ORDER : H.L. Gokhale, J. Heard Mr. M.S. Mansuri for the petitioner Union and Mr. B.S. Patel for the respondent Bank. The petitioner is a representative and approved Union functioning under the provisions of the Bombay Industrial Relations Act, 1946, under the respondent Bank. It is alleged against two employees, one Nitinbhai Patel, who is working as a peon and one Jagdishbhai Sheth, who is working as a Junior Clerk under the respondent Bank that they have functioned on 23.1.1996 in such a manner that their conduct amounted to dishonesty and breach of faith. It is alleged that a cheque which was meant for a third party was brought to the Bank on that day by this Nitinbhai Patel and it was allowed to be credited in the current account which was run in the said Bank in the name of the father of said Nitinbhai Patel. This was alleged to have been done with the active connivance of said Jagdishbhai Sheth, Junior Clerk. In view of this development being reported to it, the Bank, by its order dated 19.2.1996 dismissed the two employees forthwith and in last paragraph of that dismissal letter the Bank stated as follows : "Since you have forfeited the confidence and faith reposed by the Bank there is no need to hold any departmental inquiry. Even then if an occasion arises the Bank will lead necessary evidence at appropriate time and prove the misconduct alleged against the employees". Being aggrieved by these orders of dismissal, the petitioner Union has filed this petition in this Court seeking a declaration that the Bank had no right to dismiss the employees by simply framing charge and without conducting any inquiry and also to set aside the two orders of dismissal. By way of interim relief stay is sought for of these orders. 2. After the matter was taken up for consideration on 20.2.1996 a notice was issued to the respondent Bank informing it that if possible the matter will be heard finally on the returnable date. The bank has filed a reply and there has been rejoinder and further affidavits from both the sides. 3. I have heard Mr. Mansuri, learned Advocate for the petitioner. Mr. The bank has filed a reply and there has been rejoinder and further affidavits from both the sides. 3. I have heard Mr. Mansuri, learned Advocate for the petitioner. Mr. Mansuri has canvassed firstly that on merits it could not be said that the said two employees alone were responsible for whatever has happened, assuming without conceding that they are responsible for any such misconduct, but in any case it was necessary for the Bank to hold a departmental inquiry and there was nothing abnormal about the allegations which should forfeit the right of the employees to face a departmental inquiry before an order of dismissal is issued. Mr. Mansuri further submitted, relying upon the judgment of the Constitution Bench of the Supreme Court in the case of Delhi Transport Corporation v. DTC Mazdoor Congress, reported in 1992 I CLR 1 S.C., that even where there are regulations which provide removal from service without assigning any reason and without holding an inquiry, the same have come to be struck down by the Supreme Court amongst others as violative of Article 14 of the Constitution of India. This is a part of our Constitutional ethos. Discharging or dismissing a workman not in good faith but in colourable exercise of employer's right and in utter disregard of principles of natural justice in the conduct of domestic inquiry or with undue haste have come to be statutorily recognised as unfair labour practices on the part of the employers even in private sector industries. In the instant case there were Standing Orders which made it mandatory for the employer to hold the inquiry before he was dismissed from service. 4. Mr. Mansuri further submitted that under the Standing Orders the employee had a right to defend the allegations made against him and if suspended from service during that period, he was required to be paid subsistence allowance. 4. Mr. Mansuri further submitted that under the Standing Orders the employee had a right to defend the allegations made against him and if suspended from service during that period, he was required to be paid subsistence allowance. In para 6.4 of the petition, reliance is placed on the judgment of the Supreme Court in the case of Fakirbhai v. Presiding Officer, Industrial Tribunal ( AIR 1986 SC 1168 ) to contend that denial of payment of atleast a small amount by way of subsistence allowance would amount to gross unfairness and that if without holding an inquiry and proving the misconduct (during which period the employee will normally get subsistence allowance), the employee is made to move the Labour Court and await there for years together, it will be against the principles of fairplay and that the same is frowned upon by the Supreme Court in that judgment. In that case, the Supreme Court had an occasion to deal with a case where the workman was not paid subsistence allowance during the pendency of proceedings under Section 33(3) of the Industrial Disputes Act and the Supreme Court held that denial of payment of subsistence allowance during the pendency of such proceedings amounts to violation of the principles of natural justice. At the end of para 8, the Supreme Court held as follows :- "..... An unscrupulous management may by all possible means delay the proceedings so that the workman may be driven to accept its terms instead of defending himself in the proceedings under Section 33(3) of the Act. To expect an ordinary workman to wait for such a long time in these days is to expect something which is very unusual to happen. Denial of payment of at least a small amount by way of subsistence allowance would amount to gross unfairness". 