ORDER
Ashok Agarwal, J.
1. Petitioner is an ex-employee of the second respondent-company. He has been dismissed from service by an order passed by the second respondent. The said order was carried by the petitioner to the First Labour Court. The petitioner claimed reinstatement with full back wages. The reference was dismissed by the Presiding Officer of the First Labour Court, the first respondent herein. The order of dismissal passed by the second respondent and the judgment and order of the first respondent are impugned in the present petition.
2. The petitioner on July 2, 1976 joined the services of the second respondent as a Junior Clerk. During the tenure of his service the Bank of Baroda was merged with the second respondent. The second respondent was issuing debentures and shares of its company to erstwhilemembers of the Bank of Baroda.
3. During the relevant period, the petitioner was attached to the Share Department. He was entrusted with the duties of making payments of interests to debenture holders. One S.D. Nagarkar was a co-workman in the Share Department who was entrusted with the work of transfer of debentures. During the period of December 14, 1981 and December 24, 1981 Nagarkar had proceeded on leave. The petitioner was assigned to perform the additional duties of Nagarkar. Certain events are alleged to have taken place during the absence of Nagarkar. Certain acts of felony are alleged to have been committed by the petitioner. This appears to have been discovered sometime in the year 1985. On August 21, 1985 a charge-sheet was served on the petitioner alleging - (i) Theft, fraud or dishonesty in connection with the employer's business or property namely in respect of Transfer of Debentures from the names of M/s. Radhakishan Khanna, Motilal C. Setalvad, S. Jwalaprasad and Trilokinath Bishewlal to fictitious persons and pocketing the whole sale consideration amount and interest in respect thereof, loss of paid-out Interest Warrants, forging signatures of Mr. Radhakishan Khanna and three other joint holders, removal and tampering of Bank Statement, etc., (ii) Commission of actions subversive of discipline or good behaviour on the premises of the establishment, (iii) Gross negligence, (iv) Wilful damage to property of the establishment, namely removal or destruction of Transfer Deeds, Specimen signatures, Paid- out Interest Warrants of above Transferors and Transferees, Share Certificates, Debenture Certificates, both convertible and non- convertible etc.
4. On August 26, 1985 the petitioner submitted his explanation. A disciplinary proceeding was initiated. The petitioner was suspended during the domestic inquiry. The inquiry commenced on August 28, 1985 and continued till October 15, 1985. Two witnesses were examined. The second witness was under cross-examination. ;
5. The management had appointed Mr. S.A. Vaswani as its representative. Advocate Mr. S.J. Patkar was the Inquiry Officer. On October 7, 1985 Mr. Vaswani met with his death in suspicious circumstances. He was found lying dead on a railway track between Vidyavihar and Ghatkopar railway station. On October 15, 1985 the second respondent appointed Advocate Mr. A.D. Jani as its representative. The hearing of the disciplinary proceeding was adjourned to October 17, 1985. On October 17, 1985 Mr. S.J. Patkar, the Inquiry Officer, was severely assaulted near his residence at Ghatkopar. In addition, it is the case of the second respondent, certain officers and their family members received threatening calls. One of them received a letter containing a picture of a mutilated body with its head severed from the body. The second respondent discontinued the inquiry. It, by an order dated December 6, 1985, dismissed the petitioner from his service. The order of dismissal inter alia provided as under:
'The enquiry in respect of the charges levelled against you vide the above mentioned charge-sheet commenced on August 28, 1985 and proceeded into 20 sittings, the proceedings of which went into 183 pages. The said enquiry was conducted by Mr. S.J. Patkar, the Enquiry Officer and the Management was initially represented by Mr. S.A. Vaswani and subsequently by Mr. A.D. Jani. During the enquiry, the examination of two witnesses and cross-examination of the second witness were in progress.
On October 7, 1985, after conducting and concluding the enquiry for the day, at about 8.30 p.m. Mr.S.A. Vaswani and Mr. S.J. Patkar left for their home. However, on the said night, Mr.S.A. Vaswani was found mysteriously dead on the Railway tracks in between Vidyavihar Station and Ghatkopar Station, though Mr. S.J. Patkar accompanied Mr. S.A. Vaswani till Ghatkopar Station.
The last date of the enquiry conducted by Mr.S.J. Patkar was Tuesday October 15, 1985 and on Wednesday October 16, 1985, Mr.SJ. Patkar was grievously assaulted by iron bars and steel belts, at about 9.05 a.m., just outside the gate of the compound of the block where he lives at Ghatkopar. He was initially treated at Rajawadi Hospital at Ghatkopar and was subsequently admitted to Shushrusha Citizen's Co-operative Hospital Ltd. at Ranade Road, Dadar. A complaint has been registered with Tilaknagar Police Station, Chembur, the case number being 644/85 under Sections 324 and 411 of I.P.C.
We have also received a letter dated November 1, 1985 from Mr. S.J. Patkar informing us that he is unable to conduct this enquiry further as he apprehends that if he were to continue with the enquiry, his life is endangered.
On October 23, 1985 at 9.20 p.m. the Secretary of the Company, Dr. P.P. Mistry received a threatening call at his residence taken by his wife from an unknown person that he would be blasted and killed shortly.
On October 25, 1985, at about 3.15 p.m. when Mr. G.S. Ranc, Executive, Share Department, was in the office at Bakhtawar, a phone was received at his residence by his servant and his son inquiring about Mr. G.S. Rane and threatening that he will take the life of Mr. G.S. Rane.
On November 20, 1985, Mr. M. Rebello, Executive, Share Department, received an envelope containing a picture of a person showing his head severed from his body. :
Various other employees of the Company have received threats from time to time.
A case bearing No. C.R.No. 689/85 dated October 31, 1985 is registered by the Colaba Police Station for criminal breach of trust in respect of shares and debentures and using the forged document as genuine one and disposing of the shares and debentures and thereby cheating and causing loss to the Company under Sections 408/467/471/420 of I.P.C. of the order of Rs. 1,26,000/- as can be estimated at present.
In the aforesaid circumstances, when there is danger to the lives of the persons connected/ participating in the enquiry, it has become non-feasible and almost impossible to proceed further with the enquiry initiated against you, with respect to the charge-sheet dated August 21, 1985.
You are, therefore, dismissed from the services of the Company with immediate effect.
