1. Present petition is filed by the petitioner under Article 227 of the Constitution of India for the following reliefs.

direction, quashing and setting the judgment and award dated 6.7.2012 passed by the learned Presiding Officer, CGIT - cum - Labour Court, Ahmedabad whereby the action on the part of the bank authorities in terminating the services of the petitioner has been confirmed and be pleased to issue appropriate writ, order or direction, holding that the action on the part of the respondent bank authorities in terminating the services of the petitioner is illegal, arbitrary and improper in the aforesaid peculiar facts and circumstances of the case.

(C) Pending admission and final disposal of this petition, be pleased to issue appropriate writ, order or direction directing the respondent bank authorities to reinstate the petitioner, subject to final outcome of the petition.

(D) Pass such orders as thought fit in the interest of justice.

(E) Be pleased to issue appropriate writ or order or direction upon the respondent bank to disburse / release all the benefits which have become due and payable to the applicant from the date of suspension i.e. 29/07/1994 till today which could have been granted to the petitioner, if the petitioner was in service as well as be pleased to direct the respondent bank to disburse / release all the retirement dues as well as all pensionary benefits to the petitioner and further be pleased to direct the respondent bank to pay all the aforementioned dues with 12% interest from the date of suspension i.e. 29/07/1994 till the date of disbursement in the interest of justice".

NEUTRAL CITATION C/SCA/12390/2012 JUDGMENT DATED: 12/07/2024 undefined

2. Brief facts of the present case, in nutshell, are as under:-

bank in Surat, he was placed under suspension by order dated 29.7.1994. That respondent - bank issued communication and the petitioner was served with the charge-sheet dated 26.12.1994 on the allegations that one another employee of the respondent - bank Shri K.J. Adhvaryu had indulged into fraud with the bank during the period from 1988 to 1994 and it has been further alleged in the said charge-sheet that the said employee Shri Adhvaryu had committed fraud and had misappropriated huge amount from Gopipura branch of respondent - bank and had cheated bank to the tune of Rs.1,01,04,000/-. That after Page 3 of 54 Downloaded on : Mon Jul 15 21:19:27 IST 2024 NEUTRAL CITATION C/SCA/12390/2012 JUDGMENT DATED: 12/07/2024 undefined issuance of charge-sheet, the bank initiated departmental inquiry and one Shri R.C. Shah came to be appointed as Inquiry Officer to conduct the departmental inquiry.

2.2 That inquiry was held and inquiry officer had submitted his report to the disciplinary authority and, ultimately, disciplinary authority issued second show cause notice on 06.06.1996 and, thereafter, the service of the petitioner came to be terminated by oral order. Thereafter, the petitioner had filed an appeal before the Appellate Authority, however, without giving any opportunity of hearing to the petitioner, the appeal came to be rejected by the Appellate Authority. That against the action of the respondent - bank, the petitioner had raised dispute, which ultimately came to be referred to the Industrial Tribunal and which came to be registered as Reference No.ITC.6/1998 (old). It is further the case of the petitioner that in the said reference, the petitioner had raised grievance in respect of violation of principles of natural justice by the inquiry officer. The petitioner had also raised grievance that the entire inquiry was vitiated as he was not supplied the necessary documents, which had caused prejudice to him in defending the case.

NEUTRAL CITATION C/SCA/12390/2012 JUDGMENT DATED: 12/07/2024 undefined 2.3 It is also the case of the petitioner that after considering the aforesaid contentions, perusing the inquiry report and considering the arguments advanced at length by both the sides, the learned Tribunal passed an order dated 11.9.2002 by which the inquiry conducted by the bank was held to be vitiated and was held to be violative of principles of natural justice. That the respondent - bank had preferred petition being Special Civil Application No.12247 of 2002 before this Court, which ultimately, this Court by order dated 22.12.2003, rejected the petition and the order passed by the Industrial Tribunal, Surat came to be confirmed.

2.4 Being aggrieved by the order passed by this Court dated 22.12.2003, the respondent herein had preferred Letters Patent Appeal being No.645 of 2004 before the Division Bench of this Hon'ble Court whereby the Division Bench has rejected the appeal vide order dated 11.7.2005. The proceedings of the reference were proceeded further and, ultimately, by judgment and award passed by the learned Presiding Officer, Central Government Industrial Tribunal - cum - Labour Court, Page 5 of 54 Downloaded on : Mon Jul 15 21:19:27 IST 2024 NEUTRAL CITATION C/SCA/12390/2012 JUDGMENT DATED: 12/07/2024 undefined Ahmedabad (hereinafter be referred to as "the Tribunal") whereby the action of the management of Bank of India in terminating the services of the petitioner w.e.f. 31.12.1996, has been held to be legal and justified.

2.5 That the allegation on which the services of the petitioner came to be terminated by the respondent bank and confirmed by the learned CGIT, Ahmedabad by judgment and award dated 06.07.2012 which is the subject matter of challenge before this Court. On the same grounds and allegations, the CBI/BS&FC Mumbai registered FIR No. RC6(E) 1995 for the offences punishable under Sections 120(B) , 420 , 409 , 464 , 471 of the Indian Penal Code as well as under the provision of Section 13(2) and 13(1)(d) Prevention of Corruption Act which thereafter culminated into CBI Special Case No. 26 of 1998. It is contended that the CBI Court after careful evaluation the documentary as well as oral evidence passed an order dated 12.10.2022 acquitting the petitioner from the aforesaid charges.

