Dismissed

Pandurang D. Dhumal v. Railway Goods Clearing and Forwarding Estab.Labourboard for Gr. Bombay

Bombay HC7 Sept 2009WP/1445/1998

Case brief

AI extract

What is this about?

The High Court set aside the dismissal order against a clerk for misconduct as the finding was based on unproven documents by an untrustworthy witness. The court reinstated the petitioner, keeping him on suspension until a fresh enquiry.

What did the court decide?

Dismissal set aside; petitioner reinstated; continues on suspension; Board to hold fresh enquiry and pay subsistence allowance.

Pandurang D. Dhumal Vs Railway Goods Clearing… — Labour and Industrial Disputes | Bombay HC (2009)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 ORDINARY ORIGINAL CIVIL JURISDICTION

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WRIT PETITION NO.1445 OF 1998

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Pandurang D. Dhumal

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...Petitioner

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v/s

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Railway Goods Clearing and Forwarding

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Establishments Labour Board for

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Greater Bombay ...Respondents

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Mr K.S. Bapat with Mr Jayesh Desai for Petitioner.

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Ms Lata Desai for Respondents.

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CORAM : D.K. DESHMUKH AND R.G. KETKAR JJ.

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DATE : 7TH SEPTEMBER 2009.

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P.C.:-

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1]By this petition, the petitioner who was in

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the employment of the respondent � Board as a Clerk
challenges the order dated 25th November 1997
dismissing him from the service of the Board. The
relevant facts are that a charge-sheet was served on

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the petitioner. The main charge was that the

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petitioner, while working as a Clerk inflated the

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summary prepared by him for making payment, as a
result of which he caused loss to the Board.

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Though three witnesses were cited, only one person

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was examined as a witness by name A.B. Patil. At

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the conclousion of the enquiry, the Enquiry Officer

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submitted his report. The Enquiry Officer held that

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the only witness examined on behalf of the Board is

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not found to be reliable but the Enquiry Officer, on

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the basis of documents on record, recorded a finding

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that the petitioner is guilty of misconduct alleged

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against him. The Disciplinary Authority accepted
the finding and imposed the punishment of dismissal.

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The learned counsel appearing for petitioner

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submitted that the entire enquiry has been held in

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violation of principles of natural justice. The
enquiry has been held without there being original

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record. The Enquiry Officer also did not supply

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copies of all the relevant documents to the

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petitioner. He submitted that after having held
that the only witness examined on behalf of the

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Board is not reliable, the Enquiry Officer could not

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have recorded a finding that the petitioner is
guilty of misconduct on the basis of the documents
because the sole witness examined on behalf of the
Board has stated that he does not identify the
handwriting of the petitioner and he has never
worked at Chembur office where the petitioner was
working. Some of the documents have been admitted

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by the petitioner and therefore, according to the

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learned counsel appearing for respondents, it cannot
be said that the enquiry has been held in breach of
principles of natural justice. She also submitted

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that strict rules of evidence are not applicable to
the departmental enquiry.

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submissions the record of the case is perused, it

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becomes clear that in the enquiry report, the

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Enquiry Officer has clearly observed that the sole

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witness examined on behalf of the Board is not
reliable because he does not have any personal
knowledge of the subject matter of the enquiry, he

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has never worked at Chembur office where the

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petitioner was working. Perusal of the report of

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the Enquiry Officer on the basis of which the order
of dismisal has been made shows that it solely

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relies on the documents produced on record.

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Admittedly, originals of those documents were not

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before the Enquiry Officer. Perusal of the

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deposition of the sole witness shows that he in

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clear terms states that he has never worked at

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Chembur office where the petitioner was working. He
has stated that he does not even know whether the

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petitioner was working during the year 1991-92.

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The charges against the petitioner relate to that

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period. He has clearly stated that he does not
identify the handwriting of the petitioner because

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he has never worked with the petitioner. After

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going through the deposition, we do not find that
the witness has proved any of the documents which

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have been produced on record. Though it is true

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that the strict rules of evidence do not apply to
departmental enquiries, the documents which are
produced during the departmental enquiry have to be
proved by a person who either knows the handwriting

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of the person who has written the documents or who

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can identify signature of the person. Even in
departmental enquiry, before relying on contents of
the documents for recording finding of guilt, the

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contents of the documents have to be proved by a
proper witness. We find that the criticism of the
learned counsel appearing for petitioner that the

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sole witness examined on behalf of the Board has not

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proved any of the documents, he has not stated that
the documents which are produced are from the record
regularly maintained by the Board, in our opinion,

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is justified. It is clear that the finding of the

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Enquiry Officer that the petitioner is guilty of
misconduct alleged against him only on the basis of

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the documents cannot be sustained in the absence of
documents being proved. But the fact remains that

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the misconduct that is alleged against the

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petitioner is of a very serious nature and it is
possible that at the relevant time, the Board may
be facing difficulties because of involvement of so
many persons in the alleged misconduct. In our

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opinion, therefore, it will be appropriate to grant
liberty to the Board to hold a fresh departmental
enquiry. The learned counsel appearing for Board
stated before us that the Board proposes to hold a
fresh departmental enquiry. In our opinion,
therefore, following order would meet the ends of
justice.

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dismissing the petitioner from service is set aside,
the petitioner is reinstated in service. However,
as at the time of his dismissal, admittedly, the

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petitioner was under suspension, the petitioner
will continue under suspension during the pendency
of the fresh departmental enquiry against the

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petitioner for the same misconduct. The Board
shall, however, pay to the petitioner subsistence
allowance to which he is entitled in accordance with

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law from the date of dismissal i.e. 25th November
1997 till today and continue to pay the same in
accordance with law during the pendency of the fresh
departmental enquiry. In view of the pendency of

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the matter for so many years the Board shall hold
departmental enquiry as expeditiously as possible.
Rule is made absolute with no order as to costs.
The leaned counsel appearing for respondents states
that the arrears of subsistence allowance shall be
paid to the petitioner within a period of eight
weeks from today. The statement is accepted.

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Parties to act on the copy of this order
duly authenticated by the Associate / Private
Secretary of this Court.

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Certified copy expedited.

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( JUSTICE D.K. DESHMUKH )

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( JUSTICE R.G. KETKAR )

Pandurang D. Dhumal v. Railway Goods Clearing and Forwarding Estab.Labourboard for Gr. Bombay

Case brief

What is this about?

What did the court decide?

Pandurang D. Dhumal v. Railway Goods Clearing and Forwarding Estab.Labourboard for Gr. Bombay

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

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