Bombay High Court
BANK OF INDIAversusSHARAD RAJARAM KHADTARE
- Decided
- Disposal
- Allowed
- Bench
- SANDEEP V MARNE
Holding
The Court held that the Industrial Tribunal erred in declaring the enquiry findings perverse and in setting aside the dismissal, and therefore set aside both the preliminary and final awards.
Summary
The Bank of India dismissed clerk Sharad Rajaram Khadtare in October 2000 for alleged misappropriation of customers' funds after a domestic enquiry. Thirteen years later, the employee sought reinstatement, leading the Government to refer the dispute to the Industrial Tribunal, which, unable to obtain the original enquiry records (destroyed by the bank), held the enquiry findings perverse and declared the dismissal illegal, ordering backwages and pension. The bank challenged the Tribunal's awards, arguing that the employee’s delay amounted to a waiver and that the Tribunal improperly placed the burden of producing evidence on the bank. The High Court examined the fairness of the enquiry, the effect of the bank’s record destruction, and the doctrine of laches, concluding that the employee could not benefit from his own delay and that the Tribunal erred in deeming the findings perverse. Consequently, the Court set aside both the preliminary and final awards and allowed the writ petition.
Issues considered
- Whether a dismissal for grave misconduct can be set aside on the ground that the employer failed to produce complete enquiry records before the Industrial Tribunal.
- Whether the employee’s 13‑year delay in raising an industrial dispute bars relief and constitutes a waiver or laches.
- Whether the burden of producing enquiry documents lies with the employer or the employee when records are destroyed.
- Whether the Industrial Tribunal erred in holding the enquiry findings perverse in the absence of original evidence.
Legislation cited
- Industrial Disputes Act, 1947 — s. 10
Subjects
- industrial dispute
- dismissal
- grave misconduct
- perverse findings
- delay
- laches
- burden of proof
- backwages
- reinstatement
- industrial tribunal
- record destruction
Judgment
Neeta Sawant WP-15893 OF 2025
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 15893 OF 2025
Bank of India ...Petitioner
V/s.
Sharad Rajaram Khadtare ...Respondent
________________
Mr. Lancy D'souza with Ms. Deepika Agarwal i/b. Mr. V.M. Parkar, for the
Petitioner.
Mr. Nitin Kulkarni, for the Respondent.
________________
CORAM: SANDEEP V. MARNE, J.
Reserved On : 12 June 2026.
Pronounced On: 22 June 2026.
Judgment:
1) The issue that arises for consideration in the present
Petition is whether an employee dismissed from service on commission
of grave misconduct, who raises belated industrial dispute, can be
permitted to take advantage of his own wrong and whether his dismissal
can be set aside only on account of employer’s inability to produce
complete enquiry proceedings before the Industrial Tribunal.
2) The Respondent-employee was dismissed from service on 18
October 2000 but raised industrial dispute 13 years later on 14 October
2013 leading to making of reference by the appropriate Government. The
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Bank had destroyed records relating to disciplinary enquiry and was
unable to produce the same before the Industrial Tribunal. Inability of
the Bank to produce evidence recorded in the enquiry has led to a
situation where the Industrial Tribunal has held the .ndings of the
enquiry of.cer to be perverse. Due to long passage of time, the Bank was
also not able to prove the charges before the Industrial Tribunal. The
Tribunal has accordingly held Respondent’s dismissal order to be illegal.
3) The issue arises in the light of challenge raised by the
Petitioner-Bank of India to Part-I Award dated 9 August 2024 and .nal
Award dated 23 January 2025 passed by the learned Member, Industrial
Tribunal Pune, in Reference (IT) No.26 of 2014. By the Part-I Award, the
Industrial Tribunal has held the enquiry to be fair, proper and legal.
