Gujarat High Court
Zonal Manager, Bank Of India vs Presiding Officer on 4 September, 2025
Author: A. S. Supehia
Bench: A.S. Supehia
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Reserved On : 26/08/2025
Pronounced On : 04/09/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 330 of 2025
In
R/SPECIAL CIVIL APPLICATION/19748/2016
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In
R/LETTERS PATENT APPEAL NO. 330 of 2025
With
CIVIL APPLICATION (FOR MODIFICATION OF ORDER) NO. 2 of 2025
In
R/LETTERS PATENT APPEAL NO. 330 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR.JUSTICE R. T. VACHHANI
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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
appellant(s) no. 1
PARTY IN PERSON(5000) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR.JUSTICE R. T. VACHHANI
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE R. T. VACHHANI)
By way of the captioned LPA, the appellant - Bank challenges the
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CAV judgment dated 28.01.2025 passed in the captioned writ petition;
whereby the said petition came to be partly allowed upholding the
directions issued by the Tribunal in clause No.(i) to (iv) while quashing
and setting aside the directions issued in clause (v) of the impugned
award dated 12.08.2016 passed by the CGIT-cum-Labour Court,
Ahmedabad (for short "Tribunal") in Reference (CGITA) No. 45 of 2005.
2. For the sake of convenience and brevity, the parties herein,
appellant would be referred to as the "Bank" and respondent No.2 as the
"employee".
FACTUAL MATRIX :-
3. Brief facts of the case are that respondent No.2-employee was
appointed as an Account Clerk on 01.09.1977 in the Bank of India,
Naroda Branch. On 05.03.2002, Mr. Rakesh D. Dogra, an officer working
at Naroda Branch, filed a complaint against respondent No. 2-employee
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, on the basis of which the
respondent No.2-employee was served with the memorandum on
29.04.2002 so as to offer an explanation regarding misconduct and in
consequence thereof, the respondent No.2-employee was served with the
charge-sheet containing various charges, as described 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
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against other Officials of the Branch."
3.1 Thereafter, a departmental inquiry was initiated against the
respondent No.2-employee, and after considering the evidences produced
and submissions canvassed by the parties, the Inquiry Officer submitted
his report dated 31.07.2002 holding all the charges levelled against the
respondent No.2-employee stand proved.
3.2 On the basis of the said report of the Inquiry Officer, the
Disciplinary Authority issued a second show cause notice dated
19.08.2002 to respondent No.2-employee, and called upon him to submit
his report against the finding arrived at by the Inquiry Officer. However,
the respondent No.2-employee, despite being called upon to show-cause
and also given a personal hearing, failed to appear. Again the respondent
No.2-employee was called to file his reply on 08.11.2002 and on
09.11.2002, but neither the respondent No.2-employee nor his
representative appeared. The said exercise proved futile as the respondent
No.2-employee failed to remain present, which constrained the
Disciplinary Authority vide order dated 11.11.2002 to order for
compulsorily retirement of the respondent No.2-employee from the
service of the Bank with immediate effect and alongwith superannuation
benefits.
3.3 Being aggrieved by the said order of the Disciplinary Authority,
the respondent No.2-employee preferred an appeal before the Appellate
Authority, who by order dated 19.02.2003 rejected the said appeal and
confirmed the punishment of compulsory retirement from the service.
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3.4 Thereafter, the respondent No.2-employee raised an industrial
dispute by way of filing Reference Case No. 45 of 2005 before the
Tribunal challenging the punishment of compulsory retirement imposed
by the appellant-Bank. The Tribunal by its order dated 06.03.2013 held
that principles of natural justice were not followed and reasonable
opportunity was not granted to the respondent No.2-employee and
therefore, the inquiry report and findings of the Inquiry Officer dated
31.07.2002 are held to be perverse and quashed.
3.5 Being unsuccessful, the appellant - Bank preferred Special Civil
Application No. 8452 of 2013 before this Court challenging the said order
dated 06.03.2013 passed by the Tribunal.
