Karnataka High Court
The Taj West End Hotel vs Sri. K Venkatesh on 28 October, 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA
WRIT PETITION No.1474/2020 (L-TER)
BETWEEN:
THE TAJ WEST END HOTEL
RACE COURSE ROAD
BENGALURU - 560 001
REPRESENTED BY ITS
AREA-DIRECTOR-KARNATAKA,
GENERAL MANAGER, BENGALURU
SRI SOMNATH MUKHERJEE.
Digitally signed by
VISHAL NINGAPPA ... PETITIONER
PATTIHAL
Location: HIGH
COURT OF
KARNATAKA
DHARWAD BENCH (BY SRI S.N. MURTHY, SENIOR COUNSEL FOR
SRI SOMASHEKAR, ADVOCATE)
AND:
SRI K. VENKATESH
S/O. SRI KARI GOWDA
AGED ABOUT 50 YEARS,
RESIDING AT NO.35, 1ST CROSS,
CHOWDESWARINAGARA
POLICE COWKI, LAGGERE,
BENGALURU - 560 058.
... RESPONDENT
(BY SRI K. SRINIVASA, ADVOCATE)
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE AWARD DATED 30.09.2019 PASSED IN
I.D.NO.22/2016 BY THE PRINCIPAL LABOUR COURT,
BENGALURU AT ANNEXURE-P.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 01/10/2024, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:
CORAM HON'BLE MRS JUSTICE K.S. HEMALEKHA
:
CAV O R D E R
The question that falls for consideration is :
"Whether, on facts and circumstances, the
Labour Court was justified in interfering with the
punishment of dismissal?"
2. Respondent was appointed in the kitchen of the
petitioner, on acts of theft, misappropriation and fraud,
articles of charges were issued, the said charges were based
on an incident that occurred on 03.10.2015, when the
respondent was on duty and post completion of his shift
duties, he had punched at 12.00 hours on 04th October,
2015 early hours, and during that time i.e., about 12.05
hours, while duty security guard at that time Mr. Ranganath
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carried out check on the respondent and his Suzuki motor
cycle bearing Reg. No.KA-02-EE-7958, a Safal brand one
litre oil sachet was found hidden on the tank bag of his two
wheeler, when the security took oil packet from the tank
bag of the two wheeler and questioned, the respondent
requested to forgive him and pleaded not to inform or report
about the same to anyone and tried to snatch the packet
from the security, the respondent held on to the packet and
pulled it hard, as a result of which the packet opened
spilling the oil over the wireless set held by the security
guard, this resulted in malfunctioning of wireless set,
preventing him from calling the duty security officer, when
the security guard went to the land line to make a call and
intimate the duty security officer, the workman got on to his
vehicle and sped away from the scene, the said incident was
informed by Ranganath, Security Guard by way of a
complaint and Neeta, Assistant Security Officer also
reported the incident in this regard on 04.10.2015.
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3. Charge-sheet-cum-suspension pending enquiry
was issued to the respondent, respondent submitted his
explanation admitting that "when the security guard taken
out the oil sachet from the pouch of my vehicle, all of a
sudden, I was surprised and shocked to know that. At that
point of time, in order to ascertain the truth, I tried to take
the sachet from the security guard who resisted it, thereby
leading to break open of the oil sachet." The respondent,
denied the other charge of speeding away from the place,
not being satisfied with the explanation offered, the enquiry
was held, one B.K. Guruprasad was appointed as an Enquiry
Officer, conducted enquiry and management examined six
witnesses and the respondent was assisted by the co-
employee, the Enquiry Officer, arrived at a conclusion that
the respondent was the guilty of charges leveled against
him and second show-cause notice was issued as to why the
report of the enquiry officer should not be accepted and
acted upon, before the Disciplinary Authority on considering
the enquiry report and material placed, passed an order of
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dismissal, the respondent challenged the dismissal order by
raising a dispute under Section 10(4-A) of the Industrial
Disputes Act, 1947 (''the ID Act' for short).
4. Before the Labour Court, the respondent filed a
memo conceding the fairness of domestic enquiry, and in
light of the memo, the domestic enquiry was held to be fair
and proper and the matter was posted for leading evidence
on victimization. The Labour Court by the final award, set
aside the order of dismissal and reinstated the respondent
with continuity of service and full backwages.
5. Heard Sri S.N. Murthy, learned senior counsel for
Sri Somashekar, learned counsel appearing for the
petitioner and Sri K. Srinivasa, learned counsel appearing
for the respondent.
