Jaywant Bhaskar Sawant vs Board of Trustees of the Port of Bombay and others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1994 Supreme(Bom) 182

IN THE HIGH COURT OF BOMBAY
D.R. Dhanuka, J.
Jaywant Bhaskar Sawant..... Petitioner.
Versus
The Board of Trustees of the Port of Bombay and others..... Respondents.
Writ Petition No. 3362 of 1991, decided on 20-4-1994.
Advocates appeared:
M.S. Ramamurthy, Akhila S. Kaushik Ramesh Ramamurthy, for the petitioner.
P. Ramamurthy i/b Mulla Mulla Cragie Blunt Caroe, for respondents.

Headnote:BOMBAY PORT TRUST EMPLOYEES (CLASSIFICATION, CONTROL AND APPEAL) RULES, 1976
       Rules 26 (2)-Bombay Port Trust Rules and Regulations for Non Scheduled Staff, Rule 22 (2) (b)-Departmental enquiry vis-a-vis criminal proceedings Scope of.
       Held, there is no legal bar to the continuation of disciplinary proceeding in an appropriate case merely because of the charge sheeted employee having been acquitted at the criminal trial. At times the accused is given benefit of doubt Sometimes the accused may be acquitted on a technical ground like lack of sanction. If however, the accused is honourably acquitted by the Criminal Court, the departmental authorities are under an obligation to attach considerable weightage to the verdict of the Criminal Court. Normally it would not be expedient to continue the departmental inquiry of the said facts once the charge sheeted employee is honourably acquitted at the criminal trial. It is, however, possible in the realm of theory that the departmental authorities may be justified in continuing the inquiry for a cause notwithstanding the honorable acquittal of the accused. It is, however, totally erroneous to observe as observed by the Enquiry officer in his report that the findings recorded at the criminal" trial are totally irrelevant in the departmental inquiry. The Enquiry Officer, Disciplinary Authority and the Appellate Authority did not at all apply their mind to the overdict of honourable acquittal and complete even ration of the petitioner from the charge of the Criminal Court for total want of evidence and have totally ignored the findings and the judgment of the Criminal Court altogether under a misconception that such honourable acquittal is totally irrelevant. Such an order of acquittal is not totally irrelevant. Such an order of acquittal is not totally irrelevant in a civil proceeding or the departmental enquiry. No public authority is allowed to misue its power. Public authorities must exercise their statutyry discretion fairly and reasonably.
       Rule 26 (2)-Management-Discretion of to hold domestic inquiry must be exercised fairly and reasonably but not arbitratarily or capriciously.
       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 show 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 Court.
       Rule 26 (2)-Natural justice-.Principles of- Theft case-Defence points not considered by Appellate Authority-Action violative of Rule 26 (2) and also principles of natural justice.
       BOMBAY PORT TRUST RULES AND REGULATIONS FOR NONSCHEDULED STAFF
       Rule 22 (2) (b).
       See Bombay Trust Employees (Classification, Control and Appeal) Rules 1976-Rule 26 (2).

JUDGMENT - D.R. DHANUKA, J.:---The petitioner used to work as a hamal in Chief Engineers Department of Bombay Port Trust. The petitioner used to work under the Superintending Engineer Shri S.M. Naik, since inception and had an excellent record of service as admitted by Shri S.M Naik during course of his testimony at the criminal trial of the petitioner as well as in the Departmental Enquiry. The petitioner was charged with theft before the Court of the Metropolitan Magistrate, 33rd Court, Ballard Pier, Bombay in Case No. 1329/B of 1988. By an order dated 23rd December 1988, the petitioner was honourably acquitted. The learned Magistrate inter alia recorded in his judgment as under:-

"Thus it appears that it is a haste of complainant which caused harassment of accused. Even Police machinery also without making proper investigation filed this charge-sheet inspite of the fact that there are no additional circumstances on record that accused (meaning thereby the petitioner) removed property from one place to other with intention to cause wrongful loss to complainant and wrongful gain to himself which is crux of offence".

Inspite of the said honourable acquittal, the departmental enquiry on the basis of the same allegations was continued, without attaching any weightage to the said honourable acquittal of the petitioner by the competent Court, whatsoever. In the departmental enquiry, the petitioner was charged with alleged misconduct of "having suppressed the fact of having seen the N.C. Scriber-10 with the intention of committing theft", indicating an act of dishonesty in connection with the property of the Bombay Port Trust", amounting to misconduct under Rule 22(2)(b) of the Bombay Port Trust Rules and Regulations for Non-Scheduled Staff. In the departmental enquiry, the petitioner was not charged with the actual theft but was charged with suppression of a fact with the intention of committing theft. The petitioner was dismissed from the port trust service w.e.f. 22nd March, 1990. The impugned order of dismissal of the petitioner from service was passed on 19th March, 1990. A statutory appeal preferred by the petitioner against the said order was dismissed by the Chairman of the Port Trust by his order dated 3rd August, 1991.

2. The petitioner has filed this petition under Article 226 of Constitution of India as the petitioner is aggrieved by the above referred order of dismissal of the petitioner from service as well as the appellate order. It is an unfortunate litigation at the instance of humblest of the humble employee of port trust having excellent record of service pursued by the respondents without any justification and without attaching any weightage to the order of honourable acquittal passed by the criminal Court. It is unfortunate that the petitioner has suffered harassment as a result of this litigation .

3. The relevant facts are briefly summarised hereinafter;

(a) As a hamal, working in the department, the petitioner performs duty of cleaning, sweeping and dusting the floors, furnitures in the design office of the department of Chief Engineer of the Port Trust. Sometime in November, 1986, the respondents purchased a small N.C. Scriber-10 at an estimated cost of Rs. 1 lac for purpose of being used by the Draughtsman working in the office. The said machine used to be kept in the cupboard of Mr. S.M. Naik. On 14th March, 1988, the said machine was used by one Shri Vasta, Draughtsman Grade-II till 4-45 on the drawing table of one Shri Vakilna. It is alleged that Shri Vasta left the machine on the same table and the said machine was not kept in the cupboard by 5-30 p.m. by which time Shri Vasta left his office.

(b) On 15th March, 1988, Shri S.M. Naik attended the office at about 9 Oclock when the petitioner was cleaning the design office. An enquiry was made by Shri Naik from the petitioner as to where was the machine as the machine was believed to be missing. The petitioner informed Shri Naik that the

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