D.Y. Chandrachud, J.
1. The petitioner before the Court in these proceedings has impugned the correctness of two awards of the Central Government Industrial Tribunal dated 21st November, 1996 and 22nd July 1997 in a Reference to adjudication under Section 10 of the Industrial Disputes Act, 1947 ('the Act'). By an earlier award, the Part-I Award dated 11th September 1996, the Tribunal has come to the conclusion that the disciplinary enquiry which had been held by the petitioner in respect of a charge of misconduct against the First and Second Respondents was fair and proper. By the first of the two awards which are sought to be impugned in these proceedings, the Part-II Award, the Tribunal has come to the conclusion that the findings which were recorded by the Enquiry Officer were perverse. By the second of the said awards, the Part III Award, the Tribunal has come to the conclusion that the action of the petitioner in terminating the services of the First and Second Respondents was not legal or justified. The Tribunal has, therefore, granted the relief of reinstatement to both the workmen. Insofar as the question of backwages is concerned, the First Respondent has been granted no backwages, while insofar as the Second Respondent is concerned, there is a direction by the Tribunal to pay him backwages from 9th April 1991 until February, 1992. The workmen have been granted continuity of service and all other benefits.
2. The dispute between the parties in the present case originates in the chargesheet which was issued by the employer which is the petitioner before the Court on 10th July, 1986. The First and Second Respondents were in the service of the employer, which is a public sector corporation, at the material time on 10th March, 1986. The First Respondent was employed as a Process Technician in salary grade RO. 8, while the Second Respondent was working as an Assistant Process Technician. The charge sheets which were issued to the First and Second Respondents contain a similar allegation to the effect that these workmen were on duty on 10th March, 1986 in the shift between 8 a.m. and 4 p.m. for the CBFS loading operations in the Oil Movement and Storage (OMS) area. The abbreviation CBFS stands for Carbon Black Feed Stock. On the shift in which the First and Second Respondents were deployed, a Tank Truck bearing registration No. MCU 1913 was loaded with CBFS. The First and Second Respondents had then made and initialled a recording in the weighment slip to the effect that the quantity which was loaded on the tanker was 10,250 kgs. The chargesheet recited that subsequently, the Police authorities who had investigated the matter had informed the employer that the tank truck was loaded with a 'substantial amount of excess CBFS'. The chargesheet also recited that it was confirmed that the entries made by the First and Second Respondents in the weighment slip indicated the aforesaid quantity of 10,250 kgs. as having been loaded in the Tank Truck. The billing to the customer was also made on the basis of this quantity. The loading of an excess quantity of CBFS, over and above what was recorded in the weighment slip was alleged to have resulted in a loss to the Corporation and, was according to the employer, indicative of a serious act of misconduct. The two workmen were consequently charged for misconduct under the Standing Order 28(ix) - 'fraud or dishonesty in connection with the Company's business' and 28 (xvii) 'willful falsification of records of the Company.' In the nearly identical replies which were furnished by the First and Second Respondents to the chargesheet, the two workmen did not deny the fact that on 10th March, 1986 they were deployed in the morning shift between 8 a.m. and 4 p.m. respectively as Weigh Bridge Acting Supervisor and Weigh Bridge Operator. Similarly, both the workmen expressly admitted that they had made a record of a loading of a total quantity of 10,250 kgs. of CBFS in the weighment slip. The workmen, however, denied the allegations contained in the chargesheet to the effect that they had been guilty of the loading of an excess quantity of CBFS over and above what was set out in the weighment slip.
3. A departmental enquiry was accordingly convened by the employer. The allegation which had been made against the two workmen had also been the subject matter of an investigation by the Police authorities and during the course of the departmental enquiry, the evidence of the Investigating Officer was adduced. Principally speaking, the Investigating Officer proved in evidence that the First Respondent had voluntarily made a statement before him during the course of the investigation. The statement was proved by the investigating Officer. The Investigating Officer also produced during the course of the enquiry, the weighment slip duly signed by the First and Second Respondents according to which, the weight of the product which was loaded corresponded to 10,250 kgs. According to this weighment slip which was prepared by the First and Second Respondents on 10th March, 1986, the gross weight of the Tanker bearing registration No. MCU 1913 was 17,850 kgs. The tare weight taken before the loading operation had commenced was 7600 kgs. The net weight of the product was, therefore, 10,250 kgs. The Investigating Officer produced during the course of his deposition a copy of the weighment slip of the weight of the very same Tank Lorry bearing registration No. MCU 1913 of the same date 10th March, 1986. The Tank Lorry after its exit from the premises of the Petitioner had been weighed at a Weigh-Bridge known by the name of 'Gupta Weigh-Bridge' which was situated at Turbhe, New Bombay. The gross weight as recorded in the weighment slip was 18,140 kgs. Deducting therefrom the tare weight of the Tanker of 7600 kgs, the net weight of the product was deduced at 10,540 kgs. On the basis of these two weighment slips, which were produced during the course of the evidence, the case of the management was that it was abundantly clear that the First and Second Respondent had on 10th March, 1986 recorded a much lower weight of the product CBFS while the Tanker was being weighed before and after loading under their supervision. This was sought to be demonstrated by comparing the weight of the loaded Tanker recorded in the weighment slip of Gupta weigh Bridge which became available during the course of the Investigation by the Police. Besides the weighment slips, one of them initialled by the First and Second Respondents and the second by a third party operator situated at Turbhe, New Mumbai, the Investigating Officer produced during the course of his evidence, a statement which had been made to him by the First Respondent during the course of the investigation. The First Respondent had made a detailed statement setting out that since January, 1985 he, together with the Second Respondent and certain other officials of the petitioner working as Deputy Managers and Superintendents had engaged in the aforesaid practice of delivering excess quantities of CBFS through the Tankers of an operator by the name of Rajesh Roadlines