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2002 DIGILAW 343 (KAR)

YESUPADAM M. v. BHARAT GOLD MINES LTD.

2002-06-03

K.BHAKTHAVATSALA, KUMAR RAJARATNAM

body2002
KUMAR RAJARATNAM, J. ( 1 ) THIS is a workman's writ appeal. ( 2 ) THE facts very briefly are the appellant was employed as a driver in the Bharat Gold mines Limited respondent herein. He was charge-sheeted on the allegation that he had unauthorisedly entered into the prohibited working place and was in unauthorised possession of a machine belonging to the company and that on March 1, 1995 (sic) the appellant broke open the ventilator AC sheet and committed theft of one 5 H. P. pump motor valued about Rs. 3500. 00. The motor was ultimately recovered by the police from the house of the appellant. After enquriy, the Enquiry Officer found him guilty of all the charges. The appellant was served with a show cause notice with regard to the proposed punishment. Ultimately the appellant was dismissed from service. ( 3 ) AGGRIEVED by the order of dismissal the appellant raised a dispute before the Industrial tribunal. The Tribunal by an order dated April 7, 1998 held that there was no infirmity in the enquiry and the procedure adopted was in accordance with the principles of natural justice. ( 4 ) THE Labour Court on a preliminary issue held that the domestic enquiry was fair and proper. The Labour Court on reappraisal of the evidence held that the charges against the appellant of unauthorised entry into the prohibited area was not proved; however, held that the charge of theft was proved and the order of dismissal was held to be not disproportionate to the charge. ( 5 ) AGGRIEVED by the order of the Labour court the petitioner unsuccessfully preferred a writ Petition. The Writ appeal arises out of the order passed by the learned single Judge dismissing the Writ Petition. ( 6 ) DURING the pendency of the writ appeal taking into account the facts and circumstances of the case this Court directed the gratuity and provident fund contribution made by the appellant to be paid to the appellant. ( 7 ) MR. Subba Rao, the learned senior counsel for the appellant submitted that the appellant was prosecuted by the management in a criminal case on the very same charge and he was acquitted by the Trial Court. He further submitted that there cannot be two inconsistent decisions on the proof of guilt of the appellant. ( 7 ) MR. Subba Rao, the learned senior counsel for the appellant submitted that the appellant was prosecuted by the management in a criminal case on the very same charge and he was acquitted by the Trial Court. He further submitted that there cannot be two inconsistent decisions on the proof of guilt of the appellant. It was further submitted that the appellant did not have any proper opportunity to defend himself and was not given an opportunity to take the assistance of a lawyer. It was further submitted that the management witnesses were not examined one after the other but they were jointly examined. The other contention raised by the counsel for the appellant was that the enquiry Officer was biased as he himself cross examined the witnesses. It was further submitted that the Labour Court did not consider the case by giving a lesser punishment as the punishment was totally disproportionate with the charge. In other words it was submitted by Mr. Subba Rao that Section 11-A of the I. D. Act was not properly exercised by the Labour Court. ( 8 ) IT is settled law that the standard of proof required in a criminal case is different from the standard of proof required in a domestic enquiry. A Division Bench of this court in Mysore Paper Mills Limited v. G. Shekar @ Gyana Shekharan, 2002-II-LLJ-235 has held that acquittal of an employee in a criminal case on an identical charge will not be automatically binding in a domestic enquiry. All that is required in a domestic enquiry is that it should be fair, reasonable and in conformity with the principles of natural justice. ( 9 ) THE learned counsel for the appellant relied on a judgment of the Supreme Court reported in AIR 1999 SC 1416 : 1999 (3) SCC 679 : 1999-I-LLJ-1094 (Paul Anthony case ). The Supreme Court held that the witnesses examined by the Enquiry Officer were the same witnesses that were examined in the criminal trial and if that be so if the accused is acquitted in the criminal trial that would have same bearing on the domestic enquiry. However, this was a case where the delinquent did not participate in the domestic enquiry and the departmental enquiry dragged on for a considerable period. However, this was a case where the delinquent did not participate in the domestic enquiry and the departmental enquiry dragged on for a considerable period. The Supreme Court in paul Anthony's case also pronounced that the standard of proof in a criminal case is not the same standard of proof in a domestic enquiry, while in the departmental proceedings the standard of proof is one of preponderance of the probabilities. On the other hand in a criminal case the charge has to be proved by the prosecution beyond reasonable doubt. As pronounced by the Supreme Court it ultimately depends on the facts of each case. ( 10 ) IN this case, admittedly, the appellant was found in possession of the stolen article at the time of the raid. It is also not in doubt that the appellant was given full opportunity to defend himself in the domestic enquiry. Factual findings recorded by the Tribunal cannot be interfered with unless such findings are perverse or based on no evidence. The supreme Court in Indian Overseas Bank v. IOB staff Canteen Workers Union and Another AIR 2000 SC 1508 : 2000 (4) SCC 245 : 2001-I- llj-1618 has held as follows atp. 1630 of LLJ:"21. The learned single Judge seems to have not only overlooked certain relevant material but by adopting a negative approach had belittled the relevance and importance of several vital and important factual aspects brought on record. If on the facts proved, the findings recorded by the tribunal are justified and could not be considered to be based upon no evidence, there is no justification for the High Court in exercising writ jurisdiction to interfere with the same. " ( 11 ) IN these circumstances, there is no merit in the writ appeal. ( 12 ) HOWEVER, in the facts and circumstances of the case, the management is directed to disburse the employer's share of provident fund and gratuity to the appellant, if still with the management, within six weeks from the date of receipt of this order. The writ appeal is disposed of accordingly. No costs. --- *** --- .