Please note that in arriving at our decision that retaining you in the services of the Company is detrimental to the interest of the Company, the Management has applied its mind and has taken into account the following factors:
1. Gravity of the misconduct, allegations and charges levelled against you as enumerated in the charge-sheet dated August 21, 1985.
2. The proceedings of the enquiry conducted so far and the various documents connected which have been taken on record during the proceedings of the said enquiry.
3. Your past record and circumstances which are aggravating as well as absence of any extenuating circumstances.
4. The loss of faith on account of your conduct, you being reposed with trust in the Shares and Debentures transactions of the members of the Company.
Your legal dues, if any, are being remitted to you.
The Company reserves its right to lead evidence on the aspect of the misconduct, allegations, charges, etc. enumerated in the charge-sheet dated August 21, 1985 before the appropriate Court of Law, if and when so necessary.'
6. Taking exception to the order of dismissal, the petitioner raised an industrial dispute. The reference was numbered as IDA 297 of 1986. On June 11, 1986 the petitioner filed a statement of claim. He claimed reinstatement with full back wages. On August 18, 1986 the second respondent filed its written statement. By the written statement it justified the order of dismissal.
The Labour Court, before whom the reference was pending, permitted the second respondent to justify the order of dismissal by leading evidence. The second respondent led both ocular as also documentary evidence in support of its claim. It examined 14 witnesses in order to justify the order of dismissal. The witnesses were cross-examined by the petitioner at length. The petitioner, however, did not choose to examine himself. He did not examine witnesses in his defence.
7. By a judgment and order dated January 30, 1992 the learned Presiding Officer of the First Labour Court, Bombay passed his Award. He found that the petitioner was guilty of charges of forgery and effecting transfer of shares and misappropriating the proceeds by opening false bank accounts. He held that the second respondent had made out just and sufficient grounds for stopping the domestic enquiry. He found that the second respondent had proved all the charges levelled against the petitioner. He found that the order of dismissal was just and proper. Consequently, the petitioner was not entitled to an order of reinstatement. He further found that the doctrine of 'relation back' was applicable to the facts of the case. Consequently, he was not entitled to any wages. With the result, the reference was dismissed. Taking exception to the above Award, the petitioner has preferred the present petition.
8. Mr. Menon, the learned counsel appearing in support of the petition, has strenuously urged that the order of dismissal passed by the second respondent cannot be upheld for the simple reason that the same has been passed without holding an inquiry. According to him, the grounds set up by the second respondent for discontinuing the inquiry are false. The petitioner cannot even remotely be connected or be responsible either for the death of Mr. S.A. Vaswani or the assault on Advocate Patkar. The death of Vaswani, according to Mr.Menon, was an accidental death. No case was filed against the petitioner in respect of the said accidental death. As far as the assault on Advocate Patkar is concerned, the petitioner was sought to be prosecuted but was ultimately discharged for want of evidence. As regards the threatening calls alleged to have been received by certain officers of the second respondent and their family members and the receipt of a postal letter by some other officer containing a picture of a mutilated body, are instances which are not proved in the case. He pointed out that, though a complaint was lodged against the petitioner on November 8, 1985 by one Miss Shroff, Secretary of Mr. Mistry - the Company Secretary of second respondent/company, wherein the petitioner was alleged to have threatened her, the petitioner was ultimately acquitted. Under the circumstances, so submits Mr.Menon, the second respondent was not justified in discontinuing the disciplinary proceeding. In any event since the petitioner is not guilty of any of the aforesaid acts, the order of dismissal, as passed by the second respondent, cannot be justified.
9. In my view, as far as the aforesaid contention of Mr. Menon is concerned, it cannot be disputed that the disciplinary proceeding has been left incomplete, whatever be the reasons.
Whether the second respondent is justified in discontinuing the inquiry may be relevant for deciding certain other issues which arise in the present petition. However, the fact that the order of dismissal is passed by the second respondent without holding a complete inquiry is sufficient to uphold the contention of Mr. Menon that the order of dismissal passed by the second respondent cannot be upheld.
10. Mr. Menon next proceeded to challenge the Award passed by the first respondent. While doing so, he was conscious of the fact that this is not a Court of appeal and he is here in a writ jurisdiction. He has, therefore, proceeded to attack the impugned order on the ground that the same has been passed without application of mind. He pointed out that written arguments were submitted both by the petitioner as also by the second respondent. According to him, what the first respondent has done is to incorporate the submissions contained in the written arguments of second respondent. After doing so, the first respondent has proceeded to dismiss the reference without assigning any reasons of his own. In the process, the first respondent has totally ignored the written submissions advanced by the petitioner. While incorporating the written submissions of the second respondent, which contained reproduction of the evidence of the witnesses in their examination-in-chief only, the first respondent has totally ignored the admissions elucidated in the cross-examination. According to Mr. Menon an Award passed without an application of the mind is non est and is liable to be set aside.
11. Mr. Menon has taken me through several portions of the written submissions submitted by the second respondent and has also taken me through several portions of the Award impugned in the petition. In a considerable measure the criticism of Mr. Menon is justified. It would, however, not be fair to the first respondent to say that his Award does not contain any reasons of his own or that his Award suffers from the vice of non-application of mind. What he appears to have done is that he has extracted portions of the written submissions and has adopted them as his reasoning in support of his Award. However, in order to satisfy myself whether the Award and the findings contained therein are justified on the evidence on record, I have permitted the learned counsel appearing for the contending parties to go through the material evidence. This, I have done, not acting as a Court of appeal but merely in order to satisfy myself, whether findings are, or can be said to be, justified on the evidence on record. I will, therefore, proceed to briefly consider the material evidence on record.
12. The charge against the petitioner centres around two main counts. According to the second respondent, the petitioner is responsible for fraudulently effecting transfers of debentures in respect of members who had failed to come forward either to claim interest or to effect transfers. In respect of such debentures, the petitioner had these debentures transferred in fictitious names and pocketed the proceeds of the transfers as also of the outstanding interest which had accumulated prior to the transfers. The petitioner, thereafter, had the said debentures transferred in favour of certain existing entities, some of whom are officers of the second respondent. In order to ensure that the fraud is not revealed, the petitioner caused disappearance of relevant documents from the office of the second respondent. The first set of transfers which are the subject matter of the charge is as follows:
Names of erstwhile members.Names of persons in whose name transfers are made, who are alleged to be fictitious and non-existent persons.