belonging to one Parasnath Singh. In the course of the statement which was made before the Police authorities, the First Respondent stated that if the official record of the petitioner was shown to him, he would be able to state on which particular date, he had allowed an excess quantity of CBFS to the tankers of M/s. Rajesh Roadlines. On a perusal of a chart which was shown to him during the course of investigation, the First Respondent proceeded to make a statement in relation to the various occasions on which between January 1986 and March, 1986 diverse quantities of CBFS were loaded and were delivered in excess through tankers belonging to M/s. Rajesh Roadlines. The First Respondent in his statement set out the amounts which had been received by him for the work which had been unlawfully carried out and the manner in which the amounts which were paid by the proprietor of M/s. Rajesh Roadlines came to be distributed between the various employees of the petitioner. The names of the employees who had shared in distribution of the spoils together with the amounts which were paid to each of the employees were set out in the detailed statement of the First Respondent. Insofar as the incident which took place on 10th March, 1986 was concerned, the First Respondent stated that on that date three motor tankers of M/s. Rajesh Roadlines were loaded with an excess quantity of CBFS in which respectively an amount of 7.5 tonnes, 6 tonnes and 10 tonnes was delivered in excess over and above the quantity recorded in the weighment slip. The First Respondent stated that he has still not received any consideration for the quantity which was delivered in excess on 10th March, 1986 and that an amount of Rs. 22,500/- was still due and outstanding to him.
4. Besides the statement which was made by the First Respondent to him during the course of investigation, the Investigating Officer produced before the Enquiry Officer during the course of his deposition, the confessional statement made by two of the accused, who were co-employees of the petitioner before the Metropolitan Magistrates, of the 23rd and 28th Courts, Esplanade, Mumbai, on 27th June, 1986 and 7th August 1986. These two statements were made by Shri V. D. Mohite and Shri R. G. Bhoir. The two statements contained a detailed sequence of the manner in which excess quantities of CBFS were loaded and despatched from the premises of the petitioner. The second statement made by Shri Bhoir specifically implicated the First Respondent, who on 10th March, 1986 was stated to be the Weigh Bridge Supervisor, while the Second Respondent, the Weigh Bridge Operator. The judicial confession of Shri Bhoir referred in para 11 to the fact that on 10th March, 1986 three tankers including the tanker bearing registration No. MCU 1913 were loaded with an excess quantity of CBFS varying between 9 and 10 tonnes.
5. During the course of the disciplinary enquiry, the Investigating Officer stated in the course of his Examination-in-Chief that the statement which had been made by the First Respondent was made voluntarily. The Investigating Officer was duly cross-examined and it is now common ground between the Learned Counsel that there was no cross-examination or, even a suggestion during the course of cross-examination, in regard to the statement of the Investigating Officer to the effect that the statement made by the First Respondent was voluntary. The evidence of the Investigating Officer has, therefore, admittedly gone unchallenged during the course of the cross-examination. Similarly, the fact that the two workmen had prepared and initialled the weighment slip which reflected the weight of the product loaded as 10,250 kgs. was not disputed. During the course of the hearing which took place before the Enquiry Officer on 25th September 1990, the Presenting Officer appearing on behalf of the employer had sought to prove the handwriting on the weighment slip as being that respectively of the First and Second Respondent by leading the evidence of the Additional Chief Examiner of Documents. The Defence Counsel stated that the subject of the signatures of the two workmen on the weighment slip was not a matter of dispute. Therefore, it is common ground that there is no dispute that the weighment slip dated 10th March, 1986 was duly prepared and initialled by the First and Second Respondents. After the employer had completed leading the evidence of the Investigating Officer, A. L. Khilari, who was a Sub-Inspector of Police, the evidence of one Shri Ram Mohan Rao, Senior Manager, O. & M.S., came to be recorded. The First and Second Respondents stated before the Enquiry Officer on 19th November, 1990 that the defence has no witness to produce, nor did it wish to produce any records or documents.
6. The Enquiry Officer submitted a report dated 2nd January 1991 by which he came to the conclusion that the charge of misconduct had been established. The enquiry officer found that (i) the First and Second Respondents were present on 10th March, 1986 in the Shift between 8 a.m. and 4 p.m. and had been assigned the duty of weighing the CBFS tankers before and after loading. The First Respondent was a Supervisor, while the Second Respondent was a weigh Bridge Operator; (ii) A truck bearing registration No. MCU 1913 was weighed before and after loading by the two workmen who had admitted their signatures on the weighment slip; (iii) the Police had captured one truck with pilfered CBFS on 14th March, 1986 and based on the evidence provided by the Investigating Officer, the F.I.R. which was lodged and the confessional statements of the driver and cleaner of the truck, it was proved that the Truck was over filled approximately with 10 tonnes of CBFS at the Refinery of the petitioner. The statement of the driver and cleaner and the weighment slip of Gupta Weigh Bridge were also relied upon in support of the conclusion that the truck had been filled with an excess quantity of 10 tonnes on 10th March, 1986; (iv) The Judicial confession made by Shri V. B. Mohite and Shri R. G. Bhoir before the Metropolitan Magistrates of the 23rd and 28th Courts, Esplande, Mumbai, gave a detailed account of the manner in which the excess quantity of CBFS had been pilfered and diverted by the First and Second Respondents together with their co-workmen; (v) the First Respondent had also made a confessional statement before the Police admitting to his involvement in the incident which took place on I0th March, 1986. The Enquiry Officer concluded that having regard to the detailed nature of the statement made by the First Respondent and corroboration provided by the statements of V. D. Mohite and R. G. Bhoir, the allegation of the First Respondent that the statement was recorded by the Police under duress could not be accepted. In these circumstances, the charge of misconduct was held to be proved. Based upon the report of the Enquiry Officer, the two workmen involved in these proceedings came to be dismissed from service by orders dated 5th April, 1991. Departmental appeals filed by the workmen were rejected on 25th June, 1991 and 22nd July, 1991.