However, the .ndings of the Enquiry Of.cer are held to be perverse. By
the Final Award dated 23 January 2025, the Tribunal has declared
termination of the Respondent to be illegal and has directed the
Petitioner-Bank to pay full backwages to the Respondent from the date
of termination i.e. 18 October 2000 till attaining the age of
superannuation with consequential bene.ts and continuity of service.
4) Rule. Rule made returnable forthwith. Since pleadings in the
Petition are complete, the same is taken up for .nal hearing with the
consent of the learned counsel appearing for parties.
5) A brief narration of facts would be necessary for better
understanding of the issue involved in the Petition. The Petitioner is a
Nationalized Bank engaged in banking operations. The Respondent was
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appointed as a Clerk in the Petitioner-Bank on 11 January 1979. At the
relevant time in 1997, he was posted as a Clerk at Chakan Branch of the
Petitioner-Bank. He was placed under suspension vide order dated 13
February 1997 in contemplation of conduct of disciplinary enquiry on
allegation of misappropriation of monies of Bank’s customers. It appears
that a criminal prosecution was lodged against the Respondent by
registering FIR dated 27 January 1999 alleging withdrawal of amount of
Rs.65,000/- from Bank’s account of Mr. Kaluram Tupe and other related
allegations. This led to registration of R.C.C. No.59 of 1999 against the
Respondent in the Court of JMFC, Khed, Rajgurunagar. On 16 October
1999, a chargesheet was issued by the Petitioner for conducting
departmental enquiry alleging four charges. Charges related to acts of
the Respondent in committing fraud in accounts of Bank’s customers,
Mr. Kaluram Tupe, Pratidnya Transport (Prop. M.K. Shinde), S.N. Chavan,
M/s. S.K. Karpe and Sons. It was alleged that the Respondent made
fraudulent withdrawals from the Bank account of the said customers of
Rs.1,46,000/-, Rs.99,200/-, Rs. 1,07,000/- and Rs.57,500/-.
6) A domestic enquiry was conducted into the chargesheet
during 2 March 2000 to 16 May 2000. The Respondent was defended by a
defence representative. 11 management witnesses were examined, who
were offered for cross-examination by the Respondent. At the end of the
enquiry, the enquiry of.cer submitted his report and .ndings on 11 July
2000 holding that the charges leveled against the Respondent were
proved. A show cause notice was issued to the Respondent on 3 August
2000. The Respondent was granted personal hearing. He submitted two
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replies to the show cause notice. The Disciplinary Authority thereafter
proceeded to pass order dated 18 October 2000 imposing the punishment
of dismissal from service on the Respondent. The Respondent .led
Appeal before the Appellate Authority, which was dismissed by order
dated 19 September 2001.
7) The criminal prosecution lodged against the Respondent
resulted in his acquittal vide judgment and order dated 19 June 2013
passed by the Judicial Magistrate, First Class, Khed, Rajgurunagar,
District-Pune. Thereafter the Respondent raised a demand for
reinstatement on 10 August 2013. The Respondent addressed letter
dated 14 October 2013 to the Conciliation Of.cer seeking his
intervention. The dispute was admitted in conciliation and the
Conciliation Of.cer submitted his failure report on 12 March 2014. The
Central Government thereafter made a Reference to the Industrial
Tribunal, Pune, on 26 June 2014 in relation to dismissal of services of the
Respondent.
8) After lapse of period of four years from the date of order of
Reference, the Respondent .led his Statement of Claim on 4 April 2018.
The Petitioner-Bank .led its written statement opposing the claim.
Based on the pleadings, the Industrial Tribunal framed issues vide order
dated 18 January 2019. The Petitioner did not produce the entire records
of enquiry before the Industrial Tribunal and .led Application dated 15
July 2021 seeking direction against the Respondent for production of
records of enquiry. The Respondent gave handwritten reply on the said
application contending inter alia that he also did not have the enquiry
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papers. The Industrial Tribunal passed order dated 13 September 2022 on
Petitioner’s application directing the Petitioner to produce whatever
documents available in original and to produce photocopies of the
remaining documents available with it. The Respondent was also
directed to produce the original documents available with him. However,
neither the Petitioner nor the Respondent was able to produce the
depositions of witnesses and other documents produced during the
course of enquiry.