2.6 The petitioner attended the age of superannuation on 20.07.2015, he wrote various letters dated 11.07.2015, Page 6 of 54 Downloaded on : Mon Jul 15 21:19:27 IST 2024 NEUTRAL CITATION C/SCA/12390/2012 JUDGMENT DATED: 12/07/2024 undefined 30.04.2016 and 24.06.2022, demanding his dues i.e. provident fund, leave encashment, increment, pay revision, pensionary benefits, arrears and other retirement dues etc. The respondent bank vide letter dated 05.11.2022 replied to the letter dated 24.06.2022 contending that the petitioner is not entitled to the pension and he can only claim compassionate allowance. The petitioner also communicated to the respondent bank dated 29.12.2022 whereby he informed the bank that he has been acquitted from the charges levelled against him and all allegations on which he has been terminated from the services, have not been proved against him.

3. Being aggrieved and dissatisfied with the impugned judgment and award, the petitioner has preferred this petition.

4. Heard Mr. N. K. Majmudar, learned counsel appearing for the petitioner and Mr.Dharmesh Devnani, learned counsel appearing for the Nanavati Associates for the respondent/s at length. Perused the materials placed on record.

5. Mr. Majmudar, learned counsel appearing for the petitioner has submitted the same facts which are narrated in the memo of Page 7 of 54 Downloaded on : Mon Jul 15 21:19:27 IST 2024 NEUTRAL CITATION C/SCA/12390/2012 JUDGMENT DATED: 12/07/2024 undefined petition and has also submitted that the impugned judgment and award passed by the Tribunal is unjust and illegal and the same deserves to the quashed and set aside. He has submitted that the Tribunal has committed an error of law and facts in not considering the submissions raised by the petitioner to the effect that the charges levelled against the petitioner in the charge-

sheet were vague and baseless. He has submitted that the Tribunal has not considered the important aspect that the delinquent was never allotted the work of Savings Bank Account or work pertaining to debit / credit entries or work relating to the issuance of cheque books. He has submitted that the Tribunal has failed to consider the fact that in fresh inquiry, the evidence was never submitted on record and, therefore, the entire inquiry conducted by the Inquiry Officer was vitiated. While referring to the deposition of bank witness Shri U. V. Shroff, Mr.Majmudar, learned counsel has submitted that the witness deposed that monetary transactions between two staff members being a usual phenomenon and the same would not be considered as wrong or illegal or violative of principles of bank norms and in view of the deposition of the witness, charges levelled against the petitioner Page 8 of 54 Downloaded on : Mon Jul 15 21:19:27 IST 2024 NEUTRAL CITATION C/SCA/12390/2012 JUDGMENT DATED: 12/07/2024 undefined could not have been said to be proved and, hence, the action of the bank deserves to be quashed and set aside. He has submitted that the bank has cross-examined one of the witness, who admitted that Shri Adhvaryu committed fraud continuously for several years because of the faulty system of the bank and considering such aspect, no fault could have been found with the petitioner. He has submitted that the bank has failed to establish the alleged involvement and connection of the petitioner with Shri Adhvaryu and the Tribunal has committed an error in arriving at conclusion that the petitioner had assisted Shri Adhvaryu in committing fraud. He has submitted that the petitioner was served with the charge-sheet with an ulterior motive to save the higher officers of the bank and even in the inquiry proceedings, he was not supplied with important documents demanded by him, however without appreciating the said aspect, the Tribunal has confirmed the order of termination.

He has submitted that there was no evidence to establish that the petitioner was involved in any act of omission / misconduct and so far as the report of the Investigating Officer is concerned, it has no value as no witness was examined and the petitioner Page 9 of 54 Downloaded on : Mon Jul 15 21:19:27 IST 2024 NEUTRAL CITATION C/SCA/12390/2012 JUDGMENT DATED: 12/07/2024 undefined was never given an opportunity to cross-examine the witness.

According to him, Shri Adhvaryu and 87 others were not examined during the course of the departmental proceedings to prove the conspiracy and there was no charge of conspiracy in the charge-sheet and it does not transpire from the investigation report that the petitioner had knowledge about the fraud. He has submitted that earlier the departmental inquiry was held to be vitiated and the Tribunal had permitted the petitioner to hold said inquiry in the reference and in the inquiry, none of the charge against the petitioner was proved, however, without properly appreciating such aspect, the order of the termination had been confirmed by the Tribunal. Mr.Majmudar, learned counsel for the petitioner has urged to allow the petition and quash and set aside the impugned order.

5.1 Over-and-above the oral submissions, Mr.Majmudar, learned counsel appearing for the petitioner has submitted the following written submissions.