7. The Central Government which is the appropriate Government in relation to the petitioner, which is a Public Sector Corporation, made a Reference to adjudication under Section 10 of the Industrial Disputes Act, 1947 to the Central Government Industrial Tribunal. The Tribunal decided the question as to whether the enquiry was fair and proper as a preliminary issue. By its Part-I Award dated 11th September, 1996, the Tribunal came to the conclusion that the enquiry which had been held was fair and proper. As already noted earlier, by its Part-II award dated 21st November, 1996, the tribunal has come to the conclusion that the findings of the Enquiry Officer were perverse. In its Part-II award, the Tribunal has placed reliance on the fact that the two workmen in these proceedings were chargesheeted together with other accused including other employees of the petitioner in Criminal proceedings before the Court of the Metropolitan Magistrate, 25th Court, Mazgaon, Mumbai. The Tribunal noted that by an order dated 6th July 1989, the Learned Metropolitan Magistrate had discharged these workmen. Relying upon the judgment of a learned Single Judge of this Court in Jaywant Bhaskar Sawant v. Board of Trustees of the Port of Bombay and others, 1994(2) Mh.LJ. 1477 the Tribunal was of the view that 'a clean acquittal' has to be taken into account by the disciplinary authority. According to the Tribunal, the Enquiry Officer ought to have given weightage to the judgment of the Learned Metropolitan Magistrate which he had failed to do. The Tribunal was of the view that a case of discharge is 'more than that of acquittal' since there is no prima facie case at all against the workmen. The second circumstance which weighed with the Tribunal is that according to the First Respondent, he had made his statement before the Police due to threat and coercion. The Tribunal has held that there is no reason why the explanation furnished by the worker in respect of this statement should not be accepted. Insofar as the driver and cleaner of the Truck who had made statements to the Police during the course of investigation are concerned, the Tribunal held that those statements could not be relied upon since they had not deposed in evidence. Similarly, the two judicial confessions made by Shri V. D. Mohite and Shri R. G. Bhoir were also discarded on the ground that they had not deposed before the Enquiry Officer. In these circumstances, the Tribunal came to the conclusion that the findings of the Enquiry Officer were perverse.
8. The management thereafter adduced before the Tribunal, the evidence of its Senior Manager, Operations Shri Digeesh Kumar Agarwal who deposed to the manner in which the loading operation takes place, in regard to the weighment slip dated 10th March, 1986 which was signed by the two workmen and to the fact that in the routine course of operation tankers which come to the premises of the petitioner are filled to their full capacity. At this stage, it would be material to note that at the stage when the Tribunal was seized of the question as to whether the enquiry was fair and proper, affidavits were filed by both the First and Second Respondents. During the course of the proceedings before the Tribunal, an opportunity was granted to the employer to cross-examine the First and Second Respondents with reference to these affidavits. It is common ground between the Learned Counsel that the Second Respondent submitted himself for cross-examination but, the First Respondent did not step into the witness box or offer himself for cross-examination. In its part-III award which was delivered on 22nd July, 1997, the Tribunal has reiterated the conclusion which it had arrived at earlier. It would, however, be necessary to take note of the fact that reliance was placed before the Tribunal upon the judgment of the Supreme Court in Kuldip Singh v. State of Punjab, reported in : (1997)ILLJ131SC . This judgment was sought to be relied upon by the management in support of the submission that notwithstanding the discharge of the workmen by the Learned Metropolitan Magistrate, the inculpatory statement which had been made before the Police could legitimately have been relied upon by the Enquiry Officer and so long as the disciplinary authority came to the conclusion that the statement was voluntary, the authority could act on the basis of such a statement. The decision of the Supreme Court was distinguished by the Tribunal on the ground that the Terrorist and Disruptive Activities Act, 1986 provides that a statement made to a Police Officer of a certain designation and rank is of value in the eye of law and, therefore, such a statement could be relied upon in that case. The Tribunal was of the view that there was no other corroborative evidence to support the confessional statement of the First Respondent and was of the view that it could not base its finding on evidence which was in the nature of hearsay. The Second Respondent's case was dealt with on the basis that since he has not made any confessional statement, the charges against him could not be sustained. In the circumstances, the Tribunal came to the conclusion that the workmen were entitled to reinstatement though without backwages in view of their intervening employment elsewhere. The Second Respondent was granted backwages during the period 9th April, 1991 to February, 1992.