Names of persons in whose fav our debentures are transferee from persons who are allege to be fictitious and non-exister persons.
(1)(2)(3)
Mr. Radhakrishan Khanna and three others. (Con. Debentures).Mr. Prakash B. Waghmare.Mrs. Lajwanti Golani jointly with D.S.GolaniMr. Radhakrishan Khanna and three others. (Non-con. Debrs)Mr. Prakash B. Waghmare.L.I.C.Mr. M.C. Setalvad (Con. Debrs.)Mr. D.S. Sarang.Mr. D.S. Golani jointly with Mrs. Lajwanti Golani.Mr. D.S. Sarang.Mr. H.P. Lalla jointly with Mrs. Neela Lalla.Mr. M.C. Setalvad (Non-con. Debrs.)Mr. D.S. Sarang.L.I.C.Mr. T.N. Bishewlal (Con. Debrs).Mr. S.Kode.Mr. N.G. Khurana jointly with Mrs. Khurana.Mr. T.N. Bishewlal (Non-con. Debrs.)Mr. S.Kode.Mr. Bharat S. Dalai jointly with Mr. S.M.Dalal.Mr.S. Jwalaprasad (Non-con. Debrs.)Mr.S. Kode.Mr. N.G. Khurana jointly with Mrs. Khurana.Mr.S. Jwalaprasad (Non-con. Debrs.)Mr. S. Kode.L.I.C.
The first column of the above table consists of the erstwhile members of the bank of Baroda who were entitled for being allotted debentures of the second respondent company. They, however, had not come forward either to claim the debentures or the interest accrued thereon. These debentures, it is the case of the second respondent, were got fraudulently transferred by the petitioner in favour of those who are arrayed in the second column. These are fictitious and non existent persons. False bank accounts were opened in the names of those arrayed in the first column and some of them appearing in the second column. The debentures are further transferred in favour of those arrayed in the third column by executing false and fraudulent documents and sale proceeds are misappropriated. Further, relevant documents are caused to disappear in order to conceal the felony.
13. Amongst others, the second respondent has examined CW 2 Madhu Kokane, an employee of the second respondent. According to the witness, the petitioner obtained his signature on a blank bank account opening form (Exh.C-29) on a representation that the petitioner wanted to open an account in the bank and that introduction was required for that purpose. He has further stated that he had not given signature to anybody else by way of introduction in the bank. The said bank opening form (Exh.C-29), however, does not contain the name of the petitioner but contains the name of Mr. Kode who is one of those who are arrayed in the second column of the above chart. Thus, in substance, the evidence of the above witness suggests that the petitioner obtained his signature on a blank form on a representation that he wanted to open a bank account. The petitioner, however, utilised the blank form by inserting the name of Mr. Kode and opened a false bank account in the name of Mr. Kode.
14. Mr. Menon has sought to assail the evidence by pointing out that, according to witness, he had signed the form in 1981 and this the witness was stating from memory. He was saying so also because the said branch of the Bank was opened in 1980 and the petitioner had approached him after about six months. Mr. Menon has further pointed out that the bank pass book of witness shows that he has his account from July 1977 and onwards. According to Mr. Menon the case of the witness that he has signed the blank form after six months of the opening of the branch in 1981 cannot be accepted.
15. It is apparent that the witness has committed a mistake when he has stated that it was after about six months after the opening of the branch that he signed the account opening form.This is apparent from the fact that his pass book shows that the branch has been functioning since prior to July, 1977. This discrepancy, however, cannot demolish the evidence of the witness when he has identified his signature on the bank opening form and this identification has not been challenged in his cross-examination.
16. We next have the evidence of witness No. 3 Balkrishna Kamlaprasad who was an employee of the second respondent, as a sweeper. As per his version the petitioner had handed over two cheques bearing Nos. 134561 dated February 18, 1982 (Exh. C35) and No. 134562 dated February 23, 1982 (Exh.C36) and asked him to present them at the bank and encash the same. Accordingly, the witness encashed the cheques and handed over the amounts to the petitioner. By the said cheques the aforesaid amounts are withdrawn from the account of Mr. Subhash Dattatraya Kode which was opened with the help of the account opening form signed by the earlier witness Madhu Kokane. Though cross-examined at considerable length, I do not find that any useful material has been elucidated so as to cast a doubt on the veracity of the witness.
17. We next have the evidence of three witnesses who are outside witnesses i.e. who are not connected or are not employees of the second respondent company. They are witness No. 8 Navin Khurana, witness No. 9 Dharamdas Golani and witness No. 10 Himanlal Lala. Witness Navin Khurana owns an electronic shop at Goregaon (West). He has deposed that in 1982 he acquired 193 debentures through the petitioner. He has identified the petitioner, sitting in the Court, and has stated that the petitioner was his customer who used to regularly attend the shop for purchasing articles. He has further stated that D.N. Golani witness No. 9, is his best friend and witness No. 10 H.P. Lala was his accountant. He has further proceeded to state that on one day he himself, Mr. Golani and Mr. Lala were discussing about shares. At that time the petitioner came and asked if they were interested in debentures of the second respondent-company. He stated that lot of his friends was interested in disposing of their debentures. The witness purchased 193 debentures, whereas Golani and Lala purchased some other debentures but he does not remember how many. The witness issued a cheque of Rs. 3,088/- to the petitioner and in his name. As Mr. Golani was not having a cheque book, on his request, the witness gave a cheque of Rs. 2,912/- to the petitioner in his name. The transfer forms of the debentures were brought by the petitioner. The debentures were purchased at the rate of Rs. 16/-each. When confronted with the cheques at pages 1 and 3 at Exh.C-64 the witness identified the cheques as the ones issued by him in favour of the petitioner. They are crossed cheques issued in the name of the petitioner. The witness has further stated that he has neither seen or known any person named S. Kode whose debentures were purchased by them through the petitioner. He has further reiterated that he was not knowing who was the selling party of the debentures and stated that everything was done by the petitioner.
18. The above evidence is sought to be assailed by the second respondent by confronting him with a xeroxed copy of letter dated March 22, 1982 (Exh. U). The witness has admitted that the hand-writing of the upper portion of the letter is his, and so also the signature. He has, however, denied the written contents as having been written by him. He has stated that the contents are false. I will have an occasion to deal with this aspect of the matter at some later stage. Apart from the above challenge, no other material is pointed out in order to discredit the evidence of Mr. Khurana.
