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M.M. Rubber Co. Ltd., Madras Vs. S. Natarajan, the Presiding Officer, Labour Court, Madras - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Case NumberWrit Appeal No. 567 and 568 of 1979
Judge
Reported in(1985)IILLJ364Mad
ActsIndustrial Disputes Act, 1947 - Sections 10(I); Evidence Act; Constitution of India - Article 226; Motor Vehicles Act - Sections 60
AppellantM.M. Rubber Co. Ltd., Madras
RespondentS. Natarajan, the Presiding Officer, Labour Court, Madras
Cases ReferredCorporate of Nagpur v. Ramachandran (supra
Excerpt:
labour and industrial - proceedings - section 10 (i) of industrial dispute act, 1947, section 403 of criminal procedure code, 1973, article 226 of constitution of india and section 60 of motor vehicles act - whether criminal proceeding barred management proceeding with domestic enquiry - departmental proceedings is not prosecution within meaning of section 403 and therefore there is no legal bar - authority in departmental proceeding does not violates any rule or any other principle of law when it chooses to ignore findings of criminal court and try to act on evidence led before him - criminal proceeding and departmental proceeding operate in different fields - findings given in criminal proceeding not bar to departmental proceeding. - - rattan singh reported in (1982)illj46sc ,it is.....k. venkataswami, j.1. these two writ appeals are filed against a common order of varadarajan, j. dated 7th august, 1979 in w.p. nos. 1936 and 2997 of 1977. the learned judge while confirming the award of the labour court, ordering reinstatement of a workman by dismissing w.p. no. 1936 of 1977, also granted a relief of back wages disallowed by the labour court, by allowing w.p. no. 2997 of 1977. the appellant, aggrieved by the dismissal of w.p. no. 1936 of 1977 and allowing of w.p. no. 2997 of 1977, has filed these writ appeals. the facts relating to the case shortly may now be stated. 2. the appellant (hereinafter called the management) charge-sheeted the 1st respondent herein, an employee under the appellant (hereinafter referred to as the workmen), for an alleged act of stone throwing.....
Judgment:

K. Venkataswami, J.

1. These two writ appeals are filed against a common order of Varadarajan, J. dated 7th August, 1979 in W.P. Nos. 1936 and 2997 of 1977. The learned Judge while confirming the Award of the Labour Court, ordering reinstatement of a workman by dismissing W.P. No. 1936 of 1977, also granted a relief of back wages disallowed by the Labour Court, by allowing W.P. No. 2997 of 1977. The appellant, aggrieved by the dismissal of W.P. No. 1936 of 1977 and allowing of W.P. No. 2997 of 1977, has filed these writ appeals. The facts relating to the case shortly may now be stated.

2. The appellant (hereinafter called the Management) charge-sheeted the 1st respondent herein, an employee under the appellant (hereinafter referred to as the workmen), for an alleged act of stone throwing at the show room of the Management on Mount Road, Madras and called upon the workman by issuing a charge memo on 12th February, 1974 to show cause why disciplinary action should not be taken against him for such misconduct. For the alleged act of stone throwing at the show room of the Management, the workman was also criminally prosecuted in C.C. No. 1400 of 1974, on the file of the Court of the II Metropolitan Magistrate, Madras. The workman did not submit any explanation to the charge memo though time was given for the same. An advocate (Mr. A. L. Somayaji) was appointed by the Management as Enquiry Officer and workman successfully dragged on the domestic enquiry till he was acquitted by the criminal court in C.C. No. 1400 of 1974. After getting the order of acquittal, the workman took a stand that in the light of the acquittal in criminal proceedings, the domestic enquiry should not be proceeded with. However, the Enquiry Officer proceeded with the enquiry and the workman also participated in the enquiry. The Management examined six witnesses on their side and the workman examined one witness on his behalf and he did not go into the box. The Enquiry Officer, after giving all reasonable opportunities to the workman, and on a perusal of the defence statement and the evidence, both oral and documentary, found that the workman was guilty of the allegations contained in the charge memo dated 12th February, 1974. Accepting the finding of the Enquiry Officer, the Management dismissed the workman front the services of the company with immediate effect. An industrial dispute was raised and the matter was referred to the Labour Court for adjudication under S. 10(I)(c) of the Industrial Disputes Act, 1947. Before the Labour Court, no fresh oral evidence was adduced. Only documents were marked and that too on the side of the Management. The Labour Court in its Award dated 11th May, 1977, has found that 'the worker was given sufficient opportunities to file his explanation, cross examine the witnesses examined on the side of the management and to defend himself. The worker was assisted by B. Rengiah, Secretary of the Union at the time of the enquiry. As pointed out earlier, the worker also examined W.W.I. on his side. It is clear that the domestic enquiry has been conducted properly and that there had been no violation of the principles of natural justice. It was for this reason that, before this Court no additional evidence was adduced and the parties argued their case on the basis of Exhibits M-1 to M-27 only'. However, the Labour Court came to the conclusion that since the workman was acquitted in criminal proceedings, for the very same alleged act of throwing stones at the show room of the Management, it is not open to the Enquiry Officer to come to a different conclusion in the domestic enquiry and, therefore, the report of the Enquiry Officer cannot be accepted. On that view, the Labour Court set aside the order of dismissal and ordered the reinstatement of the workman with continuity of service. But the Labour Court declined to order payment of back wages on the grounded that the Criminal Court had committed some irregularity in the procedure.

