Gujarat High Court
Kishorebhai Sunderji Mistry vs Indian Bank on 24 December, 2024
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/7413/2016 JUDGMENT DATED: 24/12/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7413 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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Approved for Reporting Yes No
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KISHOREBHAI SUNDERJI MISTRY
Versus
INDIAN BANK & ANR.
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Appearance:
MR DG SHUKLA(1998) for the Petitioner(s) No. 1
MR YOGI K GADHIA(5913) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 24/12/2024
ORAL JUDGMENT
1. By way of present petition invoking Article 226 of the
Constitution of India, the petitioner herein has challenged the
impugned order dated 26.11.2002 passed by the respondent –
Bank against the petitioner of ‘Removal from Service, which
shall not be a disqualification for future employment’ and has
prayed for the following reliefs:
“(A) Your Lordships may be pleased to issue a writ of Mandamus or a
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writ in the nature of Mandamus or any other appropriate writ, order or
direction, directing the Respondent Bank Authorities to make the
payment of Subsistence Allowance for the period from 10.02.2002 to
26.11.2002, Full Back Wages for the period from 27.11.2002 to
30.11.2009, Gratuity, Provident Fund, Leave Travel Concession and
arrears of Salary, etc. with interest @ 9% p.a. and be further pleased
to quash and set aside the impugned order dated 26.11.2002 passed
by the Respondent Bank against the Petitioner of ‘Removal from
service, which shall not be a disqualification for future employment’,
annexted hereto and marked as Annexure – ‘A’ to the present petition
as it being illegal, improper, unjust and without authority in law.
(B) This Hon’ble Court may be pleased to grant any other and
further relief as may be deemed fit just and proper in favour of
Petitioner in the interest of justice.”
2. Heard Mr. D.G. Shukla, learned advocate appearing for
the petitioner and Mr. Yogi K. Gadhia, learned advocate
appearing for the respondent – Bank.
3. Brief facts leading to the filing of the present petition
read thus:
3.1 The petitioner herein joined the services of the
Respondent – Bank as Clerk-cum-Typist at Mahim Branch,
Mumbai w.e.f. 13.08.1973; having rendered about 30 years of
service with utmost sincerity, honesty and integrity and his
service record was clean and blotless.
3.2 The petitioner was transferred to Vadodara Main Branch
as Clerk-cum-Typist in 1976 up to 1982. The petitioner was
Branch Representative of the Union viz. Indian Bank
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Employees’ Union. The respondent – Bank issued show cause
notice to the petitioner on 04.02.1978 alleging that the
petitioner had committed misconduct by entering the Branch
with the crowd of about 100 people consisting of other Bank
staff and outsiders and also threatening the Branch Manager to
accept the demands raised by the Union. The petitioner herein
denied such allegations vide reply dated 13.02.1978 and
further clarified the factual aspects. The respondent Bank
authorities thereafter, dropped the further proceedings of show
cause notice and the petitioner was intimated vide letter dated
28.05.1980 by the respondent – Bank. The respondent – Bank
authorities were under one or other pretext victimizing the
petitioner and was constantly harassed by the respondent –
Bank authorities.
3.3 The petitioner was thereafter posted at Bareilly (Uttar
Pradesh) in November, 1982 by promoting him as Officer –
Assistant Manager and after about 6 years of service, was sent
out of Vadodara. In 1983, the petitioner was transferred to
Mathura as Assistant Manager. In 1987, the petitioner was
transferred to Rajkot and served as Assistant Manager till
1989. In 1989, the petitioner was transferred to Vadodara and
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served as Accountant (Assistant Manager) till 1993. In 1993,
the petitioner was transferred to Alkapuri Branch and served
there as Accountant (Assistant Manager) till 1995. In 1995, the
petitioner was posted as Branch Manager (Category : Assistant
Manager) at Davda, Dist. Kheda. In 1998, the petitioner was
transferred to Navsari as Branch Manager. In 1999, the
petitioner was transferred to Godhra as Branch Manager
(Category : Assistant Manager) where the petitioner worked up
to August, 2000. The petitioner was lastly working as Assistant
Manager, Regional Office, Ahmedabad up to 04.09.2000. The
petitioner was transferred from one State to another as well as
from one City to another very frequently in different capacities
which proves that the respondent – Bank Authorities were
causing mental tension and harassment to the petitioner. The
petitioner also had to look after his family and education of his
children.
