THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.18167 OF 2004 DATED 5TH NOVEMBER, 2009 BETWEEN D.Chandrasekhar Reddy E.575897 … Petitioner and The Presiding Officer, Industrial Tribunal-cum-Labour Court, Anantapur. And Another. … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.18167 OF 2004 ORDER: The petitioner, a former Driver in the Andhra Pradesh State Road Transport Corporation (for brevity, ‘the APSRTC’), challenges the Nil Award dated 21.02.2004 passed by the Labour Court, Anantapur, in I.D.No.9 of 2002. The said Industrial Dispute was raised by the petitioner under Section 2-A(2) of the Industrial Disputes Act, 1947 (for brevity, ‘the Act of 1947’) challenging the order dated 04.08.2001 whereby he was removed from service. He sought a consequential direction to reinstate him in service, with continuity of service, back wages and other attendant benefits. The petitioner was appointed as a Driver in the Anantapur Depot of the APSRTC. While so, his wife-Rama Devi lodged a complaint with the APSRTC that the petitioner had married one Sri Devi during the subsistence of his marriage with her, thereby committing bigamy. The petitioner was subjected to disciplinary proceedings wherein he was charged with bigamy and concealment of his bigamous marriage. He submitted his explanation denying the said charges. Dissatisfied with the same, the APSRTC instituted an enquiry into the matter. The Enquiry Officer submitted his report holding that the charges levelled against the petitioner were proved. Thereafter, the order removing the petitioner from service came to be passed. The Labour Court considered the evidence adduced in the departmental enquiry with regard to the alleged second marriage of the petitioner. In spite of reliance being placed upon the Judgment of this Court in D.VIJAYALAKSHMI v. D.SANJEEVA REDDY[1] to support the plea that the second marriage should be proved in accordance with legal requirements under Hindu Law or under the caste customs, the Labour Court did not rely upon the same stating that the said Judgment arose out of a criminal case. It appears that the Labour Court mainly relied upon the interested evidence of the wife-Rama Devi and the evidence of one Surya Prakash, who stated that he had observed that the petitioner was living with another woman and that he had learnt that the petitioner had married her. The Labour Court was of the opinion that the strict rules of Evidence Act were not applicable in departmental proceedings and that the principle of proof beyond reasonable doubt was also not applicable. Though the Labour Court was correct in its approach that the principles applicable in criminal proceedings, with regard to proof beyond reasonable doubt, are not applicable in disciplinary proceedings which proceed on a preponderance of probabilities, there should be sufficient and cogent evidence to support a finding. The evidence of the interested witness - the wife and the hearsay evidence of Surya Prakash, who could only state that he had observed that the petitioner was living with another woman and that he had ‘learnt’ that the petitioner had married her, is not sufficient to support a finding of bigamy. Further, it is brought to my notice that the competent criminal Court, being the Court of the Judicial Magistrate of First Class, Anantapur, acquitted the petitioner of the charge of bigamy under Section 494 of the Indian Penal Code in C.C.No.4 of 2002, by its Judgment dated 15.07.2004. A copy of the said Judgment is placed before me and the same reveals that the prosecution failed to prove the charges framed against the petitioner under Sections 498-A and also 494 of the Indian Penal Code. In the light of the finding recorded by the competent criminal Court on the charge of bigamy, which forms the substantial basis for the charges in the disciplinary proceedings initiated against the petitioner, the contrary finding recorded in the departmental enquiry and confirmed by the Labour Court cannot be permitted to stand. In this regard, reference may be made to the Judgment of the Supreme Court in G.M.TANK v. STATE OF GUJARAT[2]. The observations of the Supreme Court are apposite: “……….. the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by its judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed that the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand. In our opinion, such facts and evidence in the departmental as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though the finding recorded in the domestic enquiry was found to be valid by the courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in PAUL ANTHONY [(1999) 3 SCC 679] will apply………” In that view of the matter, the petitioner’s removal from service based on the findings, contrary to those recorded in the criminal proceedings, is unsustainable in law. As the petitioner remained out of service since his removal from service under the order dated 04.08.2001, and the said removal is held to be illegal in view of his acquittal by the competent criminal Court in a separate proceeding and as there is no assertion on his part that he was not gainfully employed elsewhere, I am not inclined to make any order as to back wages. Further, the petitioner having been out of service all along, would not be entitled to continuity of service for the purpose of seniority and promotion. Accordingly, there shall be a direction to the respondents to reinstate the petitioner in service without back wages, but with continuity of service for the purpose of pensionary and retirement benefits. Further, the continuity of service shall also be taken into account for the purpose of extending the petitioner notional increments and fixation of pay in accordance therewith. He shall however not be entitled to any arrears consequent to such pay fixation. The writ petition is allowed to the extent indicated above. In the circumstances of the case, there shall be no order as to costs. ____________________ SANJAY KUMAR, J. 5th November, 2009. VGSR [1] 2000 (2) ALT (Crl.) 136 [2] (2006) 5 SCC 446