6. Per contra, Mr.Dharmesh Devnani, learned counsel appearing for the respondent has submitted that the petitioner was working as staff clerk in the main branch of the respondent -

Bank since 1977. He has submitted that there was no violation of statutory provision of bipartite settlement and the departmental inquiry was conducted against the workman as per the provision laid down in the bipartite settlement and during the inquiry, the reasonable opportunities were given to the workman to defend his case. He has submitted that the petitioner committed Page 14 of 54 Downloaded on : Mon Jul 15 21:19:27 IST 2024 NEUTRAL CITATION C/SCA/12390/2012 JUDGMENT DATED: 12/07/2024 undefined misconduct of arranging fund of Rs.45,000/- from his overdraft account to S.B. Account of Shri Adhvaryu and cause financial loss to the bank and he has committed grave and serious misconduct and so the punishment imposed upon him is proper, legal and justifiable. He has urged to dismiss the petition and confirmed the impugned award passed by the Tribunal.

6.1 Mr.Devnani, learned counsel appearing for the respondent has relied upon the following decisions:-

( 2) State Bank of India Vs. K. S. Vishwanath , reported in (2022) 15 SCC 190.

(3) Divisional Controller, Karnataka State Road Transport Corporation Vs M.G. Vittal Rao, reported in (2012) 1 SCC

442. ( 4) Director General, RPF and Ors vs. Ch. Sai Babu , reported in (2003) 4 SCC 331.

6.2 Over-and-above, the oral submissions, Mr.Devnani, learned Page 15 of 54 Downloaded on : Mon Jul 15 21:19:27 IST 2024 NEUTRAL CITATION C/SCA/12390/2012 JUDGMENT DATED: 12/07/2024 undefined counsel appearing for the respondent has submitted the following written submissions.

5. The following are the FINDINGS:

61, the cheque No. 903821, dated 31.12.1990, for Rs. 45,000/-that K.J. Adhvaryu issued to Mr. M.K. Patel was Page 16 of 54 Downloaded on : Mon Jul 15 21:19:27 IST 2024 NEUTRAL CITATION C/SCA/12390/2012 JUDGMENT DATED: 12/07/2024 undefined supposed to be dishonoured or bounced back. However, it was held at the Surat main branch with an endorsement pay account credited, but there wasn't enough money to clear the cheque dated 21.12.1990.

5.2 The argument put forth by the second party worker fails to hold true when considering the partnership deed found in Ext. 105, which states that Rajendra G. Parikh and K.J. Adhvaryu, the delinquent workers, started the jewellery business in their wives' names despite knowing that they were not allowed to enter into any partnerships while they were employed by the bank. As a result, the jewellery business was started in their wives' names.

5.3 The previously mentioned documentary evidence strongly demonstrates the fact that it was the result of a long-standing, well-planned relationship between friends to protect one another and, in particular, to keep Mr. K.J. Adhvaryu from committing fraud after fraud in massively expensive transactions. Rajendra G. Parikh, a delinquent worker, added to Mr. Adhvaryu by depositing Rs. 45,000 into his Surat main branch account. This helped to ensure that the Rs. 45,000 cheque Mr. Adhvaryu wrote out for K.C. Patel would not be dishonoured or bounced back, as it would have put Mr. Adhvaryu in jeopardy and exposed the fraud he had committed earlier.

5.4 The witness, Chimanbhai Chaudhary, testified that on13.07.1992, while travelling from the Suratmain branch to the Gopipura branch for the purpose of delivering posts, Shri Rajendra G. Parikh gave him a bearer cheque No. 174594, dated July 10, 1992, for Rs. 1,50,000 from the account of Shri K.J. Adhvaryu, duly signed by him. The cheque also bore the signature of Shri Rajendra G. Parikh as the recipient of the cheque amount, and he was instructed to cash the cheque and bring the sum of Rs. 1,50,000.

5.5 Following a comprehensive inquiry, the Vigilance Department of Bank of India found evidence of a pervasive conspiracy including officers, clerical staff, and sub-staff. Evidence was discovered against 87 employees, including K.J. Adhvaryu, N.G. Bhatt, Shri Rajendra G. Parikh, and Shri P.P. Bhatt. A few employees were forced to retire, and others had their jobs terminated. Other staff members and police received warnings, caution, and reductions in increments, among other penalties. The removal of many Page 17 of 54 Downloaded on : Mon Jul 15 21:19:27 IST 2024 NEUTRAL CITATION C/SCA/12390/2012 JUDGMENT DATED: 12/07/2024 undefined employees, including K.J. Adhvaryu, N.G. Bhatt, and Shri P.P. Parikh, were exposed by the investigation.

5.6 Additionally, Ext. 73 is a cheque (No. 160625) made out to delinquent worker Rajendra G. Parikh for Rs. 5,000 dated 03.04.2002. Ext. 74 is a cheque (No. 113013) made out to delinquent worker Shri Rajendra G. Parikh for Rs. 50,000 dated 30.01.1991. Ext. 76 is a cheque (No. 113064) made out to delinquent worker Rajendra G. Parikh dated 04.01.1994, and it is made out to him for Rs. 50,000 These records clearly show that the delinquent worker was receiving payments from K.J. Advhvaryu through his Gopipura branch account 13944 through unlawful rewards or profits that Shri K.J. Adhvaryu was concealing in his numerous Gopipura branch accounts, including account No. 13944, through the accumulation of fraudulent transfers in his account without having enough funds in his Surat main branch account 38344.