9) The Industrial Tribunal proceeded to decide preliminary
issues relating to fairness in the enquiry and perversity in the .ndings of
the Enquiry Of.cer. In absence of availability of all proceedings of the
enquiry, by Part-I Award dated 9 August 2024, the Industrial Tribunal
held that the enquiry against the Respondent was fair, proper and legal
and was held as per principles of natural justice. However, Industrial
Tribunal held that .ndings given by the Enquiry Of.cer against the
Respondent were not legal or proper and were perverse.
10) The Industrial Tribunal thereafter granted an opportunity to
the Petitioner to lead evidence to prove the charges. The Petitioner
examined Mr. Mangesh Shengale, Senior Manager at Chakan Branch. The
witness deposed that the Bank was unable to produce bank customers
and employees, who were examined in the domestic enquiry. Since they
were not traceable, the Respondent .led a pursis that he did not wish to
lead any oral evidence. The Industrial Tribunal thereafter proceeded to
make .nal Award dated 23 January 2025 answering the Reference in the
af.rmative. The Industrial Tribunal has declared the action of the
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Petitioner-Bank in dismissing the services of the Respondent w.e.f. 18
October 2000 to be illegal and unjust. The Industrial Tribunal has
directed Petitioner-Bank to pay full backwages to the Respondent from
the date of his termination (18 October 2000) till attaining the age of
superannuation with all consequential bene.ts and continuity of service.
Petitioner is aggrieved by Part-I Award dated 9 August 2024 and .nal
Award dated 23 January 2025 and has accordingly .led the present
Petition.
11) Mr. D’souza, the learned counsel appearing for the
Petitioner submits that the Industrial Tribunal has erred in holding that
.ndings of the Enquiry Of.cer are perverse. That the .ndings of the
Enquiry Of.cer are well supported by evidence of 11 management
witnesses. He submits that mere inability of the Petitioner to produce
depositions of witnesses cannot be a ground for branding .ndings of the
Enquiry Of.cer to be perverse. That the Reference at the instance of the
Respondent was time barred and ought to have been dismissed on that
ground alone. That demand for reinstatement was raised for the .rst
time by the Respondent after lapse of 13 long years. That the Bank
destroyed all enquiry papers as per its practice and was not expected to
retain the same for 13 long years. That the Respondent cannot be
permitted to take bene.t of his own wrong. That the Respondent is
rewarded by the Industrial Tribunal for the delay caused in raising
industrial dispute. That since the Respondent approached the Industrial
Tribunal after gross delay the burden of proof of records of enquiry
would be on the Respondent. However, the Industrial Tribunal
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erroneously held Petitioner responsible for inability to produce the
records of enquiry. That the Respondent has committed grave
misconduct by misappropriating monies of Bank customers. That the
charges are proved by leading evidence of several witnesses including
that of Bank’s customers.
12) Mr. D’souza further submits that the Industrial Tribunal
ought to have taken into consideration the prejudice caused to the
Petitioner-Bank in the matter of defence on account of inordinate delay
in raising of industrial dispute. In support, he relies on judgment of the
Apex Court in SBI, Chairman, State Bank of India and another Versus.
M.J. James . That the Petitioner-Bank is saddled with responsibility of
1
paying huge backwages as well as pensionary bene.ts to the Respondent.
That acquittal in the criminal trial is inconsequential since charges are
proved in the departmental enquiry. He prays for setting aside Part-I and
Final Award of the Industrial Tribunal.