9. The first and primary question which must be considered in these proceedings relates to the inculpatory statement which was made by the First Respondent to the Investigating Officer. In dealing with the statement which has been made to the Investigating Officer, it would be necessary at the outset, to note that the First Respondent has provided a detailed explanation of the modus operandi which was followed to divert excess quantities of CBFS loaded on tankers belonging to M/s. Rajesh Roadlines from within the premises of the Refinery of the petitioner. The First Respondent has provided an account of various transactions which took place, including (i) the names of the employees of the petitioner besides himself who were involved in these dealings; (ii) the dates on which diverse quantities of CBFS came to be loaded on tankers belonging to the aforesaid transporter together with the quantities which were despatched from within the premises of the petitioner; (iii) the amounts which were received as consideration for indulging in these activities; and (iv) the manner in which the amounts received from the transporter came to be distributed between various employees of the Company. The First Respondent in his statement had expressly referred to the incident which took place on 10th March, 1986 and to the fact that on that date three tankers including the tanker bearing registration No. MCU 1913 were loaded with excess quantities of CBFS ranging from 7.5 tonnes to 10 tonnes. The statement which was made by the First Respondent was made to the Investigating Officer Shri Khilari who deposed in evidence before the Enquiry Officer. During the course of the examination, on 7th March, 1998 the Investigating Officer stated that the statement had been made voluntarily; that the physical condition of the First Respondent was normal; and that no force had been used while recording the statement. The Investigating Officer was duly cross-examined and it is common ground between the Learned Counsel that no suggestion was made to the Investigating Officer on behalf of the two workmen who were jointly represented by a defence representative to the effect that the statement was not voluntary or that it had been obtained by means of threat, coercion or duress. In fact, after the management had concluded its evidence, the defence representative stated before the Enquiry Officer on 19th November, 1990 that the defence had no witness to produce or any records or documents. In these circumstances, I am of the view that the view taken by the Tribunal to the effect that the statement of the First Respondent was vitiated by the use of force is perverse and it is not based on any evidence. It would be necessary to note that after the recording of evidence before the Enquiry Officer was over and concluded, the Enquiry Officer permitted the two workmen to make their 'submissions' and during the course of his submission the First Respondent sought to submit that his statement which had been recorded by the Investigating Officer was recorded as a result of force and assault by the Police. I am of the view that it was clearly not open to the First Respondent during the course of his submission to depose to a factual assertion which could have only been made in the course of evidence. The question as to whether, the confessional statement was or was not voluntary would involve a factual determination and the First Respondent had more than an ample opportunity of establishing his case by cross-examining the Investigating Officer on this point or by stepping into the witness box himself. The First Respondent chose, for reasons best known to him, not to address even a single question to the Investigating Officer for the purpose of casting doubt on the testimony of the latter that the confessional statement had been made voluntarily. The First Respondent chose to abstain from stepping into the witness box himself before the Enquiry Officer and even before the Industrial Tribunal where he filed an affidavit, did not offer himself for cross-examination. The Learned Counsel appearing on behalf of the petitioner has also submitted that even the affidavit which was filed on behalf of the First Respondent before the Industrial Tribunal was absolutely silent on any allegation to the effect that the confessional statement was improperly procured. After the First Respondent made his submission before the Enquiry Officer seeking to cast doubt on the voluntary nature of the confessional statement, a summation containing written arguments was filed on behalf of the two workmen before the Enquiry Officer. In the written summation of arguments which was made before the Enquiry Officer the only point which was sought to be advanced was that the confessional statement was recorded under Section 162(1) of the Code of Criminal Procedure, 1973 and was, therefore, not admissible in evidence. Even in the summation therefore, the submission that the confessional statement has not been voluntarily made was not pressed or advanced. Having regard to the facts and circumstances, the tribunal has clearly overstepped the limits of its jurisdiction by arriving at a finding which is based on no evidence at all.
10. The question as to whether a confessional statement of the nature involved in the present case can at all be considered in the course of a departmental enquiry has been decided in a judgment of the Supreme Court in Kuldip Singh v. State of Punjab, reported in : (1997)ILLJ131SC . The appellant before the Supreme Court was a Head Constable of Police in the services of the Punjab Government who was dismissed from service without holding an enquiry by invoking the second proviso (b) to Clause (2) of Article 311 of the Constitution. The argument before the Supreme Court was that the order of dismissal could not be sustained in view of the fact that the only material against the appellant was the confession which had been made by him before a Police Officer during the course of interrogation to the effect that he had a link with certain terrorists. In para 5 of its judgment, the Supreme Court has also noted that the appellant was acquitted by the Designated Court when he came to be tried under the Terrorist and Disruptive Activities Act, 1987. A Bench of two Learned Judges of the Supreme Court speaking through Mr. Justice Jeevan Reddy held that even though a confessional statement made to a Police Officer is not admissible in a Court of law by virtue of the provisions of Sections 25 and 26 of the Evidence Act, 1872, 'it is equally well settled that these rules of evidence do not apply to departmental enquiries'. In this context, while holding that the confessional statement made to a Police Officer could be relied upon by the departmental authorities if it had been voluntarily made, the Supreme Court held as follows :
'11. In this sense, if the appellant's confession is relevant, the fact that it was made to the police or while in the custody of the police may not be of much consequence for the reason that strict rules of Evidence Act do not apply to departmental/disciplinary enquiries. In a departmental enquiry, it would perhaps be permissible for the authorities to prove that the appellant did make such a confession/admission during the course of interrogation and it would be for the disciplinary authority to decide whether it is a voluntary confession/admission or not. If the disciplinary authority comes to the conclusion that the statement was indeed voluntary and true, he may well be entitled to act upon the said statement. Here, the authorities say that they were satisfied about the truth of the appellant's confession. There is undoubtedly no othermaterial.'