19. The evidence of Khurana is supported by the evidence of witness No. 9 Dharamdas Golani. He has corroborated the version of Khurana and has slated that on one day he was sitting with Mr.Khurana in his shop when the petitioner came and told them that one party was ready to sell debentures at a discount. So, the witness purchased 182 shares at the rate of 16 per debenture. He purchased a second lot of 78 debentures at the same rate. Those 182 debentures were originally in the name of Mr. Waghmare and 78 debentures were in the name of Mr. D.S. S a rang, both are arrayed in the second column of fictitious persons in the above chart. The witness has stated that the debentures as well as the transfer forms were brought by the petitioner. He paid cash to Mr. Khurana who in turn gave a cheque to the petitioner. The cheque was in the sum of Rs. 2,912/-. The witness had withdrawn the amount of Rs. 2,912/- from bank for paying it to Mr. Khurana. The witness has further stated that he gave cheque to the petitioner towards payment of 78 debentures in his name. On the next day when the petitioner met him in Khurana's shop he demanded cash saying that Mr. Sarang was flying to foreign country, so he should be paid cash although he has deposited his cheque in the bank. So, the witness paid the petitioner cash and the cheque was subsequently returned to the witness as the same was dishonoured for want of sufficient funds. The witness was not knowing and had not even seen Mr. Waghmare or Mr. Sarang.
20. The evidence of the aforesaid two witnesses is further corroborated by the evidence of witness No. 10 Himanlal Lala. He has stated that he purchased 150 debentures in the premises of Gitanjhali Traders belonging to Khurana. He purchased the debentures by making payment by handing over an account payee cheque to the petitioner. The cheque was made payable to Mr. D.S. Sarang. The purchase was at the rate of Rs. 16/- whereas the face value of the debenture was Rs. 25!-,
21. The documents of the bank which arc placed on record show that the cheque issued by Mr. Lala was in the sum of Rs. 2,400/-. The cheque is at Exhibit C-84 which is an account payee cheque in favour of D.S. Sarang. The said cheque is deposited in the account of Mr. Sarang which account is opened at the introduction of Mr. Kode who is one amongst the alleged fictitious persons arrayed in the second column of the above chart.
22. We next have the evidence of CW 12 Dattaram Satavase who is an officer of the Indian Overseas Bank at Nariman Point. He has produced the account of the petitioner which is at Exhibit C-88. The account shows that the cheques in the sums of Rs. 3,088/-, Rs. 2,912/- and Rs. 1,248/- were deposited in the petitioner's account. It further shows that the cheque in respect of the amount of Rs. 1,248/- has been returned to the petitioner. Witness Satavase has deposed in terms of the cheques (Exhibit C-64 and Exhibit C-89) and the ledger of the petitioner's account (Exhibit C-88). In cross-examination of the witness, all that is asked to him is that, he has no personal knowledge of the transaction as he was not attached to the branch during the relevant period of 1981. That, the aforesaid cheques were deposited, that one of the cheques was returned is not even challenged. Thus, what follows is that the cheques which are issued by witness Khurana and witness Lala for purchase of debentures which stood in the names of Mr. Waghmare and Mr. Sarang, the alleged fictitious persons, have been deposited in the account of the petitioner.
23. We next have the evidence of witness No. 13 Gopal Rane, an Assistant Secretary of the second respondent. He has stated that the petitioner was working as Junior Clerk in the Shares Department. His main duties were, payment of interest on debentures, transfer of debentures and despatch of certificate of shares and debentures to the former shareholders of the Bank of Baroda Limited. He further stated that in February, 1985 they checked the entitlement register of the former Bank of Baroda Share-holders and Certificate of Shares and Debentures which were not collected by the share-holders concerned. While checking they found that certain shareholders had not transferred their debentures and certificate of shares and debentures were missing from the cup-board. They then prepared a list. Mr. Nagarkar reported to him that debentures of one Mr. Radhakishan Khanna were transferred and his account was closed. Thereafter, Mr. Rebello reported to him that certain transfer deeds of debentures, some transfer receipts and paid out interest forms were missing from the record. Since the petitioner was mainly doing the work of payment of interest, he was called and asked to give an explanation about the missing paid out warrants. The petitioner gave explanation dated February 13, 1985, a photo copy of which is at Exhibit C-19, at page 9. Thereafter Mr. Rebello brought to him one specimen signature card of Mr. Radhakishan Khanna and others from the equity share section of the department. When he saw the specimen signature card he recognised that the writing and the signature on the specimen card was in the handwriting of the petitioner.
24. The witness has further deposed that he was not knowing Mr. Prakash Waghmare, Mr. D.S. Sarang and Mr. S. Kode. From the addresses recorded in the books of the company he himself and Mr.Rebello went to the addresses of the above referred persons but none of the above referred persons were residing on the addresses referred to in their record. The addresses of Mr. Kode and Mr. Waghmare were totally imaginary to the extent that they were fictitious. He has further stated that the entries in respect of the names of Mr. Sarang and Mr. Waghmare in the transfer register (Exhibit C-19) are in the handwriting of the petitioner.
25. In regard to Mr. S. Kode, he stated that a registered letter was addressed to him on or about July 21, 1986 but the same was returned undelivered. Similar letters were written to Mr. Prakash Waghmare and Mr. D.S. Sarang.
26. The evidence of the above witness discloses the nature of duties which were assigned to the petitioner. It further discloses that certain documents such as transfer deeds of debentures, transfer receipts and paid out interest warrants were missing from the record and an explanation in regard thereto was obtained from the petitioner. The evidence further suggests that the aforesaid three persons namely Mr. Prakash Waghmare, Mr. D.S. Sarang and Mr. S. Kode are fictitious persons.