3.4 The petitioner was issued suspension order on
30.08.2000 for alleged irregularities and was placed under
suspension with immediate effect by the Central Office,
Vigilance Department, Chennai of the respondent – Bank.
3.5 The petitioner was issued chargesheet on 28.11.2000
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along with annexure by the Deputy General Manager
(ID)/Disciplinary Authority, Central Office, Vigilance
Department, Chennai, levelling the following charges against
the petitioner:
i. The Petitioner had without powers, co-accepted 10
usance bills/hundies amounting to Rs.99.70 lakhs without
obtaining sanction/confirmation from appropriate
authorities.
ii. The Petitioner had allowed TOD of Rs.4.49 lakhs on
13.04.2000 without powers and without reporting to
Controlling Authority in the newly opened Current
Account in the name of M/s AM Petroleum opened on
24.03.2000.
iii. The Petitioner had received a sum of Rs.35,000/-
from a party for opening a Fixed Deposit. But, the
Petitioner had failed to open Fixed Deposit and Petitioner
had kept the amount with him.
3.6 The petitioner was further informed that the above acts
have exposed the Bank to a possible financial loss to the
extent of irregularities committed by the petitioner. The said
chargesheet being No.5973:MUM:VG:2000 dated 28.11.2000 is
duly produced at Annexure – C to the petition. The petitioner
thereafter, received a letter informing him about the
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appointment of Mr. D. Gopalakrishana Murthy as Inquiry Officer
to conduct the departmental inquiry in respect of the aforesaid
chargesheet dated 28.11.2000. The proceedings were initiated
from 14.02.2002 and were conducted on various dates
thereafter. The petitioner herein also sought permission to
appoint Mr. K.R. Mehta, Ex-employee of Bank of Baroda,
Dabhoi as Defence Representative of the petitioner vide letter
dated 08.04.2002 addressed to the Inquiry Officer. The said
request was declined by the Inquiry Officer vide reply dated
11.04.2002 without any reasons and against the principles of
natural justice.
3.7 The petitioner participated in the departmental inquiry
proceedings on each and every occasion but, on 19.04.2002,
the petitioner could not remained present because of ill health.
The family members of the petitioner tried to contact the
Inquiry Officer but, could not contact him. The Inquiry Officer,
in absence of the petitioner, conducted the Inquiry Proceedings
and concluded it treating that the petitioner herein is not
interested to cross-examine the witnesses. The petitioner by
letter dated 19.04.2002 intimated the reason of his absence
and also mentioned regarding the prejudice caused to him by
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various actions of the Management such as not permitting Mr.
K.R. Mehta as Defense Representative nor giving reasonable
time to engage some other Defense Representative as well as
not giving reasonable opportunities to defend his case in
accordance with the principles of natural justice.
3.8 The Inquiry Officer vide letter dated 27.04.2002 informed
the petitioner that the petitioner did not attend the inquiry
proceedings on 19.04.2002 hence, the inquiry was conducted
in the absence of the petitioner. The petitioner was informed to
submit written statement by return of post. The petitioner vide
letter dated 06.05.2002 denied the allegations and informed
that though it was mentioned in the proceedings on
19.04.2002, neither the Presenting Officer had sent his written
brief nor the Inquiry Officer had sent the same. The petitioner
vide letter dated 27.05.2002 requested the disciplinary
authority to permit him to defend his case along with the
Defence Representative. The Assistant General Manager of the
respondent – Bank vide letter dated 23.05.2002 forwarded the
findings of the Inquiry Officer dated 20.05.2002 to enable the
petitioner to submit his comments on the findings. The
petitioner was granted 15 days to submit the comments. The
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petitioner submitted his reply on 08.06.2002 and denied the
allegations levelled against him and also submitted that the
Inquiry proceedings are one sided as the petitioner was not
allowed to cross-examine the witnesses nor was permitted to
engage a Defense Representative. The Assistant General
Manager/Disciplinary Authority vide order dated 26.11.2002
imposed on petitioner the major penalty of ‘Removal from
Service, which shall not be a disqualification for future
employment’ with immediate effect and the period of his
suspension was treated as one under suspension only.
