Gujarat High Court
Zonal Manager, Bank Of India vs Presiding Officer on 28 January, 2025
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Reserved On : 09/10/2024
Pronounced On : 28/01/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19748 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE Sd/-
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Approved for Reporting Yes No
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ZONAL MANAGER, BANK OF INDIA
Versus
PRESIDING OFFICER & ANR.
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Appearance:
MR DHARMESH DEVNANI FOR NANAVATI ASSOCIATES(1375) for the
Petitioner(s) No. 1
MR UT MISHRA(3605) for the Respondent(s) No. 2
RULE UNSERVED for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
CAV JUDGMENT
1. In present Special Civil Application, the petitioner has
prayed for the following reliefs:-
"7(A) Your Lordships may be pleased to issue a writ of mandamus
and/or certiorari or writ in the nature of mandamus and/or certiorari or
any other appropriate writ, order or direction, be issued for quashing
and setting aside the Impugned Award dated 12.08.2016 passed by
the CGIT- cum-Labour Court, Ahmedabad in Reference (CGITA) No. 45
of 2005;
(B) Pending admission, hearing and final disposal of this petition,
Your Lordships may be pleased to stay the execution, implementation
and operation of the impugned Award dated 12.08.2016 passed by the
CGIT-cum-Labour Court, Ahmedabad in Reference (CGITA) No. 45 of
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2005;
(C) An ex-parte ad interim relief in terms of prayer (B) above may
kindly be granted; and
(D) Grant such other and further relief(s) as may be deemed fit in the
interest of justice and equity."
2. The brief facts of the case are that, the respondent No. 2,
Ashok M. Pandya, was appointed as account clerk on
01.09.1977 in the Bank of India, Naroda branch. That on
05.03.2002, Mr. Rakesh D. Dogra, an officer working at Naroda
Branch filed a complaint against respondent No. 2 before the
Manager, Bank of India, Naroda Branch, Ahmedabad alleging
assault and threat to his life. Thereafter, the said complaint was
investigated by Mr. A. M. Makim, Staff Officer. That on
29.04.2002, the respondent No. 2 Ashok M. Pandya was served
with a memorandum regarding his misconduct by the petitioner
bank and calling for explanation regarding his misconduct as
narrated in said memorandum. That on 30.05.2002 respondent
No. 2 was served with a charge-sheet containing various charges
which are briefly narrated hereunder:
Charge: - 1 Physically assaulting staff officer Shri Rakesh
Dogra and also threatening him to leave Naroda area or
else he would be killed.
Charge: -2 Leaving branch premises without intimation/
prior permission and when asked about the said, showing
indecent behaviour against other Officials of the Branch.
2.1 Thereafter, a departmental inquiry was initiated against
the respondent No.2 and after considering the evidences
produced and arguments canvassed by the parties, the Inquiry
Officer gave his findings vide report dated 31.07.2002, whereby
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he concluded that all charges levelled against the respondent
No.2 employee stand conclusively proved.
2.2 That the Disciplinary Authority issued second Show Cause
Notice dated 19.08.2002 to respondent No.2 and asked him to
give his report to the findings of the Inquiry Officer. Following
the second Show Cause Notice dated 19.08.2002, the respondent
No. 2 was given a personal hearing on 07.11.2002, but failed to
appear. He was then asked to attend on 08.11.2002, when he
requested for time to file his reply. Thereafter, another
opportunity was granted on 09.11.2002, but neither the
respondent No.2 nor his representative appeared. The
Disciplinary Authority concluded the hearing and vide order
dated 11.11.2002 compulsorily retired the respondent No.2 from
the service of the Petitioner bank with immediate effect and with
superannuation benefits.
2.3 That the respondent No.2 preferred an appeal before the
Appellate Authority. The Appellate Authority by its order dated
19.2.2003, rejected his appeal and confirmed the punishment of
compulsory retirement from the service.
2.4 That the respondent No.2 employee raised an industrial
dispute by way of reference. That the respondent No.2 filed
reference case No. 45 of 2005 before the respondent No.1
Tribunal challenging the punishment of compulsory retirement
by the petitioner bank. That the learned Tribunal by its order
dated 6.3.2013 below Exh. 27 held that principles of natural
justice were not followed and reasonable opportunity was not
granted to the delinquent employee and hence, the inquiry report
and findings of the Inquiry Officer dated 31.07.2002 are
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perverse.
