JUDGMENT : 1. Rule. Learned advocate Mr. Manan Shah waives service of rule for the respondent. 2. This petition under Articles 226 and 227 of the Constitution of India is filed with following prayer(s):- “8 (A) Be pleased to admit this petition. (B) Be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction, quashing and setting aside the order passed by the Presiding Officer, Labour Court No.2, Surat, in Reference (T) Case No.390 of 2002 dated 26.09.2017. (C) … (D) …” 3. The impugned award was passed by the Labour Court by setting aside the order of dismissal of respondent by the petitioner-corporation. The respondent was dismissed after being found guilty of misconduct upon due inquiry. 4. It is a case where respondent No.1 was working as Mukadam (Supervisor) in Fileria Malaria Department of the petitioner-Corporation from 11.06.1991. Vide order dated 29.10.2001, the petitioner has terminated the service of the respondent-employee after following departmental inquiry. 4.1 It is a case where the termination order passed u/s.56(1) & 56 (2)(h) of the BPMC Act, 1949, the termination order passed on the ground that the respondent-employees has caused financial damage to petitioner corporation. 4.2 The departmental inquiry has been initiated, during departmental inquiry. it was found that wife of the respondent-employee holding the firm in the name of B.C.Trading Company and supplying medicines to petitioner-corporation, which amounts to violation of provision of section 59 of the BPMC Act,1949 as the said provisions disqualified the person being officer or servant of corporation, if has any share or interest in any contract with, by, or on behalf of the corporation. 4.3 On basis of inquiry report dtd. 17.11.2000, wherein the charge proved against the respondent, the show-cause notice dated 27.11.2000 for punishment has been issued, opportunity of hearing also accorded to respondent, and thereafter, vide order dated 29.10.2001 the service of the respondent employee has been terminated. 4.4 Learned advocate for the petitioner submits that the aggrieved by the termination order, the respondent filed reference before the Labour Court, Surat and challenged the findings of inquiry report. 4.4 Learned advocate for the petitioner submits that the aggrieved by the termination order, the respondent filed reference before the Labour Court, Surat and challenged the findings of inquiry report. 4.5 The Labour Court, the Labour Court was pleased to partly allow the reference mainly on the ground that the inquiry has been initiated by the Corporation is not proper, vital issues are not considered during the inquiry, the inquiry is defective to arrive such findings and partly allowed the reference with directions to the Corporation to reinstate the employee along with the continuity of service without backwages and also to give the benefit of seniority. 4.6 Learned advocate for the petitioner has argued that the Labour Court ought to have considered statement made by the respondent-employee during the departmental inquiry. It is argued that the petitioner led the evidence, which clearly proves that the respondent has committed misappropriation of the funds, and thereby, he caused loss to the petitioner-Corporation. It is argued that Labour Court ought to have considered that in the inquiry it has been proved that the wife of respondent employee i.e. Shilpa Chandresh Patel is proprietor of B.C.Trading co. and holding the bank account in Dena bank, Gelmandi Branch. 5. Learned advocate for the respondent submits that there is no base for the findings of the Investigation Officer and the same are based on doubts and assumptions. There are no documentary evidences or any other substantial evidences in this regard. 5.1 Learned advocate for the respondent submits that in this case, witness Vinaybhai Pathak, on whose instruction respondent withdrew the money and returned it to him, has not been examined as a witness on behalf of the organization. Therefore, no facts regarding the cheque, its money and as to who received it at last and as to who accepted it, have been proved. Then also, the Investigation Officer has assumed that the accusation of collusion and financial benefits against the respondent has been proved. In this manner, the findings of the Investigation Officer is baseless. Further, as there is no reason for not examining Mr. Pathak and as Mr. Pathak has given deposition in the investigation of Mr. Sinha, he was able to come to give deposition. Then even, respondent has not examined and the accusation has been assumed as proven. 5.2 Learned advocate for the respondent submits that the prosecution has examined Mr. T.L. Mehtaji. Pathak and as Mr. Pathak has given deposition in the investigation of Mr. Sinha, he was able to come to give deposition. Then even, respondent has not examined and the accusation has been assumed as proven. 