The Tribunal has in the present case sought to distinguish the judgment of the Supreme Court on the specious ground that under the provisions of the Terrorist and Disruptive Activities Act, 1987, a confessional statement made before a Police Officer of a specified rank was of 'value' in the eyes of law. This is clearly an impermissible reading of the judgment of the Supreme Court. The judgment of the Supreme Court would clearly show that in para 10 the Court has reiterated the general principle of law that a confessional statement made to a Police Officer is not admissible in a Court of Law under Sections 25 and 26 of the Evidence Act, 1872. Despite this, it has been expressly held that it would be open to the departmental authorities exercising disciplinary jurisdiction to rely upon such a statement and if the authorities come to the conclusion that the statement was voluntarily made, it would be permissible to the authorities to accept the statement.
11. The statement which has been made by the First Respondent was in the circumstances voluntary and could legitimately have been relied upon by the Enquiry Officer in affirming the finding of misconduct. The enquiry Officer has not committed any error of law in doing so. The finding of the Tribunal is based on no evidence and is, therefore, not sustainable.
12. The next important issue which would require to be considered is the effect of the order of discharge which was passed by the Learned Metropolitan Magistrate when the First and Second Respondents amongst other accused were arraigned. The position in law in this regard is well settled in view of several judgments of the Supreme Court. In Nelson Metis v. Union of India, : (1992)IILLJ744SC , the continuance of a departmental enquiry was sought to be impugned on the ground that the appellant had been acquitted in a Criminal Case. On the question as to whether the disciplinary proceedings could have been continued in the face of the acquittal in the Criminal Case, a bench of three learned Judges of the Supreme Court held in regard to the plea of the employee that 'the plea has no substance whatsoever and does not merit a detailed consideration'. The Court held that the nature and scope of a criminal case is very different from that of a departmental or disciplinary proceeding and an order of acquittal, therefore, cannot conclude the departmental proceeding. In Govind Das v. State of Bihar, : (1997)11SCC361 , a Bench of two learned Judges of the Supreme Court held in a case where the disciplinary proceedings resulted in an order of termination on a charge of misconduct involving defalcation of funds that the acquittal of the employee in the criminal case would not affect the departmental proceedings. The Supreme Court held in this context as follows :--
'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.'
The rationale as to why a departmental proceeding would not be affected by the outcome of a criminal trial has been elucidated in a judgment of three learned Judges of the Supreme Court in Depot Manager, A.P.S.R.T. Corporation v. Mohd. Yousuf Miya, : (1997)IILLJ902SC . The Supreme Court referred with approval to the decision in B. K. Meena 's case AIR1996 SCW 4160 in which the Supreme Court has held that the approach and objective in criminal proceedings is altogether distinct and different from disciplinary proceedings. In disciplinary proceedings, the question is whether an employee is guilty of such conduct as would merit the imposition of a penalty under the service rules and regulations whereas in the criminal proceedings, the question is whether the employee is guilty of a breach of the relevant provisions of the penal law. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial are entirely distinct and different in a departmental proceeding as compared to a criminal trial. The observations of the Supreme Court in this context in Mohd. Yousuf Miya's case are apposite to the facts of the present case :
'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 the Evidence Act. Converse is the case of departmental enquiry. The enquiry in a departmental proceeding relates to conduct or breach of 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 offence in criminal charge. It is seen that invariably the departmental enquiry has to be conducted expeditiously so as to effectuate efficiency in public administration and the criminal trial will take its own course. The nature of evidence in criminal trial is entirely different from the departmental Proceedings. In the former, prosecution is to prove its case beyond reasonable doubt on the touchstone of human conduct. The standard of proof in the departmental proceedings is not the same as of the criminal trial. The evidence also is different from the stand point of Evidence Act. The Evidence required in the departmental enquiry is not regulated by Evidence Act.'
The same view has been taken by Learned Single Judges of this Court in Raghunath Vishnu Patil v. R. N. Gavande and Ors., 1993 2 CLR 50 and Satish G. Saphtarshi and Ors. v. Kirloskar Oil Engines Ltd., 2000 3 CLR 900 . My attention has also been drawn to an unreported judgment of by Learned Brother S. Radhakrishnan, J. in Hindustan Petroleum Corporation Ltd. v. Habib Bismillah Khan and Anr., Writ Petition No. 1605 of 1999 : (2002)IVLLJ438Bom and connected Petitions. I have also perused the order of discharge which was passed by the learned Metropolitan Magistrate in the present case. Paragraph 3 of the order of the Learned Metropolitan Magistrate refers to the fact that the Special Public Prosecutor who had been called upon to supply summaries of the prosecution case had supplied 'not one but three summaries of the prosecution case. The Learned Metropolitan Magistrate adverted to the fact that summary set out that information initially had been received by the Chembur Police in September 1981. The learned Metropolitan Magistrate has recorded that the Special Public Prosecutor was asked as to what was done on the basis of the information which had been received as far back as in 1981. The Court has recorded that the prosecutor declined to seek instructions from the Police on the query made by the Court. The following observations in the order passed by the Learned Metropolitan Magistrate are somewhat significant:
'When Mr. Kaushik learned Special Public Prosecutor's attention was drawn to this shocking state of affairs and he was called upon to say if the offences were duly registered by the Chembur Police Station and the charge-sheets submitted to the Court etc. and if so what was the fate of those prosecution, all that he stated in reply was that he had no information about what had happened to the reports in the matter lodged with the Chembur Police Station as far back as in September, 1981 and onwards and when requested further if he would ascertain the state of affairs from the Chembur Police Station and apprise this Court about them, he politely refused to oblige. It appeared that he was totally unperturbed and unconcerned with this shocking state of affairs and actually found nothing unusual with regard to the police functioning in such matters.