5. Mr. Patel on behalf of the respondent Bank contended that the Bank was not amenable to the writ jurisdiction of the High Court and he relied upon the judgment of a learned single Judge of this Court in Special Civil Application No. 4884 of 1995 decided on 7.8.1995 wherein against an industrial company a writ was held to be not maintainable. Mr. Mr. Patel also submitted that in any case the workmen had a remedy to approach the Labour Court under the Bombay Industrial Relations Act, 1946 and to seek appropriate interim relief, if they were so entitled to it in the facts and circumstances of the case. 6. As far as these two propositions submitted by Mr. Patel are concerned, there should be no difficulty and it cannot be disputed that the workmen do have an alternative remedy. In view of that I am of the view that the workmen ought to file necessary application under the provisions of the BIR Act, 1946. As far as the submission of Mr. Patel that a "writ will not be maintainable against a Co-operative Bank" is concerned, I am not going into that question. This is because it is not necessary for me to go into that question since I am holding that the workmen ought to file application before the concerned Labour Court under the BIR Act, 1946. 7. Relying upon the aforesaid judgment of the learned single Judge of this High Court, Mr. Patel further pressed into service the following observations of the learned single Judge in the last but one paragraph : "..... Any violation of the Model Standing Orders entitles an employee to appropriate relief either before the forum created under the Industrial Disputes Act or the Civil Court where recourse to civil Court is open according to the principles indicated in the case of Rajasthan State Road Transport Corporation, (supra). The remedy under the Industrial Disputes Act would be more efficacious than the company itself being directed to hold inquiry. In fact the workmen would get better forum under the Industrial Disputes Act for getting justice in the matter of inquiry regarding the charges of misconduct against them. The impugned action of the dismissal cannot be said to be illegal or void ab initio, as it is justiceable before the appropriate forum under the Industrial Disputes Act....." As far as these observations are concerned, in my view, they can have no relevance in the facts of the present case. Although that was also a case of dismissal without an inquiry, the question of claim for subsistence allowance during the proceedings before the Labour Court was not squarely raised therein. Although that was also a case of dismissal without an inquiry, the question of claim for subsistence allowance during the proceedings before the Labour Court was not squarely raised therein. It is however, relevant to note that in the first sentence of the above quotation the learned Judge has observed (though in the context of that case) that the violation of Model Standing Orders entitles an employee to appropriate relief before the forum created under the I.D. Act. There can be no dispute with the proposition that the workman would get better forum before the Labour Court when the employer seeks to justify his action for the first time before the Labour Court. The employee does have a remedy and does have an opportunity to defend when an employer seeks to prove misconduct in the Court. However, what is being submitted by Mr. Mansuri is that inspite of the clear proposition laid down by the Supreme Court namely, that an employee has got to be given an opportunity of being heard, the same is being denied at the departmental level and no explanation as such is forthcoming for not holding the inquiry. Mr. Mansuri submits that subsistence allowance is something which is minimum and which has been provided under the provisions of the Standing Orders when an employer chooses to suspend an employee during a departmental inquiry and any breach of the Standing Order is made an offence under Section 107 of the BIR Act, 1946. The point raised is that when an employer dismisses an employee without holding an inquiry for no justifiable reason to dispense with the inquiry, whether the workman should get at least the very allowance during the proceedings before the Labour Court. 8. Mr. Patel in this connection submitted that some of the similar observations of a Division Bench of this Court in the case of Shreenarayan K. v. Anup Engineering Ltd. reported in 1995 (1) GLR 97 , had been interfered with by the Supreme Court of India. He referred to the order passed in the SLP. There from reported in 1995 (1) G.L.H. 345 . That was a case where the question before the Court was as to whether the dismissal will relate back to the date on which the employee was dismissed or whether it will take effect from the date of the Labour Court's award. He referred to the order passed in the SLP. There from reported in 1995 (1) G.L.H. 345 . That was a case where the question before the Court was as to whether the dismissal will relate back to the date on which the employee was dismissed or whether it will take effect from the date of the Labour Court's award. The facts of the case as reported in the very first paragraph of the judgment of the Division Bench of this Court were that there was an atmosphere of gherao, danger and terror and there was an apprehension about the safety of the properties of the company and of customers. That led to an instantaneous order of dismissal and after waiting for about an year or so, employees applied for full wages as an interim relief. On that prayer being rejected by the Labour Court they had moved the High Court leading to the aforesaid judgment of the High Court. It