IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE EIGHTEENTH DAY OF JUNE TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE SANJAY KUMAR WRIT PETITION NO : 15834 of 2000 Between: P.Srinivasa Prasad, S/o.Late Suryanarayana, Hindu, Male, R/o.Lalitha Colony, D.No.29-6-21, Dabagardens, Visakhapatnam. ..... PETITIONER AND 1 The Secretary, Bharateeya Vidya Kandram, D.No.10-1-35, Travellora Bungalow, Visakhapatnam, (Management). 2 The Industrial Tribunal-cum-Labour Court, Visakhapatnam. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue any writ, order or direction, more particularly, one in the nature of WRIT OF CERTIORARI calling for the records from the file of the Second Respondent-Labour Court in I.D.No.3/95, examine the same and quash the award of the Industrial Tribunal-cum-Labour Court, Visakhapatnam passed in I.D.No.3/95, dt:22.9.99 notified in G.O.Rt.No.2143 dated:20.11.1999, also the domestic enquiry and the consequential dismissal order passed by the 1st Respondent-Management dismissing/terminating the petitioner from service and direct the First Respondent-Management to reinstate the petitioner with continuity of service and back wages and with all other attendent benefits or to pass any other order or orders as this Hon'ble Court deems fit and proper in the circumstances of the case. Counsel for the Petitioner:SMT.N.(P).ANJANA DEVI, SATYANARAYANA Counsel for the Respondent No.: MR.A.SRINIVASA SARMA The Court made the following : THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.15834 OF 2000 O R D E R The petitioner invokes the certiorari jurisdiction of this Court to quash the nil Award dated 22.09.1999 in I.D.No.3 of 1995 on the file of the Industrial Tribunal-cum-Labour Court, Visakhapatnam, the preceding domestic enquiry and the order passed by the Bharateeya Vidya Kendram, Visakhapatnam, the first respondent, terminating the petitioner from service. He seeks a further direction to the first respondent to reinstate him in service with continuity of service, back wages and all other attendant benefits. Having heard Smt.N.(P) Anjana Devi Satyanarayana, learned counsel for the petitioner, on 25.03.2009 and 26.03.2009, the matter was taken up on 18.04.2009 and thereafter on 24.04.2009, 05.06.2009, 11.06.2009 and 12.06.2009 to enable Sri A.Srinivasa Sarma, learned counsel for the first respondent to advance his arguments. However, the learned counsel failed to avail the opportunity extended to him and did not even put in an appearance on the last three dates of hearing, viz., 05.06.2009, 11.06.2009 and 12.06.2009. Therefore, this Court is constrained to adjudicate the matter on the basis of the material available on record, including the counter-affidavit filed by the first respondent. The petitioner entered into the service of the first respondent as an Office Boy on 21.08.1984. He was promoted thereafter as Despatch Clerk. He was subjected to disciplinary proceedings for the alleged theft of blank cheques and misappropriation of a sum of Rs.1,65,000/- from the bank accounts of the first respondent by forgery and impersonation. The charge sheet dated 18.08.1993 issued to the petitioner enumerated the following charges: “CHARGE I : That you have committed theft of Blank cheques Nos.749947 and 749948 in Cheque Book relating to S.B.A/c.No.13118 of Andhra Bank, Dabagardens and withdrew an amount of Rs.80,000/- on 12.1.93 by personating yourself as K.Saibaba and by forging his signature. CHARGE II : That likewise, you have committed theft of Blank cheque No.749813 in the Cheque Book relating to S.B.A/c.No.13120 of Andhra Bank, Dabagardens and withdrew an amount of R.40,000/- on 11.1.93 by personating yourself as K.Saibaba and by forging the signatures that you re-deposited on 16- 1-93 the said sum of Rs.40,000/- by forging the signature of K.Saibaba. CHARGE III : That you committed theft of Blank Cheque No.098993 in the Cheque Book relating to S.B.A/c.No.2517 of Canara Bank, Suryabagh and withdrew an amount of Rs.30,000/- on 11.1.93 by forging the signature of Sri T.V.Prabhakar and by personating yourself as Sri G.Sudhier by forging his signature. CHARGE IV : That you have committed theft of Cheque No.535892 relating to S.B.A/c.No.C. & I.53 of State Bank of India, Venkateswara Metta and withdrew a sum of Rs.15,000/- on 21-12-92 by personating yourself as G.Sudher and forging his signature.” It appears that a complaint was also registered with the police authorities in Crime No.65 of 1993 of III Town L & O P.S., Visakhapatnam. Being dissatisfied with the petitioner’s explanation dated 25.08.1993 and his additional explanation dated 04.09.1993 and after conducting an enquiry, the first respondent terminated his services vide order dated 29.12.1993. Aggrieved thereby, the petitioner approached the Labour Court, Visakhapatnam, by way of I.D.No.3 of 1995. The Labour Court, having found that the domestic enquiry conducted by the first respondent was invalid, permitted the parties to lead evidence before it to substantiate their case. The petitioner examined himself as W.W.1. Three officers belonging to the banks where the alleged forged cheques were presented for payment were examined as W.Ws.2 to 4. The first respondent examined three witnesses and marked Exs.M.1 to M.59. Exs.X.1 to X.32 and C.1 to C.9 were also marked. The Labour Court, influenced by the evidence adduced by M.W.2 a handwriting expert who was examined in the criminal proceedings, and basing on his report, found that there was no fault on the part of the first respondent in taking action against the petitioner and accordingly passed a nil Award. The petitioner challenges the said Award on the ground that the evidence of the handwriting expert did not, in fact, indict him. Further, he had denied the signatures allegedly taken from him by the police during investigation, and therefore, the report of