5.2 Learned advocate for the respondent submits that the prosecution has examined Mr. T.L. Mehtaji. He was asked the below given clear question. Is it illegal, if any officer makes the employee of his department to carry out the procedure of deposit or withdrawal of money from his personal bank account? He has clearly denied in his reply for this. In the same manner, other questions were asked: In this regard, only that fact is proved that the second party carried out only the procedure of accepting the money as per the instruction of the officer. No financial loss has been caused to the Municipal Corporation because of bringing the money from the bank by the second party and giving the same to officer Mr. Vinay Pathak as per his instruction. 5.3 Learned advocate for the respondent submits that the signatures have been done on the cheques for identification only, they are not bogus signatures. The procedure of bringing money without intention or knowledge is not an illegal act. In this case, if the evidences produced are evaluated, the intention or knowledge of the respondent is not proved by the said evidences at any place. Therefore, it is not an illegal act when the money is brought from the bank by following the order of the superior officer with a bonafide intention and without any criminal intention. Then even, the investigation officer has held the respondent guilty without proving the intention or knowledge. On the basis of the same also, it is clearly proved that the findings of the investigation officer is baseless. 5.4 Learned advocate for the respondent submits that the discrimination has been done in the punishment imposed to the respondent. The employees namely, (1) Yatin Topiwala (2) Dipak Tarwadi (3) Ketan Upadhyay (4) Vikas Patel, against whom more serious accusations have been made than the respondent, had been examined once only and they were also held guilty. Though more serious accusations have been made against them than the respondent, they have been reinstated in service after imposing the punishment of withholding annual increments. 6. Though more serious accusations have been made against them than the respondent, they have been reinstated in service after imposing the punishment of withholding annual increments. 6. Having considering the rival submissions made by learned advocates for the parties and having considered the documents available on record, it transpires that that the respondent No.1 was working as Mukadam (Supervisor) in Fileria Malaria Department of the petitioner-Corporation from 11.06.1991. Vide order dated 29.10.2001, the petitioner has terminated the service of the respondent-employee after following departmental inquiry. 7. The Court has examined the Enquiry Report at Exh.38. From the reasons, it appears that in the Chargesheet No – GAD/EST/1092 given to the respondent by the Dy. Commissioner (Health and Hospital) on 18.03.1999, charges/accusations have been made that During the service of respondent of intra survey when the respondent was serving as a mukadam in the Filaria/Malaria Department of the Public Health Department at Cross Unit, Ghanchi Sheri, the accusation of grave negligence in duty has been made for causing huge financial loss to the Surat Municipal Corporation by committing financial malpractice in collusion with each other by withdrawing the cheque amount from the Dena Bank, Galemandi Branch, Current Account No – 1823 of the proprietor of Shri Arihant Traders, Ahmedabad namely, Mrs. Preeti Devanshubhai Desai, residing at – 6, Dashapor Waad Society, Paldi, Ahmedabad, after making signature behind three cheques of Rs. One lakh each on 03.09.1997 and one cheque of Rs. Three lakh on 05.02.1998 and encashing them. 8. In the charge sheet given to the respondent regarding the allegation of encashing three cheques of Rs.1 lakh each from the current account No.1823 of the Arihant Traders, Ahmedabad from the Dena Bank Galemandi Branch, Surat on 03/09/1997 and one cheque of rupees three lakhs on 05/02/1998 by putting signatures, the prosecution witness Shri T.L. Mehtaji has stated in his deposition that, this amount was withdrawn by the respondent. As per the deposition of Shri Mehtaji, on 03/09/1997, three cheques of Rs.1(one) lakh and on 05/02/1998 one cheque of rupees of Rs.3 (Three) lakh were cashed from the current account No.1823 of the Proprietor of the Arihant Traders, Shri Priti Devanshu Desai by putting signature on the back of the cheques and he give the cash to the then Pesticide Officer, Shri Vijay R. Pathak. The witness has stated that, such statement has also been given by the respondent. The witness has stated that, such statement has also been given by the respondent. Further, it was stated that, no record is available that the Proprietor / Partner of the Arihant Traders authorized to the respondent to withdraw money from their account. 