3.6 Being aggrieved by the order of dismissal of Special Civil
Application No.8452 of 2013, the appellant - Bank preferred Letters
Patent Appeal No. 1001 of 2015, wherein after hearing both the parties,
the Division Bench, while confirming the order passed by learned Single
Judge as well as the order of the Tribunal, disposed of the same vide
judgment and order dated 22.06.2015 with clarification that respondent
No.2-employee may be permitted to cross-examine the evidence of
witnesses adduced by the employer so far, as also further evidence which
may be led by the Management. The same may duly be considered in the
inquiry and to be adduced before the Tribunal.
3.7 As per the aforesaid directions, the parties again approached the
Tribunal and the Tribunal by the impugned award dated 12.08.2016,
reinstated the respondent No.2 employee on his original post with all
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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-employee.
3.8 Being aggrieved by the said award dated 12.08.2016 passed by the
Tribunal, the appellant - Bank has preferred the present Special Civil
Application No.19748 of 2016 which came to be partly allowed
upholding the directions issued by the Tribunal in clause No.(i) to (iv)
while quashing and setting aside the directions issued in clause (v) of the
impugned award dated 12.08.2016 passed by the Tribunal in Reference
(CGITA) No. 45 of 2005.
3.9 Hence, in the peculiar facts and circumstances of the case as
narrated hereinabove, the present LPA is filed challenging the CAV
judgment passed in the Special Civil Application NO.19748 of 2016.
Submissions advanced by learned advocate for the appellant -
original petitioner:
4. Learned Advocate Mr. Dharmesh Devnani appearing for the
appellant-Bank has submitted that the order passed by the learned Single
Judge is illegal, unjust, improper and contrary to the provisions of the law
and against evidence on record. He has further submitted that the
evidence adduced by the appellant-Bank has not been properly
considered by the Tribunal and the Tribunal committed a grave error in
discarding the explicit provisions of the law and the evidence on record
by not observing the principles of natural justice. He has further
submitted that the learned Single Judge ought to have taken into
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consideration the fact that the Tribunal erred in only relying upon the
cross-examination of the witnesses and has not considered the entire
deposition of the witness as a whole, which clearly demonstrates the
manner and method in which the entire incident took place. He has
further submitted that the learned Single Judge ought to have taken into
consideration the fact that witnesses have supported the case of the Bank
in toto and the Tribunal was wrong in holding that it was not safe to rely
upon the oral testimony of the witnesses. He has further submitted that
the entire incident was regarding disorderly in indecent behavior in the
premises of the Bank, which was supported by the witnesses along with
reference in the written complaint and that was a part of evidence.
4.1 He has further submitted that the learned Single Judge ought to
have taken into consideration the fact that the departmental proceeding,
and criminal trial are distinct and further any reliance upon the acquittal
order passed by the competent Court would have no binding in
departmental proceedings, more particularly, in view of the fact that when
the decision of the criminal Court is on the ground of the charge being not
proved beyond reasonable doubt, it cannot be construed as a sole case of
acquittal. In short, the benefit of doubt is given to the respondent No.2-
employee.
4.2 He has further submitted that the learned Single Judge ought to
have taken into consideration the fact that the incident is of the year 2002,
however the Tribunal itself considered the deposition of the year 2016 in
the departmental proceeding, which was beyond one year and therefore
also, there was no breach of any settlement of not proceeding within one
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year of the misconduct, which does not vitiate the departmental
proceeding.
4.3 He has further submitted that the learned Single Judge ought to
have taken into consideration the fact that the Tribunal has entered into
the arena of sufficiency of evidence and has also evaluated the bona fides
which is clearly de-hors the settled legal principle that it was a case of
departmental inquiry and not of criminal trial, wherein the charges / case
is required to be proved beyond reasonable doubt. He has further
submitted that the learned Single Judge ought to have taken into
consideration the fact that both the witnesses have completely supported
the case of the appellant-Bank and the departmental proceedings initiated
on the charges are clearly supported in the deposition.
