Employer’s Inability To Produce Old Enquiry Records Cannot Undo Dismissal: Bombay High Court Rejects Employee’s Belated Challenge After 13 Years
The Bench set aside the Industrial Tribunal’s order granting reinstatement and backwages to a dismissed Bank of India employee and upheld the dismissal for grave misconduct.
Justice Sandeep V. Marne, Bombay High Court
The Bombay High Court has held that an employee dismissed from service for grave misconduct cannot be permitted to take advantage of his own delay in raising an industrial dispute and seek reversal of dismissal merely because the employer is unable to produce complete disciplinary enquiry records after several years.
Pertinently, the employee, a Clerk with the Bank of India, was dismissed from service on October 18, 2000 but raised industrial dispute 13 years later on October 14, 2013 leading to making of reference by the appropriate Government.
The Bench was dealing with a petition filed by the Bank challenging the Industrial Tribunal’s decision which had set aside the dismissal of an employee accused of fraudulent withdrawal of customers’ funds and had directed payment of full backwages with consequential benefits.
Justice Sandeep V. Marne observed, “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As a bank employee, he was required to exercise a higher standard of honesty and integrity… Respondent is found to have withdrawn amounts from bank's customers and misappropriated the same.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 benefits. In my view, therefore the impugned orders passed by the Industrial Tribunal, being unsustainable, are liable to be quashed and set aside”.
“…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… 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”, the Bench noted.
Advocate Lancy D'souza appeared for the petitioner and Advocate Nitin Kulkarni appeared for the respondent.
The issued that the Court had to adjudicate upon was, 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.
In the matter, although the domestic enquiry was held to be fair and in accordance with principles of natural justice, the Industrial Tribunal later held the findings of the enquiry officer to be perverse, primarily because the Bank could not produce complete enquiry records before the Tribunal.
The High Court rejected this approach, observing that the employee had raised an industrial dispute only after 13 years of dismissal and had not taken any steps to challenge the termination during the intervening period.
The Court observed that the Industrial Tribunal had effectively rewarded the employee for his own delay by drawing an adverse inference against the employer for non-production of records. It held that in cases involving stale claims, the burden cannot be shifted upon the employer when the delay has resulted in disappearance of evidence and unavailability of witnesses.
Referring to the principle laid down by the Supreme Court in SBI, Chairman, State Bank of India and another v. M.J. James 2022 (2) SCC 301, the Court noted that delay may cause serious prejudice by obscuring facts and making relevant evidence unavailable, and such factors must be considered while granting relief.
“…mere acquittal in criminal prosecution cannot be a ground for setting aside the findings 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 findings recorded in criminal trial cannot have any possible impact on the finding 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. Holding that the findings of misconduct were supported by the departmental enquiry report and evidence of witnesses, the Court quashed the Industrial Tribunal’s orders and restored the dismissal order passed by the Bank”, the Bench observed.
Cause Title: Bank of India v. Sharad Rajaram Khadtare Writ Petition No. 15893 Of 2025
Appearances:
Petitioner: Lancy D'souza, Deepika Agarwal, V.M. Parkar, Advocates.
Respondent: Nitin Kulkarni, Advocates.