13) The Petition is opposed by Mr. Kulkarni, the learned counsel
appearing for the Respondent. He submits that the Petitioner never
raised the issue of delay before the Industrial Tribunal. That no speci.c
period of limitation is prescribed in the Industrial Disputes Act, 1947 (ID
Act) for making a Reference by the Appropriate Government. That the
industrial dispute was alive and was rightly referred for adjudication to
the Industrial Tribunal. That the Respondent awaited outcome of
criminal prosecution instead of rushing to Industrial Tribunal. That on
19 June 2013, he was honorably acquitted by the criminal Court in
1 2022 (2) SCC 301
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respect of the same charges after taking into consideration the same
evidence. That he demanded his reinstatement immediately after his
acquittal. That, therefore, there is neither any delay nor the same can be
held against the Respondent.
14) Mr. Kulkarni further submits that Bank selectively did not
produce deposition of witnesses and documents produced before the
Enquiry Of.cer though it was able to produce several other documents
before the Industrial Tribunal. That the Respondent cannot have access
to original enquiry reports. That all documents of enquiry were not
supplied to the Respondent and it cannot be expected that the
Respondent would be in a position to produce the same. He submits that
the Industrial Tribunal was left with no option but to declare the .ndings
of the Enquiry Of.cer to be perverse. That the .ndings recorded by the
Enquiry Of.cer are required to be assessed with reference to the
evidence appearing on record. That since the evidence is not available,
the Industrial Tribunal has rightly held the .ndings to be perverse. That
the Management had attempted to prove charges by leading evidence
before the Industrial Tribunal. That it made an attempt to lead evidence
by examining the witness. That therefore Bank cannot now complain
about inability to prove charges on account of passage of time. He
accordingly prays for dismissal of the Petition.
15) Alternatively, Mr. Kulkarni submits that in the event of this
Court holding Respondent responsible for delay, the Award of the
Industrial Tribunal can appropriately be modi.ed by ensuring that the
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Respondent at least receives pension and pensionary bene.ts. That the
Respondent was at an advanced age of 75 years at the time of passing of
the impugned Award. That he has already suffered a lot on account of
illegal dismissal. Mr. Kulkarni has also suggested that operative
directions of the Industrial Tribunal can also be modi.ed by awarding
compensation to the Respondent if considered necessary. On above
broad submissions, Mr. Kulkarni prays for passing of appropriate orders
to protect the interest of the Respondent.
16) Rival contentions urged on behalf of the parties now fall for
my consideration.
17) As observed above, the issue that arises for consideration is
whether dismissal of the Petitioner could have been set aside by the
Industrial Tribunal by holding the .ndings of the Enquiry Of.cer to be
perverse only on account of Petitioner-Bank's inability to produce the
entire proceedings of enquiry. Respondent was subjected to disciplinary
proceedings by issuance of chargesheet dated 16 October 1999. The
charges leveled against the Respondent was about fraudulent
transactions in withdrawing huge amounts from bank's customers
accounts. The extent of amounts alleged to have been withdrawn by the
Petitioners at that point of time (1996-97) were as under:
Sr. No. Account No. Name of the Account Holder Amount
1. S/B 19102 Kaluram J. Tupe Rs. 1,46,000/-
2. C/D 203 Pratidnya Transport (Prop. M.K. Shinde) Rs. 99,200/-
3. C/D 322 S.N. Chavan Rs. 1,07,000/-
4. C/D 227 S.K. Karpe & Sons Rs. 57,500/-
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18) A domestic enquiry was conducted into the charges leveled
against the Respondent. Respondent has participated in the enquiry.