3.9 It is the case of the petitioner that the petitioner was
issued chargesheet by the Deputy General Manager (ID) but,
the order of penalty was issued by the Assistant General
Manager who is lower in rank and therefore, the impugned
order deserves to be quashed and set aside. It is the case of
the petitioner that Kapol Co-operative Bank Ltd. filed police
complaint against the petitioner and other persons under
Section 120-B, 465, 467, 468, 471, 474, 419 and 420 of the
Indian Penal Code in connection with Charge No.1 levelled
against the petitioner herein by the respondent – bank. The
said Police Case being Criminal Case No.08/P/2001 was tried
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by the Additional Chief Metropolitan Magistrate, Mumbai. The
petitioner was acquitted by judgment and order dated
01.08.2013 passed by the Additional Chief Metropolitan
Magistrate, 47th Court, Esplande, Mumbai in Criminal Case
No.08/P/2001. In the meantime, the petitioner attained the age
of superannuation on 30.11.2009. The petitioner has not been
paid retirement benefits due to the petitioner though, the
petitioner has been acquitted by the learned Additional Chief
Metropolitan Magistrate.
3.10. After the petitioner was acquitted, the petitioner raised
industrial dispute before the Assistant Labour Commissioner
(Central), Ahmedabad on 16.06.2014 about illegal termination/
removal from services as well as claiming back wages and
terminal benefits for a period from 26.11.2002 to 30.11.2009.
The said complaint/representation came to be rejected on
21.08.2014 on the ground that the petitioner is not a
‘Workman’ under the Industrial Disputes Act, 1947 and in view
thereof, it is not within the purview of the Act. The petitioner
challenged the said order by preferring Special Civil Application
No.658 of 2015 which also came to be dismissed by order
dated 14.10.2015 upholding the order passed by the Industrial
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Tribunal dated 21.08.2014. In the meantime, the petitioner
approached the respondent – bank to make the payment of his
Provident Fund dues, Gratuity under the Payment of Gratuity
Act, 1972/Bank Rules. The petitioner was informed by letter
dated 09.08.2008 along with copies of letters dated
24.07.2008 that the Bank’s contribution along with interest
amounting to Rs.3,10,892/- payable to the petitioner has been
deducted towards financial loss caused to the bank and the
amount of Gratuity payable to the petitioner, has been
forfeited under Section 4(6) of the Payment of Gratuity Act,
1972 and further informed the petitioner that the petitioner
was not entitled to Gratuity under the Offices’ Service
Regulations as he was removed from the services of the
respondent – Bank. It is the case of the petitioner that the
petitioner is entitled to Provident Fund amount along with
interest, Gratuity, Full Back Wages, Benefits of Earned Leave
Accrual, Leave Encashment Benefits, Sick Leave, Medical
Expenses Reimbursement on self certification basis, Leave fare
concession, promotion etc. and arrears of salary from time to
time under the Bipartite settlements between Indian Banks’
Association on behalf of the Management of Banks’ in India on
one part and recognized Unions of various Banks on the other
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part. In light of the aforesaid, the petitioner herein is
constrained to approach this Court and has prayed for the
reliefs as referred above.
4. Mr. D.G. Shukla, learned advocate appearing for the
petitioner relied on the facts as referred above and submitted
that the Kapol Co-operative Bank Ltd. had filed police
complaint against the petitioner and other persons under
Sections 120-B, 465, 467, 468, 471, 474, 419 and 420 of the
Indian Penal Code in connection with the Charge No.1 levelled
against the petitioner herein by the respondent – Bank. The
petitioner herein came to be acquitted from the charges
levelled against the petitioner under Sections 120B, 465, 467,
468, 471, 474, 419, and 420 of the Indian Penal Code by
judgment and order dated 01.08.2013 passed by the
Additional Chief Metropolitan Magistrate, 47 th Court, Esplande,
Mumbai duly produced at Annexure – G to the petition and in
view thereof, impugned order dated 26.11.2002 passed by the
respondent – Bank against the petitioner of ‘Removal from
service’, be quashed and set aside. It is submitted that the
respondent – Bank has received the entire dues from the
accused.