5.7 Based on the recently discussed documents and evidence from the first party's fresh inquiry before the tribunal, the tribunal determined that all allegations against the delinquent worker, Shri Rajendra G. Parikh, have been proven true in accordance with the chargesheet as on 26.12.1994, vide Ext. 15/3. It has been shown that the delinquent worker helped Shri K.J. Adhvaryu actively.

5.8 Additionally, the second charge against the delinquent worker is that, on July 13, 1992, Shri Rajendra G. Parikh encashed a bearer cheque for Rs. 1,50,000 through the joint S.B. account number 13944 of Shri K.J. Adhvaryu, in which a fraudulent credit of Rs. 2,00,000 was given on July 10, 1992. It is also proven that, during this time, Shri Rajendra G. Parikh and Shri K.J. Adhvaryu started a jewellery business in Surat under the name Krishna Ornaments, in both his wife's name and the name of K.J. Adhvaryu's wife. This is the partnership deed, Ext. 105. It has been proven and corroborated by the first party witness, G. Chandreshekharan, at Ext. 163, and goes on to establish gross misconduct on the part of the delinquent workman.

5.9 It has also been demonstrated that the delinquent workman by continuous act of wilful and intentional commission/omission added/assisted and enable Shri K.J. Adhvaryu, a staff clerk at the Bank's Gopipura branch, commit fraud and defraud the bank of Rs. 1,01,04,000.

NEUTRAL CITATION C/SCA/12390/2012 JUDGMENT DATED: 12/07/2024 undefined Furthermore, the delinquent worker's intentional act caused prejudice to the bank's interest. This type of proven gross misconduct is in line with the bipartite settlement at clause 19.5 (J), which states that it is "during any act prejudicial to the Bank's interest or gross negligence involving or likely to involve the banks in serious loss."

7. Mr.Devnani, learned counsel appearing for the respondent has relied upon the decision of the Hon'ble Supreme Court in the case of Shashi Bhusan Prasad Vs. Inspector General, Central Industrial Security Force and Ors, reported in (2019) 7 SCC 797 wherein the Hon'ble Supreme Court has observed in para-19 as under:-

8. Mr.Devnani, learned counsel appearing for the respondent has relied upon the decision of the Hon'ble Supreme Court in the case of State Bank of India Vs. K. S. Vishwanath , reported in (2022) 15 SCC 190, wherein the Hon'ble Supreme Court has held and observed in para - 17 to 21 as under:-

" 9. In State of AP. S. Sree Rama Rao [State of AP. x. S. Sree Rama Ran AIR 1963 SC 1723), a three Judge Bench of this Court has held that the High Court is not a court of appeal over the decision off the authorities holding a departmental enquiry against a public servant. It is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf and whether the rules of natural justice are not violated. The Court held us under:

10. In BC. Chaturvedi Union of India [BC. Chaturvedi & Union of India, (2995) 6 SCC 749: 1996 SCC (LAS) [80] again a three Judge Bench off this Court has held that power of judicial review is not an appeal from a decision but a review of the manner in which the decision is made Power of judicial review is meant to ensure that the individual receives fair treatments and not to ensure that the conclusion which the authority reaches is necessarily correct in the eyes of the court. The courts / tribunal in its power of judicial review does not act as an appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. It was held as under: (SCC pp. 75960, paras 12 -13) Page 21 of 54 Downloaded on : Mon Jul 15 21:19:27 IST 2024 NEUTRAL CITATION C/SCA/12390/2012 JUDGMENT DATED: 12/07/2024 undefined

12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial renew is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. Then an inquiry is conducted on charges of misconduct by a public sermons the Courts Tribunal is concerned as determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of the Evidence Act nor of proof of fact or evidence as defined therein. apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receive support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and would the relief so as to make it appropriate to the facts of each case.

13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co- extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel [Union of India v. H.C. Goel, (1964) 4 SCR 718: AIR 1964 SC 364]. this Court held at p. 728 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the Page 22 of 54 Downloaded on : Mon Jul 15 21:19:27 IST 2024 NEUTRAL CITATION C/SCA/12390/2012 JUDGMENT DATED: 12/07/2024 undefined face of the record or based on no evidence at all, a writ of certiorari could be issued."

11. In High Court of Bombay v. Shashikant S. Patil [High Court of Bombay v. Shashikant S. Patil , (2000) 1 SCC 416:

Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But we cannot overlook that the departmental authority (in this case the Disciplinary Committee of the High Court) is the sole judge of the facts, if the enquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution."

12. In State Bank of Bikaner & Jaipur v. Nemi Chand Nalwaya [State Bank of Bikaner & Jaipur v. Nemi Chand Nalwaya, (2011) 4 SCC 584: (2011) 1 SCC (L&S) 721], this Court held 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 Page 23 of 54 Downloaded on : Mon Jul 15 21:19:27 IST 2024 NEUTRAL CITATION C/SCA/12390/2012 JUDGMENT DATED: 12/07/2024 undefined of the evidence will not be ground for interfering with the findings in departmental enquiries. The Court held as under: (SCC pp. 58788, paras 7 & 10) "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. ( Vide B.C. Chaturvedi v Union of India , Union of India v G. Ganayutham and Bank of India v. Degala Suryanarayana , High Court of Bombay v Shashikant S. Patil .