2.5 Aggrieved, the petitioner bank approached this Court by
filing Special Civil Application No. 8452 of 2013 challenging the
said order dated 06.03.2013 passed by learned Tribunal. That
this Court, vide its order dated 23.12.2014 was pleased to reject
the said writ petition holding that the fresh Inquiry before the
Tribunal to justify its action taken against respondent No.2 was
just and proper.
2.6 Aggrieved by the said order dated 23.12.2014, the
petitioner challenged the same by way of Letters Patent Appeal
No. 1001 of 2015. After hearing both the parties, the learned
Division Bench confirmed the order passed by learned Single
Judge with a clarification that the respondent No.2 employee be
permitted to cross-examine the evidence of witnesses adduced by
petitioner bank in the earlier inquiry as well as further evidence
which may be led by the petitioner bank. The learned Tribunal
by the impugned award dated 12.08.2016 reinstated the
respondent No.2 employee on his original post with all
consequential benefits and with 100% back wages and further
directed that the back wages be recovered from the officers
concerned who had initiated proceedings against the respondent
No.2. Aggrieved, the petitioner has preferred the present Special
Civil Application.
3. Learned counsel Mr. Dharmesh Devnani appearing for the
petitioner bank submits that the impugned award dated
12.08.2016, passed by the Presiding Officer, CGIT-cum-Labour
Court, Ahmedabad, in Reference (CGITA) No. 45 of 2005, is
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arbitrary, unlawful, unjust, improper, and contrary to the
evidence on record. He submits that the respondent No. 1 has
failed to consider the facts of the case and the evidence
appropriately. He submits that the impugned award passed by
respondent No. 1 disregards the explicit provisions of law and
the evidence on record. It violates the principles of natural
justice and good conscience. Therefore, it warrants being
quashed and set aside. He submits that the impugned award
directing the recovery of full back wages equally from six
individuals/officials, is entirely unlawful, unjust, and contrary to
established legal principles. These individuals were not made
parties to the reference adjudicated by the Tribunal. It is a well-
established principle of natural justice that no order or award
can be passed against individuals without impleading them as
parties to the proceedings and providing them with a fair
opportunity to defend themselves. He submits that the learned
Tribunal has passed an adverse order against six
individuals/officials, labeling them as erring officials for alleged
deliberate misconduct, without providing any explanation or
findings to substantiate how such a conclusion was reached. It
is submitted that no evidence was presented on record by the
delinquent employee to support these findings, nor was there
any explanation regarding the alleged misconduct attributed to
the officials. This unwarranted conclusion and direction by the
respondent No. 1 Tribunal reflects lack of application of mind
and a prejudiced approach, rendering the findings
unsustainable. He submits that the learned Tribunal erred in
holding that the statement of respondent No. 2 employee denying
misconduct, made on oath during cross-examination, remained
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uncontroverted.
3.1 He submits that the Tribunal failed to consider the
evidence adduced during the departmental inquiry, which was
crucial and directly relevant to the charges against respondent
No. 2 employee. As a result, the Tribunal overlooked material
evidence that, upon scrutiny, clearly establishes the charges of
misconduct against respondent No. 2 employee. Consequently,
the Tribunal's conclusion that the employee's denial of
misconduct was uncontroverted is entirely baseless. He submits
that proper consideration of the evidence in the departmental
inquiry would have made it evident that the charges were
substantiated. He submits that the learned Tribunal erred in
heavily relying on the order passed by the Criminal Court, failing
to consider that the said order explicitly stated the criminal
charges against respondent No. 2 employee were not proved
beyond reasonable doubt. It is well-established that the standard
of proof in a departmental inquiry is based on the preponderance
of probability, whereas in a criminal case, it is beyond
reasonable doubt. He submits that the Hon'ble Apex Court, in
numerous judgments, has clarified that an acquittal in a
criminal case cannot serve as a basis for setting aside the
punishment imposed in a departmental inquiry where the
charges have been duly proved. He submits that the learned
Tribunal's reliance on the Criminal Court's findings is, therefore,
misplaced and unsustainable.