6. Therefore, this Court feels that there is a reason strongly to suspect that the information repeatedly lodged with the Chembur Police Station was kept off the record, no offence was registered, no F.I.R. sent to the Court, and consequently the Magistrate was kept totally in dark about the whole affairs. It is, therefore, felt that a copy of this order needs to be furnished to the Commissioner of Police, Greater Bombay to apprise of the state of affairs, so that he may initiate such action in the matter as he deems fit.'
A perusal of the order passed by the learned Metropolitan Magistrate would show that reliance was sought to be placed on the confessions made by Shri Bhoir and Shri Mohite (accused Nos. 13 and 14) before the Learned Metropolitan Magistrates, 23rd and 28th Courts, Esplanade, Mumbai. The learned Magistrate came to the conclusion that the confessional statements made by these two persons could only be used as against the makers of those two statements and even these two statements had subsequently been retracted. In my view, having regard to the well settled position in law that has been laid down in the several judgments of the Supreme Court referred to above, the order of discharge would not in any manner affect the legitimacy of the disciplinary proceedings or the conclusions which were arrived at in the course thereof. Most significantly, it must be noted that a confessional statement of the First Respondent made to the Investigating Officer was clearly inadmissible in evidence in the course of a criminal trial having regard to the provisions of Sections 25 and 26 of the Indian Evidence Act, 1872. That is, however, not the position in relation to disciplinary proceedings, once the statement is held to have been voluntarily made. The disciplinary authority and, its delegate the Enquiry Officer, were entitled to arrive at a finding on the question as to whether the charge of misconduct against the First and Second Respondent was proved with reference to the material which was adduced during the course of the enquiry proceedings. That being the position, the conclusion which has been arrived at by the Tribunal is clearly contrary to law. The Industrial Tribunal has referred to a judgment of a Learned Single Judge of this Court in J. B. Sawant v. Board of Trustees of the Port of Bombay and Ors., 1994(2) Mh.LJ. 1477. The Learned Single Judge, D. R. Dhanuka, J., held that where a Court of competent jurisdiction in the course of a criminal trial passes an order of honourable acquittal, the departmental enquiry can be continued but the Enquiry Officer or the disciplinary authority are duty bound to attach a reasonable weightage to the findings recorded at the criminal trial. The learned Single Judge has held thus :
'If the criminal Court passes an order of honourable acquittal, the departmental enquiry can be continued but the Enquiry Officer or Disciplinary Authority are duty bound to attach reasonable weightage to the findings recorded at the criminal trial. Ordinarily, it would not be expedient to continue the departmental enquiry once the charged officer is honourably acquitted at the trial and is not acquitted merely because of benefit of doubt or some technical reason. It is however, within the discretion of the management to hold the domestic enquiry even in such a case for a cause. The Management must exercise its discretion fairly and reasonably and not arbitrarily or capriciously. If it is shown that the management has just ignored order of honourable acquittal and not attached any weightage to such orders, the Writ Court would be bound to quash and set aside the order of Disciplinary authority in an appropriate case.'
The aforesaid judgment would not advance the case of the First and Second Respondents. As already noticed earlier, in various judgments of the Supreme Court, it has. been held that the disciplinary proceedings can proceed notwithstanding an order of discharge or even acquittal in a criminal trial. The nature and object of the disciplinary proceedings is distinct from a criminal trial. The rules of evidence and the standard of proof which govern a disciplinary proceeding are distinct from those in a criminal trial. Having regard to the order of discharge that was passed by the Learned Metropolitan Magistrate and the reasons-referred to hereinabove which weighed with the Learned Magistrate in discharging the First and Second Respondents, I am of the view that the findings which were arrived at by the Enquiry Officer could not have been faulted on the ground which has weighed with the Industrial Tribunal. The order of discharge was based on the premise that the statement of the First Respondent before the Investigating Officer was not evidence which was legally admissible during the course of a criminal trial. The position in a disciplinary enquiry is entirely different. The statement made voluntarily before the Investigating Officer was relevant material for the purposes of a disciplinary enquiry.