27. The last witness examined is witness No. 14 Ganesh Iyer, an Assistant Manager of the Indian Overseas Bank. He has produced documents in respect of the opening of the account in the name of Dattatraya Shankar Sarang. He has produced the Saving Bank account opening form (Exhibit C-116) as also a pay-in-slip, dated March 2, 1982 and a bank account ledger sheet (Exhibit C-119). He has deposed that there is an entry of Rs. 2,400/- in the name of Mr. D.S. Sarang in the pay-in-slip. The entry of Rs. 2,400/-corresponds to the entry in the bank accounts ledger. The evidence, thus, establishes that the cheque of Rs. 2,400/-, handed over by witness No. 10 Mr. H.P. Lala to the petitioner for the purchase of 150 debentures at the rate of Rs. 16/- per debenture, was deposited in the aforesaid account of Mr. Sarang. It may be recalled that as per the version of Mr. Lala he had issued this cheque in the name of Mr. D.S. Sarang and the debentures were in the name of the said Mr. D.S. Sarang. The said cheque (Exhibit C-84) was handed over to the petitioner and the same is found to have been deposited in the account standing in the name of Mr. D.S. Sarang.
28. The above evidence, in my view, is sufficient to bring home the guilt against the petitioner. The evidence supports the findings given by the first respondent. It shows that the petitioner, while he was employed as a Junior Clerk in the Shares Department and was entrusted with the duties of making payment of interest on debentures, transfer of debentures and despatch of certificate of shares and debentures to the former share-holders of the Bank of Baroda Limited, has, by creating false documents, got the debentures, standing in the name of the members who are arrayed in the first column of the chart, transferred in favour of fictitious persons who are arrayed in the second column of the above chart. He has opened false bank accounts in favour of these fictitious persons, and deposited cheques in false accounts, got the debentures retransferred in favour of those arrayed in the third column of the above chart and has fraudulently pocketed the proceeds of the transfers.
29-30. This takes me to the next charge that is levelled against the petitioner. The allegations in regard to this charge are as under:
'5.1: It is also alleged against you that on the basis of introduction given by Mr. C.S. Bhidc, you have opened a Saving Bank (SB) Account (No. 3724) in the fictitious name of one Mr. S.M. Ikbal with Indian Overseas Bank (I.O.B.), Nariman Point Branch, Bombay.
5.2: It is further alleged that on the basis of a letter dated June 8, 1981 signed by fictitious and pseudo Mr. S.M. Ikbal the company was requested to issue Interest Warrants for the interest due on his Debentures and accordingly eleven cheques written by you amounting in all to Rs. 5,659.91 covering the interest for the period from July 1, 1974 to June 30, 1980 were issued in the name of Mr. S.M. Ikbal. Further an entry purporting to be in respect of the despatch of the said cheques to Mr. S.M. Ikbal at his Poona address has been unauthorisedly made by you in the Despatch Register though it is not your duty to handle the Despatch Register. Further the said cheques have been credited in the said Account No. 3724 of Mr. S.M. Ikbal in I.O.B. and subsequently almost the entire amount has been withdrawn from the said account. The withdrawal cheque is in your wife's handwriting (then Miss. M. Lobo a neighbour of your old residence and an employee of ASPA having its office on the same floor as yours) and you have admitted this fact. It is evident that in fact these cheques were not posted but were retained by you and thereafter deposited in the said I.O.B. Account and substantial part of which was subsequently withdrawn by you in collusion with your wife (then Miss M. Lobo) and perhaps Mr. C.S. Bhide. You have thus made a wrongful and dishonest gain of Rs. 5,659.91.'
31. In order to substantiate the above charge, we have on record the evidence of witness No. 4 Chandrakant Bhide. Apart from being an employee of the second respondent, he was also doing business of purchasing and selling shares and debentures. According to his version, on one day in the first three weeks of June, 1981 the petitioner came to him and showed him a savings bank's opening form of the Indian Overseas Bank and told him that he wanted to open an account in the said bank along with his family members. That form was blank. The petitioner requested the witness to sign the form as an introducer. The witness then signed the form as introducer. According to the witness, he never introduced any person, by name Shaikh Mohammed Iqbal, to the Overseas Bank. The said form, as would be clear from the evidence of the other witnesses, to whom I will presently advert, is used by the petitioner for opening an account in the name of Shaikh Mohammed Iqbal.
32. The witness has further proceeded to state that in June, 1981 the petitioner came to his table and told him that he had brought with him one Shaikh Mohammed Iqbal who was holding some shares and debentures of their company. He further stated that Mr. Shaikh Mohammed Iqbal was going abroad for service and wanted to transfer his shares and debentures and advised him to purchase them. At that time Shaikh Mohammed Iqbal was sitting in the Reception Counter. The petitioner introduced the witness to that person and told him that he was Shaikh Mohammed Iqbal and that Shaikh Mohammed Iqbal was his friend and was residing at Poona. Mr. Shaikh Mohammed Iqbal requested the witness to purchase 98 equity shares and 155 convertible debentures and 82 non-convertible debentures as he was badly in need of money for securing a job abroad. He agreed to sell the shares and debentures at a lesser price and that he should be paid cash. After negotiations the witness agreed to pay in all Rs. 10,443/-. The said person, who was introduced as Shaikh Mohammed Iqbal, was carrying blank transfer forms along with shares and debentures. The transfer forms were signed by the transferors. The petitioner informed the witness that he had already checked the signatures of the transferors. The witness agreed to pay Shaikh Mohammed Iqbal the amount of Rs. 10,443/- in two instalments. He agreed to pay the first installment of Rs. 5,000/- on June 8, 1981 and pay the instalment of the remaining amount on June 18, 1981.
33. On June 8, 1981, the said Shaikh Mohammed Iqbal came to their office. He had brought with him shares and debentures and five transfer forms with signature of transferors on them. There were signatures of Shaikh Mohammed Iqbal and Shaikh Mohammed Akhtar on these transfer forms. The witness compared these signatures with the signatures on the transfer forms and found them to be in order. He then prepared one letter-cum-receipt showing that he had purchased those shares and debentures from Shaikh Mohammed Iqbal and that he had paid him Rs. 5,000/-.He then obtained the signature of said Shaikh Mohammed Iqbal on the 'no objection certificate'. He asked him to bring the signature of Shaikh Mohammed Akhtar on the duplicate of the 'no objection certificate' on June 18, 1981.
34. Shaikh Mohammed Iqbal then requested the witness to give a letter to the company to the effect that the outstanding interest should be paid to him i.e. Shaikh Mohammed Iqbal. The witness then wrote a letter to that effect. Shaikh Mohammed Iqbal signed the same and gave the same to the petitioner. The petitioner also asked the witness to prepare a similar letter about payment of outstanding interest to Shaikh Mohammed Iqbal. The witness accordingly issued the letter. The witness has identified the said letters in Court The witness has further stated that in 1985 the officers of the company namely Dr. Mistry, Rane and Rebello told him that the two persons namely Shaikh Mohammed Iqbal and Shaikh Mohammed Akhtar had died before 1981.
