Gujarat High Court
Rupesh Ishwarbhai Vasava vs Chief Executive Officer on 3 April, 2025
NEUTRAL CITATION
C/SCA/4052/2025 JUDGMENT DATED: 03/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4052 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
Yes
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RUPESH ISHWARBHAI VASAVA
Versus
CHIEF EXECUTIVE OFFICER & ANR.
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Appearance:
MR. HEMAL SHAH(6960) for the Petitioner(s) No. 1
NANAVATI & CO.(7105) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 03/04/2025
ORAL JUDGMENT
1. The present petition is filed under Article 226 and 227 of
the Constitution of India challenging the award dated
03.05.2019 passed by the learned labour court, Bharuch
in Reference Case No.70 of 2015 whereby, the reference
filed by the present petitioner came to be dismissed and
the termination order passed by the respondent was held
legal.
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2. It is the case of the present petitioner that the petitioner
was appointed as a Senior Assistant(Cashier) on
05.07.2001 with the sub division of respondent situated
at Bharuch. The duty assigned of the petitioner was to
collect the payment of electricity bill on daily basis and
to deposit in the account maintained by the respondent-
Company in the Bank of Baroda within 24 hours from the
collection of the amount. It is the case of the petitioner
that during the course of his duty, from 20.06.2012 to
01.08.2013, he collected the amount of Rs.1,79,362/- and
Rs.1,13,577/- from the ATP Machine Agency Operator. It
is further case of the petitioner that on 30.07.2013, the
cash of Rs,2,10,739/- was collected and as per the rules,
same has to be deposited within a period of 24 hours
with the bank. On 01.08.2013 while depositing the
money before the Bank of Baroda, the petitioner has
deposited with an endorsement of bank transfer.
2.1. The allegation made by the respondent-Authority is
that the petitioner has deposited fake deposit slips with
the forged bank seal and signature of the Bank Cashier
and thereby, he committed the offence punishable under
section 406, 409, 471, 465, 467 and 468 of Indian Penal
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Code. The FIR came to be filed before the A-Division
Police Station, Soneri Mahal, Bharuch, being CR-I-144 of
2013 on 10.09.2013. Petitioner has deposited the
amount of Rs.5,03,678/- before the concerned police
station on 11.09.2013. On 02.11.2013 and 09.12.2013,
the show-cause notices were issued to the petitioner
with regard to the above charges. On 22.01.2014, the
order of termination was passed by the respondent-
Authority and the amount of gratuity as well as the leave
encashment was forfeited.
2.2. Challenging the above order the departmental appeal
came to be filed by the petitioner which was dismissed
and thereafter the second appeal came to be filed which
also got dismissed. Challenging the order of termination,
the dispute was raised before the learned labour court,
Bharuch which was registered as Reference (LCR) Case
No.70 of 2015, and the learned labour court has passed
an award dismissing the reference filed by the petitioner
which is subject matter of challenge before this Court.
3. Heard learned advocate Ms.Dhwani Lakhani for learned
advocate Mr.Hemal Shah and learned advocate
Mr.Maulik Nanavati for the respondent-employer.
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4. Learned advocate Ms.Lakhani submits that the
impugned order passed on 03.05.2019 is challenged
mainly on the ground that after the order passed by the
learned reference court, the criminal court has acquitted
the present petitioner from the alleged charges in the
year 2023. Learned advocate Ms.Lakhani submits that
main crux of the allegation is that criminal offence which
ultimately resulted into the acquittal, therefore, the
impugned order deserves to be set aside. Learned
advocate Ms.Lakhani submits that due to the serious
illness of father of the petitioner, the amount was not
deposited within a stipulated period before the
concerned branch.
4.1. It is submitted by the learned advocate Ms.Lakhani
that as immediately on registration of FIR, the petitioner
has deposited the amount before the Police Station and
there was no financial loss caused to the respondent-
employer. Learned advocate Ms.Lakhani submits that
there was no intention of the present petitioner to
misappropriate the amount of the respondent-company,
however, the learned reference court without
considering the same has passed impugned order
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dismissing the reference and holding termination illegal,
which is required to be interfered with and therefore,
petition is required to be allowed.
5. Per contra learned advocate Mr.Maulik Nanavati
submits that during the departmental inquiry, the
petitioner has admitted the charges and during the
cross-examination before the learend labour court,
misappropriation has been accepted by the petitioner.
Learned advocate Mr.Nanavatii submits that as the
respondent-employer has lost the trust due to
misappropriation of the fund of the company, the
impugned order cannot be substituted by granting the
relief of reinstatement. It is submitted by the learned
advocate Mr.Nanavati that as per rules, within 24 hours,
the cash has to be deposited with the concerned branch,
however, the same was not deposited and it was
deposited with the Police Station on registration of FIR.