8.1 On 26.03.199, respondent has filed the reply to the charge sheet given to him dressing the Deputy Commissioner ( Health and Hospitals), wherein he himself also states that, " The Head of the Filaria and Malaria Department Shri Pathak called me to meet in person and the money through three bearer cheques on 03.09.1997 and one bearer cheque on 05.02.1998 which have the amount of Rs. 3 Lakhs and other Rs.3 Lakhs respectively were withdrawn form the Galemandi Branch, Surat of Dena Bank and were given to Shri Pathak as per the instructions. Thus the delinquent Officer confesses of withdrawing total amount of Rs. 6 Lakhs through four bearers cheques form the the Dena Bank after putting signature. The representative of the delinquent employee has also confessed in the point No.3 of the page No.2 of the written reply dated 07.07.2000 that, as per the instructions of Shri Pathak, three bearer cheques on 03.09.1997 and one bearer cheque on 05.02.1998 of the amount of Rs. 3 Lakhs and Rs.3 Lakhs, respectively and the money of these bearers cheques were withdrawn from the Galemandi Branch, Surat of the Dena Bank and were given to Shri Pathak as per the instructions and states that, such writing was submitted to the Municipal Commissioner and Vigilance Department. Therefore, it is clear by the deposition of the witness and confession of the delinquent employee himself that, the four bearer cheques from the account of the Arihant Traders, at Galemandi Branch, which amounts to total six lakhs rupees were withdrawn by the delinquent employee - the respondent herein. Therefore, it is clear by the deposition of the witness and confession of the delinquent employee himself that, the four bearer cheques from the account of the Arihant Traders, at Galemandi Branch, which amounts to total six lakhs rupees were withdrawn by the delinquent employee - the respondent herein. 8.2 Here, the point is not just of paying the money through bearer cheque but, more than that, the witness Shri Mehtaji has stated that, the current account No.1823 of the Arihant Traders at Dena Bank, Galemandi Branch was held by Smt. Priti Devanshu Desai, as the proprietor, who is the wife of the then employee of the Filaria - Malaria Department and the persons provided identification for the opening of this account included Shri Satyenkumar Vijaykumar Pathak, the son of the then Pesticide Officer Shri Vijay Pathak and Smt. Bhaktiben Harihar Bhatt, w/o Shri Pathak and Padmaben Rasiklal Pathak M/o Shri Pathak. All these three persons are relatives of Shri Pathak and the bank account holder Priti Devanshu Desai is the wife of the then employee of the Filaria- Malaria Department, Shri Devashu Desai. Considering the same, as the delinquent employee has given cash amount to Shri Vijay Pathak by withdrawing money through the bearer cheques from account of such co-related Company, this act of the delinquent employees appears to be serious. 8.3 As discussed above at point no.(1), the delinquent employee Shri Chandresh Patel the respondent employee has en-cashed three bearer cheques, each valuing Rupees one lakh, and one bearer cheque of Rs. 3 Lakhs, after putting signatures thereon, through Current Account no. 1823 of M/s. Arihant Traders with Dena Bank, Galemandi Branch, Surat. Shri Chandresh Patel, the respondent encashed not only the stated cheques, but he is having relations with the Proprietor of M/s. Arihant Traders, who holds the stated Current Account no. 1823, and the employee of the Municipal Corporation. In the same manner, he is a relative of the employee of the Municipal Corporation, who acknowledged the identity of the account holder at the time of opening the stated bank account. Moreover, witness Shri T.L. Mehta has stated that, the respondent has not handed over the money to the Proprietor of M/s. Arihant Trader, the owner of the bank account, but has given in cash to Shri Vijay Pathak, an officer of the department and the same has been admitted by the respondent. Moreover, witness Shri T.L. Mehta has stated that, the respondent has not handed over the money to the Proprietor of M/s. Arihant Trader, the owner of the bank account, but has given in cash to Shri Vijay Pathak, an officer of the department and the same has been admitted by the respondent. If these co-related facts are examined, witness Shri T.L. Mehta has stated that, it was Ms. Priti Devanshu Desai who was the proprietor of M/s. Arihant Traders, the holder of Current Account no.1823 with Galemandi Branch of Dena Bank, Surat and Ms. Priti Devanshu Desai is the wife of Shri Devanshu Desai, an employee with the Filaria – Malaria Department at that time. 8.4 In the same manner, out of the persons who gave introduction, i.e. acknowledged the identity of the account holder, at the time of opening the Current Account, Shri Satyenkumar Vijaykumar Pathak is the son of the then Pesticides Officer with the Filaria – Malaria Department. Ms. Bhaktiben Harihar Bhatt is the wife of Shri Pathak and Ms. Padmaben Ratilal Pathak is the mother of Mr. Vijay Pathak, as stated by the witness Shri Mehta. All these three persons have given introductions, i.e. acknowledged the identity of the account holder, of Ms. Priti Devanshu Desai for opening the Current Bank Account no. 1823, with M/s. Dena Bank, Galemandi Branch, Surat, in capacity of the Proprietor of M/s. Arihant Trader. In the same manner, the wife of delinquent – present respondent, Ms. Shilpaben Chandresh Patel