Ramkrishna Shivram Gadekar Vs. Board of Trustees of the Port of Mumbai and anr. - Court Judgment

Excerpt:
- bombay stamp act, 1958. schedule 1, article 36: [y.r. meena, cj & d.a. mehta & a.s. dave, jj] deed of mortgage liability to pay stamp duty held, any instruments in respect of transactions, relating to loans and advances, loans and mortgages, cash credit or overdraft bonds, agreements of pawn or pledge and letters of hypothecation executed by farmers for agricultural and land development purposes in favour of all commercial bank etc. are entitled to remission of entire duty chargeable under the stamp act with effect on and from 1.4.1979 under government notification dated 23.3.1979. thus, where loan was granted by bank of india under agricultural finance scheme towards purchase of air compressors, drilling rods and other accessories. use of the air compressors, drilling rods and other accessories in case of applicant who is a farmer can only be for purpose of drilling a bore-well for purpose of irrigation in process of carrying on agricultural activities. thus, it is apparent that loan was availed of by applicant-farmer for agricultural and land development purposes because a bore-well would go to increase the utility of agricultural land by ensuring round the year irrigation. the instrument in question would therefore fall within scope of complete remission granted to instrument of mortgage under government notification dated 23.3.1979 and hence not liable to stamp duty under article 36 of schedule i of the act. - now the abatement of theft was the only charge against the appellant and he has been clearly acquitted by the criminal court, i still the tribunal recorded this finding.1. by these appeals, the same appellant has challenged the judgment of the learned single judge of this court dated april 5, 2004 passed in two writ petitions, being writ petition no. 671/2004 and 102/2004. as the common judgment is challenged in both the appeals, both the appeals can be conveniently disposed of by, a common order.2. facts that are relevant are that the appellant was in the service of the respondent-port trust as a driver. a charge-sheet was served on the appellant alleging that he has1 committed misconduct. the misconduct related to an incident that had allegedly taken place on july 8, 1987. it was alleged that the appellant unauthorizedly took a vehicle belonging to the, employer, parked it at a place at which he was not authorised to park it and he did so to abate the commission of theft of the property of the trust. after completion of the departmental enquiry, the enquiry officer submitted report, holding that the charge has been proved against the appellant. the disciplinary authority imposed punishment of dismissal on the appellant. the appeal preferred before the appellate authority as also the review petition filed did not succeed. ultimately, the industrial dispute was raised. the proceedings before the industrial tribunal were registered as reference no. cgit-2/150 of 1998. by part-i of the award, the industrial tribunal held that, the enquiry has been held in consonance with the principles of natural justice and that the findings of the enquiry officer in respect of the misconduct are not perverse in relation to the misconduct, punishable under regulation 22(2)(b) & (c) of the bombay port trust rules and regulations for non-scheduled staff. it appears that on the basis of the same incident criminal prosecution was launched against the appellant, which was criminal case no. 5/p/92. that case was decided on september 12, 1997 and the appellant was acquitted. according to the industrial court, now the workman was entitled to be reinstated in the service with continuity but he was not entitled to any back wages.3. against the order granting reinstatement, the employer filed writ petition which was registered as writ petition no. 671/2002 whereas being aggrieved by the order denying back wages, the appellant filed writ petition which was registered as writ petition no. 102/2004.4. the learned single judge by his order dated april 5, 2004 allowed the writ petition filed by the board and held that the tribunal was not justified in granting reinstatement. the petition filed by the appellant was dismissed. therefore, these two appeals have been filed by the appellant challenging the judgment of the learned single judge as also the judgment of the tribunal denying back-wages.5. at the outset, we must note that the learned counsel appearing for the board has conceded before us that the evidence which was tendered in departmental enquiry and the evidence which was tendered in criminal prosecution was the same. after going through the judgment of the criminal court and the charges levelled in the departmental enquiry against the appellant, we find that there is no substance in the submission of the learned counsel appearing for the board that the charges in the departmental enquiry and the criminal trial were different. we find that the charges have been framed in the departmental enquiry and the criminal trial on the basis of the same incident and that the principal charge against the appellant was of abatement of theft. therefore principal element common in both the criminal trial and domestic enquiry was abatement of theft by the appellant.6. the learned counsel for the appellant relying on the judgment of the supreme court in the case of m. paul anthony (capt) v. bharat gold mines ltd. and anr. : air 1999 sc 1416 : (1999) 3 scc 679 : 1999 i llj 1094 submitted that as the facts involved in departmental enquiry and the criminal trial were the same and as the evidence in the departmental enquiry and the criminal trial was also the same, in view of the acquittal of the appellant by the criminal court, specifically on a finding that the prosecution has not been able to prove the identification of the appellant, there was no justification in punishing the appellant.7. the learned counsel appearing for the board, on the other hand submitted that though evidence in the criminal trial and the, departmental enquiry was the same but the charges levelled in the departmental enquiry and the charges framed in the criminal trial were different and as according to him the acquittal of the appellant by the criminal court is not, honourable and it was merely by giving him benefit of doubt, according to him, the tribunal was not justified in granting reinstatement in service to the appellant.8. now in the light of these rival' submissions, if one goes through the record, it is a clear position that the departmental enquiry and the criminal prosecution both were based on the same incident. the charges framed are also similar. on behalf of the board it is conceded that the evidence in both the departmental enquiry and the criminal prosecution was the same. in this background, we have to see the judgment of the supreme court in the case of m. paul anthony (capt) v. bharat gold mines ltd. and anr. (supra). in