V. P. MOHAN KUMAR, J. ( 1 ) THE petitioner herein challenges the dismissal order passed by the management. The brief facts common in these cases are that the petitioner was working as a supervisor in the management company. It is alleged that he has long service with the company. While so he was charge-sheeted for committing theft and passing of watch parts in order to make wrongful gains. It is alleged that Annexure-C charge-sheet was issued in this behalf to him. A reply was given by the worker which according to the management was not satisfactory. Anenxure-D is the copy of the reply. Thereafter an enquiry was held. Annexure-G is the copy of the enquiry notice. It is further alleged by the worker that the documents relied on against him were not supplied to him. Annexures-F and H are copies of the letters submitted by the worker in this behalf. But nevertheless the enquiry was completed finding him guilty. Annexure-K is the report of the enquiry. In terms of the finding the worker was dismissed from the service on 24-6-1988. Annexure-A1 is the said order. He allegedly challenged the order of dismissed in appeal which was also dismissed by Annexure-A2 order. In the circumstances that the petitioner is not a worker within the meaning of the Industrial Disputes Act he has chosen to file the above writ petition challenging the order of dismissal as also the appellate order. 1. 02 Writ Petition No. 17024 of 1988 the delinquent employee was charge-sheeted in similar circumstance and dismissed after enquiry. The impugned orders are Annexures-A1 and A2. 1. 03 Writ Petition No. 17535 of 1988 the petitioner herein is also placed in similar circumstance. He is also aggrieved by the order of dismissal Annexure-N and the appellate order Annexure-P. ( 2 ) THE sheet anchor of the contention of the petitioners here in is that they did not have a fair opportunity of conducting the case and that the admissions made by them while in police custody was taken into account to find them guilty and that they were handicapped in setting up their defence because of the pendency of criminal case. It is to be noted that prior to the framing of charges, the police conducted a raid of the house of the petitioners. As a result of the raid certain incriminating articles, machinery parts etc. It is to be noted that prior to the framing of charges, the police conducted a raid of the house of the petitioners. As a result of the raid certain incriminating articles, machinery parts etc. , were seized from the residences of the workers. Thereafter they were taken into custody by the police. While they remained in the police custody it is alleged that they contacted the officers of the company and the officers of the company came to the police station. It is alleged that the petitioners gave a statement to them while remaining in police station admitting the guilt. It is alleged by the petitioners that though this document is inadmissible nevertheless that this document has been used by the management to find them guilty of the charges at the enquiry held. According to the petitioners this document cannot be relied upon at all for the short reason that this is a statement made by the workers while they were in the police custody. Secondly, it is contended that unless there is corroboration for each and every circumstances stated by them in the statement to bring home the guilt, this document is totally inadmissible to find them guilty of the charges framed. The further contention is that the enquiry was conducted in an unusual hurry in a short time. It is then contended that in view of the pendency of the criminal case the workers could not have disclosed their case as such disclosure would affect their defence in the criminal case. According to the workers that it would not have been in their interest to disclose the defence and any disclosure would have adversely affected their interest in the criminal case. As such they were not in a position to set up their defence before the Inquiry Officer. Since two parallel proceedings were proceeding simultaneously that is the departmental enquiry as well as the criminal proceedings there was great prejudice caused to the petitioners; it was hence claimed by them that the departmental enquiry ought to have been stopped till the completion of the criminal case. The failure to do so has resulted in substantial prejudice to the petitioners. ( 3 ) I have heard the respective Counsels. The first line of attack is that the enquiry had been conducted with unusual hurry and it has completely denied the petitioners a fair chance to defend. The failure to do so has resulted in substantial prejudice to the petitioners. ( 3 ) I have heard the respective Counsels. The first line of attack is that the enquiry had been conducted with unusual hurry and it has completely denied the petitioners a fair chance to defend. I do not think that this is a sustainable contention. It is seen that the enquiry commenced sometime in October, 1987 and it was completed only by June, 1988. One cannot say that there has been any undue hurry or haste in the matter of completing of enquiry. Charge-sheet was framed against the petitioners. They submitted their reply. There is no case that the officer was biased. The petitioners had opportunity to engage person to represent if need be. Documents were furnished and evidence was