court in the case of Ravuru Babu Rao v. General Manager, Oriental Insurance Co. Ltd., Madras,. In the said judgment, the learned Judges of the Division Bench in paragraph 12 have held as under :-
'12. ..... the issue involved in the departmental enquiry and in thecriminal proceedings and Issues raised in all the four suits referred to above are one and the same. The documents relied upon in both the proceedings are also one and the same. When there is an order of acquittal by a competent Criminal Court, and on merits, when the Civil Court held that the petitioner is not liable to answer for the issue of the cover notes, it is not proper to once again drive him to face the departmental enquiry. .....'
That is to say if both the Civil Court and Criminal Court have found the delinquent employees in no way involved and if that be so the department ought not to proceed with the departmental enquiry.
33. Mr. Kulkarni also referred to another judgment of this Court in the case of Chandrakant Raoji Gaonkar v. Bombay Port Trust and Ors.,'. In para 3 of the said judgment this Court has also taken a view that the termination effected by the management was on the basis of the same grounds, same evidence and the same charges and therefore with the acquittal of the petitioner in three criminal cases, the disciplinary proceedings should have been dropped and the Petitioner should not have been punished for the charges in the domestic enquiry. That is to say on merits if the delinquent employee is acquitted by a Criminal Court, the departmental proceedings ought not to proceed with and should not result in dismissal or termination order.
34. Mr. Kulkarni also referred to another judgment of the Madras High Court in Special Officer, Salem N. C. G. O's Co-op. Stores, Salem v. Labour Court, Coimbatore and R. V. Stddaiyan,. In the said judgment also the Madras High Court has taken a view that when the prosecution case is rejected by a Criminal Court, the management ought not to proceed with the departmental enquiry and the same would result in patent injustice.
35. Mr. Kulkarni also referred to another Judgment of the Gujarat High Court in the case of Desha Mulji v. Divisional Controller, G. S. R. T. C., Junagadh, for his proposition that the findings in a criminal case by way of an acquittal ought to weigh, even in a departmental proceedings.
36. Mr. Kulkarni thereafter referred to another Judgment of this Court by a learned Single Judge in the case of Maharashtra General Kamgar Union v. State of Maharashtra and Ors.,. In this case this Court has taken a view that the Enquiry Officers, disciplinary authority cannot ignore the order of honourable acquittal by a Criminal Court. Mr. Kulkarni also relied on a judgment of the Supreme Court in the case of Kuldeep Stngh v. Commissioner of Police & Ors., for the proposition that confessional statements of the delinquent employees ought not to be referred to and relied upon by the Enquiry Officer in the enquiry proceedings without affording an opportunity to cross-examine the witness. Mr. Kulkarni submits that none of the delinquent employees were given an opportunity to cross-examine the other delinquent employees whose statements were also relied upon to corroborate the evidence by the Enquiry Officer. It is brought to my notice that the Hon'ble Supreme Court has referred to in this Judgment an earlier Judgment in the case of Kasoram Cotton Mills Ltd. v. Gangadhar, wherein the principles were reiterated and it was laid down that if a previous statement of the witness was intended to be brought on record, it could be done provided the witness was offered for cross-examination by the delinquent. In this case no such opportunity was given in the sense none of the delinquent employees were ever examined so that delinquent employees could cross-examine. Therefore Mr. Kulkarni contended that to rely upon the confessional statements without offering them opportunity to cross-examine is totally unjustified.
37. Mr. Kulkarni referred to another Judgment of this Court in the case of Shapoorji Pallonji & Co. Put, Ltd. v. Shri D. H. Deshmukh & Ann, for the purposes of pointing out that the confessional statements wherein the delinquent employees had admitted the guilt's ought not to be accepted by the employer without giving an opportunity to the delinquent employees to assail the same, inasmuch as according to Mr. Kulkarni that in the reply to the show cause notice Itself the delinquent employees have clearly stated that their role in the incident was not proved and that the statements were induced to be made by the Petitioner-Corporation so that the employees may go scot-free the criminal case.