10. The fact that the criminal court subsequently acquitted the respondent by giving him the benefit of doubt, will not in any way render a completed disciplinary proceeding invalid nor affect the validity of the finding of guilt or consequential punishment. The standard of proof required in criminal proceedings being different from the standard of proof required in departmental enquiries, the same charges and evidence may lead to different results in the two proceedings, that is, finding of guilt in departmental proceedings and an acquittal by giving benefit of doubt in the criminal proceedings. This is more so when the departmental proceedings are more proximate to the incident, in point of time, when compared to the criminal proceedings. The findings by the criminal court will have no effect on previously concluded domestic enquiry. An employee who allows the findings in the enquiry and the punishment by the disciplinary authority to attain finality by non-challenge, cannot after several years, challenge the decision on the ground that subsequently, the criminal court has acquitted him"

14. On the other hand the learned counsel for the respondent relies upon the judgment reported as Allahabad Bank v. Krishna Narayan Tewari (Allahabad Bank v Krishna Narayan Tewari, (2017) 2 SCC 308: (2017) 1 SCC (L&S) 335], wherein this Court held that if the disciplinary authority records a finding that is not supported by any evidence whatsoever or a finding which is unreasonably arrived at, the writ court could interfere with the finding of the disciplinary proceedings. We do not find that even on touchstone of that test, the Tribunal or the High Court could interfere with the findings recorded by the disciplinary authority. It is not the case of no evidence or that the findings are perverse. The finding that the respondent is guilty of misconduct has been interfered with only on the ground that there are discrepancies in the evidence of the Department. The discrepancies in the Page 25 of 54 Downloaded on : Mon Jul 15 21:19:27 IST 2024 NEUTRAL CITATION C/SCA/12390/2012 JUDGMENT DATED: 12/07/2024 undefined evidence will not make it a case of no evidence. The inquiry officer has appreciated the evidence and returned a finding that the respondent is guilty of misconduct."

20. That thereafter this Court has observed and held in paragraph 7,8 and 15 as under:

21. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that the High Court has committed a grave error in interfering with the order passed by the disciplinary authority dismissing the respondent delinquent officer from service. The High Court has erred in reappreciating the entire evidence on record and thereafter interfering with the findings of fact recorded by the Enquiry Officer and accepted by the disciplinary authority. By interfering with the findings recorded by the Enquiry Officer which as such were on appreciation of Page 26 of 54 Downloaded on : Mon Jul 15 21:19:27 IST 2024 NEUTRAL CITATION C/SCA/12390/2012 JUDGMENT DATED: 12/07/2024 undefined evidence on record, the order passed by the High Court suffers from patent illegality. From the findings recorded by the Enquiry Officer recorded hereinabove, it cannot be said that there was no evidence at all which may reasonably support the conclusion that the Delinquent officer is guilty of the charge."

9. Mr.Devnani, learned counsel appearing for the respondent has relied upon the decision of the Hon'ble Supreme Court in the case of Divisional Controller, Karnataka State Road Transport Corporation Vs M.G. Vittal Rao, reported in (2012) 1 SCC 442 wherein the Hon'ble Supreme Court has held and observed in para-24 to 31 as under:-

30. In case of theft, the quantum of theft is not important and what is important is the loss of confidence of employer in employee. (Vide: A.P. SRTC v. Raghuda Shiva Sankar Prasad , AIR 2007 SC 152).

31. The instant case requires to be examined in the light of the aforesaid settled legal proposition and keeping in view that judicial review is concerned primarily with the decision-making process and not the decision itself. More so, it is a settled legal proposition that in a case of misconduct of grave nature like corruption, theft, no punishment other than the dismissal may he appropriate. (Vide Pandiyan Roadways Corpn. Ltd. (supra): and U.P. State Road Transport Corporation v. Suresh Chand Sharma , (2010) 6 SCC 555)"

11. Having considered the submissions made on behalf of both the sides coupled with the facts of the aforesaid decisions and the facts of the present case, it appears that the petitioner was appointed as staff clerk in the year 1977 by the Bank of India, Sagrampura (Gopipura) Branch Surat and, thereafter, he was transferred to main branch at Surat and from 1981 the petitioner was serving as staff clerk in main branch at Surat. It appears from the record that the petitioner was terminated / suspended from the service as he assisted Shri K. J. Adhvaryu serving as staff clerk, who had committed serious irregularities and due to serious misconduct on the part of them a charge-sheet came to be issued against them. It appears that the petitioner had Page 30 of 54 Downloaded on : Mon Jul 15 21:19:27 IST 2024 NEUTRAL CITATION C/SCA/12390/2012 JUDGMENT DATED: 12/07/2024 undefined transferred an amount of Rs.45,000/- from his overdraft account to the account of Shri Adhvaryu and had facilitated Shri Adhvaryu as balance amount of Rs.45,000/-. It also reveals that the petitioner had encashed the bearer cheque of Rs.1,50,000/-