the handwriting expert based on such disputed signatures could not be taken into account. The petitioner also raised the ground that when the police case was pending on the same charges, it was not within the purview of the first respondent to decide the very same issues in a domestic enquiry and terminate his services. The learned counsel for the petitioner contended that the criminal case launched against the petitioner ended in his acquittal, which was threreafter confirmed in appeal by this Court and therefore, the findings to the contrary recorded in the disciplinary proceedings could not be sustained. Reliance is placed upon the judgments in THE DEPUTY CHIEF CONTROLLER OF IMPORTS & EXPORTS, HYD. V/s. BODDULA MALLESHAM[1] and G.M.TANK V/s. STATE OF GUJARAT[2] in support of the above contentions. In its counter-affidavit, the first respondent sought to rely upon the domestic enquiry to support and justify its action. With regard to the contention of the petitioner that disciplinary proceedings ought not to have been continued during the pendency of the criminal case, the first respondent stated that criminal proceedings and departmental proceedings, being different in their very nature and standard, could not be interlinked and sought to justify the continuation of the departmental proceedings in spite of the pendency of the criminal case. The first respondent concluded by pointing out that this Court would not sit in appeal over the disciplinary proceedings and prayed for dismissal of the writ petition. At the out set, it is to be noticed that the finding of the Labour Court that the domestic enquiry held by the first respondent against the petitioner was invalid has become final. On the basis of this finding, the first respondent was permitted to adduce evidence before the Labour Court, Visakhapatnam. It is therefore not open to the first respondent to fall back upon the said enquiry or the findings recorded therein. The matter has to be decided on the evidence and findings recorded by the Labour Court in the I.D. The Award of the Labour Court, on the face of it, leaves a lot to be desired. A reading of the same would indicate that the findings of the Labour Court are substantially based on surmise and conjecture. The Labour Court overlooked the evidence of the handwriting expert (M.W.2) that he could not give any opinion with regard to the forgery with reference to the petitioner. Merely because the expert stated thereafter that he had observed similarities in the signatures of the petitioner, the Labour Court ought not to have jumped to the conclusion that a case of forgery was made out against the petitioner, ignoring the earlier statement made by the handwriting expert. Further, there are other fatal infirmities which afflict the disciplinary action taken against the petitioner. The petitioner specifically challenged the continuation of the disciplinary proceedings during the pendency of the criminal case. The first respondent sought to defend this action on the ground that the standard of proof required in disciplinary proceedings was different from that insisted upon in criminal proceedings and the same could not be interlinked. It is however to be noticed that the charges framed against the petitioner in the disciplinary proceedings were identical to the charges framed against him in the criminal case. The charge sheet filed against the petitioner alleging offences under Sections 381, 471, 468 and 420 of the Indian Penal Code, before the II Metropolitan Magistrate, Visakhapatnam City, Visakhapatnam, reads as hereunder: “ ……During the month of January, 1993 unknown staff members of PW-1 committed theft of two cheques bearing Nos.749947 and 749948 issued by Andhra Bank, Daba Gardens, Visakhapatnam for operating S.B.Account No.13118 and encashed both the cheques on 11-1-93 to a tune of Rs.80,000/-. Another cheque bearing No.749813 issued by Andhra Bank, Daba Gardens Branch, Visakhapatnam A/c No.13120 was also committed theft of by some unknown staff members of PW-1 and the same was encashed on 11-1-93 to a tune of Rs.40,000/- and two more cheques bearing Nos.098993 of Canara Bank, Suryabagh, A/c No.1517 and cheque No.535892 of SBI., Venkateswara Metta, C/& I A/c No.53 for Rs.30,000/- and 15,000/- dt.11-1-93 and 21-12-92 were also encashed respectively without knowledge of PW-1 and the theft of cheques have been notified by PW-1 after Pongal Vacations i.e. on 22-1-93. The cheque bearing No.749813 which was withdrawn on 11-1-93 was made amazed to find that the said amount was redeposited on 16-1-93 and a total of Rs.1,25,000/- was withdrawn from the Bank account of BVK Central Office, which is being organized under the control of PW-1. On a report lodged by PW-1, PW-12 registered a case in Cr.No.65/93 u/s 380, 468, 419 IPC and investigated into. During course of investigation, PW-12 obtained the specimen signatures of the office staff of PW-1 including the accused in the presence of PWs 9 and 10 and the same were transmitted to PW-11 for comparision of the hand writings which were written in the seized cheques from the above said banks and the other vouchers written by the accused and other staff PW-1. PW-11 who examined the hand writings of the accused and other staff of PW-1, identified the hand writings and noticed that the accused has forged the signatures of PWs 2 to 5 and another and encashed the amounts from the banks. …” A comparison of the charges framed in the disciplinary proceedings and the criminal case puts it beyond doubt that the case against the petitioner in both the cases was virtually the same. In fact, the three witnesses examined by the Management in the disciplinary proceedings to prove its case were also examined in the criminal proceedings. It is a matter of record that the criminal proceedings initiated against the petitioner in Crime No.65 of 1993 