Gujarat High Court

Rupesh Ishwarbhai Vasava vs Chief Executive Officer on 3 April, 2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                      R/SPECIAL CIVIL APPLICATION NO. 4052 of 2025


                       FOR APPROVAL AND SIGNATURE:


                       HONOURABLE MRS. JUSTICE M. K. THAKKER

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                                   Approved for Reporting                           Yes           No
                                                                                    Yes
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                                                  RUPESH ISHWARBHAI VASAVA
                                                            Versus
                                                CHIEF EXECUTIVE OFFICER & ANR.
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                       Appearance:
                       MR. HEMAL SHAH(6960) for the Petitioner(s) No. 1
                       NANAVATI & CO.(7105) for the Respondent(s) No. 1,2
                       ==========================================================

                         CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                                                                Date : 03/04/2025

                                                            ORAL JUDGMENT

1. The present petition is filed under Article 226 and 227 of

the Constitution of India challenging the award dated

03.05.2019 passed by the learned labour court, Bharuch

in Reference Case No.70 of 2015 whereby, the reference

filed by the present petitioner came to be dismissed and

the termination order passed by the respondent was held

legal.

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2. It is the case of the present petitioner that the petitioner

was appointed as a Senior Assistant(Cashier) on

05.07.2001 with the sub division of respondent situated

at Bharuch. The duty assigned of the petitioner was to

collect the payment of electricity bill on daily basis and

to deposit in the account maintained by the respondent-

Company in the Bank of Baroda within 24 hours from the

collection of the amount. It is the case of the petitioner

that during the course of his duty, from 20.06.2012 to

01.08.2013, he collected the amount of Rs.1,79,362/- and

Rs.1,13,577/- from the ATP Machine Agency Operator. It

is further case of the petitioner that on 30.07.2013, the

cash of Rs,2,10,739/- was collected and as per the rules,

same has to be deposited within a period of 24 hours

with the bank. On 01.08.2013 while depositing the

money before the Bank of Baroda, the petitioner has

deposited with an endorsement of bank transfer.

2.1. The allegation made by the respondent-Authority is

that the petitioner has deposited fake deposit slips with

the forged bank seal and signature of the Bank Cashier

and thereby, he committed the offence punishable under

section 406, 409, 471, 465, 467 and 468 of Indian Penal

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Code. The FIR came to be filed before the A-Division

Police Station, Soneri Mahal, Bharuch, being CR-I-144 of

2013 on 10.09.2013. Petitioner has deposited the

amount of Rs.5,03,678/- before the concerned police

station on 11.09.2013. On 02.11.2013 and 09.12.2013,

the show-cause notices were issued to the petitioner

with regard to the above charges. On 22.01.2014, the

order of termination was passed by the respondent-

Authority and the amount of gratuity as well as the leave

encashment was forfeited.

2.2. Challenging the above order the departmental appeal

came to be filed by the petitioner which was dismissed

and thereafter the second appeal came to be filed which

also got dismissed. Challenging the order of termination,

the dispute was raised before the learned labour court,

Bharuch which was registered as Reference (LCR) Case

No.70 of 2015, and the learned labour court has passed

an award dismissing the reference filed by the petitioner

which is subject matter of challenge before this Court.

3. Heard learned advocate Ms.Dhwani Lakhani for learned

advocate Mr.Hemal Shah and learned advocate

Mr.Maulik Nanavati for the respondent-employer.

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4. Learned advocate Ms.Lakhani submits that the

impugned order passed on 03.05.2019 is challenged

mainly on the ground that after the order passed by the

learned reference court, the criminal court has acquitted

the present petitioner from the alleged charges in the

year 2023. Learned advocate Ms.Lakhani submits that

main crux of the allegation is that criminal offence which

ultimately resulted into the acquittal, therefore, the

impugned order deserves to be set aside. Learned

advocate Ms.Lakhani submits that due to the serious

illness of father of the petitioner, the amount was not

deposited within a stipulated period before the

concerned branch.

4.1. It is submitted by the learned advocate Ms.Lakhani

that as immediately on registration of FIR, the petitioner

has deposited the amount before the Police Station and

there was no financial loss caused to the respondent-

employer. Learned advocate Ms.Lakhani submits that

there was no intention of the present petitioner to

misappropriate the amount of the respondent-company,

however, the learned reference court without

considering the same has passed impugned order

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dismissing the reference and holding termination illegal,

which is required to be interfered with and therefore,

petition is required to be allowed.