Learned advocate Mr.Nanavatii submits that standard of
proof in the disciplinary inquiry as well as in the criminal
court is different.
5.1. Learned advocate Mr.Nanavatii submits that there
was no clean acquittal, but as the prosecution could not
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prove the charge beyond reasonable doubt in the
criminal proceedings, the acquittal was awarded.
Learned advocate Mr.Nanavatii submits that in the
disciplinary proceedings, the proof of standard in
preponderance of the probability, however, in the
criminal court it would be beyond reasonable doubt.
Learned advocate Mr.Nanavatii submits that during the
independent inquiry when the charge is proved against
the petitioner, the learned reference court was justifying
in not interfering with the impugned termination and
therefore, the petition deserves to be dismissed.
5.2. Learned advocate Mr.Nanavatii has relied on the
decision rendered by the Apex Court in the case of
Airports Authority Of India vs Pradip Kumar
Banerjee reported in 2025 SCC Online SC 232, and
submitted that as there was loss of trust, no question
arises for reinstatement and therefore, also the petition
deserves to be dismissed.
6. Having considered the arguments advanced by the
learned advocates for the respective parties and on
perusing the reasons assigned by the learned reference
court while dismissing the reference, it appears that
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during the cross-examination of the employee, following
facts were admitted:-
“The employee is serving as a Senior Assistant-cum-Cashier
during the period of 20.06.2012 to 01.08.2012. It is admitted
that Senior Assistant Cashier would have the responsibility
for collection of the amount of electricity bill. It is further
admitted that the ATP Machine Agency Operator and the
Electricity Collection Officer, the amount which is collected
has to be deposited by the Cashier within 24 hours with the
bank. On 30.07.2013 and 31.07.2013 the petitioner had
served as a Cashier and on 30.07.2013, the ATP Machine
Agents had deposited the amount of Rs.1,59,632/- with the
petitioner. The petitioner has accepted the amount after
comparing with BCDR report. On 31.07.2013 the amount of
Rs.1,13,577/- was deposited by the ATP Machine Agents.
The said amount is also accepted after comparing with the
BCDR report by the petitioner. On 31.07.2013, the petitioner
had collected the amount of Rs.2,10,739/- on the collection
window, however, the petitioner did not deposit the amount
as collected by him on 30.07.2013 and 31.07.2013 before the
Bank on 01.08.2013. It is also admitted by the petitioner
that the forged Bank slip was created projecting the amount
deposited with the Bank wherein, the stamp of the Bank was
also manipulated. It is admitted by the petitioner that on
registration of the FIR, the amount was deposited before the
A-Division Police Station on 11.09.2013 of Rs.5,03,678/-.
The said deposit was delayed by one month and twelve daysPage 7 of 16
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and for that the charge sheet was issued by the
Superintendent Engineer on 02.11.2013. On demanding 10
days time, the Inquiry Officer had granted adjournment and
the petitioner has participated during the proceedings. It is
admitted by the petitioner that he committed breech of
trust of the respondent-Company. It is also stated by the
petitioner that mercy Application was filed on 03.12.2013 to
the respondent-employer. It is also admitted that during the
departmental proceedings, sufficient opportunity was given to
defend the case and in his presence, the evidence of the
witnesses of the company namely Mr.M.R.Bhagat,
Superintendent Engineer, Mr.N.K.Chaudhary,
Mr.D.M.Dukandar were recorded. They also supported the
misappropriation charge alleged against the present
petitioner. The first appeal which is filed came to be
rejected, challenging the termination order on 21.03.2014
and second appeal was also rejected by the respondent-
Authority. The only explanation was given by the petitioner
that due to cardiac arrest of the father, the amount was
taken and when he went to the respondent-employer to
deposit the said amount on 10.09.2013, it was not accepted
as the FIR was already filed. During the evidence of the
witness of the respondent, it comes on record that the father
of the petitioner was also serving in the GEB. The impugned
order dismissing the reference was challenged before this
Court after more than six years, only on the ground of
acquittal during the criminal charge. On referring the
decision rendered by the criminal court, acquittal wasPage 8 of 16
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mainly awarded that the amount has been deposited with
the DGVCL Office and there was no loss to the employer.