has, in capacity of the Proprietor of M/s. B.C. Traders, a firm supplying Malathion to the Municipal Corporation, opened Current Bank Account no. 1849 with M/s. Dena Bank, Galemandi Branch, Surat. Witness Shri T.L. Mehta has stated that, among the persons who had given introduction at the time of opening the bank account, Mr. Satyen Vijaykumar Patha is the son of the then Pesticides Officer Shri Vijaykumar Pathak and Smt. Bhakti Harihar Bhatt and Smt. Padmaben Ratilal Pathak are his wife and mother, respectively. Further, witness Shri Mehta has stated that, the delinquent employees Dhatin Topiwala and Shri Dipak Tawadi, who had put their signatures as witnesses on the agreement, are the fellow employees and co-accused of Shri Vikas Patel. Further, as per the deposition of witness Shri T.L. Mehta, the Invoice no.21 dated 30.07.1997 is for supplying K-Othrene medicine and on its Octroi Receipt no. Further, as per the deposition of witness Shri T.L. Mehta, the Invoice no.21 dated 30.07.1997 is for supplying K-Othrene medicine and on its Octroi Receipt no. 637257 dated 01.08.1997, it appears that the name of receiver is written as M/s. Arihant Traders after striking out the name of respondent. Such material records have been produced at Exh.1. Therefore, perusing these facts, it is apparent that the respondent is related to M/s. Arihant Traders. similarly the respondent has signed and encashed cheques worth of Rs. 6 Lakh from the bank account of M/s. Arihant Traders. All these facts are co-related. Considering all these facts, it is apparent that, all these employees were aware about the transactions of M/s. Arihant Traders and M/s. B.C. Traders and the relatives of some of the employees were directly connected with the stated firms. Considering the same, an act in collusion with each other emerges. Besides this, Arihant Traders have submitted the Tender to provide K-Othirne medicine, in which the rate of Rs.1,000/- per kg. is mentioned and the proposal to purchase on the same rate have been made by this same employee of the Department. Whereas, it has been stated by the Presenting Officer through the witness during the investigation that the rate of K-Othrine medicine in the Central Drugs Store of the Government is Rs.739/- per kg. Also it has been stated from this Drug Store that the Dy. Commissioner (Health and Hospitals) of the Municipal Corporation have been declared as Direct Remanding Officer vide resolution no. MSP/1089/977/94/ G dated 08.04.1994 of the Health and Environment Department of the Government of Gujarat. According to which, it has been stated that if the purchase might be done on paying Tax and Service Charge, then also the Municipal Corporation shall be in profit. If on considering this matter, the Tender has not been published widely and the prizes of the State Government is not considered at the time when proposal was made to approve the Tender of high prize. Hence, till that extent it could be considered that the loss have been occurred to the Municipal Corporation. In this way, the collusion and financial loss both these matters goes against the respondent employee. 9. The aforesaid allegations were inquired into after following due process of law and affording all necessary opportunities to the respondent, the Court do not find any procedural laps in this. 10. In this way, the collusion and financial loss both these matters goes against the respondent employee. 9. The aforesaid allegations were inquired into after following due process of law and affording all necessary opportunities to the respondent, the Court do not find any procedural laps in this. 10. The Labour Court has committed an error when it held that If any employee works as per the say of any Superior Officer then it could not be said mis-conduct. The respondent of the present case has taken such defense that the respondent has obeyed the order of his Superior Officer. The statement of the respondent is not found to be false, because respondent has obeyed the order of his Superior Officer. In this case, the respondent has not produced the duty list of this respondent from which it could be known that where did the respondent was suppose to work and where he shall not work, means that what (which work) was coming in his duty and what is not. 11. Such a finding cannot be the basis for exonerating the respondent against whom the full-fledged inquiry was conducted and role was established against him. The aforesaid finding is only the basis of conjecture and surmises. Hence, required to be interfered with. 12. The court has perused the inquiry report and the nature of evidence against the respondent. The court is satisfied that there is sufficient evidence against the respondent to prove the misconduct. 13. The petition is allowed. The order of Presiding Officer, Labour Court No.2, Surat passed in Reference (T) Case No. 390 of 2002 dated 26.09.2017 is hereby quashed and set aside. The order of termination dated 29.10.2001 in exercise of powers under Section 56(1) & 56 (2)(h) of the B.P.M.C. Act is hereby confirmed.