led. The arguments were heard and the findings were entered thereafter. One cannot say there was any undue haste in these matters. ( 4 ) SECONDLY it is contended that the statement made by the mat the police station has not been corroborated. I find this contention also is not sustainable in law. As held in 1994-II LLJ 205 (sic), corroboration of such statement is totally unnecessary. This is not a statement given to the Police Officer. This is not a statement given by the petitioners under duress to the police. It may be noted that a raid was conducted in the residence of the workers and certain articles were seized. In pursuance thereto they were taken into custody. Thereafter they voluntarily summoned the officers of the company and they made to them the statement before the Company Officers. Their mind might have been exercised over the incident. That state of the mind was not because they were in the police station. It may be due to their guilt feeling or the bad social stigma cast due to the raid etc. , on the family or for any such other causes. The presence of police or the premises where they made the statement would not at all be a contributing factor to make the statement. Besides, the fact that they say that they made the statement, but in a different situation implies the genuineness of the statement. But all that remains is as to whether the reason ascribed by them is true or not. Besides, the fact that they say that they made the statement, but in a different situation implies the genuineness of the statement. But all that remains is as to whether the reason ascribed by them is true or not. However, much we may strain, it is not possible to hold that the statement made to the Superior Officers were made either under inducement threat or promise. It is not a statement given at the behest of the police or while in the custody of the Police Officers. Therefore this cannot be equated with that of the statement given to the Police Officers as envisaged in the Evidence Act. Hence I overrule the said contention. ( 5 ) IT may also to be adverted to the decision of this Court in the case of Hindustan Aeronautics Limited, Bangalore v K. Shanmugam and Another , wherein it is held that when once a guilt is admitted by the delinquent employee then there is no need for a further corroboration of the allegations and no enquiry is called for. It is stated therein as follows:"14. When the workman himself admitted the guilt, there was nothing for the management to enquire further by leading further evidence. When the admission was there, even non-application of the principles of natural justice will not weigh much". These discussions should dispose off the preliminary contention of the petitioners. ( 6 ) THE main plank of defence of the petitioners is that because of the pendency of the criminal case they could not disclose the real defence to the charges, which resulted in the serious miscarriage of justice. I should confess that this is not at all contention which requires serious scrutiny of the Court. It is to be noted that the criminal case is pending before a different forum. It will not be a case of disclosing the defence, but it is a case where the delinquent is called upon to disclose the truth. By the issuance of the charge-sheet he is called upon to disclose the inquiry Officer the truth about the allegation. In our jurisprudence an accused is presumed to be innocent till it is proved otherwise. Therefore before the Criminal Court also he is presumed to be innocent. If so, there can be no prejudice to him if he comes out with the truth. In our jurisprudence an accused is presumed to be innocent till it is proved otherwise. Therefore before the Criminal Court also he is presumed to be innocent. If so, there can be no prejudice to him if he comes out with the truth. The criminal prosecution or the domestic enquiry is certainly not to be equated with a game of hide and seek. There is no question of finding him guilty of the charges unless and until the allegations are established. In the criminal case, as noted above, the prosecution has to establish with proof beyond doubt, that the accused is guilty of the charges, whereas the preponderance of evidence in favour of the guilt is sufficient to conclude the charges in a domestic enquiry. It is also to be noted that the charge against the worker was that he was found having custody of the equipments manufactured by the employer. The charge was that his attempt was to sell the same for making unlawful gain. In such circumstances in strict sense it is not a question of theft that is being enquired into and proceeded against. The question is as to whether the explanation now offered by the worker explaining as to how he came into custody of these equipments is believable or not. An explanation in this behalf is called for in the domestic enquiry. The disclosure of his explanation will not in any way affect the proceeding in the criminal case. In the criminal case as also in the departmental enquiry the onus is on the prosecution to establish the proof of the commission of the offence but in the departmental enquiry the delinquent officer has also to show that his explanation is true as well. The fact that a criminal case is pending cannot be used as a shield by the delinquent. To repeat, in a criminal case as also in a departmental enquiry the