3.2 He further submits that the respondent No. 1 Tribunal
erred in relying on Clause 19.4 of the bi-partite settlement to
hold that the issuance of the charge sheet dated 30.05.2002
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against respondent No. 2 employee was in violation of the said
clause. The learned Tribunal failed to consider that the criminal
complaint was filed by Shri Rakesh Dogra in his personal
capacity and not on behalf of the petitioner bank. Consequently,
Clause 19.4 of the settlement does not apply in the present case.
The learned Tribunal's conclusion is thus flawed and
unsustainable. He submits that the learned Tribunal erred in
holding that Investigation Officer Shri P.J. Naik was not
examined before the Tribunal, deeming him a vital witness
without providing any substantive reasoning. Similarly, the
learned Tribunal also wrongly concluded that the absence of Shri
Rakesh Dogra as a witness undermined the bona fides of the
petitioner Bank. This finding is baseless and unsupported by
evidence or reasoning. It is submitted that the learned Tribunal
erred in concluding that the testimonies of Management Witness
No. 1 and Management Witness No. 2 were false and therefore
liable to be rejected. The Tribunal placed undue emphasis on the
absence of an independent witness examined by the Petitioner
Bank. It is a well-settled principle of law that the examination of
independent witnesses is not mandatory to establish an
employee's misconduct when the deposition of other witnesses,
supported by documentary evidence, sufficiently proves the
misconduct. The Tribunal's approach in disregarding valid
evidence is thus flawed and unsustainable.
3.3 He submits that in granting full back wages to respondent
No. 2 employee, the respondent No. 1 Tribunal overlooked the
fact that the employee failed to provide any evidence to support
his claim of remaining unemployed after his compulsory
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retirement, relying solely on a vague statement. Additionally, the
Tribunal failed to consider that the employee challenged his
termination after a delay of three years, without offering any
explanation for the delay. Granting back wages for this period
was also erroneous as it is well-established law that a person
cannot benefit from his own negligence. The learned Tribunal
incorrectly applied the standard of strict proof in the
departmental inquiry and wrongly concluded that the charges
against Respondent No. 2 were not substantiated.
3.4 The learned counsel for the petitioner further submits that
the Ld. Tribunal erred by relying solely on the cross-examination
of witnesses and failing to consider their full depositions, which
clearly demonstrated the manner and method in which the
incident occurred. In fact, the Bank witnesses have fully
supported the Bank's case, and the learned Tribunal was
incorrect to hold that it was unsafe to rely on their oral
testimony. Moreover, the incident involved disorderly and
indecent behavior on the Bank's premises, which was fully
corroborated by the witnesses and supported by a written
complaint that was already part of the management's evidence.
Additionally, since the incident occurred in 2002, and the
learned Tribunal considered depositions made in 2016, the
Tribunal's assertion regarding the one-year timeline under the
settlement is irrelevant, as it did not vitiate the departmental
proceedings. He submits that the Tribunal improperly ventured
into evaluating the sufficiency of evidence and assessing the
bona fides of the case, which is contrary to the established legal
principles. He submits that the learned Tribunal also erred in
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evaluating the depositions of the witnesses, both of whom fully
supported the Bank's case. The learned counsel for the
petitioner Bank submitted that therefore, the impugned order be
set aside and the present petition be allowed.
4. Per contra, Mr. U.T.Mishra, learned advocate for the
respondent No.2 submits that that the Industrial Tribunal vide
its order dated 15-3-2013, declared the entire domestic inquiry
held against the present respondent as vitiated and the
petitioner employer was directed to justify its action taken
against the employee by producing fresh material and evidence
on record. He submits that the petitioner management thereafter
adduced fresh evidence and examined two witness namely; Shri
Nalinkant C. Gilder and Shri T.K. Parmar at Ex. 29 and Ex. 30.
Both these witnesses have also been examined in the criminal
proceedings against the respondent No.2. These witnesses have
given contradictory statements in their depositions before the
learned Tribunal and before the criminal Court. Therefore, the
learned Tribunal has not relied on the evidence of the above 2
witnesses and observed that the testimony of both the witness is
not reliable. The second witness Shri T.K.Parmar in cross-
examination has in terms states that on the date of so-called
incident, there were other bank employees namely; Shri H.C.
Hingol, Shri J.K.Solanki, one Shri R.A. Khakhi and one Mr.