3. Aggrieved by the order of reinstatement passed by the Labour Court, the Management filed W.P. No. 1936 of 1977, and the workman, aggrieved by the order of the Labour Court in not granting back wages, filed W.P. No. 2997 of 1977. As noticed above, both these writ petitions were heard by Varadarajan, J. and the learned Judge allowed the writ petition filed by the workman and dismissed the writ petition filed by the Management. The learned Judge, in the course of the order, has observed that the finding of the Domestic Tribunal is not attacked in the counter affidavit filed in the Management's writ petition or in the affidavit filed in support of the writ petition filed by the workman as incorrect. In other words, the finding of the Labour Court that the domestic enquiry was fair and quite in accordance with the principles of natural justice is not disputed before the learned Judge. The learned Judge considered the only question, namely, whether the Criminal Court's finding in this case in a bar to the Management proceeding with the domestic enquiry. After noticing several judgments of this Court, the learned Judge has held that the Labour Court was justified in holding that the finding of the Criminal Court in favour of the workman was a bar for the Enquiry Officer proceeding with the enquiry and the Enquiry Officer grievously erred in making observations in his finding as though he was an Appellate Court sitting in judgment over the judgment of the learned II Metropolitan Magistrate, Madras. On that ground, the learned Judge dismissed W.P. No. 1936 of 1977, and for allowing W.P. No. 2997 of 1977, the learned Judge has held that irregularity, if any, committed by the Criminal Court in the proceeding should not deprive the workman of his right to claim back wages and, therefore, the learned Judge was of the view that the workman was entitled to back wages.

4. Even before us, the point that was urged was, whether a domestic enquiry could be proceeded with against an employee who was acquitted in a criminal trial held in respect of the same act. There appears to be no uniformity in the views of various High Courts in answering this question. Mr. G. Ramaswami, learned counsel appearing for the appellant, cited numerous authorities inviting the Court to answer the question in the affirmative. Equally, Mr. N. G. R. Prasad, learned counsel appearing for the 1st respondent, cited numerous authorities inviting the Court to answer the question in the negative. Out of deference to the learned counsel on both sides, we shall briefly refer to the important decisions cited by them as in our opinion, a recent decision of the Supreme Court in Corporation of Nagpur v. Ramchandra reported in : (1981)IILLJ6SC settles the controversy. We shall refer in some detail about this judgment of the Supreme Court at the appropriate place.

5. Mr. G. Ramaswami, learned counsel appearing for the appellant in support of his contention that it is open to the Management to proceed with the domestic enquiry notwithstanding the acquittal by the Criminal Court, has cited numerous authorities and the following are important and have direct bearing to the question at issue.

6. Before considering the authorities cited on both sides, we may briefly refer the points urged respectively by the learned counsel for the appellant and the learned counsel for the respondent. Mr. G. Ramaswami, learned counsel for the appellant submitted that a departmental proceeding cannot be considered as a prosecution within the meaning of S. 403 of the Criminal Procedure Code. Criminal prosecution implies an offence against the State. It is not so in the case of a departmental proceedings. Departmental proceedings being a civil proceeding, any decision of a criminal court cannot operate as a res judicata. He also contended that there is no constitutional, statutory or legal bar for proceeding with a domestic enquiry even if the employee was acquitted in a criminal trial held in respect of the same Act. His further contention is that the two proceedings - departmental and criminal - are entirely different in nature, they operate in different fields and they have different objectives, and that the rules relating to appreciation of evidence under the two enquiries are different. The degree of proof which is necessary to record an order of conviction is different from the degree of proof which is necessary to record the commission of a delinquency. Viewed from these broad aspects, there cannot be any doubt, according to the learned counsel, that the findings of the criminal court will not bind the Presiding Officer in a domestic enquiry. He added that the findings of the criminal court may have persuasive value, but certainly do not have binding force. The learned counsel submitted that all these submissions are based on several decisions of various High Courts and the Supreme Court.