our opinion, the observations made by the supreme court in paragraph no. 34 and 35 of that judgment are relevant for the present case, which read as under : 1999-i-llj-1094 at p. 2 1103:34. there is yet another reason for discarding the whole of the case of the respondents. as pointed out earlier, the 4 criminal case as also the departmental proceedings were based on identical set of facts, namely the raid conducted at the appellant's residence and recovery of incriminating articles therefrom. the findings recorded by the inquiry officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by the police officers and panch witnesses, who had raided the house of the appellant and had effected recovery. they were the only witness examined by the inquiry officer and the inquiry officer relying upon their statements, came to the conclusion that the charges were established against the appellant the same witnesses were examined in the criminal case but the court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. the whole case of the prosecution was thrown out and the appellant was acquitted. in this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the 'raid and recovery' at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex-parte departmental proceedings, to stand.35. since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof would not be applicable to the instant case.reading of the above quoted observations shows that in case all the facts and the evidence in both the proceedings, namely, the departmental enquiry and the criminal case are the same, without there being any difference the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof would not be applicable to the instant case and therefore the judgment of the criminal court becomes relevant.9. so far as the judgment of the criminal court is concerned, perusal of that judgment shows, so far as the appellant is concerned, only one point was framed for determination, it reads as under:does prosecution prove that accused no. 3 and 4 in furtherance of their common intention and with abatement to each other alongwith accused no. 1 and 2 have committed theft of three bales of raw silk?. answer to this point is 'no.'what is further to be seen here is that the entire prosecution case against the appellant was on the basis of his identification on the spot during the identification parade. so far as that aspect of the matter is concerned, what is recorded in paragraph no. 10 and 11 of the judgment of the criminal court is relevant, it reads as under:10. besides that identification parade is not free from doubt. it is important to note that inspector wallishetty himself admits in his examination-in-chief that he had arrested the accused no. 4 on july 10, 1987. in cross-examination he admits that he also arrested accused no. 3 on july 9, 1987. therefore, calling pw wallishetty for identification of accused no. 3 & 4 is nothing else than a farce. it is also important to note that accused no. 3 and 4 were kept in police lock up at yellow gate p. stn. where inspector wallishetty and other staff; members were serving. thus they have every opportunity to have glimpse of accused no. 3 and 4 before identification. holding of identification parade in the police station has to be strongly criticised and it has been criticised in a number of rulings. for example in the case of ramchandran v. state of maharashtra (1995) 3 crimes 723. their lordships of the bombay high court had strongly deprecated the practice of conducting identification parade at police station. it 'as been further observed that probaoility of suspects being shown to the witnesses prior to identification parade is always there in the, police station.11. therefore, in my opinion, holding of identification parade in such circumstances does not carry any weight. as such identification of accused is doubtful and cannot be relied upon to base a conviction.perusal of the above quoted observations from the judgment of the criminal court shows that the identity of the appellant on the scene of offence itself has not been established. the criminal court has recorded a positive finding that evidence of police inspector wallishetty was unacceptable, a witness for identification of the accused, because he had arrested the accused persons. therefore if the finding of the criminal court that the presence of the accused on the spot is not established, then in our opinion it cannot be said that the acquittal of the accused is not clean.10. perusal of the judgment of the tribunal shows that the tribunal has surprisingly recorded a finding in paragraph no. 9 of its order that criminal court had come to a conclusion that there was an abatement of committing theft by the accused which includes the appellant. now the abatement of theft was the only charge against the appellant and he has been clearly acquitted by the criminal court, i still the tribunal recorded this finding. in our opinion, therefore, the learned counsel for the appellant was right in contending that the order of the tribunal suffers from non-application of mind. in our opinion as the incident was the same and the evidence was also the same, in view of the judgment of the supreme court in the case of m paul anthony (copt) v. bharat gold mines ltd. and anr. (supra), the only thing that the tribunal should have done was, in i view of the judgment of the criminal court, to hold that the misconduct against the appellant has not been proved.11. industrial tribunal in our opinion after finding that the judgment of the criminal case is relevant, because of the same set of facts being involved and because of the same set of evidence in the criminal trial and the departmental enquiry, was not justified in ordering withholding of back wages. in our opinion, the appellant was entitled to reinstatement and he was also entitled to back wages and therefore the industrial court should have held an enquiry to find out what is the quantum of back-wages to which the appellant would be entitled. in our opinion, the learned single judge was not justified in considering as to whether the acquittal was clean or was on account of benefit of doubt, in view of the observations of the criminal court that there is no identification of the appellant on the spot.12. taking overall view of the matter, in our opinion, the following order would meet the ends of justice:order(1) the order passed by the learned single judge in writ petition no. 671/2002 is set aside. writ petition no. 102/2004 is allowed. it is held that the appellant is entitled to back wages. however, as the tribunal has not held enquiry into the quantum of back wages to which the appellant would be entitled, the proceedings are remitted back to the industrial tribunal for consideration of the quantum of back wages to which the appellant would be entitled. for that purpose the industrial tribunal may permit both the parties to lead evidence.(2) both the appeals are disposed of. no order as to costs.