M.R.Raol. All these witnesses who were present on the date of
so-called incident, could have been examined by the petitioner
management as their witness in the departmental inquiry. The
management has failed to examine all these witness in support
of their charges and therefore, learned Tribunal has rightly not
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relied on the testimony of these two witnesses. He submits that
after the first departmental inquiry was declared as illegal,
opportunity was granted to the management to examine
witnesses by producing fresh material on record. The petitioner
Bank management has not examined any independent witness
who were present on the date of so-called incident. The
management would have examined them as fresh witness and
adduced fresh material to prove the charges leveled against the
workman. The management has failed to do so and therefore, the
reasoning given by the learned Tribunal is absolutely justified.
He submits that respondent No.2 has filed his affidavit in lieu of
examination in chief vide Ex.33 and filed documents vide Ex.31,
34 and. 35. The respondent No.2 was cross examined by the
petitioner bank and the Ld. Tribunal has rightly appreciated and
recorded its findings. He submits that the learned Tribunal has
dealt meticulously with the oral and documentary evidence
produced by both the parties and decided the reference in favour
of the respondent No.2. He submits that the learned Tribunal
has recorded in its finding that "From bare perusal of the
document at Ex. 34/6 of the record of the inquiry and Cross
examination of the management witness -1 and management
witness -2, it is crystal clear that Mr. H. C. Hingol who was
sitting adjacent to Ashok M Pandya has negated the occurrence
od alleged incident dated 05.03.2002 before the Investigation
Officer of the first party Bank." He submits that this is a case of
no evidence since the original complainant namely Mr. Rakesh
Dogra who filed FIR against the respondent No.2 and also filed
complaint with the Bank management about so called threats
given by respondent No.2 to him has not been examined by the
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petitioner management though he is in service. The said Mr.
Dogra is the best person who can depose before the Tribunal and
state that respondent workman has given threat to him and
misbehaved with him. When the management has not chosen to
examine the complainant before the Tribunal, the question of
proving the charge leveled against the workman does not arise
and even preponderance of probability is also not in favour of the
petitioner management to come to the conclusion that
respondent workman has misbehaved and therefore, reasoning
and finding given by the tribunal is justified. He submits that the
important aspect which the Tribunal has appreciated is that the
respondent workman has completed 25 years of continuous
service on the date of so-called incident and 16 years' service
was left on the date on which the punishment was imposed for
compulsory retirement from the bank services. The conclusion
reached by the learned Tribunal, along with the reasons provided
in support, are logical, reasonable, and well-founded.
Accordingly, the petition is without merit and should be
dismissed.
5. Learned counsel for the petitioner submits in rejoinder that
the petitioner bank was not required to reexamine Shri Rakesh
Dogra before the learned Tribunal, as he had already been
examined and cross-examined during the Departmental Inquiry.
His evidence was part of the records, and the Tribunal was
obligated to consider it, which it failed to do. Moreover, since
Shri Dogra was posted at Amritsar Zone from 31.05.2012, it was
not feasible for the Petitioner Bank to call him to testify before
the Tribunal. The Bank was able to reexamine two other
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witnesses from Ahmedabad Zone. He submits that the
respondent No.2 has merely made a vague assertion that
Investigation Officer Shri P.J. Naik was a vital witness and that
the Petitioner Bank did not examine him, without explaining how
Shri Naik can be considered a crucial witness. In reality, Shri
Naik was only the Investigating Officer tasked with determining
whether a prima facie case existed against the delinquent
employee. His role was limited to conducting a preliminary
investigation, after which the Petitioner Bank decided to proceed
with the inquiry against respondent No.2. Shri P.J. Naik had no
direct involvement with the incident of 05.03.2002 or the
subsequent proceedings before the learned Tribunal. Moreover,
the respondent No.2 has selectively quoted portions of witness
statements from both the Criminal Court and the Departmental
Inquiry/Tribunal, only citing those parts that are favorable to
him. A proper comparison requires evaluating the entirety of the
evidence.
6. Heard learned counsels appearing for the parties and
perused the documents on record.
7. The scope of judicial review in service matters is now well
settled by catena of decisions.