13. In the earlier part of this judgment, I have already come to the conclusion that the statement which was made by the First Respondent to the Investigating Officer of Police was admissible and could have been relied during the course of the disciplinary proceedings but, the matter does not rest there. Apart from the statement which was made by the First Respondent, there is documentary evidence which clearly corroborates the case of the petitioner in relation to the commission of misconduct. The first piece of evidence is the weighment slip dated 10th March, 1996 which was prepared by and admittedly bore the initials of the First and Second Respondents. The First and Second Respondents were admittedly on duty in the shift between 8 a.m. and 4 p.m. on 10th March, 1986 and had been deployed respectively as Supervisor and Weigh Bridge Operator. In the aforesaid capacities, it was admittedly the duty of the two workmen to take the tare weight of the tanker when it came to the loading station and, after the tanker was loaded, to again take the fully loaded weight of the tanker prior to its departure. The duty of the workmen, therefore, was to take the weight both prior to loading and after the tanker was loaded so that the exact weight of the product which was loaded on the tanker could be deduced. The petitioner in this context led the supportive evidence of D. K. Agarwal, Senior Manager, Operations who deposed to the procedure for taking the weight both before and after loading of tanker lorries. The weighment slip dated 10th March, 1986 which was prepared by the First and Second Respondents showed that the weight of the product which was loaded on the tanker bearing registration No. MCU 1913 was 10,250 kgs. On 10th March, 1986 itself, a second weighment slip of Gupta Weigh Bridge whose site office is situate at Turbhe, Navi Mumbai was taken, according to which the weight of the loaded product was 10,540 kgs. These weighment slips are sufficient to sustain the charge of misconduct against the two workmen, because they clearly establish on a preponderance of probabilities that the recording which has been made within the premises of the petitioner by the two workmen was substantially lower than the weight of the loaded product. Thus, apart from the confessional statement which has been made by the First Respondent, the documentary evidence in the form of the two weighment slips which were produced during the course of the enquiry was sufficient to sustain the charge of misconduct. The Enquiry Officer in the course of the enquiry report also relied upon the statements of the driver and cleaner of the tanker lorry as also the statements made by two of the co-workmen Shri Mohite and Shri Bhoir before the Learned Metropolitan Magistrates. The driver and cleaner of the Tanker had deposed to the fact that a large quantity of the loaded product had been siphoned away from the tanker bearing registration No. MCU 1913, to a tanker bearing registration No. MHS 5175 and that the latter tanker had been diverted to a purchaser at Pune. These statements have been relied upon by the Enquiry Officer for corroborating the statement of the First Respondent to the effect that a quantity in excess of 10 tones had been filled in excess in the tanker and had been under-recorded in the weighment slip prepared by the two workmen. For the purposes of these proceedings, I have approached the matter independently of the two statements made by the driver and cleaner of the truck as well as the two statements made before the Metropolitan Magistrates by Shri Mohite and Shri Bhoir. In my view, even if these statements are excluded from consideration on the ground that the makers of those statements were not produced for cross-examination before the Enquiry Officer, there is sufficient material to sustain the charge of misconduct. It must, however, be recorded that relying upon the decision of the Supreme Court in J. D. Jain v. Management of State Bank of India, : (1982)ILLJ54SC and State of Haryana v. Rattan Singh, : (1982)ILLJ46SC , it has been submitted before the Court by the Learned Counsel appearing on behalf of the petitioner that the Industrial Tribunal as well as the disciplinary authority is not bound by strict rules of evidence and there is no rule or principle of law requiring the exclusion of hearsay evidence during the course of a departmental enquiry. This submission need not be gone into since there is sufficient evidence to sustain the charge of misconduct, even de hors the statements of the driver and cleaner, and the two confessional statements of Shri Mohite and Shri Bhoir.
14. My attention has been drawn to the judgment of a Learned Single Judge of this Court Mr. Justice. A. P. Shah, dated 4th September 1996 in Yeshwant Redkar v. Hindustan Petroleum Corporation Limited and Anr., (Writ Petition No. 2604 of 1994 = 1997(3) Mh.LJ. 357.
The judgment of the Learned Single Judge arose out of a disciplinary proceeding convened by the petitioner in relation to an event which is alleged to have been taken place on 14th March, 1986 during the course of which an excess quantity of CBFS was loaded in a tanker bearing registration No. MCU 1914. The petitioner before the Court in that proceeding was a Deputy Manager and was, therefore, not a workman. The Learned Single Judge referred to the fact that apart from the confessional statements which were made by the co-workmen, there was no corroborative evidence in that case to implicate the petitioner before the Court. Moreover, as noted in para 11 of the order of the Learned Single Judge, no specific role was attributed to the petitioner before the Court in that case in respect of the incident which took place on 14th February, 1986. The persons who made the statements had not been made available for the purposes of cross-examination. After considering the judgments of the Supreme Court on the subject, including Jagannath Prasad Sharma v. State of Uttar Pradesh, : (1961)IILLJ166SC ; Central Bank of India v. P. C. Jain, : (1969)IILLJ377SC ; State of Haryana v. Rattan Singh, : (1982)ILLJ46SC ; and J. D. Jain v. Management, State Bank of India, : (1982)ILLJ54SC , the learned Single Judge held that the Enquiry Officer had based his conclusion solely on the basis of hearsay evidence. The Learned Single Judge noticed that the Enquiry Officer had relied upon the confessional statements for recording the finding that the petitioner there was involved in a case of bribery although no such charge was framed against him.The Enquiry Officer had erroneously proceeded on the basis that the tanker which had been intercepted by the Police was cleared under the signature of the petitioner. The learned Single Judge, therefore, concluded that the finding of misconduct in that case was based on no evidence whatsoever. However, having regard to the circumstances of the case, the Learned Judge directed that in lieu of reinstating the petitioner before the Court, he should be granted 4 year's salary as compensation.
15. The judgment of the Learned Single Judge is stated to be the subject matter of a pending appeal before this Court. The Learned Counsel appearing on behalf of the petitioner has, however, fairly invited the attention of the Court to the judgment of Mr. Justice A. P. Shah. The facts of the present case, however, are completely distinct from those in the earlier case. The finding of misconduct against the First and Second Respondent is not based on hearsay evidence. There is direct evidence to implicate both the First and Second Respondents in the facts and circumstances of this case.
