SBCWP NO.6644/97. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.6644/1997. Ram Kishan Sharma Versus Sachiv, Jaipur Vikas Pradhikaran, Jaipur & Ors. Date of Order:- March 5, 2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Satish Khandelwal for the petitioner. ***** BY THE COURT:- This writ petition has been filed by the petitioner against the award dated 2/11/1995 by which, his application under Section 33A of the Industrial Disputes Act, 1947 was dismissed and his termination by the Director (Engineering) Jaipur Development Authority vide order dated 11/1/1985 was held legal and valid holding that petitioner was not entitled to any reinstatement. However, Tribunal vide order dated 1/5/1987 held that domestic enquiry initiated against the petitioner was not proper hence, permission was granted to the JDA to lead evidence to prove the misconduct of the petitioner. Charge No.1 which was with regard to illegal gratification, was found proved. 2) Shri Satish Khandelwal, learned counsel for the petitioner has argued that gravity of the charge against the petitioner only on Charge No.1 was not SBCWP NO.6644/97. 2 which could justify his removal from service. When other three charges have been held to be not proved, he could be removed from service only on the basis of the one proven charge. Even otherwise, finding on that charge has also not been satisfactorily recorded by the Tribunal. Learned counsel submitted that statement of Abdul Rasheed who alleged that he paid Rs.250/- to the petitioner for allowing him to trespass the adjacent land to graveyard for erecting a hut, suffers from contradiction. Petitioner has placed on record affidavit of Abdul Rasheed before the Tribunal as Exh.4. In cross-examination, Abdul Rasheed admitted that the signatures were obtained by the officials of the JDA but the affidavit was not read over to him. He also stated that he did not know petitioner Ram Kishan but he had known to him only for last 2-4 months. Learned counsel for petitioner submitted that when Abdul Rasheed has clearly stated that he was not knowing petitioner then, narration of Abdul Rasheed in the affidavit that he paid Rs.250/- to the petitioner for illegally allowing him to trespass the adjacent land of the graveyard for erecting a hut, cannot be accepted. Learned counsel submitted that removal of the petitioner from service was liable to be declared illegal because JDA did not apply for its approval under section 33-2(b) of the Act of 1947. Learned counsel further argued that statement of Abdul Rasheed was not worth believing and it does SBCWP NO.6644/97. 3 not inspire confidence. Learned counsel submitted that the Tribunal was wholly unjustified in accepting Charge No.1 as proved against the petitioner by observing that in the domestic enquiry even the charge can be taken as proved by circumstantial evidence also. The impugned award passed by the Tribunal is liable to be set-aside. 3) Upon hearing the learned counsel for petitioner and perusing the impugned award as also the other material on record, I find that though it was observed by the Tribunal in para 8 of its award that in the domestic enquiry, provisions of Indian Evidence Act did not directly apply and that the charge can be taken as proved by the circumstantial evidence but those observations appear to have been made in the context of the statement of petitioner- workman that Abdul Rasheed in his cross-examination made contradictory statement by saying that he did not know Ram Kishan. Statement of Abdul Rasheed ought not to be read in isolation. Standard of proof in domestic enquiry, it is well settled in law is by preponderance of evidence and not beyond reasonable doubt. Observation of the Tribunal shall have to be therefore understood in that light. What is meant by saying that technical procedure of Evidence Act, would not apply to the domestic enquiry and in special circumstances, circumstantial evidence can also be looked into. From what is stated in affidavit of Abdul Rasheed and his cross-examination SBCWP NO.6644/97. 4 taken together, it inspired confidence that it was Abdul Rasheed who signed the affidavit in which he alleged that he paid Rs.250/- to the petitioner and that this fact he admitted even in cross- examination. In his cross-examination, he further submitted that amount was paid for erecting the hut on the adjacent land of the graveyard. He although ofcourse stated that he did not know Ram Kishan but at the same time, he further stated that he knew him for only last 2-4 months, which testimony cannot be discarded. If there is some evidence to sustain the finding with regard to charge in domestic enquiry, this Court in exercise of its power of judicial review under Article 226 of the Constitution of India cannot make interference only because if possible to take another view. 4) I do not find any merit in this writ petition, which is according dismissed being devoid of merit. (MOHAMMAD RAFIQ), J. anil