35. The above evidence suggests that Shaikh Mohammed Iqbal was holding some shares and debentures of the second respondent company. The said Shaikh Mohammed Iqbal had died. The petitioner got a false bank account opened in his name. This was done by persuading the aforesaid witness to sign a blank bank account opening form on the representation that the petitioner wanted to open an account in his name and in the name of his family members. That account opening form was utilised for opening a false account in the name of a dead person i.e. Iqbal. Thereafter, the petitioner has gone on to present some person who impersonated himself as Shaikh Mohammed Iqbal who had already died. The petitioner, along with the said person, sold certain shares and debentures to the witness Bhide, and the sale proceeds were pocketed by the petitioner and may be by the said other person.
36. The evidence of Bhide receives corroboration from the evidence of witness No. 5 Shashikant Nagarka r who was working as Junior Clerk in the second respondent-company. He has stated that he knows the petitioner as also witness Bhide. Both of them were working in the Share Department. According to him, on June 17, 1981 Mr. Bhide came to him and told him that he would not attend the office on the next day i.e. June 18, 1981 and that a person named Shaikh Mohammed Iqbal would come for payment. The witness told Bhide that he did not know Shaikh Mohammed Iqbal. Mr. Bhide then said that the petitioner knew Iqbal and that Bhide would tell the petitioner that he should direct Iqbal to meet the witness. Bhide then handed over some documents to the witness in respect of the purchase of the shares and debentures. The documents included one bearer cheque for Rs. 5,500/- signed by Mr. Bhide and drawn on the Indian Overseas Bank. Mr. Bhide told the witness that Shaikh Mohammed Iqbal would bring the signature of other transferer Shaikh Mohammed Akhtar and that the witness should not make payment if signatures of both the transferors were not on the 'no objection certificate'. He also asked the witness to cash the bearer cheque and pay an amount of Rs. 5,443/- to Shaikh Mohammed Iqbal. The witness accordingly encashed the cheque. That afternoon one person came to him, and told him that he was Shaikh Mohammed Iqbal. At that time the petitioner was sitting behind the witness and he told that the said person was Shaikh Mohammed; Iqbal. The witness obtained the necessary signatures of Iqbal on the receipt for Rs. 5,443/- which was prepared by Bhide. He then paid the amount of Rs. 5,443/- in cash to that person. This is the evidence in respect of the second instalment: agreed to be paid by Mr. Bhide.
37. The further evidence on this issue is of witness No. 11 Waman Narkhede who is the Public Relations Officer of the second respondent-company. He, in turn, has purchased the debentures which were purchased by Bhide from Shaikh Mohammed Iqbal. He paid Rs. 9,200/- by cheque to Bhide towards the value of the debentures.
38. Witness No. 13 Gopal Rane, in respect of this transaction, has stated that he signed about eleven cheques of a person named Shaikh Mohammed Iqbal in the year 1981 after verifying the initials of Mr. Naik i.e. the petitioner and Mr. Rebello on the cheques and counter- foils and after seeing the verification of the petitioner on the letter. Those cheques were deposited in the Indian Overseas Bank, Nariman Point Branch. The evidence of the above witnesses shows that Shaikh Mohammed Iqbal was holding debentures and shares of the second respondent company. He had died prior to 1981. It may be of interest to observe that the second respondent has produced before me death certificates showing that the said Shaikh Mohammed Iqbal has died on February 5, 1974 whereas the said Shaikh Mohammed Akhtar, who is the second account holder along with Shaikh Mohammed Iqbal, died on September 4, 1960. The petitioner opened a false bank account in the name of Shaikh Mohammed Iqbal by persuading witness Bhide to sign a blank introduction form. The said form was utilised for opening an account in the name of the dead person Shaikh Mohammed Iqbal. The petitioner has further produced a fake person who impersonated himself as Shaikh Mohammed Iqbal and has transferred shares and debentures which stood in the name of Shaikh Mohammed Iqbal and Shaikh Mohammad Akhtar, both of whom were dead at the relevant time. The petitioner and also the said impostor received the sale proceeds in respect of the said sale.
39. I have, in the foregoing paragraphs, referred to the material evidence, not so much as to reappreciate the evidence but only to satisfy myself whether the evidence on record is sufficient to justify the finding arrived at by the first respondent. In my view, the above evidence is convincing and trustworthy. I do not find any cogent reason to doubt its veracity. It is possible, as is sought to be done by Mr. Menon, to challenge some pieces of evidence taken singly but if the entire evidence is viewed in its totality the findings are inevitable, namely the guilt of the petitioner. Amounts which pertain to the purchase of shares by independent witnesses such as Khurana, Gulani and Lalla in respect of debentures which stood in the names of Waghmare, Sarang and Kode, find themselves deposited in the account of the petitioner. The said Waghmare, Sarang and Kode are found to be fictitious persons. The concerned officers of the second respondent have tried to trace these persons by visiting the addresses which are found in the record of the company. In respect of two, the addresses themselves were found to be fictitious. Neither of them could be contacted. Merely because two letters addressed to S. Kode were returned with remark 'left' does not necessarily lead to an inference that such a person was in existence and was living at the address and was no longer there. The endorsement contained on the returned packets cannot override the positive evidence of Mr. Rane who is Assistant Secretary of the second respondent. He, in the company of Mr. Rebello, went to all the three addresses but could not trace any of the addresses. I do not find any reason to doubt his testimony. Similarly, the shares and debentures which stood in the name of Shaikh Mohammed Iqbal and Shaik Mohammed Akhtar, both dead long back, are found to have been sold and the sale proceeds are found to have been deposited in a false account which is opened in the name of the deceased Shaikh Mohammed Iqbal. The evidence is sufficient, to uphold the finding arrived at by the first respondent. The finding of the first respondent in regard to the culpability of the petitioner, in the circumstances, is liable to be affirmed.
40. Mr. Menon next sought to challenge the evidence of witness No. 1 Mr. M.S. Wagh, the handwriting expert, as also his opinion. He has suggested that I should myself compare the handwriting and determine whether the opinion of the handwriting expert can be relied upon. I do not find it necessary to embark on the said controversy as I have not placed any reliance upon the opinion evidence while arriving at my finding. I have based my finding on the direct evidence of witnesses and the documents which are purported to have been executed in the presence of the witnesses and on the evidence of witnesses who are familiar with the handwriting of the petitioner.
