In W.P. No. 12267 of 2022-BOM HC- In domestic inquiry, strict rules of evidence are not applicable; Even hearsay evidence is admissible: Bombay HC 
Justice Sandeep V. Marne [21-12-2022]

 Read Order: THE DIVISIONAL CONTROLLER AND ORS V. RAVINDRA ADHAR GOSAVI

Mansimran Kaur

Aurangabad, December 29, 2022: The Aurangabad Bench of the Bombay High Court has reiterated that mere pendency of criminal trial or even the result thereof can have no effect on the findings recorded in departmental enquiry.

Justice Sandeep V. Marne asserted, “Thus in domestic inquiry, strict rules of evidence are not applicable. Even hearsay evidence is admissible. On perusal of evidence, if a person of ordinary prudence reaches a conclusion that the occurrence of an event alleged is probable, such evidence is sufficient to prove misconduct in domestic inquiry.”

Factual matrix of the case was such that the respondent joined the services of petitioner/Transport Corporation on the post of driver in the year 1990. During the course of his service, he came to be promoted to the post of Assistant Traffic Inspector. Respondent was arrested by the Anti Corruption Bureau on allegation of demanding and accepting illegal gratification of Rs.10,000 and a  Crime came to be registered against him under the provisions of Prevention of Corruption Act, 1988.

The respondent was issued a memorandum of charge sheet alleging that one Shri. S.S. Dhivare, Driver was involved in an accident on Navapur Pune and was held responsible for causing the accident. After holding enquiry, a show cause notice was issued to shri Dhiavare for imposing the penalty of dismissal from service. It was alleged that when Shri. Dhivare presented in service for accidental training in the Divisional Office, Dhule, the respondent demanded illegal gratification of Rs.25, 000 by promising cancellation of dismissal notice.

After holding enquiry, a show cause notice was issued to shri Dhiavare for imposing the penalty of dismissal from service. It was alleged that when Shri. Dhivare presented in service for accidental training in the Divisional Office, Dhule, the respondent demanded illegal gratification of Rs.25, 000 by promising cancellation of dismissal notice. 

It was further alleged that out of the demanded amount of illegal gratification, the respondent directed payment of Rs.10, 000/- to be made to a private person Shri Sajay Suryakant Kayasth, a bakery owner at Dhule Bus Station.

Accordingly, final show cause notice for dismissal was served on the respondent and the disciplinary authority passed the order imposing the penalty of dismissal from service on the respondent. 

Aggrieved by the dismissal order, respondent filed Complaint before the Labour Court, Dhule.The Labour court delivered Award holding that the domestic enquiry conducted by petitioners was not fair, legal or proper. It was further held that the findings recorded by the Enquiry Officer are perverse.

The Industrial Court proceeded to dismiss the Revision. The Petitioner-Corporation challenged the Judgments passed by the Labour Court and Industrial Court in the present petition.

After considering the submissions, the Court noted that it is trite that the charge in the departmental enquiry is to be proved on the touchstone of preponderance of probability. The charge is not required to be proved on the principle of proof beyond reasonable doubt. It would be appropriate to discuss some of the Judgments of the Apex Court on the issue of proof of misconduct in the domestic enquiry. Reference was made to the judgment in  State of Haryana v. Rattan Singh.

Noting that the complainant Dhivare was consistent in his stand that the bribe amount has been paid and the same was meant to be paid for the respondent and in the affidavit of evidence, he had deposed that the amount was paid directly to the respondent, the Bench opined that such deposition was contrary to the charge that the bribe amount was handed over to  the owner of the bakery. 

Had this been a criminal trial, such a contradiction would make the testimony of the complainant unbelievable. However in a domestic enquiry one has to examine whether the event as alleged has ‘probably’ taken place after considering the overall evidence on record, the Bench added.

Pendency of criminal trial highlighted by labour court for setting aside the order of dismissal is absolutely irrelevant for domestic inquiry, the Bstated while reiterating that  merely because the criminal trial continued to remain pending against the respondent, the said factor ought not to have been taken into consideration by the Labour Court while deciding the issue of proof of charge against the respondent.

Referring to the judgment in  State of Gujarat & Another v/s Hon’ble Mr. Justice R.A. Mehta (Retd) & Others and noticing that the respondent was facing an extremely serious charge of demand and acceptance of illegal gratification, the Bench opined that some minor contradiction in the evidence of the complainant cannot be a reason to let the respondents scot-free in respect of such serious allegations. 

Considering the fact that it has been repeatedly held by the Supreme Court that even if some evidence is available on record, it is sufficient to hold the delinquent employee guilty of the charge, the Bench held that the evidence of the complainant was sufficient to prove the first element of charge of demand of illegal gratification while allowing the petition.