Delhi District Court
Smt. Kalyani Satpathy vs . M/S. Hotel Marina Id No. 127/05 on 8 December, 2011
Smt. Kalyani Satpathy Vs. M/s. Hotel Marina ID No. 127/05
IN THE COURT OF DR. P S MALIK THE PRESIDING OFFICER
IN
LABOUR COURT XI, KARKARDOOMA COURTS, DELHI
ID No. 02402C0477792005
F.24 (884) 2005/ Lab. - 4039 - 43 dated
Reference No.
09.08.2005.
Type of Case Reference Case
Date of Institution 24.09.2005
Evidence concluded on 27.11.2011
Arguments Heard on 25.11.2011
Date of Order 08.12.2011
worker MANAGEMENT
Vs.
Smt. Kalyani Satpathy, W/o Sh. M/s. Hotel Marina, G - Block,
S.K. Patnayak, 73 - F, Sector - 4, Connaught Palace, New Delhi.
Fist Floor, Pushp Vihar, New
Delhi.
PRESENT:
● None for the parties.
ORDER :
1. The appropriate Government sent a reference no. F.24 (884) 2005/ Lab. 4039 - 43 dated 09.08.2005. to this court in relation to the illegal dismissal from the services of the claimant / worker Smt. Kalyani Satpathy by the Management M/s. Hotel Marina. The reference specifically pointed out as follows : "Whether dismissal of Mrs. Kalyani Satpathy, W/o Sh.
S.K. Patnayak from services by the Management is illegal and/or unjustifiably and if so, to what sum of money as monetary relief along with the consequential benefits in terms of existing laws / ORDER ON ENQUIRY ISSUE Page 1 of 8 Smt. Kalyani Satpathy Vs. M/s. Hotel Marina ID No. 127/05 Government Notifications and to what other relief was she entitled and what directions were necessary in that respect?"
2. As per claim the worker Kalyani Satpathy was an employee of the Management M/s. Hotel Marina since 11.11.1996. Her last drawn salary was Rs.5420/ p.m. As per claim, one of the partners of the respondent / Management Mr. Mehta asked her to submit her resignation from the Management and to join an another venture. The worker had grievances against one Mr. R.K. Dhar also who was allegedly seeking sexual favours from her. She got an FIR lodged against the said Mr. Dhar U/S 354 I.P.C. On 21.02.2003. After this the Management issued a chargesheet against this worker and instituted an enquiry. This enquiry was challenged by the worker on 5 following counts. That ● It was a flimsy enquiry held in a biased manner.
● It violated the principles of natural justice.
● The Management resorted to forgery and perjury etc. during the course
of enquiry.
● False witnesses were called and relied upon on behalf of the
Management. And
● An undue pressure was put on the worker without giving her the list of
witnesses.
5. The worker alleged that after the enquiry without any adverses evidence, her services were terminated. In her claim, she sought reinstatement with full back wages and consequential benefits.
6. The Management M/s. Hotel Marina filed a reply / written statement. The claim of the worker was denied on merits by the Management. It also took a preliminary objection that the claim was not filed as per specific directions given under the orders of reference. The allegations about Mr. Mehta and Mr. Dhar were denied. The substance of the chargesheet was reproduced and an assertion was made that the termination of the worker from the services was well reasoned.
7. In these circumstances, the ld. Predecessor vide its orders dated ORDER ON ENQUIRY ISSUE Page 2 of 8 Smt. Kalyani Satpathy Vs. M/s. Hotel Marina ID No. 127/05 28.02.2007 framed the following issue :
1. Relief in terms of reference.
8. On 29.05.2007 the following preliminary issue was also framed by the ld.
Predecessor :
1. Whether a fair and proper enquiry was held by the Management?
9. The worker examined herself as WW1 and tendered her evidence by way of affidavit Ex. WW1/A. This affidavit is quite elaborative and contains depositions which were not given in the claim petition of the worker. The main thrust of the evidence is on some disclosure statements regarding the character of the aforesaid Mr. R.K. Dhar which this court does not find it appropriate to consider at a point of time when it is considering the propriety and fairness of the enquiry. This affidavit speaks of the enquiry in its paras no. 7, 8 and 11 of the same. All the contents of para no. 11 are those which were not there in the claim petition. Therefore, this portion of the evidence is without corresponding pleadings in the claim. During the cross - examination this witness stated that she received the documents during the enquiry and has seen the enquiry record even from page no. 89 to 544. These pages no. 89 to 544 are specific because the witness was given a special pass over during the course of recording evidence so that she could go through the entire material available on record. She admits that her representative was given a chance and he cross - examined the Management's witnesses. She appears to have written a complaint regarding improper recording of the evidence. This letter is stated to be available on record as Ex. WW1/M1. During her cross - examination, she admitted to be familiar with the name of Sh. Sita Ram Mishra (who was the authorized representative representing the case of this worker before the enquiry officer). As per this letter the enquiry was started from 01.04.2003.
