M.M. Ismail, J.
1. On 3-11-1965, the Engineer in charge of the petitioner-company gave a complaint to the Inspector of Police, Crime Branch, Tuticorin, stating that the copper conductors used for the street lighting main were found missing. Residents of that locality gave a complaint that the conductor was removed on 30-10-65 at about 10 hours and one Balasubramaniam, a resident of that locality, gave the complainant information that one of the petitioner's employees was also present while the conductor was being removed from the pole and that the said Balasubramaniam could identify that employee. The Engineer in charge of the company requested the Inspector to register a case and take up investigation in the matter. On 13-12-1965, the petitioner received an intimation from the Sub-Inspector of Police stating that the second respondent herein who was employed as a Street Light Scout under the petitioner was arrested on 9-12-65 at 5 p. m. in connection with the theft of copper wire from electric posts at Therasapuram. On 20-12-1965, the petitioner sent a memorandum to the second respondent herein stating that he had not been attending to his work since 9-12-1965, that the Engineer in charge of the petitioner-company had received no leave letter giving the reason for the second respondent's absence and obtaining leave as per rules and that this act of the second respondent constituted a major misconduct falling under para 17(7) of the company's certified standing orders, and, therefore, the second respondent was called upon to show cause within three days why disciplinary action should pot be taken against him. On 21-12-1965, namely, the very next day, the petitioner sent another memorandum to the second respondent stating that on 3-11-1965 the Engineer in charge of the company at Tuticorin gave a complaint to the police that copper conductor used for street lighting main was found missing and the second respondent was arrested by the police at 5 p.m. on 9-12-1965 in connection with the loss of the company's property. A copy of the report about his arrest received on 13-12-1965 was also enclosed. The memorandum wound up by stating:
Please note that theft, fraud or dishonesty in connection with the company's business or property forms a major misconduct falling under company's Standing Order 17(5) and conduct prejudicial to good order and discipline in company's Standing Order 17(30). This also forms an act of misconduct under Clauses 17(14) and also 17(15).
Please show cause within 3 days of receipt of this memo as to why disciplinary action should not be taken against you.
By the unsigned letter dated 1-1-1966, the second respondent acknowledged the receipt of the two memos and stated that he was under conditional bail at Tirunelveli in connection with the missing of copper wire from the electric posts at Theresapuram and under his instructions, the police had already intimated to the petitioner about his absence and the reasons for the same. The letter also stated that as regards the other clauses of the standing orders referred to in the same, he would explain his position when be was let free. On 3rd February, 1966 another memo was sent to the second respondent by the Resident Engineer of the petitioner-company. That memo referred to the earlier memo dated 21-12-1965 and reiterated:
As an employee of the company, you know very well that theft, fraud or dishonesty in connection with the company's property forms a major misconduct falling under company's Standing Orders 17(5), 17(7) and acts of misconduct falling under Sections 17(30), 17(14), 17(15) of the Standing Orders. You have yourself admitted in your letter received by me this morning that you have been let out on conditional bail and the case has not yet been disposed of. Please show cause as to why for these acts of misconduct action should not be taken against you, and pending enquiry, you are suspended from duty with immediate effect.
With reference to the memo dated 20-12-1965, another memo dated 3rd February, 1966 was sent to the second respondent herein in which it was stated that the explanation given by the second respondent in his unsigned letter was not acceptable and his arrest by the police was in connection with the theft of company's properties and any intimation by the police of his arrest could not be considered as a leave letter by an employee to his employer and, therefore, his continued absence from 9th December, 1965 was an act of misconduct falling under Clause 17(7) of the company's certified standing orders. The memo wound up by saying that the second respondent should show cause within 3 days of the receipt of the memo as to why disciplinary action should not be taken against him. In his reply dated 9th February, 1966, the second respondent stated that he had explained his position and reasons for not applying for leave in his letter dated 1-1-1966 and further stated:
If your kindself is not satisfied, I request you to please condone and treat the period of absence as leave.
