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TMI Blog2009 (3) TMI 916X X X X Extracts X X X X X X X X Extracts X X X X ..... d the judgment of the learned single Judge of this Court dated April 5, 2004 passed in two writ petitions, being writ petition No. 671/2004 and 102/2004. As the common judgment is challenged in both the appeals, both the appeals can be conveniently disposed of by, a common order. 2. Facts that are relevant are that the appellant was in the service of the respondent-Port Trust as a driver. A Charge-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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was registered as writ petition No. 102/2004. 4. The learned single Judge by his order dated April 5, 2004 allowed the writ petition filed by the Board and held that the Tribunal was not justified in granting reinstatement. The petition filed by the appellant was dismissed. Therefore, these two appeals have been filed by the appellant challenging the judgment of the learned single Judge as also the 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as according to him the acquittal of the appellant by the criminal Court is not, honourable and it was merely by giving him benefit of doubt, according to him, the Tribunal was not justified in granting reinstatement in service to the appellant. 8. Now in the light of these rival' submissions, if one goes through the record, it is a clear position that the departmental enquiry and the criminal prosecution 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 Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be unjust, unfair and rather oppressive to allow the findings recorded at the ex-parte departmental proceedings, to stand. 35. Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of 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. 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow Gate P. Stn. where inspector Wallishetty and other staff; members were serving. Thus they have every opportunity to have glimpse of accused No. 3 and 4 before identification. Holding of identification parade in the police station has to be strongly criticised and it has been criticised in a number of rulings. For example in the case of Ramchandran v. State of Maharashtra (1995) 3 Crimes 723. Their Lordships of 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 par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bharat Gold Mines Ltd. and Anr. (supra), the only thing that the Tribunal should have done was, in I view of the judgment of the criminal Court, to hold that the misconduct against the appellant has not been proved. 11. Industrial Tribunal in our opinion after finding that the judgment of the criminal case is relevant, because of the same set of facts being involved and because of the same set of evidence in the criminal 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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