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2009 DIGILAW 344 (PAT)

Birendra Mishra v. State of Bihar

2009-02-28

body2009
ORDER 1. Petitioner seeks quashing of the order of his dismissal/discharge from service dated 31.12.1997 (Annexure-12) as well as the order of dismissal of his appeal dated 16.1.2001 (Annexure-14). 2. Petitioner was the erstwhile employee of the respondent Bihar State Road Transport Corporation. Based on a written report dated 12.4.1990 of the then Depot Superintendent of Saharsa, two proceedings were initiated, one was lodging of a first information report against the petitioner for assault and battery. A departmental proceeding was also initiated for the misconduct of assaulting the then Depot Superintendent, namely, Deo Nandan Prasad Singh. The incident was supposed to be on a dispute relating to payment of salary for a particular month, about which the employees of the respondents were aggrieved and agitated about. Petitioner was supposed to be an office bearer of the recognized trade union and he does not deny that he raised serious grievances with regard to non-payment of the salary of the employees at the relevant time. There was a strike also in this regard and an agreement was reached and the matter was sorted out. When things died down, the respondents not only filed a criminal case against the petitioner but also initiated a departmental proceeding. 3. There is no dispute that the criminal case ended in acquittal as no evidence was led against the petitioner, which could lead to his conviction for the charges leveled against him. Further, in the departmental proceeding, based on the so-called enquiry, the disciplinary authority, namely, the Managing Director, passed an order of discharge. Petitioner's effort to beget relief from the appellate authority also failed because the order of the Managing Director was upheld by the Chairman. It is in this background that the present writ application has been filed challenging both the orders. 4. Learned senior counsel appearing on behalf of the petitioner submits that it is a case of no evidence because a look at the enquiry report or the way the enquiry was conducted would show that except for the statement made by the Depot Superintendent, namely, Deo Nandan Prasad Singh no other witness supported the allegations or the incident. Merely on the statement of Deo Nandan Prasad Singh, the Managing Director has ended up holding the petitioner guilty, and passing the drastic order of discharge, which has been upheld even by the appellate authority. Merely on the statement of Deo Nandan Prasad Singh, the Managing Director has ended up holding the petitioner guilty, and passing the drastic order of discharge, which has been upheld even by the appellate authority. Learned senior counsel appearing on behalf of the petitioner also submits that even for the sake of argument, if the evidence of the sole witness is read with due dispassion then the respondents had not succeeded in making out a case of the serious nature where an order of punishment could be imposed much less an order of dismissal/discharge. 5. To verify the assertion as well as the emphatic stand taken with regard to enquiry, the evidence and the way it has been conducted the Court directed the respondents to produce the original file relating to the domestic enquiry. After due perusal of the same there seems to be substance in the submission made on behalf of the petitioner that except for the evidence of the then Depot Superintendent there is no other evidence against the petitioner. Even the evidence of the Depot Superintendent is not corroborated by any other evidence which can conclusively lead to the conclusion that the petitioner is guilty of the charge leveled against him. The Court was not impressed or persuaded by the fact that the petitioner had been acquitted in the criminal trial because the ambit and the scope of the two are totally different, but even in a domestic enquiry a finding of guilt cannot be recorded on the basis of evidence of an individual, which is not corroborated/supported by any other witness or material. Allowing the disciplinary authority to pass an order having serious consequence for the petitioner cannot be allowed to be sustained, moreso, when the disciplinary authority as well as the appellate authority seems to have been swayed by the fact that the Depot Superintendent was too high a person whose statement cannot be overlooked or ignored. 6. Learned counsel representing the respondents submits that an employee can be held guilty even on the basis of single evidence. The statement has been made by the Depot Superintendent on whose complaint proceeding had been initiated and he has narrated the incident which led to drawing of the charge against the petitioner and holding of a departmental enquiry. 6. Learned counsel representing the respondents submits that an employee can be held guilty even on the basis of single evidence. The statement has been made by the Depot Superintendent on whose complaint proceeding had been initiated and he has narrated the incident which led to drawing of the charge against the petitioner and holding of a departmental enquiry. But it is not disputed by him that there are no other evidence coming forth in the matter as would be evident from a look at the records of the domestic enquiry. 7. It was also urged at the Bar by learned counsel for the respondents that the present writ application ought not to be maintained because the petitioner has statutory remedy available under the Industrial Disputes Act. The Court does not dispute the provision of law in this regard, but keeping in mind that the matter relates to the year 1990 and the order of dismissal came to be passed in 2001, which was immediately challenged by filing the present writ application in the year 2001 and is being finally heard and decided in the year 2009, it will be unfair to the petitioner to relegate him to the Labour Court or none suit him for existence of an alternative remedy. 8. The question for the Court, therefore, is whether the so-called evidence of the Depot Superintendent not corroborated by any other independent witness or supporting evidence can be used for terminating the services of an employee. The Court has certain difficulty in upholding the orders looking at the material and the reasoning assigned in both the orders passed by the disciplinary authority as well as the appellate authority. The material and the evidence not being sufficient, it is difficult for this Court to record a finding of guilt against the petitioner. In view of the same the order dated 31.12.1997 and 16.1.2001 contained respectively in Annexures-12 and 14 is hereby quashed. The writ application is allowed. The respondents are directed to reinstate the petitioner if he has not attainted the age of superannuation. Needless to say that the petitioner would be entitled to all the benefits as if the order of discharge/dismissal was never passed against him. 9. The writ application stands allowed.