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4.1 Mr. Shukla, learned advocate submitted that the
petitioner attained age of superannuation on 30.11.2009
however, the petitioner has not been paid any retirement dues
though the petitioner was acquitted by the learned Additional
Chief Metropolitan Magistrate.
4.2 It is submitted that upon acquittal, the petitioner raised
Industrial Dispute before the Assistant Labour Commissioner
(Central), Ahmedabad on 16.06.2014 about the illegal
termination/removal from services as well as claiming back
wages and terminal benefits for the period from 26.11.2002 to
30.11.2009. By order dated 21.08.2014, it was held that the
representation/complaint of the petitioner could not be
entertained as the petitioner was working as Assistant
Manager and his last working place was Mumbai and the post
of Manager does not fall within the definition of ‘Workman’. It
is submitted that the petitioner challenged the aforesaid order
dated 21.08.2014 by filing Special Civil Application No.658 of
2015 which came to be dismissed by order dated 14.10.2015.
In view of the aforesaid proceedings undertaken by the
petitioner herein, there is a delay in filing the present petition
mainly, because of pendency of proceedings before the
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different authorities.
4.3 Mr. Shukla, learned advocate submitted that in the
meantime, the petitioner had approached the respondent –
Bank authorities for payment of Provident Fund dues, Gratuity
under the Payment of Gratuity Act, 1972/Bank Rules. It is
submitted that the petitioner herein is entitled to the aforesaid
dues in light of the various bipartite settlements between
Indian Banks Associations on behalf of the Management of
Banks in India on one part and recognized Unions of various
Banks on another part.
4.4 It is submitted that the petitioner is erroneously declined
the aforesaid retiral benefits deducting the bank’s contribution
along with interest amounting to Rs.3,10,892/- which is
otherwise payable to the petitioner and the amount of gratuity
is also erroneously forfeited under Rule 4(6) of the Payment of
Gratuity Act, 1972.
4.5 It is submitted that in the departmental proceedings
conducted by the respondent-bank, the petitioner was not
permitted the defence representative. It is submitted that
though the petitioner was remained present on every occasion,
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on 19.04.2002, the petitioner could not remained present
because of ill health. It is submitted that the petitioner tried to
contact the Inquiry Officer but, unfortunately the telephone
line was engaged and as and when the petitioner tried, he
could not contact him and the proceedings were conducted ex-
parte and concluded treating that the petitioner is not
interested to cross – examine the witnesses. Placing reliance
on the aforesaid submissions, it is submitted that the prayers
as prayed for in the present petition are such that the same be
allowed.
5. Mr. Yogi K. Gadhia, learned advocate appearing for the
respondents -Bank relied on the affidavit-in-reply which is duly
produced at page 48 and submitted that the petitioner was
removed from service by order dated 26.11.2002 after full
fledged departmental inquiry and the present petition is filed in
the year 2016 i.e. after 14 years. It is submitted that the
petition be dismissed on the aforesaid ground of delay alone. It
is submitted that the acquittal in criminal case cannot be a
ground to bring life to a dead claim. If the petitioner was
aggrieved by the order of removal, the petitioner ought to
have approached the competent authority at the relevant point
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of time however, noting is done from 2002 and the same would
substantiate that the petitioner has accepted the same.
5.1 Mr. Gadhia, learned advocate submitted that the
petitioner approached the respondent – Bank for release of
Provident Fund and Gratuity as back as in the year 2008
without challenging the order of removal. It is submitted that
the criminal case, wherein, the petitioner is acquitted, is based
on the principle of ‘Preponderance of Probabilities’. The
aforesaid would not entitle the petitioner to any benefits nor
the same would be a ground for discarding the disciplinary
proceedings and the consequent order. The petitioner was
acquitted in the proceedings pursuant to the FIR filed by the
Kapol Co-operative Bank Ltd.. It is submitted that the
prosecution chose not to examine any witness and produced
any documentary evidence. It is submitted that the respondent
– Bank was not a party to the said criminal proceedings and is
not bound by the order of acquittal. The said order was passed,
as referred above, pursuant to an FIR filed by the Kapol Co-
operative Bank Ltd.. It is submitted that the petitioner herein
could have availed alternative remedy to claim the gratuity.