[a] In case of INDIAN OIL CORPORATION LTD. VS RAJENDRA
D. HARMALKAR - (2022) 17 SCC 361, it has been held, more
particularly in para 20 of the said judgment that:-
"In B.C. Chaturvedi v. Union of India, in para 18, this Court
observed and held as under: (SCC p. 762)
"18. A review of the above legal position would establish that the
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disciplinary authority, and on appeal the appellate authority, being
fact- finding authorities have exclusive power to consider the
evidence with a view to maintain discipline. They are invested with
the discretion to impose appropriate punishment keeping in view the
magnitude or gravity of the misconduct. The High Court/Tribunal,
while exercising the power of judicial review, cannot normally
substitute its own conclusion on penalty and impose some other
penalty. If the punishment imposed by the disciplinary authority or
the appellate authority shocks the conscience of the High
Court/Tribunal, it would appropriately mould the relief, either
directing the disciplinary/appellate authority to reconsider the
penalty imposed, or to shorten the litigation, it may itself, in
exceptional and rare cases, impose appropriate punishment with
cogent reasons in support thereof."
Moreover, in para 21 of the said judgment, it has been held that:
"In the case of Lucknow Kshetriya Gramin Bank (Now Allahabad,
Uttar Pradesh Gramin Bank) v. Rajendra Singh, (2013) 12 SCC 372,
in paragraph 19, it was observed and held as under:
"19. The principles discussed above can be summed up and
summarised as follows:
19.1 When charge(s) of misconduct is proved in an enquiry the
quantum of punishment to be imposed in a particular case is
essentially the domain of the departmental authorities.
19.2 The courts cannot assume the function of
disciplinary/departmental authorities and to decide the quantum of
punishment and nature of penalty to be awarded, as this function is
exclusively within the jurisdiction of the competent authority.
19.3 Limited judicial review is available to interfere with the
punishment imposed by the disciplinary authority, only in cases
where such penalty is found to be shocking to the conscience of the
court.
19.4 Even in such a case when the punishment is set aside as
shockingly disproportionate to the nature of charges framed against
the delinquent employee, the appropriate course of action is to remit
the matter back to the disciplinary authority or the appellate
authority with direction to pass appropriate order of penalty. The
court by itself cannot mandate as to what should be the penalty in
such a case.
19.5 The only exception to the principle stated in para 19.4 above,
would be in those cases where the co-delinquent is awarded lesser
punishment by the disciplinary authority even when the charges of
misconduct were identical or the co-delinquent was foisted with
more serious charges. This would be on the doctrine of equality
when it is found that the employee concerned and the co-delinquent
are equally placed. However, there has to be a complete parity
between the two, not only in respect of nature of charge but
subsequent conduct as well after the service of chargesheet in the
two cases. If the co-delinquent accepts the charges, indicating
remorse with unqualified apology, lesser punishment to him would
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be justifiable."
Furthermore, in para 22 of the said judgment it has been held that:
"22. In the present case, the original writ petitioner was dismissed
from service by the disciplinary authority for producing the
fabricated/fake/forged SSLC. Producing the false/fake certificate is
a grave misconduct. The question is one of a TRUST. How can an
employee who has produced a fake and forged b
marksheet/certificate, that too, at the initial stage of appointment be
trusted by the employer? Whether such a certificate was material or
not and/or had any bearing on the employment or not is immaterial.
The question is not of having an intention or mens rea. The question
is producing the fake/forged certificate. Therefore, in our view, the
disciplinary authority was justified in imposing the punishment of
dismissal from service."
[b] In case of UNION OF INDIA AND OTHERS VERSUS
SUBRATA NATH 2022 - SCC OnLine SC 1617 - Hon'ble Supreme
Court of India held in para 14 that:-
"14. It is well settled that courts ought to refrain from interfering
with findings of facts recorded in a departmental inquiry except in
circumstances where such findings are patently perverse or grossly
incompatible with the evidence on record, based on no evidence.
However, if principles of natural justice have been violated or the
statutory regulations have not been adhered to or there are
malafides attributable to the Disciplinary Authority, then the courts
can certainly interfere."
Further, in para 16 of the said judgment, it has been held that in
case of State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaya,
a two Judge Bench of this Court held as below:
"7. It is now well settled that the courts will not act as an appellate
court and reassess the evidence led in the domestic enquiry, nor
interfere on the ground that another view is possible on the material
on record. If the enquiry has been fairly and properly held and the
findings are based on evidence, the question of adequacy of the
evidence or the reliable nature of the evidence will not be grounds
for interfering with the findings in departmental enquiries.