38. Mr. Kulkarni also referred to another judgment of the Delhi High Court in the case of R K. Bhatia v. Delhi Vidyut Board & Ors.,. The learned Counsel for the Respondents Mr. Kulkarni referred to the observations of the Supreme Court quoted in para 8 of the said judgment wherein the Constitution Bench of the Supreme Court in Union of India v. H. C. Gael, has held as under :-
'It may be that the technical rules which govern criminal trials in courts may not necessarily apply to disciplinary proceedings, but nevertheless, the principle that in punishing the guilty scrupulous care must be taken to see that the innocent are not punished, applies as much to regular criminal trials as to disciplinary enquiries held under statutory rules.' .
Mr. Kulkarni contended that the same standard and care ought to be taken even in disciplinary enquiry and all the more in the instant case after their acquittal they ought not to be punished in domestic proceedings.
39. Mr. Kulkarni very strongly relied on the acquittal order of the learned Additional Chief Metropolitan Magistrate. According to Mr. Kulkarni this order of acquittal is an honourable acquittal and not on any technical ground, therefore, Mr. Kulkarni contended that the Respondents ought not to be dismissed from the services. Mr. Kulkarni contended that the learned Tribunal has rightly concluded that this is an honourable acquittal and as such disciplinary proceedings ought not to proceed and result in dismissal from the services. Mr. Kulkarni contended that the learned Additional Chief Metropolitan Magistrate has come to the conclusion that there is no case of theft at all made out as such there is no question of proceeding against the present delinquents inasmuch as they were not involved in the theft case at all. Mr. Kulkarni also referred to and relied upon the invoice challan which is seized along with the panchnama during the criminal trial to point out that there was a valid purchase of petroleum product and as such if the driver and cleaner were carrying petroleum product validly in the tanker and there can never be a question of theft being committed or abetting the offence of theft by these employees. Mr. Kulkarni also contended that in fact the learned Additional Chief Metropolitan Magistrate has released the employees under sections 380 and 381 r/w Sec. 34 of the Indian Penal Code honourably. Mr. Kulkarni also states that if that be so it would be unjust to hold in disciplinary proceedings, the said delinquent employees to be guilty. Therefore, Mr. Kulkarni contended that the Tribunal is right in passing the order setting aside the order of dismissal and granting reinstatement of the employees with backwages.
40. After hearing both the learned Counsel and after considering all the aforesaid judgments cited on both sides, it is clear there is no dispute that these employees were involved in the incident but the fact the learned Counsel for Respondent-employees strongly relied on is that the employees have not committed the offence of theft as has been held by the Criminal Court and as such they ought to be automatically absolved and the disciplinary proceedings ought to have come to an end and not to have resulted in a dismissal order. If one were to notice the learned Additional Chief Metropolitan Magistrate's judgment, the learned Magistrate has strongly relied on the in voice-cum-challan to hold that there is a valid purchase of the petroleum product by the contractor owning the said truck and that the driver and cleaner were carrying the petroleum product lawfully and vaiidly. It is pertinent to note that the said Invoice challan was not proved at all. Another very important aspect is that the confessional statements of each of the delinquent-employees were never before the learned Metropolitan Magistrate. In all these confessional statements the delinquent-employees have set out their respective roles in detail with regard to the incident of pilferage and have admitted their guilt. It is also very relevant to note that none of the delinquent employees have ever retracted their confessional statements. Therefore, it is vital to note that the evidence before the disciplinary authority was the confessional statements of the delinquent employees Which evidence was never before the learned Additional Chief Metropolitan Magistrate. Therefore, material before the learned Additional Chief Metropolitan Magistrate and the material before the Disciplinary Authority were different. Therefore, it will be clear that as has been held by the various Judgments of the Supreme Court the criminal trial stands on a different footing and a departmental proceeding proceeds on a different footing. Role of the delinquent employees is not disputed and another vital aspect is that the incident took place at mid-night. No petroleum product could have ever been removed from the Petitioner's Installation in the middle of the night. Even the vehicle was seized, petroleum product was also seized.
41. Under these circumstances I do not find anything wrong of dismissal order passed against the delinquent-employees by the Disciplinary Authority.
42. Therefore, the impugned Award passed by the Central Government Industrial Tribunal dated 16th February, 1999 cannot be sustained the same is quashed and set-aside,
43. Accordingly the rule is made absolute in all the writ petitions, However, with no order as to costs.
44. Personal Assistant to issue an ordinary copy of the order to the parties.
45. Issuance of certified copy is expedited.