5.2 It is submitted that upon issuance of chargesheet on
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28.11.2000 for mainly 3 charges whereby, the petitioner had
as a Branch Manager, Godhra Branch, accepted 10 bills/hundis
amounting to Rs.99.70 lacs without obtaining sanctioned
confirmation of authority, allowed TOD of Rs.4.49 lacs without
powers and reporting the same to controlling authority and
received a sum of Rs.35,00/- from a party to open FD but, did
not open the FD and kept the amount with him. It is submitted
that the petitioner was given full opportunity in the consequent
departmental inquiry which was concluded on 19.04.2002. The
Inquiry Officer submitted his findings on 20.05.2002 which
were forwarded to the petitioner to which, the petitioner
replied on 08.06.2002. It is submitted that the petitioner had
admitted of having allowed TOD of Rs.4.49 lacs and also
admitted having co-accepted bills/hundis of Rs.99.70 lacs
without any powers. In view thereof, considering the gravity of
misconduct and the charges having been proved, the
petitioner was removed from service vide order dated
26.11.2002. Placing reliance on the aforesaid submissions, it is
submitted that the present petition be dismissed.
Analysis:-
6. Having heard the learned advocates appearing for the
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respective parties, it emerges that the petitioner herein joined
services of the respondent – Bank as Clerk-cum- Typist at
Mahim Branch, Mumbai w.e.f. 13.08.1973. The petitioner
herein was placed under suspension by order dated
30.08.2000 for the alleged irregularities having been
committed by the petitioner. The said order of suspension
dated 30.08.2000 is duly produced at Annexure – B, page 21 to
the petition. The petitioner was issued chargesheet on
28.11.2000 along with the annexures by the Deputy General
Manager (ID)/Disciplinary Authority, Central Office, Vigilance
Department, Chennai, for the following charges:
“1. You had without powers, co-accepted 10 usance bills/hundies
amounting to Rs.99.70 lakhs without obtaining sanction/confirmation
from appropriate authorities.
2. You had allowed TOD of Rs.4.49 lakhs on 13.04.2000 without
powers and without reporting to controlling authority in the newly
opened current account in the name of M/s. AM Petroleum opened on
24.03.2000.
3. You had received as sum of Rs.35,000/- from a party given to
you for opening FD. But, you failed to open FD and you had kept the
amount with you.”
6.1 The aforesaid charges state that the petitioner as a
Branch Manager, Godhra Branch, co-accepted 10 bills/hundis
amounting to Rs.99.70 lacs without obtaining sanctioned
confirmation of the authority, allowed TOD of Rs.4.49 lacs
without powers and without reporting same to the controlling
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authority, received a sum of Rs.35,000/- from a party to open
FD but, did not open the FD and kept the amount with himself.
The departmental inquiry was concluded on 19.04.2002. The
Inquiry Officer submitted findings on 20.05.2002 which were
also forwarded to the petitioner to which, the petitioner replied
on 08.06.2002. The petitioner herein admitted of having
allowed TOD of Rs.4.49 lacs and also admitted having co-
accepted the bills/hundis of Rs.99.70 lacs without any powers.
Considering the gravity of misconduct and the charges having
been proved, the petitioner was removed from service by order
dated 26.11.2002. The said order has attained finality.
6.2 In the meantime, one the Kapol Co-operative Bank Ltd.
filed FIR wherein, the petitioner and others were arraigned as
accused under sections 120B, 465, 467, 468, 471, 474, 419
and 420 of the Indian Penal Code. The petitioner and others
came to be acquitted by the competent Court by judgment and
order dated 01.08.2013 on the ground that the prosecution
witness thought it fit not to examine other witnesses and the
evidence produced by the said prosecution witness No.1 was
cryptic in nature and did not disclose any incriminating
material against the accused pursuant to which an order of
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acquittal came to be passed on 01.08.2013 which is duly
produced at Annexure – G.
