JUDGMENT
K.M. Mehta, J.
1. Baroda Central Co-operative Bank Ltd. petitioner has filed this petition for a writ of certiorari for quashing and setting aside the judgment and award dated October 21, 2000 passed by the Labour Court, Vadodara, in BIRT-Application No. 3 of 1995 produced at Annexure-E to this petition and the judgment and order dated August 10, 2001 passed by the Industrial Court, Vadodara in Appeal No. 4/2001. The facts giving rise to this petition are as under:
The petitioner is a Co-operative Bank engaged in the banking business. The relations between the Bank and its employees are regulated by the Bombay Industrial Relations Act, 1946. The petitioner is having one branch office at Mukum-Post, Bajwa where five employees were in employment to run the said branch. The respondent workman was one of the employees working as peon. If is the contention of the petitioner that it came to the notice of the petitioner Bank that irregularities have been committed by the employees of the said branch with dishonest intention and with a view to misappropriate the Bank’s money. The bank employee had committed misconduct by making false entries of debits and credits in the ledger as well as in the pass-books of the account holders and unauthorisedly withdrew amounts by creating and fabricating false records and committed financial irregularities with dishonest intention in connivance with other four employees. Mr. V.B. Patel, learned senior counsel, for the petitioners, contended that the modus operandi of the respondent workman adopted was first to credit to the account holder namely one Vajesingh B. Gohil, Account No. 1925, with a fake entry of Rs. 51,500/-without actually depositing the amount. Thereafter, the respondent has forged the signature in the subsequent card and also by forging signature withdrew the sum from that account holder. So in that way he has committed fraud with customer as well as with the bank. This happened with 3 to 4 account holders and about Rs. 1,50,000/- has been withdrawn from the accounts with the connivance of the other employees.
2. The bank thereafter suspended the workman on August 18, 1994. The bank also issued charge-sheet to the respondent workman on October 22, 1994. The respondent gave his reply on October 25, 1994. The bank thereafter came to the conclusion that the misconduct was proved in the departmental enquiry proceedings and thereafter the respondent workman was dismissed from service on February 17, 1995. The respondent sent approach letter under Section 42(4) of the B.I.R. Act on March 10, 1993, the respondent filed T-Application No. 3/1995 under Sections 78 and 79 of the B.I.R. Act before the Labour Court, Vadodara on March 31, 1995. The Labour Court by its judgment and award dated October 21, 2000 allowed the T-Application and granted reinstatement with 50% back-wages.
3. Being aggrieved and dissatisfied with the said order the petitioner filed an appeal being Ref. (1C) No. 4/2001 before the Industrial Court, Baroda, on December 7, 2000. The Industrial Court, Baroda, by its judgment and order dated August 10, 2001 was pleased to dismiss the appeal by confirming the order passed by the Labour Court dated October 21, 2000 and awarded cost of Rs. 7,500/-. Being aggrieved and dissatisfied with the aforesaid order, the petitioner has filed this petition before this Court.
4. The learned senior counsel has argued the matter at great length. He has invited my attention to both the judgment and the inquiry report in this behalf. He has submitted that the modus operandi employed by the concerned employee involved in the fraud was to make a false/fictitious entry of deposit in the pass book of a particular account holder, though in fact, the account holder had not made any deposit and then at an opportune time to withdraw substantial amount out of the amount shown to have been deposited by spurious signature of the account holder on the withdrawal form/voucher. On the withdrawal slips/vouchers for withdrawing the amount, there appears signature which purports to be that of the particular account holder in whose account the fake entry of deposit was made. In the process, there is replacement of the card bearing specimen signature and keeping manipulated duplicate pass-book for the purpose of carrying out the plan to defraud the bank. The account holders have denied that they have made the deposit and they have withdrawn the amount. They have also denied that, the signature on the voucher to be their signature. The particulars of such accounts are as under:
A/C No.
Name of the a/c holder
Date of deposit
Amount deposited Rs.
Date of withdrawal Rs.
Amount withdrawn Rs.