5. Per contra learned advocate Mr.Maulik Nanavati

submits that during the departmental inquiry, the

petitioner has admitted the charges and during the

cross-examination before the learend labour court,

misappropriation has been accepted by the petitioner.

Learned advocate Mr.Nanavatii submits that as the

respondent-employer has lost the trust due to

misappropriation of the fund of the company, the

impugned order cannot be substituted by granting the

relief of reinstatement. It is submitted by the learned

advocate Mr.Nanavati that as per rules, within 24 hours,

the cash has to be deposited with the concerned branch,

however, the same was not deposited and it was

deposited with the Police Station on registration of FIR.

Learned advocate Mr.Nanavatii submits that standard of

proof in the disciplinary inquiry as well as in the criminal

court is different.

5.1. Learned advocate Mr.Nanavatii submits that there

was no clean acquittal, but as the prosecution could not

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prove the charge beyond reasonable doubt in the

criminal proceedings, the acquittal was awarded.

Learned advocate Mr.Nanavatii submits that in the

disciplinary proceedings, the proof of standard in

preponderance of the probability, however, in the

criminal court it would be beyond reasonable doubt.

Learned advocate Mr.Nanavatii submits that during the

independent inquiry when the charge is proved against

the petitioner, the learned reference court was justifying

in not interfering with the impugned termination and

therefore, the petition deserves to be dismissed.

5.2. Learned advocate Mr.Nanavatii has relied on the

decision rendered by the Apex Court in the case of

Airports Authority Of India vs Pradip Kumar

Banerjee reported in 2025 SCC Online SC 232, and

submitted that as there was loss of trust, no question

arises for reinstatement and therefore, also the petition

deserves to be dismissed.

6. Having considered the arguments advanced by the

learned advocates for the respective parties and on

perusing the reasons assigned by the learned reference

court while dismissing the reference, it appears that

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during the cross-examination of the employee, following

facts were admitted:-

"The employee is serving as a Senior Assistant-cum-Cashier during the period of 20.06.2012 to 01.08.2012. It is admitted that Senior Assistant Cashier would have the responsibility for collection of the amount of electricity bill. It is further admitted that the ATP Machine Agency Operator and the Electricity Collection Officer, the amount which is collected has to be deposited by the Cashier within 24 hours with the bank. On 30.07.2013 and 31.07.2013 the petitioner had served as a Cashier and on 30.07.2013, the ATP Machine Agents had deposited the amount of Rs.1,59,632/- with the petitioner. The petitioner has accepted the amount after comparing with BCDR report. On 31.07.2013 the amount of Rs.1,13,577/- was deposited by the ATP Machine Agents. The said amount is also accepted after comparing with the BCDR report by the petitioner. On 31.07.2013, the petitioner had collected the amount of Rs.2,10,739/- on the collection window, however, the petitioner did not deposit the amount as collected by him on 30.07.2013 and 31.07.2013 before the Bank on 01.08.2013. It is also admitted by the petitioner that the forged Bank slip was created projecting the amount deposited with the Bank wherein, the stamp of the Bank was also manipulated. It is admitted by the petitioner that on registration of the FIR, the amount was deposited before the A-Division Police Station on 11.09.2013 of Rs.5,03,678/-. The said deposit was delayed by one month and twelve days

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and for that the charge sheet was issued by the Superintendent Engineer on 02.11.2013. On demanding 10 days time, the Inquiry Officer had granted adjournment and the petitioner has participated during the proceedings. It is admitted by the petitioner that he committed breech of trust of the respondent-Company. It is also stated by the petitioner that mercy Application was filed on 03.12.2013 to the respondent-employer. It is also admitted that during the departmental proceedings, sufficient opportunity was given to defend the case and in his presence, the evidence of the witnesses of the company namely Mr.M.R.Bhagat, Superintendent Engineer, Mr.N.K.Chaudhary, Mr.D.M.Dukandar were recorded. They also supported the misappropriation charge alleged against the present petitioner. The first appeal which is filed came to be rejected, challenging the termination order on 21.03.2014 and second appeal was also rejected by the respondent- Authority. The only explanation was given by the petitioner that due to cardiac arrest of the father, the amount was taken and when he went to the respondent-employer to deposit the said amount on 10.09.2013, it was not accepted as the FIR was already filed. During the evidence of the witness of the respondent, it comes on record that the father of the petitioner was also serving in the GEB. The impugned order dismissing the reference was challenged before this Court after more than six years, only on the ground of acquittal during the criminal charge. On referring the decision rendered by the criminal court, acquittal was

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mainly awarded that the amount has been deposited with the DGVCL Office and there was no loss to the employer.