7. Mr. N. G. R. Prasad, learned counsel appearing for the workman (respondent) submitted that whenever a criminal court acquitted on merits substantially a workman, it is not open to the management to proceed with a domestic enquiry for the same act for which he was prosecuted. According to the learned counsel, the findings given by the criminal court ought not to be interfered with by a Presiding Officer in the domestic enquiry. He concedes that for proceeding with the domestic enquiry, notwithstanding an acquittal by a criminal court, there is no constitutional or statutory bar. However, he strongly contends that there is a legal bar. According to the learned counsel, the Presiding Officer in the domestic enquiry cannot sit in judgment over the findings rendered by the criminal court and arrive at different or inconsistent or contrary findings to the conclusion given by the Court. The findings of the criminal court will be part of the disciplinary proceedings and the same cannot be ignored. The findings given by a criminal court cannot be attacked in a civil action separately arising out of the same cause of action. The learned counsel submitted that the submissions made by him are supported by several decisions cited by him.

8. In State of Andh. Pra. v. Sree Rama Rao reported in 1964-II L.L.J. 150, the Supreme Court observed as follows :- (at p. 154)

'There is no warrant for the view expressed by the High Court that in consideration whether a public officer is guilty of the misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court, must be applied and if that rule be not applied, the High Court in a petition under Art. 226 of the Constitution is competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not constituted in a proceeding under Art. 226 of the Constitution a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant : it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated.

.... .... .... But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Art. 226 of the Constitution.'

9. In Adi Pherozshah v. H. M. Seervai reported in : [1971]1SCR863 , the Supreme Court has held as follows :

'Now in disciplinary proceedings the advocate was not estopped from questioning the charge that he was guilty of corrupt practice. In a civil proceeding the decision of a criminal court is not res judicata. To give an example, if a person is involved in a traffic offence in which some one is injured he may in the criminal court received a light sentence but if he is sued in a civil court for heavy damages he can plead and prove that he was not negligent or that accident was due to the contributory negligence of the defendant. The decisions of the criminal court would not preclude him from raising this issue before the civil court.'

10. In State of Haryana v. Rattan Singh reported in : (1982)ILLJ46SC , it is held as follows :-

'It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to here say evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act.

.... .... .... Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record.'

11. In Motising v. S. D. Mehta reported in 1966-I L.L.J. 55, a Division Bench of Gujarat High Court has held as follows : (at p. 59-60)

'Considering the submission without any authority and purely on general principles, we are unable to find any legal basis for the submission that a departmental enquiry is barred on the same facts on which an order of acquittal has been recorded by a criminal Court.

.... ..... .......... ..... ..... It is obvious that the principle laid down in S. 403, Criminal Procedure Code, 1898, cannot apply to a set of facts as the present. An acquittal order, whether recorded by the High Court or even the highest Court, would bar a second prosecution on the same facts. But, a departmental proceeding is not a prosecution within the meaning of S. 403 aforesaid and, therefore, there is no such legal bar ... .... .... In fact, it is well known that a judgment after it is delivered, is open to public criticism, even to the extent of saying that the judgment was incorrect, faulty or unsound on facts or in law. Even if the law was otherwise, when an officer decides to hold a departmental enquiry, he does nothing of this sort. All that he does is to start a proceeding for the purpose of satisfying himself as to whether, in fact, the 'delinquent is guilty of any misconduct or delinquency which requires to be dealt with in the interest of public administration. When holding such an enquiry, he is not at all concerned, nor is it his object to undertake the decision of the question as to whether the findings recorded by the Criminal Court were right or wrong. His object is only to enquire into the question as to whether the delinquent is guilty of a misconduct or a delinquency and the mere fact that he is likely to reach a conclusion different from that recorded by the criminal Court cannot bring him within the ambit of the law of contempt of Court. ..... .... If there is no constitutional, statutory or legal bar, then, not only that there are a number of grounds - and we propose to show that the grounds which appealed to Tare, J. in Qamarali's case : AIR1959MP46 with due respect, are not sustainable - on the basis of which it must be held that a departmental enquiry is not barred by an order of acquittal recorded by a Criminal Court, but also that the two proceedings - the departmental and the criminal - are entirely different in nature, they operate in different fields, and they have different objectives. The materials or the evidence in the two proceedings may or may not be the same and, in some cases, at least, materials or evidence which would be relevant or open for consideration in the departmental proceeding may absolutely be tabooed in the criminal proceeding. The rules relating to the appreciation of evidence in the two enquiries may also be different. The scope of an enquiry in a criminal trial is to determine whether a public servant has committed a misconduct or delinquency and, even if the same constitutes, from one point of view, a crime, to consider the question whether the delinquent deserves to be retained in public service or to be reverted or to be reduced in rank or otherwise suitably dealt with for the delinquency concerned.