3482
Ranchodbhai S. Parmar
3-12-1993
3-01-1994
26100
20-11-1993
25000
2423
Bhupatsingh M. Gohil
27-11-1993
51100
10-1-1994
50000
1925
Vajesingh B. Gohil
7-01-1994
51500
14-2-1994
50000
2999
Jasubhai B. Parmar
3-07-1994
50000
11-7-1994
50000
The learned counsel for the petitioner further submitted that the respondent herein admitted that he has made entries in the passbook No. 3482 on December 3, 1993, January 3, 1994 showing deposit of Rs. 26,100/-, entry dated January 3, 1994 regarding Rs. 8,0737-and entry dated March 21, 1994, March 31, 1994 for an amount of Rs. 470/-. Likewise, entries have been made in the account No. 2423 in the account of Shri Bhupatsingh Mangalsingh on November 27, 1993. It is with regard to deposit of Rs. 51,000/- and entry regarding unauthorised withdrawal of Rs. 50,000/- on January 10, 1994. Same modus operandi is employed in case of Shri Vajesingh’s account No. 1925 in respect of similar amount deposited on January 7, 1994 and unauthorisedly withdrawn on February 14, 1994. In the case of Shri Jasubhai Bhagawanbhai Parmar in the account No. 2999 Rs. 50,000/- are deposited on July 3, 1994 (Sunday) and the like amount is unauthorisedly withdrawn on July 11, 1994.
5. A detailed enquiry was held. At the enquiry, several documents mentioned in the Inquiry Report were produced on behalf of the management. Oral evidence of the concerned account holder and other witnesses was recorded on various dates. The Enquiry Officer has set out all the above facts in his report dated January 2, 1995. The Enquiry Officer has found the employees shown at serial Nos. 1, 3 and 5 guilty of the charges levelled against them, Shri Machhi and the cashier Ramanlal are found guilty of playing fraud on the bank by unauthorisedly withdrawing Rs. 25,000/- on November 20, 1993 from the account No. 3482 and unauthorisedly withdrawing Rs. 50,000/-from the account of each person at serial Nos. 2, 3 and 4 in the table from their respective accounts. It is stated that the respondent was found guilty of making fake/fictitious entry of deposit of Rs. 26,100/- in the account No. 3482 though there was, in fact, no such deposit made by the account holder Shri Ranchodbhai. The respondent has also made entry on January 3, 1994 for Rs. 8,073/- and for Rs. 470/- on March 21, 1994/March 31, 1994. All these three entries were admittedly made in the pass-book by the respondent on the same day and the pass-book was put up before the agent for his signature. The respondent was silent and has rendered no explanation with regard to the unauthorised withdrawal of Rs. 25,000/- from the account No. 3482. With regard to the said account and the three other accounts, the Inquiry Officer has found on the basis of material on record that the respondent has rendered help to the co-delinquents in the process of fraud perpetrated against the bank in respect of huge amount and thereby caused financial loss to the Bank. The respondent was found guilty of dishonesty in connection with the business/affairs of the bank and a party to the fraud. Thus, the respondent failed to protect the interest of the bank. It is a serious misconduct under the Standing Order No. 21(iv) for which the Management can legitimately dismiss the employee. After the report of the Inquiry Officer the Management on February 17, 1995 dismissed the respondent herein and ordered dismissal of the agent and the cashier. The learned counsel for the petitioner has invited my attention to the report of the Inquiry Officer in this behalf. He has invited my attention to internal pages 6 to 9 (running pages 108 to 111) which clearly show that the respondent workman has perpetrated fraud. He has submitted that the Labour Court, Baroda, by his judgment and order dated October 21, 2000 did not refer to the inquiry report and the evidence led by the Inquiry Officer. He submitted that the Labour Court has completely ignored this and ordered reinstatement of the respondent workman in this behalf and has held that the dismissal of respondent was illegal. He invited my attention to internal pages 23, 24, 25 of the order (running pages 138 to 140 of the petition) of the Labour Court. Thereafter, he has further invited my attention to the order of the Industrial Court particularly internal pages 23, 24, 25 and 26 (running pages 163, 164, 165 and 166 of the petition) wherein also the Industrial Court was pleased to confirm the order of the Labour Court. He submitted that the Industrial Court has completely ignored the evidence on record and therefore both the order of the Labour Court as well as the Industrial Court which have really not appreciated the facts in this behalf and declared the dismissal of the employee in this behalf are illegal and require to be quashed.