prosecution establishes the guilt of the accused primarily to award any punishment. But in the departmental enquiry he has also to show that his defence is true. If so, it cannot be said the delinquent is disclosing the defence to his prejudice if he answers the show-cause notice. The fact that he withholds information by not disclosing his defence in the departmental enquiry will only act to his own detriment and will not in any way advance his case. If so, it cannot be said the delinquent is disclosing the defence to his prejudice if he answers the show-cause notice. The fact that he withholds information by not disclosing his defence in the departmental enquiry will only act to his own detriment and will not in any way advance his case. It is also settled law that even if the criminal Court finds the delinquent as not guilty of the charges, nevertheless a departmental enquiry can be proceeded against with respect to the selfsame allegations. There can be no bar in both proceedings proceeding simultaneously. This question was considered by the Supreme Court in Delhi Cloth and General mills Limited v Kushal Bhan, as also in Tata Oil Mills company Limited v The Workmen. This question was re-examined in Kusheshwar Dubey v M/s. Bharat Coking Coal limited and Others, and it was stated as hereunder:"6. The view expressed in the three cases of this Court seem to support the position that while there could be no legal bar for simultaneous proceedings being taken, yet, there may be cases where it would be appropriate to defer disciplinary proceedings awaiting disposal of the criminal case. In the later class of cases it would be open to the delinquent employee to seek such an order of stay or injunction from the Court. Whether in the facts and circumstances of a particular case there should or should not be such simultaneity of the proceedings would then receive judicial consideration and the Court will decide in the given circumstances of a particular case as to whether the disciplinary proceedings should be interdicted, pending criminal trial. As we have already stated that it is neither possible nor advisable to evolve a hard and fast, straightjacket formula valid for all cases and of general application without regard to the particularities of the individual situation. For the disposal of the present case, we do not think it necessary to say anything more, particularly when we do not intend to lay down any general guideline". Again the Supreme Court stated thus in the case of K. Veeraswami v Union of India and Others. ". . . . If prosecuted in a Criminal Court he may be punished by way of imprisonment or fine or with both but in departmental enquiry, the highest penalty that could be imposed on him is dismissal. Again the Supreme Court stated thus in the case of K. Veeraswami v Union of India and Others. ". . . . If prosecuted in a Criminal Court he may be punished by way of imprisonment or fine or with both but in departmental enquiry, the highest penalty that could be imposed on him is dismissal. The Competent Authority may either allow the prosecution to go on in a Court of law or subject him to departmental enquiry or subject him to both concurrently or consecutively. It is not objectionable to initiate criminal proceedings against public servant before exhausting the disciplinary proceedings, and a fortiori, the prosecution of a Judge for criminal misconduct before his removal by Parliament for proved misbehaviour is unobjectionable". It is thus clear that there can be no legal bar if the proceedings proceeded simultaneously. If the simultaneity of the proceedings will cause any prejudice in any manner to the delinquent worker he could seek to stay one of the proceedings. If he does not do so, the legal presumption would be that he has no prejudice. If he has no prejudice, it was incumbent on him to defend his case and if he fails to do so, whatever consequence should befall, will fall on him in the domestic enquiry. ( 7 ) IN this case the charge-sheet has been framed. The petitioner was called upon to submit the reply. There is no case that the Enquiry Officer was biased. The worker did not want representation. He was furnished with all documents. He was given an opportunity to lead evidence and after hearing by the enquiry Officer a finding was entered thereafter. The petitioners do not state as to how they were prejudiced. They do not state as to which defence if disclosed would have prejudiced them in the criminal trial. They do not want to share this information with the Court even now. As stated by the Supreme Court the petitioner should disclose this distinguishing fact before the court to enable the Court to find out whether any prejudice has been caused to them. They have not done so. In such circumstances, it cannot be said that there has been an unfair enquiry before the Inquiry Officer to find out the truth of the charge. They have not done so. In such circumstances, it cannot be said that there has been an unfair enquiry before the Inquiry Officer to find out the truth of the charge. ( 8 ) BUT if we examine the question in all its magnitude we find that the petitioners have been found guilty of the charges mainly on the basis of the statement given by them to the officer of the company in the police station. No doubt it is free and voluntary; but all the same one cannot forget that