.... ..... ...... ... ..... ... ..... The degree of proof which is necessary to record an order of conviction is different from the degree of proof which is necessary to record the commission of a delinquency.'

12. After referring to a judgment of the Supreme Court reported in State of Andhra Pradesh v. Sree Rama Rao (supra), the learned Judges proceeded further and observed as follows :- 1966-I L.L.J. 55 (at p. 60)

'Under the aforesaid circumstances, we are not in a position to uphold the argument of Mr. Barot that the holding of a departmental enquiry after an order of acquittal has been recorded by the High Court constitutes a contempt of the High Court or that any principle of law becomes offended when a departmental enquiry follows an order of acquittal in favour of a public servant by a Criminal Court.'

This decision appears to be the earliest to give detailed reasons for the views taken by it.

13. In Bhaurao v. State of Maharashtra reported in 1973-I L.L.J. 153, a Division Bench of Bombay High Court after referring to several Division Bench judgments of this Court and also the division Bench judgment of the Gujarat High Court above referred to in addition to various other decisions, has held as follows :- (at p. 159 para 10) of 1973-I L.L.J. 153.

'What seems to have weighed heavily on the minds of the learned Judges is 'the strange predicament' of there being conflicting findings in the event of two different tribunals being called upon to decide on the same set of facts. But, in our opinion, such contingency is implicit where two different tribunals or forums are called upon to decide question arising out of the same set of facts for altogether different purposes and under different procedures and rules and standard of evidence. Following passage from the judgment of the Supreme Court in M. S. Sheriff v. State of Madras : [1954]1SCR1144 , at para 15 can be usefully quoted, though the observations are made in a different context :-

'...... No hard and fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and Criminal Court is a relevant consideration. The law envisages such an eventuality when in expressly refrains from making the decision of one Court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment.' Expression 'punished', 'offence' and 'acquitted' in the passage from the Madras judgment, even in regard to the proceedings before the Road Transport Authorities, appear to us to be out of tune with the working of S. 60 of the Motor Vehicles Act. At any rate, as settled in the Venkataraman's case (supra) the delinquent officer is not tried for any 'offence' by the domestic tribunal nor is he 'punished' or 'acquitted' by such tribunal in departmental proceedings.

We are, therefore, of the opinion that the domestic tribunal, such as 'the dismissing authority in departmental proceedings does not violates any rule of law or any other principle of law, when it chooses to ignore the findings of the Criminal Court and decides to act on the evidence led before him, and ultimately comes to the conclusion that such police officer is not fit to be retained in service in spite of his acquittal by the Criminal Court. He also does not violate any principle of natural justice merely by ignoring such finding of the Criminal Court, where otherwise he has recorded his findings after giving full opportunity to the delinquent to have his say.'

14. In Spadigam v. State of Kerala reported in 1970-I L.L.J. 718 Mathew, J. as he then was, has dealt with this question elaborately and has held as follows :-

'A Criminal Court acquitting an accused on the merits of a case would not bar disciplinary proceedings against him on the basis of the same facts.'

The learned Judge expressing his inability to agree with the Division Bench of this Court, has observed as follows :- at para 7 of 1970-I L.L.J. 718

'I do not think that judgment of a Criminal Court acquitting an accused on the merits of a case would bar disciplinary proceedings against him on the basis of the same facts, or that the judgment would operate as conclusive evidence in the disciplinary proceedings. The reason for it is not far to seek. A Criminal Court requires a high standard of proof for convicting an accused. The case must be proved beyond reasonable doubt. The acquittal of an accused by a Criminal Court only means that the case has not been proved against him beyond reasonable doubt. Such a standard of proof is not required for finding a person guilty in a disciplinary proceeding. It would be enough if there is a preponderance of probability of his guilt.'

15. Again the learned Judge observed as follows :- (at para 11 there of)

'The object of criminal law and its enforcement through criminal proceeding is different from that of disciplinary proceeding. A criminal proceeding is mainly intended to punish persons who have broken 'the King's peace,' and thus to show the indignation of the community to criminals whereas disciplinary proceeding is intended to maintain the purity and efficiency of public service. Then again in a criminal trial, the only evidence admissible is that which is made admissible under the provisions of the Evidence Act. A Tribunal conducting an enquiry in a disciplinary proceeding is not bound by the strict rules of evidence.'