7. This Court has referred to the decision rendered by the

Apex Court in the case of Divisional

Controller,Karnataka State Road Transport

Corporation Versus M.G.Vittal Rao reported in 2012

1 SCC 442 wherein, the Apex Court has held that in the

case where inquiry has been held independently of the

criminal proceedings, acquittal in a criminal court is of

no help even if a person stood acquitted by a criminal

court, domestic inquiry can be held, the reasons being

that the standard of proof required in domestic inquiry

and a criminal case are all together different. Ina

criminal case, standard of proof is beyond reasonable

doubt whereas, in domestic inquiry it is the

preponderance of the probability, that constitutes the

test to be applied.

8. This Court has also referred to the decision rendered by

the Apex Court in the case of State of Rajasthan and

others versus Heem Singh reported in 2021 12 SCC

569 wherein, it is held that unless the accused has an

honorable acquittal in the criminal trial, as opposed to

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an acquittal due to the witness turning hostile or for

technical reasons, the acquittal shall not affect the

decision in the disciplinary proceedings and lead to

automatic reinstatement.

9. This Court has also referred to the decision relied by the

learned advocate Mr.Nanavati in the case of Airports

Authority Of India vs Pradip Kumar Banerjee

(supra) wherein, the Apex Court has held as under:-

"34. In our considered view, the Division Bench fell into grave error in substituting the standard of proof required in a criminal trial vis-a-vis the disciplinary enquiry conducted by the employer. It is a settled principle of law that the burden laid upon the prosecution in a criminal trial is to prove the case beyond reasonable doubt. However, in a disciplinary enquiry, the burden upon the department is limited and it is required to prove its case on the principle of preponderance of probabilities. In this regard, we are benefitted by the judgment of this Court in the Union of India v. Sardar Bahadur,28 wherein this Court held as follows: -

"15. . . . A disciplinary proceeding is not a criminal trial. The standard proof required is that of preponderance of probability and not proof beyond reasonable doubt. If the inference that Nand Kumar was a person likely to have official dealings with the respondent was one which a reasonable person would draw from the proved facts of the case, the High Court cannot sit as a court of appeal over a decision based on it. Where there are some relevant materials which the authority has accepted and which

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materials may reasonably support the conclusion that the officer is guilty, it is not the function of the High Court exercising its jurisdiction under Article 226 to review the materials and to arrive at an independent finding on the materials. If the enquiry has been properly held the question of adequacy or reliability of the evidence cannot be canvassed before the High Court. . . ." 28 (1972) 4 SCC

618."

10. Having considered the decision rendered by the Apex

Court in the above cases, this Court is of the view that

mere acquittal in criminal case would not affect the

outcome of the departmental inquiry which was held

independently, more particularly when no allegations

were made with regard to the violation of the Principle

of Natural Justice.

11. In addition to that this Court is of the view that once the

employer has lost the confidence on the employee and

the bonafide loss of the confidence is affirmed the order

of punishment must be considered to be immune from

challenge for the reasons that reasons that discharging

the office of trust and confidence required absolute

integrity and in case of loss of confidence, reinstatement

cannot be awarded. In the opinion of this Court there is

no place for generosity or misplaced sympathy on the

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part of judicial forum and interfering therefore, with

quantum of punishment, where alleged misconduct is

proved by the employer.