it was given in the police station. A raid was conducted in their houses and they were taken into custody and brought to the police station. They are, it is given to understand, the officers having long standing in the company and living with their families in the colony where their houses were. A sudden raid and taking them into police custody would have certainly cast a gloom all around and particularly in their mind. The humiliation that they would have suffered would have influenced them to make the statement much more than any sense of guilt. Their mental frame would have been such that they would have adopted any course that may restore their status and reputation as nearly as that they had occupied. The reward of retrieving of the lost situation in life might have influenced them to make the statement. Though in strict legal sense these statements do not require any corroboration, and that is proof itself, the management ought to have led some evidence to prima fade sustain the admission in the statement. This is a lacuna which may vitiate the proceedings initiated by the management. ( 9 ) WE will now advert to the alleged statement made by petitioners which the management states completely proves the guilt. The statement given by the petitioners in Writ Petition no. 16952 of 1988 reads thus:"i joined the Hindustan Machine Tools Watch Factory in the year 1972. I became a junior supervisor in the year 1984 and working in P. P. C. Unit Assembly. From May to july 1985, I gave about thirty numbers of rejected Sona bezels to Sri J. Sammual (Unit Assembly) for which I was paid rupees two hundred by Sri J. Sammual. I became a junior supervisor in the year 1984 and working in P. P. C. Unit Assembly. From May to july 1985, I gave about thirty numbers of rejected Sona bezels to Sri J. Sammual (Unit Assembly) for which I was paid rupees two hundred by Sri J. Sammual. I was acted as such because Sri J. Sammual compelled me to do so, he took away the above components without my knowledge I have nothing to state further to which I have stated above". This statement is taken as implicating the petitioners as also the petitioners in Writ Petition No. 17535 of 1988. The statement of the said petitioners is as follows:"i, J. Sammual is working as a junior supervisor during the last ten years in Case and Dial Section of Hindustan Machine tools Watch Factory, Sri Venkatesh, supervisor in p. P. C. issued to give me at least once in a month Sona bezels one or two in numbers, for which I used to pay money to home in the last two years. About three months before Sri R. L. Prasad ah employee of P. C. C. (C and 0) handed over me Nutan bezels twelve in numbers in exchange for money. Then I was selling these parts and components to one Sri Kanthi, residing at Balepet at bangalore. I come into contact with Sri Kanthi since last two years. Though I do not exactly remember the quantum of components in watch parts, I had supplied to Sri Kanthi, i may have received about one thousand five hundred rupees as consideration amount. Further I do not want to add anything". The statement given by him was in Tamil which is translated into English and signed by him. The statement implicates the petitioner in Writ Petition No. 16942 of 1988. The next statement is that of the petitioner in Writ Petition No. 17024 of 1988 which reads as follows:"i joined the Hindustan Machine Tools Watch Factory in tool Room II in the year 1962. I become a supervisor in tool Room II in the year 1980. During the period from 1980 to 1982 I have carried watch components such as watch cases about 1000 or 2000 (one thousand or two thousand in numbers) and handed over them to one Sri Dada (watch repairer) residing at Yeshwanthpur for money at the rate of rupees fifty to fifty five for each case. During the period from 1980 to 1982 I have carried watch components such as watch cases about 1000 or 2000 (one thousand or two thousand in numbers) and handed over them to one Sri Dada (watch repairer) residing at Yeshwanthpur for money at the rate of rupees fifty to fifty five for each case. During the same period I have also sold about one thousand rejected watch cases to one watch repairer by name Sri Purushotham, residing at Chitradurga Town (Karnataka), I sold the above components at the rate of 40 to 50 rupees per case. During the last month Sri R. L. Prasad an employee of P. P. C. in (C and D) gave me about 20 (twenty) pieces of gold plated Kanchan bezels, which I sold to Sri khaja a watch repairer residing, at Yeshwanthpur at the rate of rupees sixty per piece. Last week Sri Aswatha narayana from P. P. C. handed over me ten pieces of kanchan bezels (with back cover) out of which 3 were serep, which I discarded and the remaining seven pieces sold to Sri Khaja at the rate of Rs. 60/ -. Payment for the ten Kanchan cases he gave me last week. Further Sri R. L. Prasad also supplied me during the last month (August 1987) ten to fifteen numbers of Kanchan dials and about two thousand numbers of Kanchan hands. The above components were also sold by me to Sri Khaja at the rate of 20 or 22 per dial and about Rs. 300/- for entire quality of hands. I gave Sri R. L. Prasad an amount of Rs. 600/- for the components he gave me during the month of august 1987, as stated earlier. I have nothing to add further to above statements. The above statements was made in Kannada