16. In T. V. Gowda v. State of Mysore reported in 1975-II L.L.J. 513, a Full Bench of the Mysore High Court, after referring to decisions of various High Courts, has held as follows :-

'In Bhaurao Dagadu v. State of Maharashtra, 1972-I L.L.J. 153, a police officer who was charged with the offence of taking bribe was acquitted by the Criminal Court. But as a result of a departmental enquiry held on the same facts, he was dismissed from service. Dealing with a contention similar to the one urged in the present case, the Bombay High Court observed : at para 25 on page 521, 522 of 1975-II L.L.J. 513.

'The domestic Tribunal, such as the dismissing authority in departmental proceedings, does not violate any rule of law or any other principle of law, when it chooses to ignore the findings of the Criminal Court and decides to act on the evidence led before him, and ultimately comes to the conclusion that such a police officer is not fit to be retained in service in spite of his acquittal by the Criminal Court. He also does not violate any principle of natural justice merely by ignoring such findings of the Criminal Court, where otherwise he has recorded his findings after giving full opportunity to the delinquent to have his say.'

From the above said two decisions relied upon by the learned First Additional Government Advocate, the following points of distinction between the criminal proceedings and the disciplinary proceedings emerge :

(1) A disciplinary proceeding is not a criminal trial.

(2) In criminal proceedings the purpose sought to be achieved is protection of the public while in disciplinary proceedings the purpose sought to be achieved is purity and efficiency of public service.

(3) A Criminal Court requires high standard of proof for convicting an accused, a while such a standard of proof is not required for finding a person guilty in disciplinary proceedings and it is enough if there is preponderance, of probability of the delinquent's guilt.

(4) Unlike in a criminal proceeding, in a disciplinary proceeding the strict rules of evidence and the provisions of the Evidence Act do not apply.

(5) Initiation of disciplinary proceedings against a civil servant acquitted in a criminal trial on the same charge is not violative of any provision of law or principles of natural justice.

Thus criminal proceedings and disciplinary proceedings undoubtedly operate in different fields. It is well-settled that the findings given by a Criminal Court is irrelevant in civil proceedings. For instance, if an accused is acquitted of the offences of criminal misappropriation or breach of trust or cheating, a Civil Court can make a degree against him if there is evidence to fasten civil liability on him. It is not uncommon that even though a Criminal Court acquits an accused of a charge of rash and negligent driving, the Motor Accidents Claims Tribunal holds that his negligence is established and awards compensation for the death or injury resulting from his negligence. In such cases there is bound to be conflict between the decisions of the Civil Court and the Criminal Court. Can it be said that such a conflict would shake the confidence of the public in the judiciary Or can it be said that in such circumstances initiation of civil proceedings in spite of acquittal by the Criminal Court would be improper or unfair or would amount to circumventing the acquittal made by a competent Criminal Court

Thus, we are unable to agree with the view taken by this Court in Ekambaram and Mainuddin Alisab Kazi's case (supra) that when a civil servant is acquitted in a Criminal Court it would be improper circumvention of the order of acquittal made by the competent Criminal Court if the disciplinary authority enquiries into the charge and holds him guilty on the very same evidence which was produced before the Criminal Court and was disbelieved by it, and that the confidence of the public in the judiciary would be undermined. The view expressed in those two decisions that such acquittal by the Criminal Court bars disciplinary proceedings on the same charge conflicts with the decisions of the Supreme Court referred to above. Therefore, we are of the opinion, that these two decisions do not lay down the law correctly. We, therefore, overrule those two decisions of this Court.'

17. In D.I.G. of Police v. V. Sankaran reported in 1982-II L.L.J. 309, a Division Bench of the Kerala High Court has observed thus :- (at p. 311)

'We once again desire to point out that there would have been no bar to holding disciplinary proceedings on the same set of facts merely because a Criminal Court had in a prosecution found in favour of the officer charged with the offence.'