10. The Management examined one advocate Ms. Manjula Upadhayay and she examined herself as MW1 with an affidavit Ex. MW1/A. This witness states to have explained all procedure etc. going to be followed during the enquiry to both the parties. The enquiry proceedings were relied upon by this witness. In fact this enquiry report and enquiry proceedings were already exhibited during the evidence of the worker as Ex. ORDER ON ENQUIRY ISSUE Page 3 of 8 Smt. Kalyani Satpathy Vs. M/s. Hotel Marina ID No. 127/05 WW1/M1 and Ex. WW1/M2 respectively.
11. This case has one more significant aspect. In this case the Management is a limited company. This court has seen the material available on record. There is not even a single piece of paper showing that the written statement or the so called Management's affidavit was really filed by the respondent / Management Company. It appears to have been filed by some "Management" with illegible signs. Similarly MW1 Ms. Manjula Upadhayay has no where filed any authorization from the Board of Directors / Managing Director / Directors of this company. She has not filed any Resolution of any Board of Directors of the said respondent / Management company. There is no Articles of Association showing the constitution of the Board of Directors. Everything has been kept in dark.
12. The Management has not given a chance to this court to look into the fact as to who is defending this claim of the worker. Everything cannot run by presumption. It cannot be presumed here that whoever appeared in the name of the respondent / Management was really the respondent / Management.
13. A company is a legal persona and has a definite identity. There is a specific legal procedure to be followed by a company in instituting / defending legal claims. But the same has not been duly followed here in this case. There is no linkage between the legal persona impleaded in these proceedings and the people contending that they were appearing for this legal persona. Link or relation of this nature cannot be thrust forcibly by the appearing persons.
14. This court has no objective mechanism to ascertain the identity of the person or persons who apparently defended or tried to defend this claim.
15. It is not sufficient for a party just to file an authorization in Form 'F' Industrial Disputes Act. That party has to give its identification and authentication also. The party which authorizes its attorney / AR to appear before this court has to give its own particulars also. For each party e.g. a natural person, a legal person, a society, a trust, a limited company or a private limited company, this requirement of identification may vary. But in all cases, it is a sine qua non so that the court is in a position to identify the parties. And the proceedings before it are not collusive in nature. In the present ORDER ON ENQUIRY ISSUE Page 4 of 8 Smt. Kalyani Satpathy Vs. M/s. Hotel Marina ID No. 127/05 case, the respondent / Management has totally failed in giving any identification of its authenticity or genuineness.
16. This view of this court is also substantiated by Chapter 16 Instructions to Civil Courts in Delhi Delhi High Court Rules. The observations of this court are in tendom with Rules contained therein.
17. The same is the intention of the legislature enshrined in Section 119 CPC where all unauthorized persons are restrained from addressing the courts during adjudication.
18. Conversely, this evidence in the name of the Management's evidence does not bind the Management itself. In case any adverse order is passed against the Management, then no law would make that adverse order binding on the Management because legally the Management had not participated nor did anyone appeared in this case on behalf of the Management. Consequently, if the evidence led by the Management is taken on record, it would simply pave the way for this Management to accept or reject the court's verdict, and that too as per its own choosings. This evidence does not bind the respondent / Management.
19. In these circumstances, this court has received a preliminary doubt regarding the identity of the respondent / Management and the persons who allegedly appearing on its behalf. Therefore, this court has no hesitation in rejecting this piece of evidence led by the so called Management as being inadmissible in law. It is totally insufficient to link it to the respondent / Management which is in fact a company i.e. a person incorporate.
20. This court proceeds to examine the case of the worker if she had been successful in alleging and proving an unfairness and impropriety in the enquiry held against her by the Management.
ISSUE OF ENQUIRY :
21. As this court has observed in the previous paragraphs that a large part of evidence affidavit is beyond the contours of the claim filed by the worker. In the claim there are only limited allegations against the enquiry. This are as follows : ● That it was a flimsy enquiry held in a biased manner.
ORDER ON ENQUIRY ISSUE Page 5 of 8
Smt. Kalyani Satpathy Vs. M/s. Hotel Marina ID No. 127/05
● It violated the principles of natural justice.
● The Management resorted to forgery and perjury etc. during the course
of enquiry.
● False witnesses were called and relied upon on behalf of the
Management. And
● An undue pressure was put on the worker without giving her the list of
witnesses.
22. In para 10 of the claim she stated that the termination of the services was inflicted on her without providing a reasonable opportunity of being heard. But this court is of the view that this is a stage subsequent to that of the enquiry and this court would hear and decide this aspect at an appropriate stage. Therefore, this portion is not being touched upon in the present order.