The Industrial Tribunal has held the enquiry to be fair and proper and as
per the principles of nature justice. Thus, there are no qualms about
conduct of enquiry which is held to be fair and proper. After considering
the evidence on record, the Enquiry Of.cer had submitted his report and
.ndings on 11 July 2000 holding that the charges leveled against the
Respondent were proved after affording an opportunity of hearing to the
Respondent. The disciplinary authority accepted the .ndings of the
Enquiry Of.cer and imposed punishment of dismissal from service on
him w.e.f. 18 October 2000. The Industrial Tribunal has however held the
.ndings of the Enquiry Of.cer to be perverse. The said .nding in not
recorded by undertaking the exercise of scrutiny of evidence. However,
the .ndings of the Enquiry Of.cer are considered as perverse only on
account of inability of the Petitioner-Bank to produce the entire evidence
before the Industrial Tribunal. The .ndings recorded by the Industrial
Tribunal on the issue of perversity are as under:
6. The charges leveled against the Second Party vide charge-sheet dated
16.10.1999 that he fraudulently withdrawn and misappropriated the
deposits of the customers. The Inquiry Of.cer gave .ndings in his
report of .ndings dated 11.07.2000 that the charges leveled against the
Second Party are proved. However, in the present case, vide order below
Exh. C-6 dated 13.09.2022 the First Party is directed to produce the
documents whatever available in original and to produce photo copies
of the remaining documents available with it. According to the First
Party, the original documents were destroyed as per the practice of the
bank. The First Party failed to .le on record the evidence of its 11
witnesses as well as the evidence of the Second Party recorded before
Inquiry Of.cer. So, in absence of the evidence, it is not possible to
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decide whether the .ndings of the Inquiry Of.cer based upon on the
evidence brought on record before him. Therefore, in absence of the
evidence led before the Inquiry of.cer, it cannot be said that the
.ndings of the Inquiry Of.cer is based on the evidence brought before
him and not perverse.
9. However, in the present case, as discussed above there is absolutely
no evidence brought on record which was led before the Inquiry Of.cer
on the basis of which he gave his .ndings. Therefore, in such
circumstances, it was not possible to held that the .ndings of the
Inquiry of.cer are based on the evidence brought before him. Therefore,
the aforesaid, authorities on totally different facts and circumstances
are not helpful to the First party to prove its contention in the present
case having totally different facts. I, therefore, held that the .ndings of
the Inquiry Of.cer against the Second Party are not based on evidence
brought before him and perverse. I, therefore, answered Preliminary
Issue No. 2 in the negative.
19) Thus, the Industrial Tribunal has proceeded to brand the
.ndings of the Enquiry Of.cer to be perverse only on account of the fact
that the Petitioner-Bank had destroyed the records relating to enquiry
proceedings. The enquiry was concluded and the .nal order of dismissal
was passed on 18 October 2000. Even Respondent's Appeal was dismissed
by order dated 19 September 2001. Respondent did not challenge the
dismissal order for 12 long years. He did not make any correspondence
with the Bank with regard to his dismissal and virtually acquiesced in the
same. He raised the demand for reinstatement for the .rst time on 10
August 2013. Respondent thus woke out of his deep slumber after 13
long years of his dismissal and demanded reinstatement. In my view, the
Petitioner-Bank was justi.ed in destroying the records of the enquiry
and in not preserving the same under a hope that Respondent might
demand reinstatement at some point in the future. The case does not
involve deliberate act of the Bank in destroying the enquiry proceedings.
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The Bank led evidence of witness who deposed about destruction of
records of enquiry. Petitioner is a nationalized Bank and is justi.ed in
destroying the documents after passage of some time. Respondent had
not made any correspondence with the Bank in 13 long years and the
Bank had no occasion to preserve the records of the enquiry.
20) When the Respondent chose to raise a demand for
reinstatement 13 years after his dismissal, the Industrial Tribunal ought
to have put the burden of producing copies of the enquiry proceedings
on the Respondent. In the present case, the Petitioner .led a speci.c
application at Exh. C-6 seeking a direction against the Respondent for
production of all the records of the enquiry. On that application,
Respondent .led his response stating that he did not have original
enquiry papers. The Industrial Tribunal passed order dated 13 September
2022 on application at Exh. C-6 which reads thus :
Perused the application of say of the Second party below it. Heard
learned counsels for both the sides.