18. As pointed out earlier, the recent judgment of the Supreme Court settles the controversy in the case in Corporation of Nagpur v. Ramachandra G. Modak reported in : (1981)IILLJ6SC . The Supreme Court in clear and unambiguous terms has expressed the view in the following manner :

'The other question that remains is if the respondents are acquitted in the criminal case whether or not the departmental inquiry pending against the respondents would have to continue. This is a matter which is to be decided by the department after considering the nature of the findings given by the criminal court. Normally where the accused is acquitted honourably and completely exonerated of the charges it would not be expedient to continue a departmental inquiry on the very same charges or grounds or evidence, but the fact remains, however, that merely because the accused is acquitted, the power of the authority concerned to continue the departmental enquiry is not taken away nor is the direction (discretion) in any way fettered. However, as quite some time has elapsed since the departmental inquiry had started the authority concerned will take into consideration this factor in coming to the conclusion if it is really worthwhile to continue the departmental inquiry in the event of the acquittal of the respondents. If, however, the authority feels that there is sufficient evidence and good grounds to proceed with the inquiry, it can certainly do so. In case the respondents are acquitted, we direct that the order of suspension shall be revoked and the respondents will be reinstated and allowed full salary thereafter even though the authority chooses to proceed with the inquiry. Mr. Sanghi states that if it is decided to continue the inquiry, as only arguments have to be heard and orders to be passed, he will see that the inquiry is concluded with in two months from the date of the decision of the Criminal Court, If the respondents are convicted, then the legal consequences under the rules will automatically follow.'

19. In P. H. Tripathi v. Central Bank of India reported in 1985 L.I.C. 991, a Division Bench of the Allahabad High Court, after referring to the recent judgment of the Supreme Court referred to above, has expressed in the following terms about the scope and extent of the Supreme Court judgment :-

'The Supreme Court has emphasised that the mere fact that a person has been acquitted honourably and completely exonerated of the charge will not divest the jurisdiction of the authority concerned to either initiate or continue a departmental enquiry on the very same charges or grounds or evidence. According to the Supreme Court the power of the officer concerned to direct a departmental enquiry remains unaltered. The discretion of such an officer or authority remains unhampered. The only thing, according to the Supreme Court, which has to be seen is whether in a given case it would be expedient and fair to continue with the departmental proceedings on charges which are identical to those which were levelled against a delinquent in a criminal case before a regular Court and that Court had given him a clean acquittal. In view of the dictum of the Supreme Court, in our opinion, the proposition laid down in the aforementioned two cases, that the departmental proceedings on identical charges cannot be allowed to take place cannot be accepted in its absolute form.'

20. We shall now refer to the decisions cited and relied on by the learned counsel for the 1st respondent Mr. N. G. R. Prasad in support of his contention that the domestic enquiry cannot be proceeded with after the acquittal by the Criminal Court for the same Act. In R. P. Kapur v. Union of India reported in 1966-II L.L.J. 164, the Supreme Court has observed thus :- (at P. 171)

'If the trial of the criminal charge results in conviction, disciplinary proceedings are bound to follow against the public servant so convicted, even in case of acquittal proceedings may follow where the acquittal is other than honourable.'

Mr. Prasad, placing reliance on the underlined portion of the observation extracted above, submitted that from the observation of the Supreme Court, it must be inferred that where the acquittal is on merits, the departmental proceedings cannot be proceeded with for the same act or offence. In our view, the submission of the learned counsel cannot be accepted especially in the light of the later pronouncement of the Supreme Court in : (1981)IILLJ6SC (supra). The learned counsel places heavy reliance on a Division Bench judgment of this Court in Jerome d'Silva v. Regional Transport Authority reported in : AIR1952Mad853 where in learned Judges have observed as follows :-

'If the criminal case against him ends in discharge or acquittal, it means that the petitioner is not guilty of the offence and therefore did not merit any punishment. It would indeed be a strange predicament when in respect of the same offence, he should be punished by the Tribunal on the footing that he was guilty of the offence and that he should be honourably acquitted by another Tribunal of the very same offence. As primarily the Criminal Courts of the land are entrusted with the enquiry into offences, it is desirable that the findings and orders of the Criminal Court should be treated as conclusive in proceedings before quasi judicial Tribunals like the Transport Authorities under the Motor Vehicles Act.'

This ratio laid down by the Division Bench has been simply followed in various other judgments of this Court in Radhakrishna Mills v. Labour Court reported in 1960-II L.L.J. 678, Krishna Murthy v. Chief Engineer reported in 1966-II L.L.J. 697 G. M. Parry's Confectionery Ltd., v. Industrial Tribunal reported in 1974-I L.L.J. 422, T. T. Elec. Supply Co. Ltd., v. Industrial Tribunal reported in 1975-I L.L.J. 304, T. T. Elec. Supply Co. Ltd., v. Industrial Tribunal reported in 1975-I L.L.J. 312 and Ganaselvam v. State of Tamil Nadu reported in : AIR1985Mad69 . We are relieved of making any comments on the ratio of the Division Bench judgment of this Court reported in Jerome D'silva v. Regional Transport Authority (supra) followed by other learned Judges of this Court in view of the later pronouncement of the Supreme Court referred to above Corporation of Nagpur v. Ramachandra G. Modak (supra).