Therefore, courts will not interfere with findings of fact recorded in
departmental enquiries, except where such findings are based on no
evidence or where they are clearly perverse. The test to find out
perversity is to see whether a tribunal acting reasonably could have
arrived at such conclusion or finding, on the material on record. The
courts will however interfere with the findings in disciplinary
matters, if principles of natural justice or statutory regulations have
been violated or if the order is found to be arbitrary, capricious,
mala fide or based on extraneous considerations.
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8. In the present case, the learned Tribunal has recorded the
following facts:-
"(i) Shri Rakesh Dogra had made simultaneous complaint for the
incident of 05.03.2002 to the bank authority as well as to the police;
(ii) Witnesses examined by the first party before this Tribunal was
also examined in criminal trial in the year 2002;
(iii) Shri Rakesh Dogra, the complainant for the charge no. 1 and
Shri P. J. Naik; the Investigation Officer who inquired into the charges
leveled against the delinquent and who also recorded statements of
witnesses, both vital witnesses have not been examined by the first
party employer before the tribunal. Had they been produced as a
witness in the Tribunal, the second party workman would have an
opportunity to cross examine them. Thus non-examination of such vital
witnesses does not inspire confidence in the bonafides of the first party
bank.
(iv) A perusal of the oral evidence of MW No. 1 & 2 establishes the
exact reproduction of the averments made in the written statement but
during the course of cross examination it revealed that MW-1 and MW-2
have given false statements and therefore, their testimony is liable to
be rejected by the Tribunal.
(v) The first party management has not chosen to produce any fresh
material regarding past record of the second party workman during the
de novo enquiry before this Tribunal.
(vi) The first party bank had not examined any independent witness
like customers who were present in the banking hall at the time of
alleged incidents."
9. That thereafter scrutinizing the evidence on record, the
learned Tribunal has come to the following conclusions:-
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"(1) First, the first party management has not examined the Rakesh
M Dogra, the main and only complainant on which complaint the
second party was charge-sheeted and was put on trial of departmental
proceedings.
(2) Second, the first party management has examined only two
witnesses in this reference. The testimony of first witness Nalinkant
Chandrakant does not inspire confidence and second witness
Tansukhlal Kantilal Parmar deposed on the basis of here say evidence.
Further he has also not supported the first party case in his cross-
examination. Even if their evidence is, for the sake of argument, is
believed to be true then such evidence nowhere make out a prima facie
case of sections 114/294/506 IPC or any other misconduct covered
under service conduct rules.
(3) Third, the departmental proceedings were conducted in haste
manner violating the spirit of Shastry award and Bipartite Agreements
which bars the departmental proceeding for a year in case where the
delinquent has been subjected to the criminal trial by lodging FIR in a
police station.
(4) Third, as appears at the most it was a case of heated exchange
between two officials of bank for which the award of major penalty
awarded in the light of the judgement in of Ved Prakash Gupta M/S
Delon Cable India P. Ltd, AIR 1984 SC 914 and In C.V..Kotecha vs
Halar Salt and Chemicals Ltd, Spl. Civil Application No.1642 of 1979
decided on 11.12.1984 by Hon'ble Gujarat High Court, is excessive and
suffers with malafide as it was clearly established that both the first
party witnesses and second party workman were the active office
bearers of their respective trade unions.
(5) Fifth, It was a violation of all the Bipartite Agreements because
the second party workman was also acquitted by the Court of
Magistrate in the criminal trial into the same incident, even then
thereafter he was charge sheeted and was also subjected to
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departmental proceedings and punished on whimsical grounds."
10. The learned Tribunal has held that the charges levelled
against the respondent No.2 workman were not proved and held
the whole inquiry proceedings conducted by the petitioner to be
vitiated. It has further come to the conclusion that the present
case is a case of harassment, victimization, discrimination,
unfair labour practice.
11. Another charge against the respondent No.2 was that he
had left the branch premises without permission and when
questioned, he indulged in indisciplined behaviour with the
officers of the bank's branch in front of the customers and
therefore, he has committed misconduct in terms of Clause (E) of
the Bipartite Settlement dated 19.10.1966.