2. It is the contention of the First party that the documents mentioned
at Serial No.1 to 9 in para 10 are destroyed due to lapse of more than 10
years as per the practice of bank. Only the punishment order dated
18.10.2000 is available in original and all the other 9 documents are
available in the form of photocopies.
3. The Second Party submitted that it does not have the original
enquiry papers, hence unable to .le the same. It is prayed that the
application may be rejected.
4. Considering the fact that the originals were destroyed as per practice
of the bank, the First Party is directed to produce whatever documents
available in original and to produce the photocopies of the documents
available with them. The Second Party is directed to produce the
original documents, if any available with them. No order as to the costs.
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21) Thus, the Industrial Tribunal had directed the Petitioner to
produce photocopies of the documents. Similarly, Respondent was also
directed to produce documents available with him. Respondent however
did not produce even photocopies of the documents in the enquiry.
22) As observed above, the enquiry is held to be fair and proper.
This would mean that Respondent had received copies of all depositions
recorded in the enquiry. Similarly, he had also received all the documents
relied upon by the bank to prove the charges. This would mean that
during the course of enquiry, the Respondent had copies of all
documents and evidence produced against him. It was his duty to
preserve the same if he intended to challenge the order of dismissal after
long delay. However, Respondent did not bother to .le even photocopies
of the documents before the Industrial Tribunal. In such circumstances,
Industrial Tribunal ought to have drawn adverse inference against the
Respondent.
23) Even otherwise, Respondent cannot be permitted to take
bene.t of his own wrong. The demand for reinstatement raised by him
on 10 August 2013 was hopelessly time barred. The Reference itself
should not have been made in respect of such a stale claim. Though
Section 10 of the Industrial Disputes Act,1947 does not provide for any
speci.c period of limitation for making a Reference, at the same, a
Reference can be made only in respect of an existing industrial dispute.
It is dif.cult to hold that as on 10 August 2013, any industrial dispute
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relating to Respondent's dismissal existed. Be that as it may, the
Appropriate Government still proceeded to make a Reference relating to
the demand of reinstatement of the Respondent. After making of
Reference also, Respondent delayed the proceedings and did not .le
Statement of Claim for a considerable period of time. The Reference was
made by the Appropriate Government by order dated 26 June 2014.
However, the Respondent .led his Statement of Claim, four years later on
4 April 2018. Thus, by the time the Statement of Claim was .led by the
Respondent, period of 18 long years had elapsed from the date of
Respondent's dismissal. By the time order on application at Exh.C-6 was
passed on 13 September 2022, period of 22 years had elapsed from the
date of dismissal. Also, while making an order on preliminary issues
holding the Petitioner responsible for non-production of enquiry
proceedings, a period of 24 long years had elapsed from the date of
dismissal. Thus, Respondent's acts were clearly responsible for delay in
adjudication of his demand for reinstatement. He raised the demand
after 13 long years. Despite Reference being made in the year 2014, he
delayed .ling Statement of Claim for 4 long years. In these
circumstances, Respondent alone needs to be held responsible for the
delay. Since Respondent is solely responsible for delay, he cannot be
permitted to take bene.t of his own wrong.
24) In the present case, what the Industrial Tribunal is doing is
something which cannot be countenanced in law. It has rewarded the
Respondent for his acts of delay. It is one thing to permit adjudication of
a stale claim by ignoring or condoning the delay and it is an altogether
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different thing to offer on a platter relief in favour of a negligent litigant
because the opposite party has destroyed the records in the meantime.
When a delayed claim is sought to be adjudicated, the Courts must put
the burden on the claimant to produce atleast photocopies of the
documents even though the originals are supposed to be in custody of
the opposite party. In any case, the opposite party cannot be penalized
for non-preservation of documents when the Claimant acts negligently
and approaches the Court after considerable delay.