by Sri Puttaswamy, which was recorded in english and read over to the deponents correctly". This was in Kannada and later translated into English. No doubt, the delinquents later disowned the statement before the criminal Court by filing an affidavit stating that they had merely signed blank papers which was later converted into a statement the alleged ones referred to above. ( 10 ) THE first statement above shows that the officer was not awilling party but was compelled to be so. This may be or may not be true. ( 10 ) THE first statement above shows that the officer was not awilling party but was compelled to be so. This may be or may not be true. This part of the statement requires enquiry and a finding. As far as the other two statements are concerned they were not in English but in some other language. It requires proof that the contents of the statement in the other language is identical to what is reproduced in English. It has also to be established that there was no addition or deletion. ( 11 ) WHILE considering the implication of the statement we should advert to the background of the case as well. The houses of the delinquents were raided and they were taken into custody and were being detained in the police station. They should be ware of the fact that whatever consequences should befall on them will take place irrespective of the fact that they make a statement or not. The raid has not been conducted by the police of its own accord. It was done at the instance of the company. Therefore there would have been some other strong compelling reason that prevailed with the delinquents to make the statement, assuming that the statement is true. It may be due to a desire entertained by the delinquent to buy freedom and to exonerate the statement maker. But one distinguishing feature is that the statements indicate that the alleged stolen articles have been passed on to an outside agency. May be, the management was anxious to locate the destination of the stolen articles and in that process to nab that outside agency as well. These statements of the delinquent officers might have furnished materials for them to so act. Now when we advert to the enquiry conducted by the Inquiry Officer we find that the inquiry Officer has not considered the defence of the delinquents at all. He has in fact adopted an 'arm-chair' approach to the whole issue. This is clear from the following statement in his report (vide Writ Petition No. 17024 of 1988 ). "if a few only were identified, there must be something more than meets the eye. In any aspect of life, it is the thought or principle that is more important than the act itself. The act itself may not be consummated for various reasons. "if a few only were identified, there must be something more than meets the eye. In any aspect of life, it is the thought or principle that is more important than the act itself. The act itself may not be consummated for various reasons. But the fact remains that the mind was inclined to do so. Mens rea is the crucial thing. In the instant case, there is every reason to believe that the charge-sheeted employee was out to make a wrongful gain for himself. And he is thus guilty of the misconduct of theft, fraud or dishonesty in connection with company's property. And such act is certaining subversive of discipline in the establishment. In conclusion, the charges stand proved. The charge-sheeted employee is guilty of the charge levelled against him". The last three paragraphs extracted above finds place in the enquiry report in all other cases as well. The allegation made against the delinquents being very serious, this ought not to have been the approach by the Inquiry Officer to this case. He should have remembered that he is the primary fact finding body on whose report everything depends. He has to enter a finding on the facts. Unfortunately he overlooked the aspect completely. The impugned order of the Disciplinary Authority also do not discuss in any manner the merits or the demerits of the defence of the delinquents. The report of the Enquiry Officer was forwarded to the delinquents by the Disciplinary Authority with a cryptic covering letter proposing the quantum of punishment intended to be imposed. A detailed reply was submitted by the delinquent meeting out all the allegations made in the report. Thereafter the contentions of the delinquents have been dealt with in the following manner by the Disciplinary Authority. "examining all aspects of the case and taking into consideration the gravity of misconduct, past record and other extenuating circumstances and also keeping in view of the vital interests of the organisation it has been decided to confirm the proposed punishment viz. . . . ". An appeal was filed and this also met with a similar fate. The following statement discloses as to what influenced the Appellate authority to confirm the punishment (vide Writ Petition No. 16942 of 1988 ). "it is not true that your services were terminated on a false allegation of your involvement in a theft case. . . . ". An appeal was filed and this also met with a similar fate. The following statement discloses as to what influenced the Appellate authority to confirm the punishment (vide Writ Petition No. 16942 of 1988 ). "it is not true that your services were terminated on a false allegation of your involvement in a theft case. It is