9911796707
TMI Blog2009 (3) TMI 916X X X X Extracts X X X X X X X X Extracts X X X X ..... sheet was served on the appellant alleging that he has1 committed misconduct. The misconduct related to an incident that had allegedly taken place on July 8, 1987. It was alleged that the appellant unauthorizedly took a vehicle belonging to the, employer, parked it at a place at which he was not authorised to park it and he did so to abate the commission of theft of the property of the Trust. After completion of the Departmental Enquiry, the Enquiry Officer submitted report, holding that the charge has been proved against the appellant. The Disciplinary Authority imposed punishment of dismissal on the appellant. The Appeal preferred before the Appellate Authority as also the Review Petition filed did not succeed. Ultimately, the Industrial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment of the Tribunal denying back-wages. 5. At the outset, we must note that the learned Counsel appearing for the Board has conceded before us that the evidence which was tendered in Departmental Enquiry and the evidence which was tendered in criminal prosecution was the same. After going through the judgment of the criminal Court and the charges levelled in the Departmental Enquiry against the appellant, we find that there is no substance in the submission of the learned Counsel appearing for the Board that the charges in the departmental Enquiry and the criminal trial were different. We find that the charges have been framed in the departmental enquiry and the criminal trial on the basis of the same incident and that the principal c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion both were based on the same incident. The charges framed are also similar. On behalf of the Board it is conceded that the evidence in both the departmental enquiry and the criminal prosecution was the same. In this background, we have to see the judgment of the Supreme Court in the case of M. Paul Anthony (Capt) v. Bharat Gold Mines Ltd. and Anr. (supra). In our opinion, the observations made by the Supreme Court in Paragraph No. 34 and 35 of that judgment are relevant for the present case, Which read as under : 1999-I-LLJ-1094 at p. 2 1103: 34. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the 4 criminal case as also the departmental proceedings were based on identical set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se on the basis of approach and burden of proof would not be applicable to the instant case. Reading of the above quoted observations shows that in case all the facts and the evidence in both the proceedings, namely, the departmental enquiry and the criminal case are the same, without there being any difference the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof would not be applicable to the instant case and therefore the judgment of the criminal Court becomes relevant. 9. So far as the judgment of the criminal Court is concerned, perusal of that judgment shows, so far as the appellant is concerned, only one point was framed for determination, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Bombay High Court had strongly deprecated the practice of conducting identification parade at police station. It 'as been further observed that probaoility of suspects being shown to the witnesses prior to identification parade is always there in the, police station. 11. Therefore, in my opinion, holding of identification parade in such circumstances does not carry any weight. As such identification of accused is doubtful and cannot be relied upon to base a conviction. Perusal of the above quoted observations from the judgment of the criminal Court shows that the identity of the appellant on the scene of offence itself has not been established. The criminal Court has recorded a positive finding that evidence of police inspector Walli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iminal trial and the departmental enquiry, was not justified in ordering withholding of back wages. In our opinion, the appellant was entitled to reinstatement and he was also entitled to back wages and therefore the Industrial Court should have held an enquiry to find out what is the quantum of back-wages to which the appellant would be entitled. In our Opinion, the learned single Judge was not justified in considering as to whether the acquittal was clean or was on account of benefit of doubt, in view of the observations of the criminal Court that there is no identification of the appellant on the spot. 12. Taking overall view of the matter, in our opinion, the following order would meet the ends of justice: ORDER (1) The Order passed ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