25) Therefore the Industrial Tribunal has committed an error
in considering Petitioner's inability to produce enquiry proceedings due
to delay on the part of the Respondent as a factor to reward the
Respondent. The Enquiry Of.cer's .ndings are held to be perverse only
on account of non-availability of evidence produced in the domestic
enquiry before the Industrial Tribunal. The Industrial Tribunal has
clearly committed an material irregularity in exercising jurisdiction
vested in it. It ought not to have rewarded the Respondent for his own
wrong of delaying adjudication of demand for reinstatement. The
Industrial Tribunal ought to have answered the Reference against the
Respondent and in any case, could not have held the enquiry .ndings to
be perverse in the facts and circumstances of the present case.
26) In the present case, delay on the part of the Respondent in
exercising the remedy in respect of dismissal order has grossly
prejudiced the defence of the Petitioner. It was unable to produce the
complete records of the enquiry. This led to .ndings of the enquiry
of.cer being held to be perverse. The Bank could not trace the witnesses
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after 24 long years. Most of the witnesses were Bank’s customers, who
were not traceable after lapse of almost quarter of a century. Therefore
the Bank could not prove the charges independently before the
Industrial Tribunal.
27) The issue of prejudice being caused to the opposite party on
account of delay and laches in exercising the remedy is considered by the
Apex Court in Chairman, State Bank of India (supra) in which it is held
in para-40 and 41 as under :
40. Laches unlike limitation is Eexible. However, both limitation and
laches destroy the remedy but not the right. Laches like acquiescence is
based upon equitable considerations, but laches unlike acquiescence
imports even simple passivity. On the other hand, acquiescence implies
active assent and is based upon the rule of estoppel in pais. As a form of
estoppel, it bars a party afterwards from complaining of the violation of
the right. Even indirect acquiescence implies almost active consent,
which is not to be inferred by mere silence or inaction which is involved
in laches. Acquiescence in this manner is quite distinct from delay.
Acquiescence virtually destroys the right of the person. 31 Given the
aforesaid legal position, inactive acquiescence on the part of the
respondent can be inferred till the .ling of the appeal, and not for the
period post .ling of the appeal. Nevertheless, this acquiescence being in
the nature of estoppel bars the respondent from claiming violation of
the right of fair representation.
41. The questions of prejudice, change of position, creation of third-
party rights or interests on the part of the party seeking relief are
important and relevant aspects as delay may obscure facts, encourage
dubious claims, and may prevent fair and just adjudication. Often,
relevant and material evidence go missing or are not traceable causing
prejudice to the opposite party. It is, therefore, necessary for the court
to consciously examine whether a party has chosen to sit over the
matter and has woken up to gain any advantage and bene.t, which
aspects have been noticed in Dehri Rohtas Light Railway Co. Ltd. v.
District Board, Bhojpur 34 and State of Maharashtra v. Digambar 35.
These facets, when proven, must be factored and balanced, even when
there is delay and laches on the part of the authorities. These have
bearing on grant and withholding of relief. Therefore, we have factored
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in the aspect of prejudice to the appellants in view of the relief granted
in the impugned judgment.
28) In the present case also, delay on the part of the Respondent
in exercising the remedy of reinstatement has caused serious prejudice
to the Petitioner-Bank which had destroyed the proceedings of enquiry
after preserving the same for some time. The Respondent-Bank is not
supposed to preserve the records relating to disciplinary proceedings of
the Respondent for eternity. If the order of the Industrial Tribunal is
upheld, the same would tantamount to granting premium to the errant
litigant who would succeed by deliberately not exercising the remedy and
waiting for employer to destroy records relating to enquiry. In such case,
litigant needs to be punished for the delay and not his opposite party
who is unable to produce the records which are destroyed.