6. Learned senior counsel appearing for the
petitioner would contend:
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i. That the proved act of misconduct of theft deserves
only dismissal from service and nothing else, as the
respondent has admitted in his explanation that an oil
sachet was found from the pouch of his motor cycle by
the security guard and the CCTV footage clearly
reveals the presence of the oil sachet and the
respondent speeding away on the vehicle when the
security guard went to call the officer on the land line,
as the wireless set had got spoiled due to the spilling
of oil on account of breakage of packet.
ii. That the Labour Court could not have substituted the
order of punishment by exercising the powers under
Section 11A of the ID Act and directing reinstatement
with full backwages, when the misconduct is about
theft and in such cases, the punishment imposed by
the disciplinary authority could not have been
interfered with, by the Labour Court.
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iii. Learned senior counsel submits that the observation of
the Labour Court to the effect that the petitioner had
not filed a police complaint about the incident, the
observation is unwarranted and unjustified as not in
every case of theft or any misconduct of an employee
within the premises, a police complaint has to be
lodged. Just because the police complaint is not
lodged, the charge of theft against the respondent
cannot be held as not proved, moreover, when the
explanation of the employee is about admitting the
presence of oil sachet in his motor cycle pouch and the
CCTV footage which clearly reveals the theft
committed by the respondent and that the Labour
Court was not justified in setting aside the order of
dismissal on the ground that the police complaint was
not filed and therefore, the charges are not proved.
iv. The discretion which was exercised under Section 11A
of the ID Act is available only when the punishment is
disproportionate to the gravity of misconduct and that
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in the instant case, it is a case of theft and losing of
trust by the employer, which cannot be substituted by
a lesser punishment and that the Labour Court order
warrants interference. In support of his contention,
learned senior counsel has placed reliance on the
following decisions:
a. Hind Construction & Engineering Co.
Ltd., Vs. Their Workmen1 (Hind
Construction)
b. Janatha Bazar (South Kanara Central
Cooperative Wholesale Stores Ltd.)
and others Vs. Secretary, Sahakari
Noukarara Sangha and others2 (Janatha
Bazar)
c. New Victoria Mills Co. Ltd. Vs.
Presiding Officer, Labour Court and
others3 (New Victoria Mills)
d. Gulab Chand Agrawal Vs. State of
Bihar and others4 (Gulab Chand Agrawal)
1
1965 (10) FLR 65
2
(2000) 7 SCC 517
3
AIR 1970 ALL 210
4
2007 (112) FLR 702
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e. West Bokaro Colliery (Tisco Ltd) Vs.
Ram Parvesh Singh5 (West Bokaro)
f. M/s. Mangalam Timber Products Ltd.
Vs. Sailesh Kumar Gantayat6 (Mangalam
Timber)
g. B.C. Chaturvedi vs. Union of India and
others7 (B.C. Chaturvedi)
h. U.P. State Road Transport Corporation
vs. Mohan Lal Gupta and others8
(Mohan Lal Gupta)
i. Lalit Popli vs. Canara Bank and others9
(Lalit Popli)
j. Mahindra and Mahindra Ltd. vs. N.B.
Narawade10 (Mahindra and Mahindra Ltd.)
k. A.P. SRTC vs. Raghuda Siva Sankar
Prasad11 (Raghuda Siva Sankar Prasad)
l. Lupin Ltd. vs. Melsingh Bhagvansinh
Parmar12 (Melsingh Bhagvansinh Parmar)
5
(2008) 3 SCC 729
6
2009 (121) FLR 1039
7
(1995) 6 SCC 749
8
(2000) 9 SCC 521
9
(2003) 3 SCC 583
10
(2005) 3 SCC 134
11
(2007) 1 SCC 222
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m. Bharat Heavy Electricals Ltd. vs. M.
Chandrasekhar Reddy and others13 (M.
Chandrasekhar Reddy)
n. Christian Medical College Hospital
Employees' Union and another vs.
Christian Medical College Vellore
Association and others14 (Christian
Medical College Hospital Employees' Union)
7. Learned counsel appearing for the respondent
would contend that:
i. The Tribunal is been given with a wide power under
Section 11A of the ID Act, a discretion which is vested
only with the Tribunal to make appropriate award and
the Labour Court having found that the workman was
not wrong is entitled for reinstatement and the full
backwages.