6.3 Upon perusal of the aforesaid judgment and order dated
01.08.2013, it emerges that the respondent – bank was not a
party to the said proceedings and is not bound by the order of
acquittal passed in Criminal Case No.08/P/2001 wherein, the
complainant was the Kapol Co-operative Bank Ltd..
7. It is submitted by Mr. D.G. Shukla, learned advocate
appearing for the petitioner that the loss that was suffered by
the respondent – Bank, the said bank has received entire dues
from the accused and that, the said bank was not interested to
prosecute the accused; having received the amount.
In the opinion of this Court, the aforesaid order of
acquittal does not in any manner govern the disciplinary
actions initiated by the respondent – bank pursuant to which,
the petitioner was issued order of removal dated 26.11.2002.
Further, the petitioner herein has prayed for grant of
retirement benefits i.e. payment of Provident Fund and
Payment of Gratuity.
8. Upon perusal of the communication entered into between
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the petitioner herein and the respondent – bank wherein,
pursuant to the communication issued by the petitioner, the
respondent – bank has informed the petitioner by
communication dated 24.07.2008 that ” as provided under
clause (ii) of sub-rule (1) of Rule 8 of the Payment of Gratuity
Central Rules, 1972, the petitioner is not entitled to the
payment the gratuity. It is further stated the petitioner’s act of
co-acceptance of 10 usance bills and allowing of TOD in the
account of M/s. A.M. Petroleum as Branch Manager, Godhra
Branch without powers and without reporting to controlling
office more specifically, spelt out in the speaking order dated
26.11.2002 of Assistant General Manager/Disciplinary
Authority, Circle Office, Ahmedabad, have made recovery of
loans amounting to Rs.1,25,56,192/- difficult of recovery.
Hence under section 4(6) of Payment of Gratuity Act 1972, the
Gratuity payable is forfeited and the petitioner is not entitled
to Gratuity under the Officers Service Regulations as the
petitioner is removed from the services of the Bank”.
9. The petitioner herein has disputed the communication
issued by the respondent – bank dated 24.07.2008. Upon
perusal of paragraph 3.14 of the petition, the petitioner
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approached the respondent – Bank authorities to make the
payment of Provident Fund, Gratuity under the Payment of
Gratuity Act, 1972/Bank Rules. The petitioner was informed
vide letter dated 09.08.2008 along with copies of letters dated
24.07.2008 that the Bank’s contribution along with interest
amounting to Rs.3,10,892/- payable to the petitioner has been
deducted towards financial loss caused to the bank and the
amount of Gratuity payable to the petitioner has been forfeited
under section 4(6) of the Payment of Gratuity Act, 1972 and
that, the petitioner is not entitled for gratuity under the
Officers’ Service Regulations as the petitioner was removed
from services by the respondent – Bank.
10. The petitioner also chose to avail erroneous remedies by
approaching the learned Labour Court for grant of such
benefits challenging the impugned order dated 26.11.2002,
which was not accepted by the competent authority on the
ground that the petitioner was working as Branch Manager and
was not covered under the section 2(s) of the Industrial
Disputes Act, 1947. The petitioner preferred Special Civil
Application No.658 of 2015 challenging the order dated
21.08.2014 which was also dismissed on the ground that the
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petitioner is rightly held not to be a ‘Workman’ by order dated
14.10.2015.
11. At this stage, it is apposite to refer to the ratio laid down
by the Hon’ble Supreme Court in case of State of Jammu and
Kashmir vs. R.K. Zalpuri and Ors., reported in 2016 (1) GLH
114. Relevant paragraphs of the said decision read thus:
“12. On a perusal of the factual exposition, it is quite vivid that the
first respondent was dismissed from service on 6th September, 1999,
and he preferred the writ petition on 18th February, 2006, after a lapse
of almost five and a half years. The plea relating to delay was
specifically taken in the counter affidavit as a preliminary objection,
but the learned Single Judge chose not to address the same. The
appellate-Bench has noted the submission and modified the order and
an application for review was filed with the stand that the plea
pertaining to delay and laches had not been considered, but the review
application, as we find from the record, was dismissed on the ground
that the review could not be treated like an appeal in disguise.
xxxx
28. In the case at hand, the employee was dismissed from service in
the year 1999, but he chose not to avail any departmental remedy. He
woke up from his slumber to knock at the doors of the High Court after
a lapse of five years. The staleness of the claim remained stale and it
could not have been allowed to rise like a phoenix by the writ court.