through one Jamadar Shri C. K. Chaudhary drawn from the account of Shri Adhvaryu and the petitioner along with Shri Adhvaryu started jewellary business wherein wife of the petitioner and wife of Shri Adhvaryu were the partners. It reveals from the record that respondent - bank initiated the departmental inquiry, after issuance of the charge-sheet and one Shri R. C. Shah came to be appointed as Inquiry Officer to conduct the departmental inquiry and, thereafter on submission of the report of the inquiry officer, the disciplinary authority issued second show-cause notice and, thereafter, the petitioner came to be terminated from the service. The petitioner had preferred an appeal before the Appellate Authority and the Appellate Authority, after hearing the parties and considering the evidence, dismissed the appeal and against the inaction on the part of the bank, the petitioner had raised dispute before the Industrial Tribunal whereby the Tribunal held the inquiry to be Page 31 of 54 Downloaded on : Mon Jul 15 21:19:27 IST 2024 NEUTRAL CITATION C/SCA/12390/2012 JUDGMENT DATED: 12/07/2024 undefined vitiated and violative of the principles of natural justice. The respondent - bank had preferred Special Civil Application No. 12247 of 2002 before this Court, which came to be dismissed and the order of the Tribunal holding the inquiry came to be confirmed by this Court and against which the respondent - bank had preferred Letters Patent Appeal No. 645 of 2004, which came to be dismissed. It also appears that after the said orders, the respondent - bank proceeded further and the Tribunal vide order dated 06.07.2012 held the action of respondent - Bank of dismissing the petitioner from the services as legal and valid.

12. The submission made on behalf of the learned counsel appearing for the petitioner that though the petitioner was acquitted from the charges levelled against him, the impugned order passed by the respondent - bank in the disciplinary proceedings imposing punishment, is absolutely disproportionate to the charge and misconduct as alleged and, therefore, the impugned award passed by the Tribunal is erroneous and the same deserves to be quashed and set aside. Considering the facts and circumstances of the case and the material on record, it is relevant to note that the evidence in criminal case is to be Page 32 of 54 Downloaded on : Mon Jul 15 21:19:27 IST 2024 NEUTRAL CITATION C/SCA/12390/2012 JUDGMENT DATED: 12/07/2024 undefined led by the prosecution beyond reasonable doubt wherein in case of departmental proceedings, the employer has to produce the evidence and to prove the charge against the delinquent on the basis of preponderance probability and, therefore, the petitioner acquitted from Criminal Case No. 26 of 1998 which is not relevant for the purpose of deciding the quantum of punishment imposed in the departmental proceedings. In the present case, after considering the relevant aspects and the evidence led before the Tribunal and before the Disciplinary Authority, the order of punishment came to be passed by the respondent which can not be said to be harsh and disproportionate to the charge levelled against the present petitioner.

13. Now it is well settled that in case of quantum of punishment, while exercising the powers under Articles Articles 226 and 227 of the Constitution of India this Court has very limited scope to interfere with the findings recorded by the inquiry officer and after appreciating the documentary evidence and inquiry report, the punishment order was passed by the disciplinary authority and confirmed by the appellate authority and Industrial Tribunal. Though the petitioner was serving as Page 33 of 54 Downloaded on : Mon Jul 15 21:19:27 IST 2024 NEUTRAL CITATION C/SCA/12390/2012 JUDGMENT DATED: 12/07/2024 undefined staff clerk in the bank he was running a business with one another employee i.e. Shri K.J. Adhvaryu.

14. It is referred to and relied upon the decision in the case of State Bank of India and others Vs. P. Zadenga reported in 2023 (6) SLR 1 (SC) wherein the Hon'ble Supreme Court has held and observed in para 29.2 as under:-

15. The Tribunal, after considering and appreciating the evidence on record, has held and observed as under:-

16. It is worthwhile to refer to the decision of this Court in the case of Pradeepkumar Thakur Vs. State Bank of India and 1 other reported in 2024 (2) G.L.H. 149 wherein this Court has held and observed as under:-

10. It is also worthwhile to refer to the judgment of the Division Bench of this Court dated 06.01.2014 rendered in Letters Patent Appeal No.915 of 2013 wherein the Division Bench has observed in para-7 as under:-

(a) 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;

(b) The Courts cannot assume the function of disciplinary / departmental authorities and to decide nature of function the quantum penalty is to be of punishment awarded, exclusively as within and this the jurisdiction of the competent authority;

(c) 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;"

11. It is also worthwhile to refer to the decision of this Court in the case of C S. Amin Vs. Assistant General Manager SBI, Region III & 2 reported in 2016 LawSuit (Guj) 1916 and Bhikhubhai Kamabhai Dabhi Vs. Surat Municipal Corporation and 2 reported in 2017 LawSuit (Guj) 9 where in this Court has decided similar issue as involved in the present petition.

12. In the case of C. S. Amin (supra), this Court has held and observed in paras - 29, 30 and 31 as under:-

(1) To judge the validity of any administrative order or statutory discretion normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision-maker could, on the material before him and within the framework of the law, have arrived at. The Court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bonafide. The Court would also consider whether the decision was absurd or perverse. The Court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the Court substitute its decision to that of the administrator. This is the Wednesbury test.