6. In view of the aforesaid submission he stated that both the Courts below have failed to appreciate the substance of charge and acted on misconception of law. Provisions of Section 11-A of the Industrial .Disputes Act have not been engrafted in the Bombay Industrial Relations Act, 1946 and are not available to the respondent. It is submitted that the Labour Court and the Industrial Court are creatures of the statute under which they are created and can exercise only such powers as are conferred upon them by the statute. They have made awards/orders unmindful of the limitations on their powers influenced by wrong consideration and ignoring the relevant one in the process. This is a manifest error of law which vitiated the impugned awards. He further submitted that the Labour Court and the Industrial Court have power to interfere only if the domestic enquiry was vitiated by the circumstances mentioned in the case of Manekchowk and Ahmedabad Mfg. Co. Ltd, v. Industrial Court (I. G. Thakore, President) and Anr. 1967-I-LLJ-463 (Guj-DB). He submitted that the Labour Court has overstepped its jurisdiction and trenched into arena of appreciation of evidence to arrive at its own conclusion and applied wrong principle of proof beyond reasonable doubt. He further submitted that the awards are made without application of mind or bringing their mind to bear upon the import of the gravamen of the real charge, the nature and scope of the enquiry before them, the standard of proof as also the burden of proof in the domestic enquiry, the impact of his own admission in the context of the evidence of the account holder, on a wholly misconceived approach and on extraneous and irrelevant grounds held that the charge against the respondent workman was not proved, beyond reasonable doubt. In view of the above submissions and the decisions relied upon by him, the learned counsel for the petitioner states that the matter is required to be admitted. The learned counsel for the petitioner has also relied on the Division Bench judgment of this Court in the case of Mihir Textile Ltd, v. Narayansing Layaksing 1993 (1) GCD 137. The Court in para 18 on page 142, after considering the decision of a Division Bench of this Court in the case of Manekchowk and Ahmedabad Manufacturing Co. Ltd. v. Industrial Court (supra), has observed as under:
“It may be stated that this is purely a case under the B.I.R. Act and directly the provisions of Section 11-A of the Industrial Disputes Act would not be applicable. Still however, even if the principle analogous to the one as found in Section 11-A of the Industrial Disputes Act is made applicable even so, the powers under Section 11-A are to be exercised judicially and particularly when the punishment awarded is highly disproportionate to degree of the guilt of the workman concerned”.
7. This Court in the said case has relied on the decision of the Hon’ble Supreme Court in the case of Christian Medical College Hospital Employees’ Union and Anr. v. Christian Medical College Vellore Association and Ors. AIR 1988 SC 37 ; 1987 (4) SCC 691 : 1988-I-LLJ-263 wherein the Supreme Court has observed as under at p. 274 of LLJ:
“14…. Section 11-A which has been introduced since then into the Act which confers the power on the Industrial Tribunal or the Labour Court to substitute a lesser punishment in lieu of the order of discharge or dismissal passed by the management again cannot be considered as conferring an arbitrary power on the Industrial Tribunal or the Labour Court, The power under Section 11-A of the Act has to be exercised judicially and the Industrial Tribunal or the Labour Court is expected to interfere with the decision of a management under Section 11-A of the Act only when it is satisfied that the punishment imposed by the management is highly disproportionate to the degree of guilt of the workman concerned”.
Again in para 22 the Division Bench in Mihir Textile Ltd, ‘s case (supra) has relied on the decision of the Hon’ble Supreme Court in the case of Hindustan Steels Limited v. A.K. Roy and Ors. AIR 1970 SC 1401 : 1969 (3) SCC 513 : 1970-I-LLJ-228, wherein it is observed as under at p. 234 of LLJ:
“14. …. The Tribunal has therefore, to exercise its discretion judicially and in accordance with well recognised principles in that regard and has to examine carefully the circumstances of each case and decide whether such a case is one of those exceptions to the general rule. If the Tribunal were to exercise its discretion in disregard of such circumstances or the principles laid down by this Court it would be a case either of no exercise of discretion or of one not legally exercised. In either case the High Court in exercise of its writ jurisdiction can interfere and cannot be content by simply saying that since the Tribunal has exercised its discretion it will not examine the circumstances of the case to ascertain whether or not such exercise was properly and in accordance with well settled principles made. If the High Court were to do so it would be a refusal on its part to exercise jurisdiction”.