21. In State of Orissa v. Sailabehari reported in : AIR1963Ori73 , a Division Bench of the Orissa High Court has expressed the view as follows :-

'Where a Criminal Court had acquitted a public servant honourably a subsequent enquiry in respect of the same allegations may offend the rules of natural justice and may have to be quashed.'

In Banta Singh v. N. C. D. Corporation reported in 1969-I L.L.J. 664, a learned single Judge of the Patna High Court has taken the view that when there was a criminal case of identical charge and it ended in acquittal of the accused, the judgment of the Criminal Court is admissible in the Civil Court under the Evidence Act for the purpose that there was a criminal case of identical charge and it ended in acquittal. The other findings or the evidence led in the criminal trial are irrelevant, but the conclusion of the trial is admissible in evidence. In that view, the departmental enquiry on the charges of identical nature in a criminal trial is not justified. The learned Judge relied on the Division Bench Judgment of this Court referred to above.

22. In Kundan Lal v. Delhi Administration (Delhi) reported in 1976 (1) SLR 133, a learned single Judge of the Delhi High Court has observed thus :-

'The above survey of judicial opinion seems to point to a preponderating preference for the middle view which is that when there is a substantial acquittal of the accused on a criminal charge there should not be a departmental proceeding against him in respect of the same charge on the same facts unless there are present conditions like the acquittal being on a technical ground or establishing conduct which would make it unworthy of the said officer continue in office, etc.'

23. In A. P. Naidu v. General Manager S.C. Railway reported in 1983-I L.L.J. 151 a learned single Judge of the Andhra Pradesh High Court has held as follows :- (at para 9 at pate 154)

'Where a Criminal Court had exonerated an employee on merits by holdings on the basis of the evidence that be was not guilty of any offence a subsequent departmental inquiry on the same charges will not be lawful. When acquittal is honourable initiation of departmental proceedings would be dishonorable and such a course would not be open to the employer.'

24 the learned counsel places heavy reliance on a Divisions Bench judgment of the Bombay High Court in Jeevan Prakash v. State Bank of India reported in 1983 Mh.L.J. 508. In this case, this Division Bench not accepting the view of the earlier Division Bench in 1972 SLR 862 (supra) has taken a different view. The learned Judges in this case have observed as follows :-

'If the principle of issue estoppel and the principle of res judicata applies, then we think that subjecting a person to a proceeding over again for determination of the same questions and same facts is opposed to the normal rules and principles of justice and jurisprudence. A proceeding therefore would be liable to be quashed at any stage and including at the commencement stage where they are found to be or shown to be opposed to rules and principle of jurisprudence and law governing finality of matters decided between the parties.'

The learned Judges have further held as follows :-

'It seems to us that where an acquittal is based upon a finding of fact, either to be existing or not existing as alleged, either by the prosecution or by the accused, them to that extent such a finding of fact becomes a binding and conclusive fact in all proceedings against that party. It will acquire the status of an issue estoppel and would not be capable of being further investigated or enquired into for the purpose of coming to a conclusion different or contradictorily. The same can never form as a basis and considered as a basis for purposes of determining the desirability of the employer to be retained in service or his continuation.'

It appears the learned Judges have rested their decision on the footing that where a fact is found in a certain way and manner in favour of a person in a criminal trial, the same fact cannot be found in a contrary manner in a subsequent criminal trial or case or also in civil proceedings. With respect, we are unable to agree with the view taken by the learned Judges. The view expressed by the learned Judges runs contrary to a judgment of the Supreme Court. The Supreme Court in Masud Khan v. State of U.P. reported in : [1974]1SCR793 has held as follows :-

'But that apart, this matter could be decided on another point. The question of issue of estoppel has been considered by this Court in Pritam Singh v. State of Punjab, : 1956CriLJ805 , Manipur Administration v. Thokchom, Bira Singh, : [1964]7SCR123 and Piara Singh v. State of Punjab : 1969CriLJ1435 .