4.4 He has further submitted that the learned Single Judge ought to
have considered the fact that the Division Bench while upholding the
order passed by the learned Single Judge and the Tribunal in earlier round
of Letters Patent Appeal, this Court has clarified that the respondent
No.2-employee was permitted to cross-examine the witnesses produced
by the employer and the further evidence which may be led by the
appellant - Bank Management. He has further submitted that the learned
Single Judge ought to have taken into consideration the fact that the
foundation of the order passed by the Tribunal is on the basis that
departmental proceedings are more or less similar to criminal proceedings
however, such a foundation is absolutely contrary to the settled legal
position of non-application of the strict rule of evidence in domestic
enquiry. He has submitted that the standard of proof required in a
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domestic enquiry is that of preponderance of probability and not the proof
beyond a reasonable doubt, which is the requirement for a regular
criminal trial.
4.5 He has further submitted that the Tribunal has erred in relying on
Clause 19.4 of the bipartite settlement to hold that the issuance of the
charge sheet dated 30.05.2002 against respondent No. 2-employee was in
violation of the said clause, which otherwise does not apply to the facts of
the present case. He has further submitted that the learned Single Judge
committed an error by not considering the factum of non-examination of
the Investigating Officer Mr.Naik as well as Mr.Rakesh Dogra, original
complainant, which cannot be said to be fatal, as the charges against the
respondent No.2-employee has been proved and supported by the
independent witnesses; however the said fact has not been considered by
the Tribunal.
4.6 By making the above submissions, learned Advocate Mr.
Dharmesh Devnani appearing for the appellant-Bank has submitted that
appeal may be allowed and the order passed by the learned Single Judge
may be quashed and set aside.
Submissions of respondent No.2-employee (party-in-person):
5. Per contra, the respondent No.2 - employee appearing as a party-
in-person while defending the order passed by the Tribunal, which has
been confirmed by the learned Single Judge has submitted that the entire
domestic inquiry held against him was vitiated and the appellant - Bank
was directed to justify its action taken against him on the basis of the
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production of the fresh material on record so as to substantiate the claim
of the appellant - Bank, which otherwise does not inspire any confidence
so as to prove the charges levelled against him. It is further submitted by
respondent No.2 -employee that in earlier round of litigation, the order of
the Tribunal holding that the principles of natural justice have been
violated by the appellant - Bank has been challenged by filing Special
Civil Application as well as the Letters Patent Appeal wherein while
upholding the impugend order, permission was granted only to cross-
examine the witnesses adduced by the employer so far, and further
directed to consider all such evidence in the inquiry and to be adduced
before the Tribunal and thus, the order of the Tribunal, as confirmed by
this Court, has attained the finality in absence of any challenge being
made.
5.1 It is further submitted that the appellant - Bank has also adduced
the fresh evidence of two witnesses viz., Shri Nalinkant C. Gilder and
Shri T. K. Parmar at Exh.29 and Exh.30 respectively. However, these
witnesses have not supported the case of the appellant - Bank and thus
the Tribunal has rightly held that the said piece of evidence is not reliable.
It is further submitted that despite the opportunity being granted to the
appellant-Bank to adduce the fresh evidence by the order of the Division
Bench in the earlier round of litigation, the witnesses examined before the
Tribunal have not supported the case of the appellant - Bank; however
for the reasons best known, the appellant - Bank has not examined the
Inquiry Officer, who is alleged to have conducted the inquiry being a
vital witness and therefore, the learned Single Judge has rightly
confirmed the award passed by the Tribunal.
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5.2 It is further submitted that since the depositions of the aforesaid
two witnesses was examined subsequently, the same neither inspire any
confidence nor any substance is found, as none of the witnesses despite
being claimed to have been present at the time of incident, supported the
incident as alleged to have taken place on the fateful day. Thus, the same
can barely be considered as a case of "no evidence" as the material and
important witness, who himself has filed complaint against the
respondent No.2-employee has also filed complaint before the Bank
Management about the questioned incident, and has not been examined
by the Bank. Despite he being in service, no cogent reasons have been
adduced by the Bank for non-examining this material witness. It is further
submitted that apart from the incident in question, which otherwise seems
to be lacking with material substance, no other incident in the form of
misbahaviour has ever been reported during the entire tenure of the
employee who has completed 25 years of continuous service on the date
of the incident and 16 years of service were left from the date of
punishment so awarded for bank service.