16. The law in relation to the jurisdiction of this Court under Article 226 of the Constitution in a case relating to a disciplinary matter is now well settled. In 1972, the Supreme Court held in Union of India v. Sardar Bahadur, : (1972)ILLJ1SC , that a disciplinary proceeding is not a criminal trial. The standard of proof required is that of preponderance of probability and not proof beyond reasonable doubt. If the enquiry has been properly held, the question of the adequacy or reliability of the evidence cannot be canvassed before the High Court. Similarly, in Central Bank of India v. P. C. Jain, 1969 L.I.C. 1380 the Supreme Court has held that the test is whether the finding of the Enquiry Officer is one which is not supported by any legal evidence at all. Similarly, if the finding which has been arrived at by the domestic inquiry is one which no reasonable person could have arrived at on the material before the enquiring authority, such a finding is liable to be interfered with and set aside. In Delhi Cloth and General Mills Company v. Ludh Budh Singh, : (1972)ILLJ180SC , a similar view was taken by the Supreme Court. Finally, a reference may be made to the judgment in Nand Kishore Prasad v. State of Bihar, : (1978)IILLJ84SC , in which the Supreme Court laid down the some evidence 'rule' to govern the exercise of judicial review in relation to disciplinary proceedings. The Supreme Court in that context held as follows :--
'The first of these principles is 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 deformedness 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 inquiries, as pointed out by this Court in Union of India v. H. C. Goel, : (1964)ILLJ38SC , '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 the statutory rules,'
19. The second principle, which is a corollary from the first is, that if the disciplinary inquiry has been conducted fairly without bias or predilection, in accordance with the relevant disciplinary rules and the Constitutional provisions, the order passed by such authority cannot be interfered with in proceedings under Article 226 of the Constitution, merely on the ground that it was based on evidence which would be insufficient for conviction of the delinquent on the same charge at a criminal trial.'
Regard must had to the fact that in a matter which arises under the Industrial Disputes Act, 1947, the Industrial Tribunal is vested with the jurisdiction under Section 11A. The discretion, however, has to be governed by sound judicial principles. The Tribunal has in the present case failed to duly appreciate the binding principles of law laid down by the Supreme Court. The Tribunal has disregarded evidence which could clearly have been relied upon in a disciplinary enquiry. The Tribunal was clearly in error in interfering with the finding which had been recorded by the disciplinary authority. The enquiry was held to have been fair and proper and the finding of misconduct has been based on evidence which the Enquiry Officer was clearly entitled to rely upon in the course of the disciplinary enquiry.
17. Before concluding a reference may also be made to the decision of the Supreme Court in M. Paul Anthony v. Bharat Gold Mines Ltd., 1999 I CLR 1032 on which reliance was sought to be placed by the Learned Counsel appearing on behalf of the workmen. In Anthony's case, a raid had been conducted by the Superintendent of Police at the house of the appellant where allegedly a gold ball and certain quantity of gold bearing sand were recovered. The appellant was a Security Officer in a Government undertaking and the First Information Report was lodged at the Police Station upon which a criminal case was registered. A departmental enquiry was also sought to be held against the appellant. The appellant prayed that the departmental enquiry be dropped or at least be postponed till the conclusion of the criminal proceedings. This request was rejected and the disciplinary proceedings were pursued. The appellant was not allowed even subsistence allowance while the proceedings against him were being conducted as a result of which he was unable to attend the disciplinary proceedings. The services of the appellant were terminated. Subsequently the judgment of the criminal case was pronounced and the appellant was acquitted with the categorical finding that the prosecution had failed to establish its case. In this factual background, the Supreme Court held that both the Criminal case as well as the departmental proceedings were based on an identical set of facts viz., the raid which had been conducted at the residence of the appellant and the recovery of incriminating material therefrom. In the criminal case, the Court had come to the conclusion on a consideration of the entire evidence that no search was conducted nor was any recovery made from the residence of the appellant. In these circumstances, the appellant having been acquitted by a judicial finding to the effect that the raid and recovery at his residence were not proved, the Supreme Court held that, it would be unjust, unfair and oppressive to allow the findings recorded at the ex-parte departmental proceedings to stand. These facts are clearly distinguishable from the facts of the present case. Indeed, in para 35 of its judgment, the Supreme Court held that the distinction which is usually drawn as between departmental proceedings and a criminal case on the basis of 'approach and burden of proof, would not be consequently applicable having regard to the facts and circumstances of the case before the Court. In my view, the facts of the present case are clearly distinguishable. The present case is in fact, one where the general rule which makes a distinction between the criminal trial and a departmental enquiry should be followed.
18. Having regard to the aforesaid facts and circumstances of the case, I am of the view that the findings which have been recorded by the Industrial Court in its Part-II and Part III awards dated 21st November, 1996 and 22nd July, 1997 are unsustainable. The aforesaid awards are accordingly liable to be quashed and set aside. The Writ Petition is accordingly allowed in terms of prayer Clause (a). In the circumstances, there shall be no order as to costs.
19. In pursuance of the interim order of the Court, the petitioner had deposited certain amounts in this Court. The aforesaid amounts shall be refunded to the petitioner together with accrued interest after the expiry of a period of 4 weeks from today.