29) Even otherwise, perusal of the enquiry report would
indicate elaborate discussion of evidence on record. The Enquiry Of.cer
has written a Report running into 24 pages by discussing the evidence of
each witness. The Petitioner had examined as many as 11 witnesses
whose oral evidence has been discussed by the Enquiry Of.cer. The
Industrial Tribunal has not made any attempt to locate perversity in the
.ndings recorded by the Enquiry Of.cer. In domestic enquiry, the test to
prove the charges is preponderance of probabilities. I have gone through
the report of the Enquiry Of.cer and it is dif.cult to hold that there is
absolutely no evidence in support of the charges leveled against the
Respondent. In the present case, the Industrial Tribunal has proceeded
to ignore the report of the Enquiry Of.cer and has proceeded to reward
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the Respondent on account of bank's inability to produce evidence. The
case does not involve total absence of evidence.
30) Disciplinary enquiry has been held against the Respondent
into very serious charges. He was afforded full opportunity of defence in
the enquiry. Ample evidence was produced against the Respondent
during the course of domestic enquiry. The .ndings of the Enquiry
Of.cer are recorded after discussing the evidence on record. It is not the
case of the Respondent that the witnesses whose evidence is discussed
by the Enquiry Of.cer were never examined in the enquiry. Therefore,
the .ndings of perversity could not have been recorded by the Industrial
Tribunal.
31) The Respondent is held guilty of committing a serious
misconduct. As a bank employee, he was required to exercise a higher
standard of honesty and integrity as held by the Apex Court in Damoh
Panna Sagar Rural Reg. Bank & Anr Versus. Munna Lal Jain . 2
Respondent is found to have withdrawn amounts from bank's customers
and misappropriated the same. The punishment of dismissal imposed for
such serious misconduct is erroneously set aside by the Industrial Court
by rewarding the Respondent with full backwages from 18 October 2000,
as well as pensionary bene.ts. In my view, therefore the impugned
orders passed by the Industrial Tribunal, being unsustainable, are liable
to be quashed and set aside.
2 2005 10 SCC 84
Page No.18 of 20
22 June 2026
Neeta Sawant WP-15893 OF 2025
32) Mr. Kulkarni has strenuously relied upon Respondent's
acquittal in the criminal prosecution. However, in the present case
Respondent was not dismissed from service on account of mere
prosecution in criminal offenses. A separate and parallel domestic
enquiry was conducted. The .ndings in the domestic enquiry are
recorded after assessing the evidence produced in that enquiry.
Therefore, mere acquittal in criminal prosecution cannot be a ground for
setting aside the .ndings in the domestic enquiry. It is well settled
position that the tests required in the domestic enquiry and in criminal
prosecution are entirely different. The purpose of conducting domestic
enquiry is to enforce discipline in the establishment whereas the
purpose of conducting criminal prosecution is to punish for commission
of a criminal act. Since the purpose, as well as the test in the two sets of
proceedings, are entirely different, the .ndings recorded in criminal trial
cannot have any possible impact on the .nding of guilt recorded in the
domestic enquiry. Therefore, mere acquittal of the Respondent in the
criminal prosecution is of no avail so far as the punishment of dismissal
in the domestic enquiry is concerned.
33) The conspectus of the above discussion is that the orders
passed by the Industrial Tribunal on preliminary issue relating to
perversity, as well as the .nal order setting aside the punishment of
dismissal are indefensible and liable to be set aside.
34) The petition accordingly succeeds, and I proceed to pass the
following order:
Page No.19 of 20
22 June 2026
Neeta Sawant WP-15893 OF 2025
(i) Order dated 9 August 2024 on preliminary Issue No.2
is set aside and it is held that the .ndings recorded by the
Enquiry Of.cer are not perverse.
(ii) Final judgment and order dated 23 January 2025
passed by the Industrial Tribunal in Reference (IT) No. 26 of
2014 is set aside.
35) Writ Petition is allowed in the above terms. Rule is made
absolute. There shall be no order as to costs.
Digitally
signed by
NEETA
NEETA SHAILESH
SHAILESH SAWANT
SAWANT Date:
2026.06.22
19:10:32
+0530
[SANDEEP V. MARNE, J.]
Page No.20 of 20
22 June 2026
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