5.3 By making the above submissions, respondent No.2 - employee
appearing as a party-in-person has urged to dismiss the present appeal
and to confirm the order passed by the learned Single Judge.
6. We have heard the learned advocate appearing for the appellant-
Bank and respondent No.2 - employee appearing as a party-in-person.
7. At the outset, the legal proposition of law as enunciated in catena
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of decisions pertaining to the scope of judicial review in service matter is
settled by now. The learned Single Judge in the impugned judgment has
also considered the said aspect in paragraph No.7[a], which reads thus:
"[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:-
"xxx xxx xxx"
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.
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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 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."
8. Thus, in light of the above proposition of law laid down by the
Supreme Court, the High Court / Tribunal, while exercising the power of
judicial review, cannot normally substitute its own conclusion on penalty
and impose some other penalty. However, if the punishment imposed by
the Disciplinary Authority or the Appellate Authority shocks the
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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.
9. Now, reverting back to the facts of the case on hand, as per the
submissions advanced by the learned advocate for the appellant-Bank and
respondent No.1-employee (party-in-person), the undisputed facts
emerges from the case are that:-
(01) Mr.Rakesh Dogra, complainant, filed a complaint of an
alleged incident that took place on 05.03.2002 to the Bank
authority as well as to the police;
(02) The same set of evidence and witnesses as adduced before the
criminal Court, as well as before the departmental inquiry seems to
have been relied upon by the Bank;
(03) The original complainant - victim of the questioned incident
Mr.Rakesh Dogra has not been examined by the Bank despite the
opportunity having been afforded by the Tribunal, as directed by
the Division Bench vide order dated 22.06.2015 as noted herein
above;
(04) Not only that even the Inquiry Officer who inquired into the
charges levelled against the employee Mr.P J Naik, who also seems
to have recorded the statement of the witnesses has not been
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examined;
(05) Two vital witnesses on the basis of whose stance, the entire
gamut of the case of the appellant - Bank rests; were not examined,
which throws doubt on the credence and stance of the appellant -
Bank;
(06) It is also not in dispute that despite the opportunity being
granted to adduce fresh evidence, the appellant - Bank has chosen
not to examine these vital witnesses; to the contrary relied upon the
two witnesses referred herein above who otherwise seem not to
have supported the incident in question; in its entirety.
(07) Thus in absence of the examination of the independent
witnesses, as surfaced from the material, on record more
particularly, the vital witnesses viz., the Mr.Rakesh Dogra, original
complainant and the Investigating Officer Mr.Naik, the conduct of
the appellant - Bank smacks doubt as to the credence of the
evidence, which not only lacks substance; but also creates a doubt
and therefore, the conclusions arrived at by the Tribunal as to the
non-examination of the complainant and the Inquiry Officer
warrants no interference at the hands of this Court since the
appellant - Bank seems to have miserably failed to avail the
opportunity accorded to it to submit the fresh evidence by the
Division Bench of this Court, while confirming the order of the
Tribunal and the learned Single Judge.
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(08) Moreover, the witnesses that have been examined by the
appellant - Bank do not support the stand of the Bank, as the
evidence so far adduced by the Bank, as appreciated by the
Tribunal rightly establishes the fact of lacking prima facie
substance and credence so as to attract any misconduct governed
under the Service Conduct Rules.
(09) One more aspect has been succinctly dealt with by the
Tribunal, pertaining to the departmental inquiry having been
conducted in sheer violation of the Bipartite Agreements, which
otherwise appears in a case where the standard of proof has been
subjected of a criminal trial of the alleged incident, even then
thereafter respondent No.2-employee was charge sheeted and was
also subjected to the departmental proceedings.