7. This Court has referred to the decision rendered by the
Apex Court in the case of Divisional
Controller,Karnataka State Road Transport
Corporation Versus M.G.Vittal Rao reported in 2012
1 SCC 442 wherein, the Apex Court has held that in the
case where inquiry has been held independently of the
criminal proceedings, acquittal in a criminal court is of
no help even if a person stood acquitted by a criminal
court, domestic inquiry can be held, the reasons being
that the standard of proof required in domestic inquiry
and a criminal case are all together different. Ina
criminal case, standard of proof is beyond reasonable
doubt whereas, in domestic inquiry it is the
preponderance of the probability, that constitutes the
test to be applied.
8. This Court has also referred to the decision rendered by
the Apex Court in the case of State of Rajasthan and
others versus Heem Singh reported in 2021 12 SCC
569 wherein, it is held that unless the accused has an
honorable acquittal in the criminal trial, as opposed to
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an acquittal due to the witness turning hostile or for
technical reasons, the acquittal shall not affect the
decision in the disciplinary proceedings and lead to
automatic reinstatement.
9. This Court has also referred to the decision relied by the
learned advocate Mr.Nanavati in the case of Airports
Authority Of India vs Pradip Kumar Banerjee
(supra) wherein, the Apex Court has held as under:-
“34. In our considered view, the Division Bench fell into grave
error in substituting the standard of proof required in a criminal
trial vis-a-vis the disciplinary enquiry conducted by the employer.
It is a settled principle of law that the burden laid upon the
prosecution in a criminal trial is to prove the case beyond
reasonable doubt. However, in a disciplinary enquiry, the burden
upon the department is limited and it is required to prove its case
on the principle of preponderance of probabilities. In this regard,
we are benefitted by the judgment of this Court in the Union of
India v. Sardar Bahadur,28 wherein this Court held as follows: –
“15. . . . A disciplinary proceeding is not a criminal trial.
The standard proof required is that of preponderance of
probability and not proof beyond reasonable doubt. If the
inference that Nand Kumar was a person likely to have
official dealings with the respondent was one which a
reasonable person would draw from the proved facts of the
case, the High Court cannot sit as a court of appeal over a
decision based on it. Where there are some relevant
materials which the authority has accepted and whichPage 10 of 16
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materials may reasonably support the conclusion that the
officer is guilty, it is not the function of the High Court
exercising its jurisdiction under Article 226 to review the
materials and to arrive at an independent finding on the
materials. If the enquiry has been properly held the
question of adequacy or reliability of the evidence cannot
be canvassed before the High Court. . . .” 28 (1972) 4 SCC
618.”
10. Having considered the decision rendered by the Apex
Court in the above cases, this Court is of the view that
mere acquittal in criminal case would not affect the
outcome of the departmental inquiry which was held
independently, more particularly when no allegations
were made with regard to the violation of the Principle
of Natural Justice.
11. In addition to that this Court is of the view that once the
employer has lost the confidence on the employee and
the bonafide loss of the confidence is affirmed the order
of punishment must be considered to be immune from
challenge for the reasons that reasons that discharging
the office of trust and confidence required absolute
integrity and in case of loss of confidence, reinstatement
cannot be awarded. In the opinion of this Court there is
no place for generosity or misplaced sympathy on the
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part of judicial forum and interfering therefore, with
quantum of punishment, where alleged misconduct is
proved by the employer.
12. The above view of this Court is supported by the decision
rendered by the Apex Court in the case of Divisional
Controller, N.E.K.R.T.C vs H. Amaresh reported in
2006 6 SCC 187 wherein the Apex Court has held as
under:-
“18. In the instant case, the mis-appropriation of the funds by the
delinquent employee was only Rs. 360.95. This Court has
considered the punishment that may be awarded to the delinquent
employees who mis-appropriated funds of the Corporation and the
factors to be considered. This Court in a catena of judgments held
that the loss of confidence as the primary factor and not the
amount of money mis-appropriated and that the sympathy or
generosity cannot be a factor which is impermissible in law. When
an employee is found guilty of pilferage or of mis-appropriating a
Corporation’s funds, there is nothing wrong in the Corporation
losing confidence or faith in such an employee and awarding
punishment of dismissal. In such cases, there is no place for
generosity or misplaced sympathy on the part of the judicial
forums and interfering therefore with the quantum of punishment.
The judgment in Karnataka State Road Transport Corpn. Vs. B.S.
Hullikatti, (2001) 2 SCC 574 was also relied on in this judgment
among others. Examination of passengers of vehicle from whom
the said sum was collected was also not essential. In our view,
possession of the said excess sum of money on the part of thePage 12 of 16
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respondent, a fact proved, is itself a mis-conduct and hence the
Labour Court and the learned Judges of the High Court
misdirected themselves in insisting on the evidence of the
passengers which is wholly not essential. This apart, the
respondent did not have any explanation for having carried the
said excess amount. This omission was sufficient to hold him
guilty. This act was so grossly negligent that the respondent was
not fit to be retained as a conductor because such action or
inaction of his was bound to result in financial loss to the
appellant irrespective of the quantum.