23. The document Ex. WW1/M1 is the enquiry report which was put to the worker during the course of her evidence. It is her admitted document. Neither in the claim petition nor in her evidence affidavit she could bring anything to show that the presence of the parties during the course of enquiry after 26.05.2003 to 31.01.2004 was recorded incorrectly.
24. This record shows that it was 26.05.2003 when the worker and her AR both were absent. After that date the worker stopped appearing in the enquiry proceedings and her AR appeared only on 06.11.2003, 11.12.2003 and thereafter on 31.01.2004. The last one was the date when the enquiry wa completed.
25. All the witnesses of the Management in enquiry were cross - examined by the worker / her AR. She received all the documents which she admitted in her cross - examination also. All her applications e.g. at page no. 100 in Ex. WW1/M1 were taken and duly disposed of by the enquiry officer.
26. It appears from the submissions of the worker that the opinion of the enquiry officer in disposing of such applications, fixing dates of hearing and drawing other proceedings of the enquiry were not viewed by the worker as convenient. What it appears from the allegations of the worker is that she could point only to the inconvenience felt by her consequent to the ORDER ON ENQUIRY ISSUE Page 6 of 8 Smt. Kalyani Satpathy Vs. M/s. Hotel Marina ID No. 127/05 opinion of the enquiry officer. She could not point to any illegality in the enquiry proceedings. She appears to be expressing a psychological uneasiness rather that a factual illegality.
27. For vitiating an enquiry proceeding it is necessary that first there should be a clear and sufficient amount of evidence to prove that allegation.
28. The law on the point of enquiry was laid down by the Hon'ble Supreme Court in D.G. Railway Protection Force and Others Vs. K. Raghuram Babu (2008) 4 Supreme Court Cases 406.
Following an earlier decision in N. Kalindi Vs. Tata Locomotive and Engineering Company Limited AIR 1960 SC 914 the Hon'ble Supreme Court further stated "an enquiry is not a suit or criminal trial where a party has a right to be represented by a lawyer. It is only if there is some rule which permits the accused to be represented by someone else, that he can claim to be so represented in an enquiry vide Brooke Bond India (P) Limited Vs. Subba Raman (1961) 2 LLJ 417 (SC).
Similarly, in Cipla Ltd. Vs. Ripu Daman Bhanot (1999) 4 SCC 188; (1999) SCC (L&S)847, it was held by this Court that representation could not be claimed as of right. This decision followed the earlier decision Bharat Petroleum Corporation Limited Vs. Maharashtra General Kamgar Union (1999) 1 SCC 626: (1999) SCC (L&S) 361 in which the whole case law has been reviewed by this Court.
Following the above decision it has to be held that there is no vested or absolute right in any chargesheeted employee to representation either through a counsel or through any other person unless the statute or rules / standing orders provide for such a right. Moreover, the right to representation through someone, even if granted by the rules, can be granted as a restricted or controlled right. Refusal to grant representation through an agent does not violate the principles of natural justice.
29. Keeping in view the aforesaid law laid down by the Hon'ble Supreme Court, it is clear that the right to representation through someone can be granted as a restricted or controlled right. Refusal to grant representation through an agent does not violate the principles of natural justice.
30. From the aforesaid discussion, it appears that the objections of the worker to the fairness and propriety of the enquiry held by the ORDER ON ENQUIRY ISSUE Page 7 of 8 Smt. Kalyani Satpathy Vs. M/s. Hotel Marina ID No. 127/05 Management were more of formal nature. They do not appear to have any substance in them.
31. For setting aside an enquiry held by the Management, there ought to be clear allegations against it regarding its fairness and propriety. After these allegations, the worker ought to have brought a sufficient amount of evidence to prove these allegations. In the present case, the worker made allegations in the claim and evidence affidavit both, but he could not maintain them during the course of his cross - examination. She failed to have proved those allegations with an evidence.
32. Although the evidence of the Management has been rejected by this court on the grounds as aforesaid, but it is further observed by this court that the requirement of the evidence by the worker and the Management is not simultaneous. It is faor the workman, first to establish a case by pleading an allegation and then proving the allegation by evidence. The Management's role starts only thereafter. If the worker failed to prove these allegations against the Management's action, then the Management is not duty bound to lead any evidence even in that case because that will be without any requirement.
33. Exactly the same ha happened in this case. The worker has failed to prove the allegations on the enquiry and the Management has failed to bring on record any admissible evidence. As a result of whole of the circumstances, the worker has failed to prove that the enquiry held against her by the Management was not fair and proper.
34. As a result, the enquiry is held to be effective.
35. Now to come up for submissions / arguments of the worker on the point of quantum of punishment inflicted by the Management, as per schedule given in the ordersheet.
ANNOUNCED IN THE OPEN COURT ON 08.12.2011.
Dr. P S MALIK POLC XI, Karkardooma Courts, Delhi ORDER ON ENQUIRY ISSUE Page 8 of 8