In para 23 the Division Bench has further observed as under:
“23. The aforesaid observations are clearly applicable to the facts of the present case inasmuch as, as discussed above, the Labour Court as well as the Industrial Court have exceeded their jurisdiction and have wrongly exercised the discretion by setting aside the order of dismissal passed by the management of the petitioner Mill and passing the order of reinstatement without back-wages in favour of the respondent workman”.
8. In view of the above decisions, the learned counsel for the petitioners submitted that the matter requires admission and interim relief should be granted in this behalf staying the award of the Tribunal. The learned counsel for the petitioners further submitted that the matter may be admitted and full stay of the order of the Tribunal be granted irrespective of Section 17-B of the Industrial Disputes Act because in this case the award has been passed under B.I.R. Act and not under the Industrial Disputes Act and the relief which can be granted by this Court under Section 17-B of the Industrial Disputes Act may not be applicable to the workman in this behalf. For that purpose the learned counsel for the petitioners has relied on the definition of the word “award” under Industrial Disputes Act which means an interim or final determination of any industrial dispute or of any question relating thereto by any Labour Court, Industrial Tribunal. The word ‘Tribunal’ has been defined under Section 2(r) of the Industrial Disputes Act which means an Industrial Tribunal constituted under Section 7-A and includes an Industrial Tribunal constituted before March 10, 1957. The learned counsel further submitted that Section 17-B of the Industrial Disputes Act provides payment of full wages to workman pending proceedings in higher Courts. Section 17-B of the Industrial Disputes Act reads as follows:
“Where in any case, a Labour Court, Tribunal or National Tribunal by its award directs reinstatement of any workman and the employer prefers any proceedings against such award in a High Court or the Supreme Court, the employer shall be liable to pay such workman during the period of pendency of such proceedings in the High Court or the Supreme Court, full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule if the workman had not been employed in any establishment during such period and an affidavit by such workman had been filed to that effect in such Court”.
9. The learned counsel for the petitioners has also relied on the definition of the word “award” given under Section 3(6) of the Bombay Industrial Relations Act. Section 3(6) of the B.I.R. Act reads as follows:
‘”Award” means any interim, final or supplementary determination in an arbitration proceedings of any industrial dispute or of any question relating thereto”.
The learned counsel for the petitioners has also relied on the word “Labour Court” as defined under Section 3(21) of the B.I.R. Act, 1946, which means a Labour Court constituted under Section 9 of the Act. Section 9 of the B.I.R. Act reads as follows:
“Labour Court.-The State Government shall, by notification in the Official Gazette, constitute one or more Labour Courts having jurisdiction in such local areas as may be specified in such notification and shall appoint persons having the qualifications specified in Sub-section (2) to preside over such Courts.”
Proviso to the said Act provides regarding qualification to preside over such Courts. He submitted that a conjoint reading of Section 3(21) read with Section 9 of the Act shows that since the judgment and decree was passed by the Labour Court under B.I.R. Act, Section 17-B of the Industrial Disputes Act will not be applicable in this case and therefore the Court must grant full interim relief irrespective of Section 17-B of the Industrial Disputes Act.
10. The learned senior counsel in support of his contention submitted that the schemes under Industrial Disputes Act and the Bombay Industrial Relations Act are different. He submitted that Chapter VII provides for changes. Section 42 of the B.I.R. Act provides for notice of change. Section 42(1) of the B.I.R. Act reads as under:
“Section 42(1).-Any employer intending to effect any change in respect of an industrial matter specified in Schedule II shall give notice of such intention in the prescribed form to the representative of employees. He shall send a copy of such notice to the Chief Conciliator, the Conciliation Officer for the Industry concerned for the local area, the Registrar, the Labour Officer and such other person as may be prescribed. He shall also affix a copy of such notice at a conspicuous place on the premises where the employees affected by the change are employed for work and at such other place as may be directed by the Chief Conciliator in any particular case”.