CONCLUSION:-
10. From the narration of above undisputed facts, it transpires that the
case of the so called complainant as enquired by the Inquiry Officer
appears to be a case at the most of heated exchange between the two
employees who were discharging their duties and therefore, awarding of
major penalty in such a trival incident in absence of any substantial
evidence adduced by the Bank, has rightly been held by the Tribunal to
be excessive and suffers from mala-fide and, even the conclusions arrived
at by the Tribunal while adjudicating the case opining to be a case of
harassment, victimization, discrimination, unfair labour practice finds a
force, which do not require any interference at the hands of this Court.
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11. The sum and substance of the discussions made in the preceding
paragraphs in consonance with the conclusions arrived at by the Tribunal,
which has been confirmed by the learned Single Judge do not dispute the
fact that the party who asserts particular facts, the burden lies on him to
prove the same so far as it pertains to the departmental inquiry and the
same can be proved by observing the principles of preponderance of
probabilities and in the criminal case the same is to be considered on the
aspect of proving beyond the reasonable doubt. Simply because the said
aspect has been discussed by the Tribunal, more particularly, the same set
of evidence has been placed for consideration, is no ground to consider
the stands of the appellant - Bank that the Tribunal committed a grave
error. In this context, the observations made by the Tribunal in its award
which has rightly been dealt with is relevant to reproduce hereunder:
"It is noteworthy The learned advocate of the first party had forgotten
while arguing that the charge sheet is issued by the first party employer
against the second party workman and therefore, burden of prove the
allegations is on the first party employer and not on second party
workman as understood by the learned advocate.
The learned advocate of the first party had argued vehemently that it is
a discretion of the bank and therefore, the second party does not confer
any right to get equal treatment, even one fellow is not given any
punishment, this argument is fallacious. Such statement of the learned
advocate of the first party if seriously considered then it is admitted
facts of Unfair Labour Practices on the part of the first party employer.
Whatever arguments tendered by the first party; are irrelevant as this is
a case of no evidence."
12. The ground urged by the appellant to the extent that the Tribunal
fell in error in quashing aside the punishment order since the acquittal on
benefit of doubt in the criminal proceedings will have no bearing on the
departmental proceedings pales into insignificance since, the witnesses in
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the departmental proceedings have not supported the case of the
appellant. Even it is held that the Tribunal fell in error in examining the
proceedings as if the departmental proceedings are akin to criminal trial.
The same would have no bearing on the final outcome of the judgment of
the Tribunal and the order passed by the learned Single Judge. As we
have previously held that the complainant, on whose complaint the entire
proceedings, both criminal and departmental, have arisen, has not been
examined. Thus, after passage of so many years, we are not inclined to
remand the matter to the Tribunal.
13. Much has been emphasized by the learned advocate for the
appellant - Bank that in view of the alleged incident and the active
involvement of the respondent No.2-employee, the appellant - Bank had
lost faith in the integrity of the employee and therefore also, the
appellant-Bank had a right to terminate the services of the respondent
No.2-employee. The said argument though seems to be interesting; does
not inspire any substance so far as the case on hand is concerned, which
otherwise has been styled and considered as case of "no evidence" and
therefore, when the respondent No.2- employee has been extended the
benefit of doubt in the criminal proceedings and in the same set of facts
and evidence before the departmental proceedings despite the appellant -
Bank having been afforded the opportunity to submit a fresh evidence,
and in default thereof, the appellant - Bank seems to have chosen not to
submit fresh material and evidence except examining the two witnesses
as referred herein above, who otherwise have not supported the stance of
the appellant - Bank, as also nothing sort of any material transpires from
the record to show that there was any loss of faith or any doubt in respect
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of the integrity of the respondent No.2 workman. It is pertinent to note
that despite the alleged incident took place 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 chosen not to examine any independent witnesses to prove the
charges levelled against the respondent No.2-employee. Even the
employees of the appellant - Bank who were discharging their duties
sitting in the proximity of the respondent No.2-employee have not been
examined for the reasons best known to the appellant - Bank.
14. In the result, for the foregoing reasons and the reasons recorded by
the learned Single Judge, the present appeal is devoid of merits and does
not merit acceptance. Accordingly, the appeal is dismissed.
As a consequence, the connected applications are also dismissed.
(A. S. SUPEHIA, J)
(R. T. VACHHANI, J)
sompura / 2