12. The learned counsel for the petitioner bank has contended
that the learned Tribunal has relied upon evidence of the
witnesses of the petitioner bank in piecemeal and not in its
entirety and therefore, erred in coming to the conclusion that
deposition of the witnesses is not supported by any documentary
evidence and therefore, it is not safe to rely upon only on oral
testimony. He submitted that both the witnesses were officers of
the petitioner bank. The allegations pertain to misconduct and
indisciplined behaviour on the premises of the petitioner bank
during the working hours.
13. The learned Tribunal has come to the conclusion on the
basis of evidence on record that the petitioner bank has sought
to examine only two witnesses when the said alleged incident
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has taken place during the working hours in front of the
customers as well as other staff members of the petitioner bank.
The officer, who was the complainant and who had lodged the
FIR as well as the formal complaint with the bank management,
was not examined nor his evidence was brought on record by the
petitioner bank. These two witnesses have also stated in their
deposition that there were other bank employees also who were
witnesses to the said alleged incident. Further, the learned
Tribunal has also come to the conclusion that selective witnesses
have been examined to prove the alleged incident. No
independent witness was examined by the petitioner bank before
the learned Tribunal. While appreciating the evidence, the
learned Tribunal has also taken note of the final judgment in
criminal proceedings initiated against the delinquent respondent
No.2 whereby he has been acquitted in respect of the FIR lodged
against him for the same incident. In the said criminal
proceedings, the petitioner bank has produced the same two
witnesses who have been examined before the learned Tribunal.
The evidence as appreciated by the learned Tribunal is brought
on record by the petitioner bank as well as delinquent
respondent.
14. The learned Tribunal has further come to a conclusion that
the demeanor and the nature of deposition of both the witnesses
in a departmental proceedings before the learned Tribunal was
clearly to support the action of the bank management. The
learned Tribunal has concluded from the evidence that the
alleged incident was a case of altercation at the most and that it
could not be termed as a misconduct. The fulcrum of the
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allegations is based on the complaint of one Mr. Rakesh Dobra,
the bank officer of the petitioner bank, who has filed the FIR as
well as the complaint against the respondent No.2 with the bank
management. For the reasons best known to the petitioner bank,
though the said officer is still in service and available as a
witness in the departmental proceedings, the respondent bank
has not chosen to examine him. The said officer who is alleged to
have suffered such threats and abuse at the hands of the
respondent No.2 was an important witness for the petitioner
bank to decisively prove the charges against the respondent No.2
workman. The petitioner bank has tried to prove the charges
through other officers who were not directly involved in the said
incident. The said factum has to be held adverse against the
petitioner bank in the process of proving the charges against the
respondent No.2.
15. Learned counsel for the petitioner bank contended that the
learned Tribunal has observed that the departmental
proceedings are more or less similar to the criminal proceedings
and therefore, the principles of criminal proceedings may be
applied to the departmental proceedings and in absence of them,
the impugned judgment and order is required to be set aside. No
doubt, the said observation is contrary to the settled legal
position because of non-application of strict rule of evidence in
domestic inquiry. However, nothing has been demonstrated to
show that the strict rule of evidence has been applied in the
present proceedings. The standard of proof required in a
domestic inquiry is that of preponderance of probability. In the
present case, the learned Tribunal has basically relied upon the
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deposition of the witnesses examined before it and has referred
to the judgment of the criminal proceedings and taken note of
the same only since both the witnesses which were examined
before the learned Tribunal were the same witnesses in the
criminal proceedings against the respondent No.2. In both the
disciplinary as well as criminal proceedings, the petitioner bank
had produced the same set of evidence and relied on the same
witnesses. The said criminal proceedings has resulted in the
acquittal of the respondent No.2 workman is not disputed by the
learned advocate for the petitioner and the same has also
become final. In the present case, after perusal of the evidence
on record and observing the demeanor of the witnesses, the
learned Tribunal has come to the conclusion that the so called
alleged incident is only in the nature of altercation at the most.