41. Placing reliance on certain portions of the oral evidence, Mr. Menon pointed out that, the acts are alleged to have been committed by the petitioner either prior to December 14, 1981 or subsequent to December 20, 1981 and no act is specifically assigned to the petitioner during the relevant period when Mr. Nagarkar was on leave. In my view, the submission can have no bearing on the finding of guilty against the petitioner. It is true that as far as the chargesheet is concerned it mentions that the petitioner was officiating and was assigned the duties of Mr. Nagarkar during his leave period. That does not mean that the charges and the inquiry were restricted to that period alone. It is to be remembered that the petitioner was also working in the share department during his normal course of duties. It was, therefore, open to him either singly or jointly with others to have perpetrated the fraud, during a period which spread prior to December 14, 1981 and continued even after December 20, 1981. Voluminous evidence was led by the second respondent before the Labour Court. The evidence was permitted to be led without any objection and witnesses were cross-examined at length. Mr. Menon, therefore, will not be justified in asking me to shut my eyes at all evidence which relates to a period prior to December 14, 1981 and subsequent to December 20, 1981.
42. The last contention advanced by Mr. Menon is in regard to the theory of 'relation back'. According to Mr. Menon the second respondent has discontinued the domestic enquiry midstream and has proceeded to pass an order of dismissal. According to Mr. Menon, the respondents were not at all justified in discontinuing the enquiry and dismissing the petitioner. The petitioner cannot be held responsible either for the death of Vaswani and the assault on Patkar. Hence, even if the first respondent was justified in upholding the order of dismissal the same cannot relate back to the date of the passing of the order of dismissal by the second respondent. It can take place only with effect from the date of the order passed by the first respondent. The petitioner, in the circumstances, will be entitled to his wages during the interregnum period.
42-A. I will now take up for consideration a submission advanced by Mr. Menon based on certain documents placed on record on behalf of the petitioner. Mr. Menon has drawn my attention to a writing dated March 23, 1982 purported to have been scribed by Mr. C.S. Bhide. By the writing Mr. Bhide has declared that he has sold certain debentures standing in the names of Mr. P.B. Waghmare, Mr. D.S. Sarang and Mr.S. Kode to Mr. N.C. Khurana and an amount of Rs. 7,248/- were paid to Bhide in cash by the petitioner on behalf ofMr. Khurana and Mr. Golani. Based on the writing, it is submitted that the transactions in question were brought about by Mr. Bhide and the petitioner cannot be held guilty. The only role attributed to the petitioner is that he was a-go-in between Mr. Bhide on one side and the purchasers Khurana and Golani on the other. Reliance is placed on a writing dated March 22, 1982 purported to have been addressed by Mr. N.C. Khurana in favour of the petitioner where the former had confirmed the purchase from Mr. Bhide. Further reliance is placed on a writing dated February 14, 1985 whereby the Company Secretary of second respondent, Mr.P.P. Mistry, has acknowledged the receipt of the above letter dated March 23, 1982 from the petitioner. Based on the writings, Mr. Menon strenuously urged that, the real culprit behind the present fraud is Mr. C.S. Bhide and the petitioner is unnecessarily made a scope goat. The petitioner had brought the above writings to the knowledge of the Company Secretary by way of his defence and this is clear from the receipt of the letters dated February 14, 1985 which are signed by him.
42-B. According to the writing dated March 23, 1982 debentures are sold by Mr. Bhide. However, the writing is not even put to Mr. Bhide. No questions have been asked to Mr. Bhide in respect of the writing. The debentures are sold to Mr. Khurana and Mr. Golani. As in the case of Mr. Bhide, no questions are put to either Golani or Khurana in respect of the sale of debentures. The case which is sought to be advanced on the basis of the writings is nowhere pleaded by the petitioner. No evidence is led in support of that case. The petitioner himself has not stepped into the witness box. He has not examined any witness in support of his case. The writing is not addressed to anybody. It is in the form of an affidavit. To my mind, the writing is artificial and unnatural. Mr. Bhide is examined on September 1, 1987. As per the receipt dated February 18, 1985, the writing is purported to have been handed over by the petitioner to Mr. P.P. Mistry, the Company Secretary. The petitioner was, thus, fully aware and conscious of the existence of the writing when Mr. Bhide was examined. Yet, no questions are put to Mr. Bhide regarding the writing. Neither of the three writings are in original. They are xerox copies. As far as the letter dated March 22, 1982 is concerned, the address and the signature of Mr. N.C. Khurana are handwritten. Whereas, the body of the letter is type written. The letter is a xerox copy and not the original. Mr. Khurana has admitted his hand-writing of the address and has admitted his signature but has denied the contents. Mr. Rebello the Assistant Secretary, in his evidence, has admitted the signature of Mr. Mistry on the receipt dated February 14, 1985. However, no steps are taken to examine Mr. Mistry for the purpose of proving the document. In my judgment, all the three documents appear to be got up at a belated stage in order to set up a false defence. In my view, no reliance can be placed on these documents which have been sought to be relied upon at a belated stage without having the said documents proved by leading proper evidence. The argument of Mr. Menon, based on the documents, therefore, deserves to be rejected.