12
2022 LLR 609
13
(2002) 2 SCC 481
14
(1987) 4 SCC 691
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ii. That the Labour Court has rightly held that the alleged
misconduct and its gravity is concerned, the
punishment to the respondent was disproportionate.
iii. Learned counsel submits that even if the Tribunal was
of the view that the domestic enquiry against the
respondent was just and proper, yet it did not debar
the Tribunal from considering whether the particular
findings was supported by evidence and whether the
punishment was disproportionate to the misconduct
and the Tribunal interference with the punishment was
within the powers under Section 11A of the ID Act and
reinstatement ordered by the Labour Court is justified
and proper and in light of reinstatement, awarding of
backwages is the entitlement of the employee.
iv. The award of the Labour Court does not warrant any
interference in the present facts and circumstances of
the case. In support of his contention, learned counsel
has placed reliance on the following decisions:
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a. Jitendra Singh Rathor vs. Shri
Baidyanath Ayurved Bhawan Ltd. and
another15 (Jitendra Singh Rathor)
b. J.K. Synthetics Ltd. vs. K.P. Agrawal
and another16 (K.P. Agrawal)
c. Mavji C. Lakum vs. Central Bank of
India17 (Mavji C. Lakum)
d. Deepali Gundu Surwase vs. Kranti
Junior Adhyapak Mahavidyalaya (D.
ED.) and others18 (Deepali Gundu
Surwase)
8. The charges leveled against the respondent is a
charge of theft, misappropriation, dishonesty, breach of
trust, commission of act of subversive, and after holding an
enquiry, the management dismissed the respondent from
service. The Labour Court in the impugned award failed to
consider the explanation to the charge sheet at Annexure-D
submitted by the respondent, wherein the respondent
15
(1984) 3 SCC 5
16
(2007) 2 SCC 433
17
(2008) 12 SCC 726
18
(2013) 10 SCC 324
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admitted that the oil sachet was found from the pouch of his
vehicle and he tried to take the sachet from the security
guard who resisted it and thereby, there was break open of
the oil sachet. Before the Enquiry Officer, on part of the
management, M.W.1-Sandip Narang the Executive Chef,
M.W.2-Mandipudi Sathish, HR Assistant, M.W.3-Chandan
Taneja, M.W.4-Neetha Chengappa, who reported the
incident and about the CD contents, M.W.5-Narayan D.M.,
M.W.6-Ranganath, Security Guard have deposed about the
incident. M.W.6-Ranganath, Security Guard before the
Enquiry Officer after the CD started playing (M.O.1) gave
the following comments:
"I am standing at the Boom Barrier gate.
Firstly, the Milk van is seen coming to the
Security Staff Gate and when he was lifting the
Boom barrier gate, Mr. Venkatesh went to Time
Office to Punch Out. Then M.W.6 did the physical
search after which the CSO moved from that
point to the other side where CSO's Two Wheeler
was parked. The altercation between M.W.6 and
CSO Mr. Venkatesh was explained by M.W.6.
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When Mr. Ranganath was holding the Safal Oil
Packet, it is observed that he was jostling with
Mr. Venkatesh. Then, Mr. Ranganath went to
Time Office to pick up landline phone. Few
minutes later, Mr. Venkatesh was seen moving
out of the hotel on his two wheeler and moving
away from the scene."
9. M.W.6-Security Guard is the eye witness to the
incident, who categorically stated about the incident that
occurred supporting his complaint. It is fairly well settled
law that an approach and objective in criminal proceedings
and in disciplinary proceedings are altogether distinct.
Preponderance of probabilities and some materials on record
are necessary to arrive at a conclusion whether or not the
delinquent has committed misconduct. In the disciplinary
proceedings, the preliminary question is whether the
employee is guilty of such misconduct which would merit
action against him, whereas, in criminal proceedings, the
question is whether the offence registered against him are
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established and if established, what sentence is to be
imposed.
10. It is also well settled that while exercising the
power under Article 226 of the Constitution, the High Court
does not act as an Appellate Authority. Its discretion is
circumscribed by limits of judicial review to correct errors of
law or procedural errors leading to manifest injustice or
violation of principles of natural justice. Judicial review is not
akin to adjudication of the case on merits as an appellate
authority. Judicial review has been observed in B.C.
Chaturvedi observing that Judicial review is not an appeal
from a decision but a review of the manner in which the
decision is made. Power of judicial review is meant to
ensure that the individual receives fair treatment and not to
ensure that the conclusion which the authority reaches is
necessarily correct in the eye of the law. When an inquiry is
conducted on charges of misconduct by a public servant, the
Court/Tribunal is concerned to determine whether the
inquiry was held by a competent officer or whether rules of
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natural justice are complied with. Whether the findings or
conclusions are based on some evidence, the authority
entrusted with the power to hold inquiry has jurisdiction,
power and authority to reach a finding of fact or conclusion.
But that finding must be based on some evidence. Neither
the technical rules of Evidence Act nor the proof of fact or
evidence as defined therein, apply to disciplinary
proceedings. When the authority accepts that evidence and
conclusion receives support therefrom, the disciplinary
authority is entitled to hold that the delinquent officer is
guilty of the charge. The Court/Tribunal in its power of
judicial review does not act as appellate authority to re-
appreciate the evidence and to arrive at its own independent
findings on the evidence. The Court/Tribunal may interfere
where the authority held the proceedings against the
delinquent officer in a manner inconsistent with the
principles of natural justice or in violation of statutory rules
prescribing the mode of inquiry or where the conclusion or
finding reached by the disciplinary authority is based on no
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evidence. If the conclusion or finding be such as no
reasonable person would have ever reached, the
Court/Tribunal may interfere with the conclusion or the
finding, and mould the relief so as to make it appropriate to
the facts of each case.
