Research › Search › Judgment

Uttarakhand High Court · body

2005 DIGILAW 212 (UTT)

RAGHUVAR DUTT PALARIA v. H. M. T. LTD. , NAINITAL

2005-06-20

M.M.GHILDIYAL

body2005
( 1 ) HEARD Sri Lalit Belwal, learned counsel for the petitioner and Sri V. K. Bisht, learned senior counsel assisted by Sri A. Chatterji, learned counsel for the respondents. ( 2 ) BY means of this writ petition, the petitioner has prayed to issue a writ in the nature of certiorari quashing the order dated june 10, 1999 passed by the respondent No. 1 by which the petitioner has been dismissed from his services. The petitioner has further prayed to issue a writ in the nature of mandamus commanding the respondents not to give effect to the dismissal order dated June 10, 1999. ( 3 ) THE facts, in brief, are that the petitioner was appointed as Peon/class-IV employee with the respondent's establishments in the year 1985 and worked till February, 1997. A F. I. R. was lodged by the respondent against the petitioner on February 20, 1997 under Sections 457, 380, 411, I. P. C. Thereafter, on March 3, 1997 the petitioner was suspended for his alleged involvement of theft of H. M. T. parts against which the petitioner submitted his explanation. Following two charges were framed against the petitioner:1. Theft, fraud or dishonesty in connection with company's property; 2. Detention in police custody/judicial custody for more than 48 hrs. having committed offence under Indian Penal Code punishable under Cr. P. C. ( 4 ) AN Enquiry Officer was appointed for conducting the enquiry. On May 24, 1999 a show cause notice was issued by the respondents to which the petitioner replied on may 29, 1999, but without considering the explanation submitted by the petitioner, the respondents have dismissed the petitioner on june 10, 1999 from his services. ( 5 ) THE respondents in their counter affidavit have denied the averments made in the writ petition and submitted that the petitioner was a casual labour in the company. The police has arrested the petitioner along with the stolen goods for which recovery was made from the petitioner. The petitioner was confined in the jail for more than 48 hrs. for the charges of theft and recovery of stolen goods, therefore, the order of dismissal was passed. The petitioner has alternative remedy under the industrial Disputes Act, hence the writ petition deserves to be dismissed on this ground alone. The petitioner was confined in the jail for more than 48 hrs. for the charges of theft and recovery of stolen goods, therefore, the order of dismissal was passed. The petitioner has alternative remedy under the industrial Disputes Act, hence the writ petition deserves to be dismissed on this ground alone. ( 6 ) IN his rejoinder affidavit, the petitioner has submitted that the petitioner was taken by the police authority on February 22, 1997 from the factory's gate No. 1 saying that some enquiry has to be done, but after reaching at the police station, the petitioner was taken into custody and was produced before Judicial magistrate on February 26, 1997. The petitioner ought to have been produced in the court on February 23, 1997, but the petitioner was kept in the lock-up without showing any reason of his arrest. Recovery of the stolen goods has been denied by the petitioner. It has further contended that Sri R. S. Bhandari, on whose instance the alleged recovery have been made, has made statement that he was compelled to make statement against his wish. ( 7 ) IN the supplementary affidavit filed by the petitioner in this Court on December 23, 2004, It has been further submitted that the petitioner has been acquitted, by the trial Court on September 25, 2004 for his alleged involvement in the offence under Sections 457, 380, 411, I. P. C. holding that the petitioner was falsely implicated in the case. ( 8 ) LEARNED counsel for the petitioner has placed reliance on the judgment of Hon'ble apex Court in the case of Capt. M. Paul anthony v. Bharat Gold Mines Ltd. and another, reported in AIR 1999 SC 1416 : 1999 (3) SCC 679 : 1999-I-LLJ-1094 wherein the Hon'ble supreme Court has held that when both the proceedings i. e. the departmental proceedings and the criminal proceedings are based on the same set of facts which were sought to be proved by the same witnesses and the Court had already acquitted the accused by rejecting the prosecution story, the findings recorded against the petitioner in an ex-parte disciplinary enquiry could not be sustained. In the present case, the petitioner has been acquitted by the court on September 25, 2004 and the Chief judicial Magistrate has held that the petitioner was falsely implicated in this case. In the present case, the petitioner has been acquitted by the court on September 25, 2004 and the Chief judicial Magistrate has held that the petitioner was falsely implicated in this case. ( 9 ) THE above cited authority can be distinguished in the way that in the case of capt. M. Paul Anthony (supra) the findings of the Inquiry Officer in disciplinary enquiry was an ex parte proceeding whereas in the present case the petitioner was given opportunity in the proceeding and was not conducted as an ex parte proceeding. ( 10 ) LEARNED counsel for the respondents has submitted that in the present case, the