THE HONOURABLE SRI JUSTICE GODA RAGHURAM WRIT PETITION No. 15675 of 2000 Dated: 25-11-2010 Between: D.Venkata Rao …Petitioner and Otis Elevator Co., (I) Ltd., rep. by its General Manager, Madras and another …Respondents ORAL ORDER: The order dated 12-6-2000 of the Appellate Authority under the A.P.Shops and Establishments Act, 1988 (for short ‘the Act’) and the Deputy Commissioner of Labour, Visakhapatnam in APSEA No. 4 of 1997 is impugned in this writ petition. The petitioner joined the 1st respondent company-M/s Otis Elevator Co., Limited in the year 1989 as an Office Boy. In 1992 he was implicated in a misconduct and a criminal prosecution was also launched against him on an allegation of theft of certain materials including two iron channels belonging to his employer. A departmental enquiry was ordered. Though the Enquiry Officer found that the charges levelled against the petitioner were not proved on account of his acquittal in C.C.No. 440 of 1992 by the Metropolitan Magistrate concerned, the disciplinary authority differed with this view and after a due process imposed on the petitioner the penalty of dismissal from service by an order dated 12-7-1996. Aggrieved, the petitioner preferred a first appeal No. 8 of 1996 before the Assistant Commissioner of Labour. Another employee D.Nageswara Rao was also subjected to departmental inquiry on the same set of charges and was also dismissed from service. He also preferred the appeal under the provisions of the Act. The appeal was numbered as F.A.No. 7 of 1996. F.A.Nos. 7 and 8 of 1996 were considered together by the Primary appellate Authority, the Assistant Commissioner of Labour, Visakhapatnam. By the order dated 31-3-1997 the Assistant Commissioner of Labour awarded an amount of Rs.15,000/- as compensation in lieu of reinstatement into service to the other employee D.Nageswara Rao and Rs.8000/- similarly in lieu of reinstatement to the petitioner. The findings of the Primary Authority, the Assistant Commissioner are somewhat unusual. After having recorded a finding on the basis of the evidence and relying upon the testimony of the SI of Police-PW4 and PW3 who deposed that the two iron channels were brought by the appellants (including the petitioner herein) to a scrap dealer unauthorisedly, the Primary authority, nevertheless concluded that the punishment of dismissal is too severe, having regard to the acquittal of both the applicants in C.C.No. 440 of 1992 and that in the circumstances the proportionate penalty would be grant of compensation in lieu of reinstatement into service with back wages. The Primary appellate authority is seen to have drawn impermissible inferences from the fact that the petitioner and the other employee were found in possession of the employer company’s property (iron channels) in the premises of a scrap dealer. Be that as it may. Aggrieved by the meagre compensation of Rs.8000/-, the petitioner preferred further appeal to the 2nd respondent, the Deputy Commissioner of Labour, Visakhapatnam under Section 48(3) of the Act. On an independent analysis of the facts on record and the applicable principles, the Deputy Commissioner of Labour, the second appellate authority found that the charge of theft against the petitioner is established and that the first appellate authority erred on this score. However despite this finding that the petitioner was guilty of the charge of theft, the second appellate authority did not either dismiss the appeal or set aside the order of Primary authority awarding compensation of Rs.8000/- to the petitioner, but went on to increase the amount of compensation from Rs.8000/- awarded by the first appellate authority to Rs,40,000/-, an amount agreed upon by the employer M/s Otis Elevator Company, to be paid to the petitioner. Sri Subba Rao, the learned counsel for the petitioner would urge that since the petitioner was acquitted of the charge of theft, he is entitled to reinstatement with back wages and continuity of service. This contention is stated to be rejected. The disciplinary authority, the primary authority under the provisions of the Act as well as the second appellate authority (representing the 2nd respondent herein) concurrently found the petitioner guilty of the ingredients of the charge, namely that he was seen transporting two iron channels belonging to the employer-M/s Otis Elevator Co. Limited to a scrap dealer. No explanation is forthcoming from the petitioner as to this rather strange conduct. The legitimate inference is misappropriation of the employer’s property for the purpose of vending it to the scrap dealer. The primary and appellate authority appear to have been swayed by the fact that the petitioner was acquitted in a criminal case wherein the acquittal was recorded on the ground that two of the witnesses had turned hostile. In any event, the law is too well established to warrant an idle parade of familiar learning, that mere acquittal in a criminal case does not bar a departmental inquiry where the trajectory of the two proceedings is different and the standard of proof is also dissimilar. There is also no identity of the charges in the prosecution vis-à-vis the departmental enquiry. Be that as it may. In the considered view of this Court, the petitioner was especially fortunate in getting a compensation of Rs.40,000/- despite three concurrent findings of fact as to his serious misconduct, from which the only legitimate inference that can be drawn is extreme misconduct. I do not see any justification in the petitioner pushing his luck further. There are no merits. The writ petition is accordingly dismissed. But in the circumstances, without costs. _________________________ GODA RAGHURAM, J 25th November, 2010. GRR