With reference to the other memorandum, it was stated that any explanation at that stage, when the case was under trial, would cause prejudice. On 30th March, 1966 a further memo was sent to second respondent in respect of the earlier memos dated 20-12-1965 and 21-12-1965 stating that it was purely disciplinary proceedings against the second respondent and, therefore, he was asked once again to offer his explanation within 3 days of receipt of the memo and an enquiry would be held when opportunity would be given to the second respondent to put forth his defence and cross-examine witnesses. It is admitted that on 31-3-1966, the second respondent herein was acquitted of charge levelled against him by the Sub-Magistrate, Tuticorin in C. C. No. 213 of 1966. It is thereafter the petitioner conducted a domestic enquiry based upon the two memoranda dated 20-12-1965 and 21-12-1965 and came to the conclusion that the second respondent was guilty of charges levelled against him in the said two memoranda and dismissed him from service. The petitioner, therefore, applied to the Industrial Tribunal, Madras under Section 33(2) of the Industrial Disputes Act, 1947, for approval of their action in dismissing the second respondent for the alleged misconduct within the ambit of their standing orders, The Tribunal by an order dated 19-11-1966 made in Petition No. 8 of 1966 in Industrial Dispute No. 49 of 1965 declined to grant the approval asked for by the petitioner. The Tribunal took the view that after the acquittal of the second respondent by the Court, in the domestic enquiry proceedings, there was no evidence at all against the second respondent and the action of the petitioner in dismissing the second respondent constituted a colourable or mala fide exercise of power under the relevant standing orders for getting rid of the second respondent. It is to quash this order, the present writ petition under Article 226 of the Constitution of India has been filed.
2. As pointed out already, the second respondent was dismissed from the employment of the petitioner on two grounds based upon the memorandum dated 20-12-1965 and the memorandum dated 21-12.1965. The memorandum dated 20-12-1965 really could not be the basis of any charge against the second respondent. It has to be noticed that the complaint filed by the Engineer in charge of the petitioner-company on 3-11-1965 to the Inspector of Police, Tuticorin, did not make any mention of theft against the second respondent, and it is only the Sub-Inspector of Police, Tuticorin who arrested the second respondent in connection with the alleged theft. Therefore, on 20.12-65, when the petitioner sent the memorandum referred to already, the petitioner did not have any material except the fact that the copper conductor was missing and in connection with the theft of the copper conductor, the second respondent was arrested by the police, Certainly the memorandum dated 20-12-1965 would not constitute a charge-sheet of theft committed by the second respondent of the company's property. One further feature that has to be noticed with reference to the memorandum dated 20 12-1965 is that it did not even make a definite and specific charge of theft of the company's property and the petitioner had merely reproduced the relevant clauses of the standing orders dealing with, theft, fraud, or dishonesty in connection with the company's business or property without making any specific allegation of theft, fraud, or dishonesty. Therefore, on |this ground itself it could be held that the dismissal order passed by the petitioner could not be sustained. Apart from this, there is a fundamental defect in the order of the petitioner dismissing the second respondent on the basis of this memorandum dated 20-12-65. It has been repeatedly held by this Court as well as the other High Courts that when the complaint has been the subject-matter of proceedings in criminal Court and the criminal Court has come to a conclusion with reference to the complaint, it is not open to any domestic tribunal to come to a contrary conclusion with regard to the identical subject-matter in a domestic enquiry. The position would have been different if the criminal Court has not come to any conclusion on merits but decided in favour of the accused on a technical ground. On the other hand, if the criminal Court acquits an accused on merits finding him innocent, it is certainly not open to any Tribunal, much less an officer in a domestic enquiry, to find him guilty of the very same charge. In this case another particular feature is this: The only person who gave evidence against the second respondent in the criminal case as an eye witness is the person by name Balasubramaniam, referred to in the complaint dated 3-11-1965. His evidence was disbelieved by the criminal Court. The very same person gave evidence against the second respondent in the domestic enquiry as well, but the Officer conducting the enquiry accepted that evidence which was rejected by the criminal Court. This merely reinforces and justifies the conclusion reached by the Courts that a finding of a regularly constituted Court should be final and should be binding on the other parties as well as the Tribunals.
3. Jerome D. Silva v. Regional Transport Authority (1952) I Madras Law Journal, 35, dealt with a case of action taken by the Regional Transport Authority under Section 60 of the Motor Vehicles Act for suspension of the permit. The same allegation was the subject-matter of investigation before the criminal Court and the permit-holder was acquitted of the charge. It is thereafter the permit was suspended. A Bench of the Court observed:
We have no hesitation in making it clear that a quasi-judicial Tribunal like the Regional Transport Authority or the Appellate Tribunal, therefore, cannot ignore the findings and orders of the competent criminal Courts in respect of an offence when the Tribunal proceeds to take any action on the basis of the commission of that offence. Let us take the instance before us. The offence consists in smuggling foodgrains. For that same offence, the petitioner was criminally prosecuted. He has also been punished by his permit being suspended for a period of three months. 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 Courts should be treated as conclusive in proceedings before quasi-judicial Tribunal like the Transport Authorities under the Motor Vehicles Act.