12. The above view of this Court is supported by the decision

rendered by the Apex Court in the case of Divisional

Controller, N.E.K.R.T.C vs H. Amaresh reported in

2006 6 SCC 187 wherein the Apex Court has held as

under:-

"18. In the instant case, the mis-appropriation of the funds by the delinquent employee was only Rs. 360.95. This Court has considered the punishment that may be awarded to the delinquent employees who mis-appropriated funds of the Corporation and the factors to be considered. This Court in a catena of judgments held that the loss of confidence as the primary factor and not the amount of money mis-appropriated and that the sympathy or generosity cannot be a factor which is impermissible in law. When an employee is found guilty of pilferage or of mis-appropriating a Corporation's funds, there is nothing wrong in the Corporation losing confidence or faith in such an employee and awarding punishment of dismissal. In such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering therefore with the quantum of punishment. The judgment in Karnataka State Road Transport Corpn. Vs. B.S. Hullikatti, (2001) 2 SCC 574 was also relied on in this judgment among others. Examination of passengers of vehicle from whom the said sum was collected was also not essential. In our view, possession of the said excess sum of money on the part of the

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respondent, a fact proved, is itself a mis-conduct and hence the Labour Court and the learned Judges of the High Court misdirected themselves in insisting on the evidence of the passengers which is wholly not essential. This apart, the respondent did not have any explanation for having carried the said excess amount. This omission was sufficient to hold him guilty. This act was so grossly negligent that the respondent was not fit to be retained as a conductor because such action or inaction of his was bound to result in financial loss to the appellant irrespective of the quantum.

25. In our view, even short remittance amounts to mis-conduct and, therefore, applying the rulings of this Court, the impugned order ought not to have been passed by the Division Bench ordering reinstatement. We, therefore, have no hesitation to set aside the order passed by the learned Judges of the Division Bench and restore the order of dismissal of the respondent from service. It is stated that pursuant to the order of the Labour Court the respondent was reinstated in service. Since there was no stay granted by this Court the respondent had continued in service of the Corporation. In view of the law laid down by this Court and of the facts and circumstances of this case, the respondent, in our opinion, has no legal right to continue in service any further. We, therefore, direct the appellant- Corporation to immediately discharge the respondent from service. However, we make it clear that the salary paid to the respondent and other emoluments during this period shall not be recovered from the respondent. We also make it further clear that in view of the order of dismissal the respondent shall not be entitled to any further emoluments."

13. In addition to that, power of the learned labour court

under section 11(A) is discussed by the Apex Court in

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the case of Bharat Petroleum Corpn. Ltd. and Others

Versus T.K.Raju reported in 2006 3 SCC 143 wherein,

the Apex Court has held as under:-

"11. In State of Punjab and Others v. Ram Singh Ex. Constable [(1992) 4 SCC 54] it was stated: -

"Misconduct has been defined in Black's Law Dictionary, Sixth Edition at page 999 thus:

"A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, wilful in character, improper or wrong behavior, its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness."

Misconduct in office has been defined as:

"Any unlawful behavior by a public officer in relation to the duties of his office, wilful in character. Term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act."

12. In P. Ramanatha Aiyar's Advanced Law Lexicon, 3rd edition, at page 3026, the term 'Misconduct' has been defined as under:

"The term misconduct implies a wrongful intention and not a mere error of judgment. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word misconduct is a relative term, and has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct."

13. On more than one occasion, different courts have taken

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pains to explain that Kalra (supra) does not lay down any inflexible rule. [See Probodh Kumar Bhowmick v. University of Calcutta & Ors., 1994 (2) C.L.J. 456, Tara Chand v. Union of India and Ors. CWP 5552 /2000 disposed of on 27th August, 2002 (Delhi High Court), Secretary to Government and Others v. A.C.J. Britto, 1997) 3 SCC 387 and Noratanmal Chouraria v. M.R. Murli and Another (2004) 5 SCC 689].

16. The power of judicial review in such matters is limited. This Court times without number had laid down that interference with the quantum of punishment should not be done in a routine manner. [See V. Ramana v. A.P.SRTC and Others, (2005) 7 SCC 338, and State of Rajasthan & Anr. v. Mohammed Ayub Naz, 2006 (1) SCALE 79].

17. Having regard to the facts and circumstances of this case, we are of the opinion that it cannot be said that the quantum of punishment was wholly disproportionate to the charges levelled against the Respondent.

18. The High Court, therefore, committed an error in passing the impugned judgment which is set aside accordingly. The appeal is allowed. No costs."

14. In addition to that, this Court is of the view that once the

Tribunal held that the domestic inquiry had been

conducted properly and conclusion arrived therein were

plausible, the tribunal has no jurisdiction to sit in appeal

and to substitute its own judgment. In the cases where

misconduct was proved by valid and proper domestic

inquiry and the action of an employer was bonafide,

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tribunal had no power to alter the punishment imposed