Issue of estoppel arises only if the earlier as well as the subsequent proceedings were criminal prosecutions. In the present case while earlier one was a criminal prosecution the present is merely an action taken under the Foreigners (Internment) Order for the purpose of deporting the petitioner out of India. It is not a criminal prosecution. The principle of issue estoppel is simply this : that where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppel or res judicata against the prosecution not as a bar to the trial and conviction of the accused for a different or distinct offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by law. Pritam Singh's case : 1956CriLJ805 (supra) was based on the decision of the Privy Council in Sambasivam v. Public Prosecutor, Federation of Malaya, 1950 AC 458. In that case Lord MacDermott speaking for the Board said :

'The effect of a verdict of acquittal pronounced by a competent Court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding or conclusive in all subsequent proceedings between the parties to the adjudication.' It should be kept clearly in find that the proceeding referred to herein is a criminal prosecution. The plea of issue estoppel is not the same as the plea of double jeopardy or autre fois acquit. In The King v. Wilkes, 77 CLR 511 Dixon, J. referring to the question of issue estoppel said :

'... it appears to me that there is nothing wrong in the view that there is an issue estoppel, if it appears by record of itself or as explained by proper evidence, that the same point was determined in favour of a prisoner in a previous criminal trial which is brought in issue on a second criminal trial of the same prisoner ... There must be a prior proceeding determined against the Crown necessarily involving an issue which again arises in a subsequent proceeding by the Crown against the same prisoner. The allegation of the Crown in the subsequent proceeding must itself be inconsistent with the acquittal of the prisoner in the previous proceeding. But if such a condition of affairs arises I see no reason why the ordinary rules of issue estoppel should not apply ... Issue estoppel is concerned with the judicial establishment of a proposition of law or fact between parties. It depends upon well-known doctrines which control the relitigation of issues which are settled by prior litigation.' The emphasis here again would be seen to be on the determination of criminal liability. In Marz v. The Queen, 96 C.L.R. 62 the High Court of Australia said :

'The Crown is as much precluded by an estoppel by judgment in criminal proceedings as is a subject in civil proceedings ... The law which gives effect to issue estoppel is not concerned with the correctness or incorrectness of the finding which amounts to an estoppel, still less with the process of reasoning by which the finding was reached in fact ....... It is enough that an issue or issues have been distinctly raised or found. Once that is done, then, so long as the finding stands, if there be any subsequent litigation between the same parties, no allegations legally inconsistent with the finding, may be made by one of them against the other.' Here again, it is to be remembered that the principle applies to two criminal proceedings and the proceeding with which we are now concerned is not a criminal proceeding. We therefore hold that there is no substance in this contention.'

The later decision of the Bombay High Court in Jeevan Prakash's case is not in conformity with the decision of the Supreme Court in Masud Khan's case cited supra and, therefore, with respect, we are not able to agree with the views of the learned Judges of the Bombay High Court.

25. On the careful perusal of the judgments cited for and against and referred to above, we are of the view that the contention advanced by the learned counsel for the appellant, Mr. G. Ramaswami, should be accepted. We are in respectful agreement with the views expressed by the Division Bench of the Gujarat High Court in Motising v. S. D. Mehta reported in AIR 1956 Guj. 233, Division Bench of the Bombay High Court in Bhaurao v. State of Maharashtra reported in 1972 S.L.R. 862 and Full Bench of the Mysore High Court in T. V. Gowda v. State of Mysore reported in 1975-II L.L.J. 513 and the reasonings given in those judgments, and they are in conformity with the latest pronouncement of the Supreme Court. Further, the Supreme Court Judgment reported in Corporate of Nagpur v. Ramachandran in : (1981)IILLJ6SC is clear and unambiguous and needs no further elaboration to decide the issue in favour of the appellant. We also hold that in view of the judgment of the Supreme Court in Corporate of Nagpur v. Ramachandran (supra), the Division Bench judgment of this Court in Jerome D'silva v. Regional Transport Authority (supra) and other judgments following this Division Bench Judgment can no longer be good law. Likewise, the judgments of other High Courts cited and relied on by the learned counsel for the 1st respondent, taking a view that departmental proceedings cannot be taken after the criminal case ended in favour of the delinquent can no longer be construed as good law in view of the said Supreme Court Judgment.

26. We have already pointed out that the Labour Court and also the learned Judge have given concurrent findings that the domestic enquiry was fair and quite in accordance with the principles of natural justice. In fact, the Labour Court has not said anything against the findings given by the Enquiry Officer on merits. In such circumstances, in the light of the judgments of the Supreme Court referred to above, namely, AIR 1977 S.C. 1513 and : (1964)IILLJ150SC , it is not open to this Court to reappreciate the evidence and substitute its findings. It is not the case of the 1st respondent that the findings of the Enquiry Officer are perverse or based on no evidence. Therefore, the findings of the Enquiry Officer have to be accepted.

27. In the result, the writ appeals are allowed and the common order of the learned single Judge is reversed. The parties will bear their own costs.


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