25. In our view, even short remittance amounts to mis-conduct
and, therefore, applying the rulings of this Court, the impugned
order ought not to have been passed by the Division Bench
ordering reinstatement. We, therefore, have no hesitation to set
aside the order passed by the learned Judges of the Division
Bench and restore the order of dismissal of the respondent from
service. It is stated that pursuant to the order of the Labour Court
the respondent was reinstated in service. Since there was no stay
granted by this Court the respondent had continued in service of
the Corporation. In view of the law laid down by this Court and
of the facts and circumstances of this case, the respondent, in our
opinion, has no legal right to continue in service any further. We,
therefore, direct the appellant- Corporation to immediately
discharge the respondent from service. However, we make it clear
that the salary paid to the respondent and other emoluments
during this period shall not be recovered from the respondent. We
also make it further clear that in view of the order of dismissal
the respondent shall not be entitled to any further emoluments.”
13. In addition to that, power of the learned labour court
under section 11(A) is discussed by the Apex Court in
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the case of Bharat Petroleum Corpn. Ltd. and Others
Versus T.K.Raju reported in 2006 3 SCC 143 wherein,
the Apex Court has held as under:-
“11. In State of Punjab and Others v. Ram Singh Ex. Constable
[(1992) 4 SCC 54] it was stated: –
“Misconduct has been defined in Black’s Law Dictionary, Sixth
Edition at page 999 thus:
“A transgression of some established and definite rule of action, a
forbidden act, a dereliction from duty, unlawful behavior, wilful
in character, improper or wrong behavior, its synonyms are
misdemeanor, misdeed, misbehavior, delinquency, impropriety,
mismanagement, offense, but not negligence or carelessness.”
Misconduct in office has been defined as:
“Any unlawful behavior by a public officer in relation to the
duties of his office, wilful in character. Term embraces acts which
the office holder had no right to perform, acts performed
improperly, and failure to act in the face of an affirmative duty to
act.”
12. In P. Ramanatha Aiyar’s Advanced Law Lexicon, 3rd
edition, at page 3026, the term ‘Misconduct’ has been defined as
under:
“The term misconduct implies a wrongful intention and not a
mere error of judgment. Misconduct is not necessarily the same
thing as conduct involving moral turpitude. The word misconduct
is a relative term, and has to be construed with reference to the
subject-matter and the context wherein the term occurs, having
regard to the scope of the Act or statute which is being construed.
Misconduct literally means wrong conduct or improper conduct.”
13. On more than one occasion, different courts have taken
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pains to explain that Kalra (supra) does not lay down any
inflexible rule. [See Probodh Kumar Bhowmick v. University of
Calcutta & Ors., 1994 (2) C.L.J. 456, Tara Chand v. Union of
India and Ors. CWP 5552 /2000 disposed of on 27th August, 2002
(Delhi High Court), Secretary to Government and Others v. A.C.J.
Britto, 1997) 3 SCC 387 and Noratanmal Chouraria v. M.R. Murli
and Another (2004) 5 SCC 689].
16. The power of judicial review in such matters is limited.
This Court times without number had laid down that interference
with the quantum of punishment should not be done in a routine
manner. [See V. Ramana v. A.P.SRTC and Others, (2005) 7 SCC
338, and State of Rajasthan & Anr. v. Mohammed Ayub Naz,
2006 (1) SCALE 79].
17. Having regard to the facts and circumstances of this case,
we are of the opinion that it cannot be said that the quantum of
punishment was wholly disproportionate to the charges levelled
against the Respondent.
18. The High Court, therefore, committed an error in passing
the impugned judgment which is set aside accordingly. The appeal
is allowed. No costs.”
14. In addition to that, this Court is of the view that once the
Tribunal held that the domestic inquiry had been
conducted properly and conclusion arrived therein were
plausible, the tribunal has no jurisdiction to sit in appeal
and to substitute its own judgment. In the cases where
misconduct was proved by valid and proper domestic
inquiry and the action of an employer was bonafide,
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tribunal had no power to alter the punishment imposed
by an employer. In that background, this Court endorses
the view of the learned labour court in dismissing the
reference.
15. Considering the over all circumstances, this Court did
not find any merits in the submission made by the
learned advocate for the petitioner for interference with
the impugned order, hence the petition deserves to be
dismissed.
16. Resultantly, this petition is dismissed.
(M. K. THAKKER,J)
NIVYA A. NAIR
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