This decision was approved and followed by another Bench decision in Krishnamurthy v. Chief Engineer (1966) 1, Madras Law Journal, 306, which related to disciplinary proceedings taken against a Government servant. The principles laid down by these decisions have been applied to a domestic enquiry conducted by an employer against his employee by Ramachandra Aiyar, J., as he then was, in Radhakrishnan Mills v. Labour Court 1960 I.L.J. 678. On the basis of these decisions, it is clear that the second respondent herein should not have been dismissed by the petitioner on the ground that he was guilty of theft of the copper conductor which was itself the subject-matter of the prosecution. I may reiterate here that the domestic enquiry itself was conducted only after the second respondent was acquitted by the criminal Court.
4. As far as the second ground of dismissal is concerned, certainly the second respondent could be said to be technically guilty. Admittedly he was arrested on 9-12-1965 and he was in remand till 19-12-1965 and remained so till 28-1-1966. In his letter dated 1-1-1966 itself, the second respondent has intimated the petitioner that he was on conditional bail at Tirunelveli, Therefore, it is clear that the second respondent, from 9-12-1965 onwards till 28-1-1966. could not have reported to duty or attended to his work at Tuticorin. However, the contention of the petitioner is that nothing prevented the second respondent from writing either when he was on remand or during the period when he was en conditional bail to the company and apply for leave. The answer of the second respondent is that even on 9-12-1965, he has requested the Sub-Inspector of Police who arrested him to give information of the same to the petitioner herein. In the domestic enquiry at which the said Sub-Inspector of Police was examined as a witness the second respondent expressely put a question to the Sub-Inspector as to whether he had not asked the Sub-Inspector to inform the Engineer in charge of the petitioner-company about his arrest, the Sub-Inspector did not deny it. Therefore, we must proceed on the assumption that on 9-12-1965 when the Sub-Inspector arrested the second respondent, the second respondent requested the Sub-Inspector to give intimation of his arrest to the petitioner-company. That may be the reason why the second respondent did not actually apply for leave since the petitioner was aware of the fact that the second respondent was under arrest. It is in view of all these facts, the Tribunal came to the conclusion that the action of the petitioner in dismissing the second respondent was colourable or male fide exercise of power under the relevant standing orders for getting rid of the second respondent.
5. In view of the decisions already referred to, Mr. M.R. Naryanaswami, the learned Counsel for the petitioner, very naturally did not rely, in support of the order of dismissal, on the first ground, namely, that the second respondent was found guilty of theft at the domestic enquiry ; but, strongly stressed and relied on the second ground. The learned Counsel's argument is that the standing orders require the employee to apply for leave and in this case the second respondent did not apply for leave and, therefore, there had been a violation of the standing orders. As I pointed out already, there is a technical violation of the standing orders, It is not the case of the petitioner that the second respondent was in a position to report for duty and attend to his work, and in spite of that, deliberately refrained from reporting for duty or attending to his work and did not apply for leave. Hence against the background of these facts, when the petitioner took action against the second respondent solely for this technical Contravention of the standing order, in not applying for leave, the question whether the punishment of dismissal is a proper one irises in the context of the contention of the fecond respondent that the act of the dispraise constituted victimisation or was a mala fide exercise of power. I am of the view that there were more than adequate materials from which the Tribunal could draw the inference that the dismissal was colourable or mala fide exercise of the powers of the petitioner under the standing orders. There pas the fact that the second respondent was acquitted by the criminal Court. Notwithstanding this acquittal, the petitioner proceeded to take action against the second respondent on the very same charge and on he very same evidence and found him guilty of theft. Secondly, there is the fact that notwithstanding the knowledge on the part of the petitioner that the second respondent had been arrested and was not physically in a position to come and report for duty and attend to his work, it insisted upon an explanation from the second respondent and threatened to take disciplinary action against him for violation of the standing orders. Thirdly, as I pointed out already, the violation was merely a technical one in the sense that the petitioner was fully aware of the circumstances under which the second respondent was absent from duty and, therefore, the only complaint the petitioner could have made against the second respondent is that in order to comply with the provisions of the standing orders, he ought to have applied for leave for the period during which he was in remand and thereafter on conditional bail, being compelled to remain only in Tirunelveli. It is against the background of these facts, the order of dismissal has to be viewed as to whether it is one passed in the bona fide exercise of powers of the management or it constituted a colourable or mala fide exercise of the power which the petitioner had under the standing orders. As I pointed out already these circumstances can certainly be taken note of by the Tribunal when it was called upon to give its approval for the order of dismissal passed by the petitioner and if the Tribunal, after taking note of these circumstances, came to the conclusion that the order of dismissal constituted a colourable or mala fide exercise of the power of the petitioner under the standing orders, I am of the opinion, such a conclusion cannot be challenged either on the ground that it is not warranted by any evidence on record or on the ground that it was in excess of the jurisdiction of the Tribunal.
6. For all these reasons, I am of the view that no case has been made out for interference with the impugned order of the Tribunal and accordingly the writ petition fails and is dismissed.
7. There will be no order as to costs.