of III Town L & O Police Station, Visakhapatnam, ended in his acquittal under the judgment dated 25.09.2000 in C.C.No.389 of 1996 on the file of II Metropolitan Magistrate, Visakhapatnam. A copy of the said judgment is placed before this Court and reveals that the trial Court found that there was no evidence to prove that the petitioner had forged the cheques. The evidence of the handwriting expert was eschewed on the ground that the same was based on specimen signatures obtained from the petitioner during the course of investigation. This was in accordance with the law laid down in BODDULA MALLESHAM’s case (1 supra) that signatures obtained during investigation are not valid and are hence, inadmissible for the purpose of comparison. The appeal filed by the State against the said acquittal, in Crl.A.No.1048 of 2001, was also dismissed by this Court by order dated 09.03.2006. It is the contention of the learned counsel for the petitioner that in view of the honourable acquittal of the petitioner in the criminal case, the findings to the contrary recorded in the disciplinary proceedings cannot be sustained and accordingly his dismissal from service is illegal. The judgment of the Supreme Court in G.M.TANK’s case (2 supra) is pressed into service in support of this contention. The observations of the Supreme Court therein are as hereunder: “……In this case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a Departmental case against the appellant and the charge before the Criminal Court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts namely, raid conducted at the appellant's residence, recovery of articles therefrom. The Investigating Officer, Mr. V.B. Raval and other departmental witnesses were the only witnesses examined by the Enquiry Officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and 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 his judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed 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. 32. 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 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's case will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed.” The fact situation in the present case, being practically identical with that in G.M.TANK’s case (2 supra), it is difficult to sustain the findings recorded by the Labour Court, Visakhapatnam, which are at variance with those recorded in the criminal proceedings. Though the petitioner placed reliance on the judgment in BODDULA MALLESHAM’s case (1 supra) before the Labour Court in support of his contention that the handwriting expert’s evidence was liable to be ignored as the petitioner’s alleged specimen signatures were obtained during the course of the investigation and which were, in fact, denied by him, but the Labour Court ignored the same. It is no doubt true that the standard of proof required in criminal proceedings as compared to disciplinary proceedings is far higher. However, when the collection of the alleged specimen signatures of the petitioner is tainted in its very inception as per BODDULA MALLESHAM’s case (1 supra), the report based thereupon could not have been used even for a collateral purpose i.e. in the disciplinary proceedings. Further, as pointed out herein above, the report of the handwriting expert and his evidence are not conclusive in so far as the petitioner is concerned and therefore the reliance placed upon the same by the Labour Court is clearly unsustainable. Thus, the charges levelled against the petitioner, the case built up against him and the evidence adduced were identical in the criminal proceedings and the disciplinary proceedings. That being so, the judgment of the Supreme Court in G.M.TANK’s case (2 supra) is squarely applicable to the present case and the contrary findings recorded in the disciplinary proceedings cannot stand. It is no doubt true that the judgment of the Supreme Court in G.M.TANK’s case (2 supra) was thereafter considered by the Supreme Court in PANDIYAN ROADWAYS CORPN. LTD. V/s. N.BALAKRISHNAN[3]. The Supreme Court pointed out that an honourable acquittal in the criminal case may not by itself be determinative in respect of disciplinary action taken against an employee when: (i) the order of acquittal has not been passed on the same set of facts or same set of evidence; (ii) the effect of difference in the standard of proof in a criminal trial and disciplinary proceedings had not been considered; and (iii) where the delinquent officer was charged with something more than the subject matter of the criminal case. However, none of the above three differentiating factors are made out in the present case warranting deviation from the principle laid down in G.M.TANK’s case (2 supra). The findings of the Labour Court in I.D.No.3 of 1995 are therefore held to be unsustainable and invalid. The termination of the petitioner from service by the first respondent is also set aside. The petitioner is entitled to reinstatement in service with continuity of service. In so far as the issue of back wages is concerned, the petitioner has been out of service since 29.12.1993 and no material is placed before this Court to conclude that he has not been gainfully employed since then. However, keeping in mind the fact that his termination from service is found to be illegal, the interest of justice would be adequately served by directing the first respondent to pay him 50% (fifty percent) of the back wages. The writ petition is accordingly allowed to the extent indicated above. In the circumstances of the case, there shall be no order as to costs. -------------------------- SANJAY KUMAR,J _____JUNE, 2009 PGS (P.D) THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.15834 OF 2000 _____JUNE, 2009 [1] 1997(1) ALT (Crl.) 719 (A.P.) [2] AIR 2006 SUPREME COURT 2129 [3] (2007) 9 SUPREME COURT CASES 755