29. The grievance agitated by the respondent did not deserve to be
addressed on merits, for doctrine of delay and laches had already
visited his claim like the chill of death which does not spare anyone
even the one who fosters the idea and nurtures the attitude that he
can sleep to avoid death and eventually proclaim “Deo gratias” –
‘thanks to God’.
30. Another aspect needs to be stated. A writ court while deciding a
writ petition is required to remain alive to the nature of the claim and
the unexplained delay on the part of the writ petitioner. Stale claims
are not to be adjudicated unless non-interference would cause grave
injustice. The present case, need less to emphasise, did not justify
adjudication. It deserved to be thrown overboard at the very threshold,
for the writ petitioner had accepted the order of dismissal for half a
decade and cultivated the feeling that he could freeze time and forever
remain in the realm of constant present.
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31. In view of our aforesaid analysis the appeals are allowed and
the judgment and orders passed by the High Court are set aside. There
shall be no order as to costs.”
11.1 It is also apposite to refer to the ratio laid down by the
Hon’ble Supreme Court in case of Management of Bharat
Heavy Electricals Ltd. vs. M. Mani with Management of Bharat
Heavy Electricals Ltd. vs. T.A. Mathivanan reported in AIR 2018
SC 384. Relevant paragraphs of the said decision read thus:
“19. Similarly, in our considered view, the Labour Court failed to see
that the criminal proceedings and departmental proceedings are two
separate proceedings in law. One is initiated by the State against the
delinquent employees in criminal Court and other, i.e., departmental
enquiry which is initiated by the employer under the Labour/Service
Laws/Rules, against the delinquent employees.
20. The Labour Court should have seen that the dismissal order of the
respondents was not based on the criminal Court’s judgment and it
could not be so for the reason that it was a case of acquittal. It was,
however, based on domestic enquiry, which the employer had every
right to conduct independently of the criminal case.
21. This Court has consistently held that in a case where the enquiry
has been held independently of the criminal proceedings, acquittal in
criminal Court is of no avail. It is held that even if a person stood
acquitted by the criminal Court, domestic enquiry can still be held – the
reason being that the standard of proof required in a domestic enquiry
and that in criminal case are altogether different. In a criminal case,
standard of proof required is beyond reasonable doubt while in a
domestic enquiry, it is the preponderance of probabilities. (See
Divisional Controller, Karnataka State Road Transport Corporation vs.
M.G. Vittal Rao-(2012) 1 SCC 442)”
11.2 It is further apposite to refer to the ratio laid down by the
Hon’ble Supreme Court in case of Municipal Corporation of
Greater Mumbai and Ors. vs. Vivek V. Gawde etc. etc. reported
in 2024 SCC Online SC 3722. Paragraphs 19 and 20 of the said
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decision read thus:
“19. We now proceed to consider the second relief claimed in the
writ petition of the respondents, i.e., the challenge laid to the order
passed by the Inquiry Officer. It is well settled that decisions rendered
by administrative authorities can be interfered with by high courts in
exercise of Article 226 powers, however, sparingly. Recently, this Court
in W.B. Central School Service Commission v. Abdul Halim while
considering the scope of interference under Article 226 in an
administrative action held that:
“31. In exercise of its power of judicial review, the Court is to
see whether the decision impugned is vitiated by an apparent
error of law. The test to determine whether a decision is vitiated
by error apparent on the face of the record is whether the error
is self- evident on the face of the record or whether the error
requires examination or argument to establish it. If an error has
to be established by a process of reasoning, on points where
there may reasonably be two opinions, it cannot be said to be
an error on the face of the record, as held by this Court in
Satyanarayan Laxminarayan Hegde v. Millikarjun Bhavanappa
Tirumale [Satyanarayan Laxminarayan Hegde v. Millikarjun
Bhavanappa Tirumale, AIR 1960 SC 137] . If the provision of a
statutory rule is reasonably capable of two or more
constructions and one construction has been adopted, the
decision would not be open to interference by the writ court. It
is only an obvious misinterpretation of a relevant statutory
provision, or ignorance or disregard thereof, or a decision
founded on reasons which are clearly wrong in law, which can
be corrected by the writ court by issuance of writ of certiorari.