(2) The Court would not interfere with the administrator's decision unless it was illegal or suffered from procedural impropriety or was irrational in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests, including proportionality being brought into English Administrative Law in future is not ruled out. These are the CCSU principles.

NEUTRAL CITATION C/SCA/12390/2012 JUDGMENT DATED: 12/07/2024 undefined (3)(a) As per Bugdaycay, Brind and Smith, as long as the European Human Rights Convention (Contention) is not incorporated into English Law, the English Courts merely exercise a secondary judgement to find out if the decision maker could have, on the material before him, arrived at the primary judgment in the manner he has done. (3)(b) If the Convention is incorporated in England making available the principle of proportionality, then the English Courts will render primary judgement on the validity of the administrative action and find out if the restriction is disproportionate or excessive or is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon.

(4)(a) The position in our country in administrative law, where no fundamental freedoms are involved, is that the Courts/Tribunals will only play a secondary role while the primary judgement as to reasonableness will remain with the executive or administrative authority. The secondary judgement of the Court is to be based on Wednesbury the CCSU principles as stated by Lord Greene and Lord Diplock respectively to find if the executive or administrative authority has reasonably arrived at his decision as the primary authority.

(4)(b) Whether in the case of administrative or executive action affecting fundamental freedoms, the Courts in our country will apply the principle of 'proportionality' and assume a primary role, is left open, to be decided in an appropriate case where such action is alleged to offend fundamental freedoms."

In Apparel Export Promotion Council Vs. A.K. Chopra - (1999) 1 SCC 759, the Supreme Court reiterated the otherwise well settled principles of law on the scope of judicial review of disciplinary action taken by the employer and laid down the following propositions:-

In Om Kumar Vs. Union of India - AIR 2000 SC 3689, the Supreme Court traced the history of the principle of proportionality, referred to the propositions culled out in Ganayutham 's case (supra), noticed the decision of the Page 40 of 54 Downloaded on : Mon Jul 15 21:19:27 IST 2024 NEUTRAL CITATION C/SCA/12390/2012 JUDGMENT DATED: 12/07/2024 undefined House of Lords in R. Vs. Chief Constable of Sussesc ex.p. International Trader's Ferry Ltd. (1999) 1 All ER 129, wherein the principles of Wednesbury and proportionality were almost equated and held that where the decision of an administrative authority is attacked being arbitrary, the principle of secondary review will have to be kept in mind. Paragraphs 28, 29 66 to 71 of this judgement which theortises the law on the subject are reproduced below:

In Regional Manager U.P. SRTC V. Hoti Lal (2003) 3 SCC 605, the Supreme Court outlined the mode to be adopted for determining whether the punishment imposed by the disciplinary authority is shockingly disproportionate and observed as under:

30 The above noted decision of this Court gives a clear idea of the limited scope of judicial review of the discretion exercised by the employer to impose the particular penalty on the delinquent employee. The Supreme Court has repeatedly emphasised that the High Courts cannot exercise appellate jurisdiction in such matters and substitute their opinion for the one formed by the disciplinary authority. It has also been held that the punishment imposed by the competent authority cannot be modified/substituted with a lesser penalty unless the Court is satisfied that the same is grossly or shockingly disproportionate or is so unreasonable that no person of reasonable prudence would have imposed such punishment in the facts and circumstances of the case.

31. For determination of the question whether the punishment imposed by the disciplinary authority is grossly or shockingly disproportionate, the Court has to take into consideration all the relevant factors including the nature of charges proved, the past conduct of the employee, the punishment if any imposed earlier, the nature of duties assigned to the employee having due regard to their sensitiveness, performance norms if any laid down by the employer and above all the paramount requirement of maintaining discipline in the service."

13. In the case of Bhikhubhai Kamabhai Dabhi (supra), this Court has held and observed in paras - 17, 18 and 21 as under:-

NEUTRAL CITATION C/SCA/12390/2012 JUDGMENT DATED: 12/07/2024 undefined

(c). there is violation of the principles of natural justice in conducting the proceedings;

(d). the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

(e). the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

(f). the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

(g). the disciplinary authority had erroneously failed to admit the admissible and material evidence;

(h). the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

(i). the finding of fact is based on no evidence.

13 Under Article 226/227 of the Constitution of India, the High Court shall not:

14 In one of the earliest decisions in State of Andhra Pradesh and others v. S. Sree Rama Rao1 , many of the above principles have been discussed and it has been concluded thus:

The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution."

15 In State of Andhra Pradesh and others v. Chitra Venkata Rao [(1975) 2 SCC 557], the principles have been further discussed at paragraphs 21 to 24, which read as follows:

24. The High Court in the present case assessed the entire evidence and came to its own conclusion. The High Court was not justified to do so. Apart from the aspect that the High Court does not correct a finding of fact on the ground that the evidence is not sufficient or adequate, the evidence in the present case which was considered by the Tribunal cannot be scanned by the High Court to justify the conclusion that there is no evidence which would justify the finding of the Tribunal that the respondent did not make the journey. The Tribunal gave reasons for its conclusions. It is not possible for the High Court to say that no Page 49 of 54 Downloaded on : Mon Jul 15 21:19:27 IST 2024 NEUTRAL CITATION C/SCA/12390/2012 JUDGMENT DATED: 12/07/2024 undefined reasonable person could have arrived at these conclusions. The High Court reviewed the evidence, reassessed the evidence and then rejected the evidence as no evidence. That is precisely what the High Court in exercising jurisdiction to issue a writ of certiorari should not do."