based on your own voluntary admission that you were receiving and passing watch parts and components manufactured in the factory among others, to Sri J. Sammual, Ex. T. No. 11271, supervisor for various of money without authority or permission". Similar circumstances are relied on in the other two cases as well. It is unfortunate that these authorities did not consider the defence of the delinquent on its merits. Since the delinquents have disputed the genuineness of the statement the authorities do not even advert to the contention and enter a finding in this behalf which is elementary. ( 12 ) THESE disclose that there has not been any application of the mind either by the Disciplinary Authority or by the appellate Authority. May be the defence case may not be acceptable or true. All the same it requires a serious consideration at the hands of the Disciplinary Authority. It cannot simply record the cyclostyled statement that the defence has been considered. It should disclose as to how it came to the conclusion as to why it finds that the defence offered is not acceptable and further as to what circumstances prevailed with it to impose the extreme punishment of dismissal. The impugned order does not disclose as to any of these requirements. The appellate Authority has not made any attempt to improve the situation. In such circumstances the contentions of the delinquent that he has been punished unheard may not be a far cry. It has to be upheld. ( 13 ) THE Inquiry Officer did not shift the evidence and ascertain the veracity of the defence. The Disciplinary Authority was in fact carried away by the findings of the Inquiry Officer without adverting to the question as to how it arrived at those findings. The Appellate Authority relied on the so called statement made by the delinquent. None of them have delved into the defence plea and either accepted or rejected the same after adverting to all aspects of the plea. The Appellate Authority relied on the so called statement made by the delinquent. None of them have delved into the defence plea and either accepted or rejected the same after adverting to all aspects of the plea. Unless it is factually done and such exercise is reflected in the order, a mere statement in the impugned order that it has been done will not substitute that requirement or satisfy the said requirement. Justice has not been meted out the delinquent at the appropriate stage when it should have been extended. It is like from Caesar to Caesar. ( 14 ) THE consequential fall out of the above finding would be to set aside the order of dismissal and direct the reconsideration of the matter afresh. But, it may not take us anywhere as the management has in clear terms expressed that they have lost confidence in these employees. Whatever explanation be offered explaining the statement made by the employees which was relied on by the management one cannot find fault with the management if they believed that it contained some shreds of truth. It may be hence that they stated that they have lost confidence in these employees. In view of all these that has transpired it can hardly be stated that the management is not justified in stating so as well. If so even if the matter is remitted back for fresh disposal the employees may not earn an order of reinstatement. This Court cannot order reinstatement of the employees even if the order of dismissal is totally illegal. In such circumstances no purpose will be served by directing a fresh disposal of the appeal. It will be a mere prolongation of agony. It will benefit none. Perhaps this may be a case where proper relief would be warded of monetary compensation. ( 15 ) AS noted earlier the dismissal order has been passed by the authorities without applying their mind and without considering the case of the petitioners as required by law. Hence they can claim to have been relegated to the status as if their contract of employment still subsists and initiate fresh proceedings for consequential monetary relief. As this Court is not directing a fresh consideration of the case of the employees by the employer, the employers cannot be conferred with such a right. Hence they can claim to have been relegated to the status as if their contract of employment still subsists and initiate fresh proceedings for consequential monetary relief. As this Court is not directing a fresh consideration of the case of the employees by the employer, the employers cannot be conferred with such a right. Hence ends of justice will be met if in lieu of the said relief the delinquents are awarded compensation. The petitioners will hence be awarded compensation lieu of their claim for reinstatement and consequential relief a sum reckoned at the rate of one month's salary for every completed year of service, the rate of salary being the last drawn salary. The petitioners will be entitled to claim the same till the date of the above judgment. Whatever amount that is paid to workers in the course of this proceeding will be set-off from the amount due as quantified above and the balance amount alone will be paid to them. They will also be entitled to claim whatever statutory contribution they might have made while in service and which is lying to their credit. The petitioners are not entitled to claim any interest. The writ petitions are disposed of as above. No costs. --- *** --- .