Further, the behaviour of the respondent No.2 workman as
alleged does not relate to misconduct or breach of the duty by
the respondent workman. The learned Tribunal has further come
to the conclusion that the said witness Mr. D.K.Parmar deposed
on the basis of hear say evidence and therefore, his evidence
does not support the case of the petitioner bank. After perusing
the evidence on record, the learned Tribunal, has also come to
the conclusion that the departmental proceedings against the
respondent No.2 workman were conducted in a hasty manner
and therefore, it was a case of victimization. Further, except the
solitary incident as alleged against the respondent No.2, nothing
has been brought on record about the past conduct of the
delinquent employee to substantiate the charges. The petitioner
bank has also failed to demonstrate unsatisfactory conduct of
the delinquent employee with his superior. The contention of the
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learned advocate for the petitioner that the petitioner bank had
lost faith in the integrity of the employee because of alleged
incident and therefore also, the petitioner bank had a right to
terminate the services of the respondent cannot be sustained.
There is nothing brought on record in the evidence of the bank's
witness to show that there was any loss of faith or any doubt in
respect of the integrity of the respondent No.2 workman. It is
further pertinent to note that despite the said alleged incident
has happened in the open hall of the bank's premises in front of
the customers as well as other staff of the bank, the bank has
not chosen to examine any other person to prove the charges
levelled against the respondent workman. Even the employees of
the petitioner bank who were discharging their duties sitting in
the proximity of the respondent workman have not been
examined.
16. Nothing has been pointed out to this Court as to the
findings arrived at by the learned Tribunal being patently
perverse or grossly inconsistent with the evidence on record or
based on no evidence. The judicial review having limited scope,
this Court cannot act as an appellate Court and reassess the
evidence led before the learned Tribunal or interfere on the
ground that another view is possible on the basis of material on
record. Further, the petitioner bank has not challenged the
process of inquiry which has been fairly and properly conducted
by the learned Tribunal.
17. The judgments relied upon by the learned advocate for the
petitioner in support of his case have been considered by this
Court and the same are not applicable in the facts and
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circumstances of the present case in the considered opinion of
this Court.
18. In the overall perspective of the present case, the findings
as rendered by the learned Tribunal cannot be said to be
perverse or dehors the evidence on record. Further, since the
evidence was led before the learned Tribunal, the learned
Tribunal has also taken into consideration the demeanor of the
witnesses to arrive at conclusions in conjunction with the
deposition on record. No case is made out to interfere with the
findings recorded by the learned Tribunal. Though there are
some abrasions in respect of the perceptions of the learned
Tribunal as referred in the impugned award, the same are
immaterial and will not affect the findings which have been
rendered by the learned Tribunal. Therefore, this Court has no
hesitation to hold that the directions passed by the learned
Tribunal in the award from (i) to (iv) are just and proper in the
facts and circumstances of the present case.
19. In respect of the direction (v) of the impugned award, this
Court is of the considered opinion that the learned Tribunal has
exceeded its jurisdiction by directing that the amount of full
back wages awarded to the respondent No.2 workman shall be
recovered by the petitioner bank equally from the six officers who
according to the learned Tribunal are all erring officers for
deliberate misconduct on their part. The said direction cannot be
sustained since the same is dehors any evidence on record.
Further, no such direction could have been passed by the
learned Tribunal in their absence and without giving them due
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and proper hearing. Further, there is no finding rendered with
respect to the deliberate misconduct of the six officers of the
petitioner bank. Therefore, the said direction (v) in the impugned
award cannot be sustained and is, accordingly, quashed and set
aside.
20. For the reasons and observations hereinabove, the present
Special Civil Application is partly allowed. The directions (i) to (iv)
of the impugned award are upheld. The direction (v) of the
impugned award is quashed and set aside. The writ petition is
allowed to the extent of setting aside direction (v). No order as to
costs.
Sd/-
(ANIRUDDHA P. MAYEE, J.)
After pronouncement, the learned counsel appearing for
the petitioner Bank has prayed that the order be stayed for a
period of 4 weeks so as to enable the petitioner to approach
higher forum. The said request is rejected.
The learned counsel appearing for the respondent No.2
submits that the petitioner has deposited all the dues of the
respondent No.2 in the Registry of this Court and that the same
be directed to be released to the respondent No.2. The Registry is
directed to release the amount deposited by the petitioner Bank
along with the interest accrued thereon to the respondent No.2
after due verification within a period of 4 weeks.
Sd/-
(ANIRUDDHA P. MAYEE, J.)
KAUSHIK D. CHAUHAN