43. This takes me to consider whether the second respondent was justified in abandoning the disciplinary proceeding midstream and passing the order of dismissal. Two facts which cannot be disputed and which are not disputed, are that Mr. Vaswani was the representative for the management in the disciplinary proceedings and Mr. Patkar was the Inquiry Officer. It further cannot be disputed that the disciplinary proceedings had commenced, the evidence of one witness was complete and the second witness was under cross examination. This fact would suggest that as far as the second respondent is concerned up till this stage, they were in right earnest, proceeding with the inquiry. What followed is of considerable consequence. The inquiry had commenced on August 28, 1985 and proceeded through 20 sittings. Evidence of about 183 pages was recorded. On October 7, 1985 after conducting the inquiry for the day, at about 8.30 p. m., Mr, Vaswani and Mr. Patkar left for their respective homes.On that night Mr. Vaswani was found mysteriously dead on railway track between Vidyavihar and Ghatkopar railway stations. Second respondent immediately appointed Mr. A.D. Jani as its representative and the inquiry was sought to be continued. Some evidence was recorded on October 15, 1985 by the Inquiry Officer Mr. S.J. Patkar. On the next day i.e. on October 17, 1985 at about 9.05 a.m. Mr. Patkar was severely assaulted by iron bars and steel belts outside the gate of the compound of the block where he lived at Ghatkopar. The two instances have taken place in quick succession. There are other events which are brought on record. On October 23, 1985 the Secretary of the Company Dr. P.P. Mistry received a threatening call at his residence. The call was taken by his wife. The call was from an unknown person that Dr. Mistry would be blasted and killed shortly. On October 25, 1985 Mr. G.S. Rane, an Executive in the share department, when he was in the office at Bakhtawar received a phone at his residence which was answered by his servant and his son inquiring about his whereabouts, threatening that Mr. Rane will be killed. On November 20, 1985 Mr. Rebello an Executive of Share Department, received an envelope containing a picture of a person showing his head severed from his body. In addition to the above, Mrs. Shroff, Secretary of the Company Secretary lodged a complaint that she was threatened by the petitioner. Consequent upon the complaint the petitioner was prosecuted but ultimately acquitted. These are the events which have taken place in quick succession and in the midst of the inquiry. The first two instances are undisputed. The question that arises for consideration is whether the second respondent was justified, or is to blame, for leaving the inquiry and passing an impugned order of dismissal against the petitioner. In my view, even if it cannot be established beyond reasonable doubt that the petitioner is behind these incidents, the incidents by themselves are sufficient to give rise to a reasonable belief that the petitioner is responsible for these incidents. In any event, I find that the atmosphere that was created at the material time was not congenial to the further conduct of the departmental inquiry. If in the circumstances the second respondent has chosen to discontinue the enquiry and has further proceeded to pass an order of dismissal specifically reserving to itself the right to lead evidence for establishing the misconduct, the allegations of misconduct and the charges contained in the charge-sheet, no fault can be found with the second respondent. The question is now whether the theory of 'relation back' will apply in the instant case. Counsel for the contending parties have sought to take me through several authorities on the subject. It is not necessary to deal with any of them as none of the cases cited are in pari materia to the facts of the present case. The principle that can be deduced from the cases cited is that it is the holding of an inquiry or the non-holding of it which will determine the doctrine of 'relation back', It would depend on facts of a particular case. There may be cases where there may be no enquiry at all before an order of dismissal is passed. There may be cases where there is merely a facade of enquiry, an enquiry in blatant violation of the principles of natural justice. In such cases doctrine of relation back will not apply. There may be yet another set of cases where an enquiry is held and an order of dismissal is passed. The enquiry may not suffer from blatant violation of the principles of natural justice but may suffer from some defects which renders the order of dismissal bad. In such cases the order of dismissal is not one which is stillborn or void. Such an order can be made good by evidence and subsequently approved by the Labour Court/Industrial Tribunal. In such a case the doctrine of 'relation back' will apply. In addition the character of misconduct ascribed to the employee plays an important part in the application of the principle of relation back.
44. In the present case, the facts are entirely different. The facts are not akin to the facts which arose for decision in the aforesaid cases. Here, the respondents cannot be held guilty of holding no enquiry at all. They also cannot be held guilty of merely holding a facade of an enquiry or an enquiry in blatant violation of the principles of natural justice. Here is a case where an enquiry was undertaken. There is no grievance that there was any breach of principles of natural justice during the period when the enquiry was being conducted. Certain events intervened which events cannot be termed as trivial. The events are serious and far-reaching. Mr. Vaswani, the representative of the second respondent met an unnatural death. Despite this, the second respondent is found to have continued with the enquiry. It appointed Mr. A.D. Jani, an Advocate, as its new representative. Mr. Jani, on October 15, 1985 attended and filed his authority. Before the enquiry could progress another serious incident occurred. This time Mr. Patkar, the Inquiry Officer, was seriously assaulted by iron rods and steel belts. This was not all. Officers of the second respondent received threatening calls. One received a picture of a person, by post, depicting a mutilated body where the head was severed from the body. A complaint was lodged by Secretary of the Company Secretary of the second respondent in respect of a threat by the petitioner. In my view, the second respondent cannot, in the least, be blamed for abandoning the enquiry as any reasonable body of persons in the said charged atmosphere, which was created during that period, can hardly be expected to continue with the enquiry. Hence, even if it is not possible to hold the petitioner responsible for the aforesaid instances, it cannot in the least be possible to cast a blame on the second respondent for discontinuing the enquiry and passing the order of dismissal.
45. As far as the theory of 'relation bank' is concerned, in a case where a departmental enquiry is commenced and is, thereafter, abandoned the question that one has to ask oneself is whether the management is to blame for discontinuing the enquiry. If it is found that the management is at fault when it discontinues the enquiry and passes an order of dismissal, in such a case the theory of 'relation back' will not apply. If it is found that the management is not at all to blame or it is delinquent who is at fault which has led to the abandonment of the enquiry then the theory of 'relation back' will apply. Hence, where in a given case it is found that even though the delinquent is not responsible and yet the management is found to be justified in discontinuing the enquiry, the theory of 'relation back' will apply. If it is shown that the discontinuance has been occasioned on account of the acts of commission or omission of the delinquent, in that case also the theory of 'relation back' will apply. In the instant case, I have, on the facts arising in the present case, found that the second respondent is not in the least to blame for discontinuing the enquiry. There are indications, though not clinching, that the petitioner may be behind the incidents which brought about a situation which was surcharged with events which followed in quick succession which led the second respondent to abandon the enquiry. Having regard to all the facts and circumstances of the present case I find that the theory of 'relation back' will apply with all force and the petitioner will not be entitled to the wages during the interregnum period i.e., from the date of the order of dismissal passed by the second respondent and the Award passed by the first respondent. Moreover, as observed earlier, the character of misconduct ascribed to the 'delinquent plays an important part in the application of principle of 'relation back'. If one has regard to the character of misconduct which has been held proved against the petitioner, there can be no other finding than the finding that the principles of 'relation back' does apply fully and the petitioner is not entitled to any wages whatsoever.
46. For the foregoing reasons, I find that the petition is devoid of merit and the same is liable to be dismissed. Rule is discharged. Having regard to the fact that the petitioner was workman of the second respondent, there shall be no orders as to costs.