The learned senior counsel has also relied on Section 42(4) of the BIR Act which reads thus:
“Any employee or a representative union desiring a change in respect of (i) any order passed by the employer under standing orders, or (ii) any industrial matter arising out of the application or interpretation of standing orders, or (iii) an industrial matter specified in Schedule III (except item 5) thereof shall make an application to the Labour Court and as respect change desired in any industrial matter specified in item (5) of Schedule III, to the Industrial Court”.
The learned counsel has also relied on Section 78 of the BIR Act which provides for power of Labour Court. Section 78(1) of the B.I.R. Act provides that a Labour Court shall have power to: (A) decide a dispute regarding the propriety or legality of an order passed by an employer acting or purporting to act under the Standing Orders. He has also relied on the Explanation to Section 78(2) of the B.I.R. Act which reads thus:
“A dispute falling under Clause (a) of paragraph A of sub- section (1) shall be deemed to have arisen if within the period prescribed under the proviso to Sub-section (4) of Section 42, no agreement is arrived at in respect of an order, matter or change referred to in the said proviso”.
11. He has also referred to Section 79 of the B.I.R. Act which provides for commencement of proceedings. Proceedings before a Labour Court in respect of disputes falling under Clause (a) of paragraph A of Sub-section (1) of Section 78 shall be commenced on an application made by any of the parties to the dispute. He has also relied on Sub-section (3) of Section 79 of the B.I.R. Act which provides for an application in respect of a dispute falling under Clause (a) of paragraph A of Sub-section (1) of Section 78 shall be made (a) if it is a dispute falling under Sub-clause (i) or (ii) of the said clause within three months of the arising of dispute. The purpose of showing these sections is to show that provisions of Industrial Disputes Act and the Bombay Industrial Relations Act are completely different and therefore, this Court may not grant any relief under Section 17-B of the Act against the award passed under the B. I.R. Act. In support of the aforesaid contention, the learned counsel for the petitioner has relied on the Division Bench judgment of the Bombay High Court in the case of Municipal Corporation of Greater Bombay v. S.E. Phadtare and Ors. 1995-I-LLJ-70 particularly paragraph 20 of the said judgment in which it is held thus at 77 of LLJ:
“Mr. Deshmukh then submitted that in any event, the provisions of Section 11-A of the Industrial Disputes Act should be applied and the punishment imposed should be suitably reduced. It is not possible to accept this contention. In the first instance, the provisions of Section 11-A of the Industrial Disputes Act are not applicable in respect of proceedings conducted by the Labour Court under Sections 78 and 79 of the Bombay Industrial Relations Act”.
Similarly, he has also relied on another judgment of the Bombay High Court in the case of Madhukar Murari Pawaskar v. Hindustan Spinning and Weaving Mills Ltd. and Ors. 1997 (4) LLN 454.
12. On the other hand learned counsel for the respondent workman Mr. Rathod appeared. He has relied on the unreported judgment of this Court in the case of Mehsana District Co-operative Milk Producers Union Ltd. v. Ganeshbhai M. Chaudhary 2001 (1) GLH (UJ) 14 and also the judgment in the case of Gujarat Cancer and Research Institute v. Sanjay Chandrakant Vyas 2000 (3) GLH 495, wherein the Court has dealt with Section 17-B of the Act. In para 6 on page 499 the Court has observed thus:
“Considering the said observations of the Apex Court, the Apex Court has held that conferment of such right under Section 17-B cannot be regarded as restriction on the powers of High Court or Supreme Court under Articles 226 and 137 of the Constitution. It has also been observed by the Apex Court to pass order directing payment of higher amount of wages to the workman if such higher amount is considered necessary in the interest of justice. Such direction would be de-hors the provisions contained in Section 17-B and while giving direction, the Court may also give direction regarding refund or recovery of the excess amount in the event of award being set aside”.
The learned counsel for the respondent work-nan stated that in view of Section 17-B of the Industrial Disputes Act and in view of the udgments of this Court in the case of Mehsana District Co-op. Milk Producers Union Ltd. (supra) and Gujarat Cancer and Research Institute v. Sanjay Chandrakant Vyas (supra), this Court may not grant any stay in favour of the petitioner and the petitioner bank has to pay the amount in question as per Section 17-B of the Act to the respondent workman. The learned counsel for the respondent has relied an Section 120- A of the B.I.R. Act which provides that nothing in this Act shall affect any of the provisions of the Industrial Disputes Act, 1947 and no proceedings shall be held under this Act relating to any matter or dispute which has been referred to and is pending before a Board, a Court for enquiry, a Labour Court or a Tribunal under the said Act.