11. In the instant case, the disciplinary authority on
enquiry and by following strict proof of legal evidence to
arrive at a conclusion that the respondent was guilty of
charges, the evidence reached by the disciplinary authority
was after looking into all the evidence and there was no
perversity or suffered from any apparent error on the face
of record, as the conclusion arrived was based on the
evidence let-in by the parties. In the decision B.C.
Chaturvedi, the Apex Court further held that where appeal
is presented, the appellate authority has co-extensive power
to re-appreciate the evidence or the nature of punishment.
12. In the present case, the case is of
misappropriation, theft, where the charges are serious in
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nature. The act of theft / misappropriation once proved,
either it be a small or large or a small thing, the question is
mistrust by the employer, wherein in such cases, it is
uncalled for by way of sympathy to reinstate the employee
into service. The misconduct is stated by the Security
Guard who is an eye witness and the incident is recorded in
the CCTV Footage as per CD at M.O.1, which is categorically
spoken to by M.W.6-the Security Guard. The respondent
having admitted in his explanation that the oil sachet was
found from the pouch of his motor cycle and the CCTV
Footage clearly revealed the presence of the oil sachet and
the respondent speeding away on the vehicle when the
security guard had been to call on landline, the Labour Court
ought to have held that the charges are proved and the
respondent deserves punishment of dismissal.
13. The Apex Court in the case of Mahindra and
Mahindra Ltd., has held at paragraph No.20 as under:
"20. It is no doubt true that after
introduction of Section 11-A in the Industrial
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Disputes Act, certain amount of discretion is
vested with the Labour Court/Industrial Tribunal
in interfering with the quantum of punishment
awarded by the management where the workman
concerned is found guilty of misconduct. The said
area of discretion has been very well defined by
the various judgments of this Court referred to
hereinabove and it is certainly not unlimited as
has been observed by the Division Bench of the
High Court. The discretion which can be exercised
under Section 11-A is available only on the
existence of certain factors like punishment being
disproportionate to the gravity of misconduct so
as to disturb the conscience of the court, or the
existence of any mitigating circumstances which
require the reduction of the sentence, or the past
conduct of the workman which may persuade the
Labour Court to reduce the punishment. In the
absence of any such factor existing, the Labour
Court cannot by way of sympathy alone exercise
the power under Section 11-A of the Act and
reduce the punishment. As noticed hereinabove
at least in two of the cases cited before us
i.e. Orissa Cement Ltd. and New Shorrock Mills
this Court held: "Punishment of dismissal for
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using of abusive language cannot be held to be
disproportionate." In this case all the forums
below have held that the language used by the
workman was filthy. We too are of the opinion
that the language used by the workman is such
that it cannot be tolerated by any civilised
society. Use of such abusive language against a
superior officer, that too not once but twice, in
the presence of his subordinates cannot be
termed to be an indiscipline calling for lesser
punishment in the absence of any extenuating
factor referred to hereinabove."
14. The Labour Court could not on the sympathy
alone while exercising the power under Section 11A of ID
Act, direct reinstatement and backwages, when the material
on record was sufficient to hold the respondent was guilty of
charges, the punishment of dismissal for the misconduct
cannot be said to be disproportionate, the Labour Court was
not justified in substituting the order of dismissal to its own
judgment, when it involved a serious case of theft, the
nature of work which was entrusted to the respondent was a
work of trust, the Labour Court could not have assumed that
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false charges are made in order to remove him from service,
when there is no pleading or evidence whatsoever in this
regard either in explanation to the charge-sheet or in the
claim statement or in the evidence of the respondent, the
Labour Court has marshled the evidence as though it is
criminal trial and on assumption, has come to erroneous
conclusion that the charges were falsely framed against the
respondent and the respondent has been discriminated and
dismissal is highly disproportionate, which is totally contrary
to the material on record, the Labour Court was not justified
in interfering with the punishment of dismissal, the decisions
placed reliance by the learned counsel appearing for the
respondent are distinguishable and not applicable to the
present facts and this Court pass the following:
ORDER
i. Writ petition is hereby allowed.
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ii. Impugned order passed by the Labour Court is hereby set aside, the order of the disciplinary authority is hereby confirmed.
Sd/-
______________________ (JUSTICE K.S. HEMALEKHA) MBM