petitioner was dismissed from services on June 10,1999, whereas the trial Court has acquitted the petitioner much after the dismissal order i. e. on September 25, 2004, in the case of Capt. M. Paul Anthony (supra), the judgment in the criminal case was pronounced on February 3, 1987 acquitting the accused with the categorical finding that the prosecution has failed to establish its case. The judgment was communicated by the accused/employee to the respondents on February 12, 1987 with the request that he may be reinstated but the respondents vide its letter dated March 3, 1987 rejected the request on the ground that he was already been dismissed from services on completion of the enquiry which was conducted independently from the criminal case and, therefore, the judgment by the Magistrate was of no consequence. In the present case, the petitioner was dismissed from his services on june 10, 1999. The judgment in the criminal court was pronounced on December 23, 2004 acquitting the petitioner with the categorical finding that the prosecution has failed to establish its case and the petitioner has been falsely implicated. It is true that the departmental proceedings as well as the criminal case were in continuance, simultaneously but when both the proceedings were based on the same set of facts, which were sought to be proved by the same witnesses, the departmental proceedings should have been stayed till the result of the criminal case. It is very much relevant that when the criminal court has acquitted the petitioner giving categorical findings that he was falsely implicated and the witnesses before the criminal Court as well as in the departmental proceedings were same, the petitioner deserves for reinstatement. It is very much relevant that when the criminal court has acquitted the petitioner giving categorical findings that he was falsely implicated and the witnesses before the criminal Court as well as in the departmental proceedings were same, the petitioner deserves for reinstatement. It is also surprising that in the departmental enquiry, the Enquiry Officer has conclusively held as under:"although there is no direct evidence of theft committed by Sri R. D. Palaria from h. M. T. Watch Factory but it is deemed to exist on account of indirect evidence. " ( 11 ) AFTER recording conclusive findings, he undertook the concept that the charge of theft against the petitioner has been proved. On one hand, the Enquiry Officer has held that there is no direct evidence against the petitioner but at the same time he has held that the charge has been proved. The main witness in both the proceedings i. e. the departmental proceedings vis-a- vis the criminal proceedings, was Mr. Bhandari who has also deposed before the enquiry Officer that he was threatened by the management to make statements against the petitioner. The trial Court has also found that the petitioner was falsely implicated in the case and there is no proof which could show that he was involved in the theft. The Enquiry Officer has relied upon the paper cuttings published in the newspaper that the petitioner was apprehended by the police on February 25, 1997 along with jewels amounting to Rs. 2,000/- which were recovered from his custody, whereas the trial Court has held that no recovery was made from the petitioner and the prosecution has failed to prove the guilt of petitioner's involvement in the theft. ( 12 ) AS already stated above, the only relevant witness was one Mr. Bhandari, whose statements were also dealt with by the trial court as also by the Enquiry Officer. This witness has filed an affidavit before the Enquiry officer pointing out therein that he was threatened to make statement against the petitioner. Ignoring this categorical statement and also even after recording the factual findings that there is no direct evidence of theft against the petitioner, the Enquiry Officer has erred in holding that the charges levelled against the petitioner are proved. ( 13 ) I find force in the submissions made by learned counsel for the petitioner. Ignoring this categorical statement and also even after recording the factual findings that there is no direct evidence of theft against the petitioner, the Enquiry Officer has erred in holding that the charges levelled against the petitioner are proved. ( 13 ) I find force in the submissions made by learned counsel for the petitioner. It is not disputed that both the proceedings were based on the same set of facts which were sought to be proved by the same witnesses and since the petitioner has already been acquitted by the trial court, the order of Punishing Authority, dismissing the petitioner from services, is liable to be quashed. Since the petitioner has not worked with the department after dismissal of his services on June 10, 1999, it is in the interest of justice to direct the respondents to pay the petitioner 1/3rd of salary due to him from the date of his dismissal till he is reinstated. ( 14 ) ACCORDINGLY the writ petition is allowed. The impugned order dated June 10, 1999 passed by the respondent No. 1, is hereby quashed. The respondents are directed to pay the petitioner l/3rd of salary due to him from the date of his dismissal till he is reinstated. No order as to costs. --- *** --- .