13. I have considered the entire record of the case, the contentions raised by the learned counsel for the petitioner and the reasoning for assailing the orders of the Labour Court as well as Industrial Tribunal. I have also considered the decisions Mihir Textile Ltd., (supra), Manekchowk and Ahmedabad Manufacturing Co. Ltd., (supra), Christian Medical College Hospital Employees’ Union and Anr., (supra), Hindustan Steels Ltd., (supra). Though the Labour Court and the Industrial Court have passed orders in favour of the respondent workman, I am of the view that the reasoning given by the Labour Court as well as Industrial Court requires consideration and the petitioner has been able to prove a strong and prima facie case from the report of the Inquiry Officer and others. Therefore, I admit the matter.
14. I have considered the facts of the case. I have considered the provisions of the B.I.R. Act particularly definitions of ‘award’ and ‘Tribunal’ under the Industrial Disputes Act and the definition of ‘Labour Court’ under the B.I.R. Act, Sections 42, 78, 79, 120-A of the B.I.R. Act and also two judgments of the Bombay High Court in the case of Municipal Corporation of Greater Bombay (supra) and Madhukar Murari Pawaskar (supra). In my view the object of Section 17-B of the Industrial Disputes Act is that the award of the Tribunal directing reinstatement were often contested by the employers in High Court or the Supreme Court. It was therefore felt that the delay in implementation of such awards caused hardship to the workman. It was therefore felt necessary to provide payment of wages last drawn by the workman from the date of the award till the date it is finally decided in the Supreme Court or the High Court. This provision, therefore, codifies the right of workman to get their wages, which they could not get in time on account of long drawn litigation. This provision gives a mandate to the Courts to order wages if its conditions are satisfied.
15. Section 120-A of B.I.R. Act may not be helpful to the case of the respondent to establish that Section 17-B of the I.D. Act may be applicable to the award passed under the B.I.R. Act. As regards interim relief, in my view it is no doubt true that Section 17-B of the Industrial Disputes Act has been enacted with a laudable object but here in this case as the award is passed under the B. I. R. Act and as the schemes of Industrial Disputes Act and BIR Act are different which I have set out earlier and in view of the two decisions of the Bombay High Court, Section 17-B of the Industrial Disputes Act is not directly applicable. In view of the facts set out by the learned counsel for the petitioner while assailing the award passed by the Labour Court, Baroda, in Appeal No. (1C) No. 4/2001 dated August 10, 2001, which I have set out in earlier portion of this judgment In my view the definition of award under Section 3(21) of the B. I. R. Act is different from the award under the Industrial Disputes Act. It is no doubt true that Section 17-B of the Industrial Disputes Act is enacted for eligible purpose but unless and until that section is incorporated under the B.I.R. Act, this Court may not be able to hold that provisions under the B.I.R. Act analogous to Section 17-B of the Industrial Disputes Act are applicable to the award passed under the B.I.R.Act. The award passed by the Labour Court under the B.I.R. Act could be said to be different from the award passed under the Industrial Disputes Act.
16. As regards interim relief, the learned counsel for the petitioner submitted that his is not a case of an ordinary employee but an employee who perpetrated fraud and dishonesty with the bank. Therefore, in any view of the matter when the award is passed under the B.I.R. Act, the Court may not apply the analogy of Section 17-B of the Industrial Disputes Act in the facts and circumstances of the case. He has also demonstrated that Section 17-B of the Act is not applicable to the award passed under the B.I.R. Act by referring to various provisions of Industrial Disputes Act even though balance of convenience and the peculiar facts and circumstances of case are in favour of the petitioner.
17. I am, therefore, of the view that the interim relief which has been prayed by the petitioner is required to be granted because the respondent workman is not going to suffer anything as he has amassed a lot of wealth by defrauding (sic) the bank. However, with a view to see that the workman may not be out into long hardship, I direct final hearing of the matter in the month of April, 2002.
18. In the result, “Rule” is issued in this matter. Stay has been granted in terms of para 8(c)(i) and (ii). The matter is directed to be finally heard in the month of April, 2002.