16 These principles have been succinctly summed up by the living legend and centenarian Justice V. R. Krishna Iyer in State of Haryana and another v. Rattan Singh [(1977) 2 SCC 491]. To quote the unparalled and inimitable expressions:

17 In all the subsequent decisions of this Court up to the latest in Chennai Water Supply and Sewarage Board v. T. T. Murali Babu (2014) 4 SCC 108 : (AIR 2014 SC 1141), these principles have been consistently followed adding practically nothing more or altering anything.

18 On Article I, the disciplinary authority, while imposing the punishment of compulsory retirement in the impugned order dated 28.02.2000, had arrived at the following findings:

19 The disciplinary authority, on scanning the inquiry report and having accepted it, after discussing the available and admissible evidence on the charge, and the Central Administrative Tribunal having endorsed the view of the disciplinary authority, it was not at all open to the High Court to re appreciate the evidence in exercise of its jurisdiction under Article 226/227 of the Constitution of India. 20 Equally, it was not open to the High Court, in exercise of its jurisdiction under Article 226/227 of the Constitution of India, to go into the proportionality of punishment so long as the punishment does not shock the conscience of the court. In the instant case, the disciplinary authority has come to the conclusion that the respondent lacked integrity. No doubt, there are no measurable standards as to what is integrity in service jurisprudence but certainly there are indicators for such assessment. Integrity according to Oxford dictionary is "moral uprightness; honesty". It takes in its sweep, probity, innocence, trustfulness, openness, sincerity, blamelessness, immaculacy, rectitude, uprightness, virtuousness, righteousness, goodness, cleanness, decency, honour, reputation, nobility, irreproachability, purity, respectability, genuineness, moral excellence etc. In short, it depicts sterling character with firm adherence to a code of moral values."

17. In view of the above decisions and on perusal of the charge which apparently clears that the petitioner along with Shri Adhvaryu has committed grave misconducts by misappropriating amount and transferring the same in the account. So far as the allegation that the respondent - bank has initiated departmental Page 51 of 54 Downloaded on : Mon Jul 15 21:19:27 IST 2024 NEUTRAL CITATION C/SCA/12390/2012 JUDGMENT DATED: 12/07/2024 undefined inquiry without there being any complaint is concerned, it is relevant to note that the bank has initiated departmental inquiry on the basis of the relevant materials / evidence and on that basis the respondent - bank has initiated inquiry and after finding sufficient materials, it has issued show-cause notice to the petitioner. Therefore, after considering all relevant materials and seriousness of the charge, the impugned order came to be passed by the disciplinary authority and subsequently, thereafter confirmed by the appellate authority and, while exercising the powers under Articles 226 and 227 of the Constitution of India, this Court has very limited scope to interfere with the findings recorded by the inquiry officer and after appreciating the documentary evidence and inquiry report, the punishment order was passed by the disciplinary authority and confirmed by the appellate authority.

18. The above-mentioned decisions of this Court gives a clear idea of the limited scope of judicial review of the discretion exercised by the employer to impose the particular penalty on the delinquent employee. The Supreme Court has repeatedly emphasised that the High Courts cannot exercise appellate Page 52 of 54 Downloaded on : Mon Jul 15 21:19:27 IST 2024 NEUTRAL CITATION C/SCA/12390/2012 JUDGMENT DATED: 12/07/2024 undefined jurisdiction in such matters and substitute their opinion for the one formed by the disciplinary authority. It has been held that the punishment imposed by the competent authority cannot be modified / substituted with a lesser penalty unless the Court is satisfied that the same is grossly or shockingly disproprtionate or is so unreasonable that no person of reasonable prudence would have imposed such punishment in the facts and circumstances of the case.

19. On perusal of the inquiry report of the inquiry officer and the order of the disciplinary authority, I am of the opinion that the punishment of dismissal inflicted on the petitioner vis-a-vis the proven misconduct is not so disproportionate as would shock the conscience of this Court warranting interference.

20. Considering the totality of facts, I am of opinion that the authorities have rightly arrived at the conclusion that the petitioner was guilty of misconduct, which was sufficient to remove him from the service. This Court finds no reasons to interfere with the same either.

21. Considering overall facts and circumstances of the case Page 53 of 54 Downloaded on : Mon Jul 15 21:19:27 IST 2024 NEUTRAL CITATION C/SCA/12390/2012 JUDGMENT DATED: 12/07/2024 undefined and the decisions of this Court as well as Hon'ble Supreme Court, I am of the opinion that the appellate authority has recorded its findings after perusing and going through the materials on record and, therefore, both the authorities have not committed any error in passing the impugned orders and hence, the present petition is devoid of merits and the same deserves to be dismissed.

22. For the foregoing reasons, this petition fails and is hereby dismissed. Rule is discharged. Interim relief, if any, shall stand vacated forthwith.

(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL Page 54 of 54 Downloaded on : Mon Jul 15 21:19:27 IST 2024