was in that contest that the Supreme Court had observed that since the main issue to be decided in the proceeding before the Labour Court was pending, the interlocutory relief of payment of full wages ought not to have been granted and it was therefore, that the order of the High Court had been interfered with. In the situation like the one where a departmental inquiry is impossible due to violence, etc., the Supreme Court had held earlier that in such an event the dispensation of an inquiry will be valid as held in the case of Satyaveer Singh v. Union of India 1985 II CLR 276 S.C. Similar appeared to be the facts in the aforesaid judgment in Shreenarayan's case. Mr. Mansuri contends that however, in view of that order of the Supreme Court, it can be canvassed by the employers that where an employer chooses to dismiss an employee without holding an inquiry and if he chooses to defend the decision by leading necessary evidence in the Labour Court, in such a case the Labour Court will not be entitled to grant any interim relief. In fact, relying upon the Supreme Court's order in Shreenarayan's case, such a view was pressed by another Co-operative Bank and it has come to be accepted by the Labour Judge in T. Application No. 10 of 1995 decided on 11.8.1995 and that order has been produced by the respondent Bank in support, wherein the discussion on this very point appears in para 22 of that judgment. 9. Mr. Mansuri therefore, submits that although the workmen may file application in the Labour Court, but their position with respect to subsistence allowance be clarified. In view of what is narrated above such a clarification becomes necessary. In that connection it has got to be remembered that holding of an inquiry is a matter of rule and dispensation thereof is an exception. If the continuation of an employee in active service during the course of an inquiry is in any case undesirable, then the employee may be suspended during the pendency of the inquiry in accordance with the provisions of the Standing Orders governing that organisation, in which case he gets the subsistence allowance during the period of the inquiry. Subsistence allowance is necessary for the very subsistence of the employee. In an appropriate case ends of fair play can be met by suspending the employee during the course of the inquiry. Because of suspension the employee is kept away from active service and during that time he is paid the allowance for subsistence. Thus the requirement of the management as well as that of the employee are both met. A straight termination of the services dispensing with the inquiry and then defending the decision in the Court can certainly not be the rule. It can only be in case of insurmountable difficulties while holding an inquiry such as due to violence. In all other normal situations if this method is resorted to, the workman will be within his right to seek subsistence allowance in Court by way of interim relief. Or else the laudatory objective in providing subsistence allowance will be frustrated. It can only be in case of insurmountable difficulties while holding an inquiry such as due to violence. In all other normal situations if this method is resorted to, the workman will be within his right to seek subsistence allowance in Court by way of interim relief. Or else the laudatory objective in providing subsistence allowance will be frustrated. As stated by me, the aforesaid interference by the Supreme Court with the judgment of the Division Bench of this Court in Shreenarayan's case cannot be said to mean that in every case where an employee is dismissed without an inquiry and where an employer chooses to defend the decision in the Labour Court, the employee will not be entitled to receive even the subsistence allowance by making necessary application in the Labour Court. It is true that with termination of services, the employer-employee relationship comes to an end and employer may contend that there is no question of paying even subsistence allowance thereafter. However, when in a normal situation, the employer dispenses with an inquiry and denied subsistence allowance until the misconduct is proved, that right to receive the said amount despite the termination will have to be construed as surviving and available to the employee and the Labour Court will only be directing the employer to discharge his obligation until the misconduct is proved in the Court. The right to receive subsistence allowance during the proceedings before the Labour Court when the employee is dismissed and when there is no insurmountable difficulty in holding the inquiry was not in consideration in Shreenarayan's case. If such a situation is created by an employer the workman cannot be made to suffer. 10. In the facts of the present case, therefore, I am of the view that the concerned workmen, if so deemed fit, may give necessary notice of change serving the demand and if their request is not accepted by the respondent Bank they may move the Labour Court thereafter. In the event of the respondent-Bank failing to point out any insurmountable difficulty to hold an inquiry, the workmen will be entitled to receive subsistence allowance, if they choose to apply for the same, by way of interim relief under Section 119-D of the BIR Act, 1946. In that event the Labour Court will consider the relevant provisions of the Standing Orders governing subsistence allowance and mould the relief appropriately. 11. In that event the Labour Court will consider the relevant provisions of the Standing Orders governing subsistence allowance and mould the relief appropriately. 11. With the aforesaid observations this petition is disposed of. Notice discharged.