32. The sweep of power under Article 226 may be wide
enough to quash unreasonable orders. If a decision is so
arbitrary and capricious that no reasonable person could have
ever arrived at it, the same is liable to be struck down by a writ
court. If the decision cannot rationally be supported by the
materials on record, the same may be regarded as perverse.
33. However, the power of the Court to examine the
reasonableness of an order of the authorities does not enable
the Court to look into the sufficiency of the grounds in support
of a decision to examine the merits of the decision, sitting as if
in appeal over the decision. The test is not what the Court
considers reasonable or unreasonable but a decision which the
Court thinks that no reasonable person could have taken, which
has led to manifest injustice. The writ court does not interfere,
because a decision is not perfect.’ (emphasis supplied)”
20. The decision was approved by a further decision of this Court in
Municipal Council, Neemuch v. Mahadeo Real Estate, wherein it was
held that:
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“14. It could thus be seen that the scope of judicial review of an
administrative action is very limited. Unless the Court comes to
a conclusion that the decision-maker has not understood the
law correctly that regulates his decision-making power or when
it is found that the decision of the decision-maker is vitiated by
irrationality and that too on the principle of ‘Wednesbury
unreasonableness’ or unless it is found that there has been a
procedural impropriety in the decision-making process, it would
not be permissible for the High Court to interfere in the
decision-making process. It is also equally well settled that it is
not permissible for the Court to examine the validity of the
decision but this Court can examine only the correctness of the
decision-making process.
***
16. It could thus be seen that an interference by the High Court
would be warranted only when the decision impugned is
vitiated by an apparent error of law i.e. when the error is
apparent on the face of the record and is self-evident. The High
Court would be empowered to exercise the powers when it finds
that the decision impugned is so arbitrary and capricious that
no reasonable person would have ever arrived at. It has been
reiterated that the test is not what the Court considers
reasonable or unreasonable but a decision which the Court
thinks that no reasonable person could have taken. Not only
this but such a decision must have led to manifest injustice.”
(emphasis supplied)”
12. In light of the aforesaid discussion and the position of
law, as referred above, no interference is called for in the
impugned order passed by the respondent authority dated
26.11.2002 imposing penalty of ‘Removal from service, which
shall not be a disqualification for future employment’; the
same having been passed upon conducting disciplinary inquiry
and following the principles of natural justice. The petitioner
herein has accepted charges upon issuance of chargesheet
dated 28.11.2000 for mainly three charges, as referred above,
and the petitioner having admitted of having allowed TOD of
Rs.4.49 lacs and having co-accepted bills/hundis of Rs.99.70
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lacs without such powers. The charges 1 and 2 are proved, the
charge 3 is not proved. The aforesaid conduct of the petitioner
has resulted into financial loss to the respondent – Bank which
is required to be considered with a strict view.
12.1 Further, the petitioner has failed to make out a case for
interference though, heavy reliance is placed upon the
judgment and order order of acquittal dated 01.08.2013
passed by the Additional Chief Metropolitan Magistrate, 47 th
Court, Esplande, Mumbai, in light of the fact that the
respondent – bank was never a party to the said proceedings.
The order of acquittal in the said proceedings is based on the
principle of ‘Preponderance of Probabilities’ and on that ground
also, the petition fails. Further, the petitioner has also delayed
the proceedings by availing erroneous remedies.
13. For the foregoing reasons, no case is made out to
exercise extra ordinary jurisdiction under Article 226 of the
Constitution of India. The present petition stands dismissed
accordingly. Rule is discharged.
(VAIBHAVI D. NANAVATI,J)
NEHA
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