Delhi District Court
Sh. Ramesh Kumar vs M/S Hotel Intercontinental on 6 March, 2010
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IN THE COURT OF SH. DAYA PRAKASH
PRESIDING OFFICER LABOUR COURT NO. XVI
KARKARDOOMA COURTS : DELHI
ID NO. 483/06/05
Sh. Ramesh Kumar
S/o Late Sh Tara Chand
R/o B273, Prem Nagar,
1st S.T.Block, Nangloi
New Delhi. ...... Workman
VERSUS
M/s Hotel Intercontinental, The Grand
New Delhi, Barakambha Avenue,
Connaught Place,
New Delhhi110001. ...... Management
ORDER ON ENQUIRY ISSUE
1.Direct industrial dispute filed by the workman stating therein that the workman was working with M/s Hotel Intercontinental The Grand as a driver since 15.05.90 and his record of service was good and his last drawn wages were Rs. 5020/. It is stated that the workman had been protesting against the vindictive attitude of the management in illegally and wrongfully terminating the services of his coworkmen. It is further stated that some officers of the management asked the 1/16 2 workman to desist from his act or face dire consequences including face dismissal from service but the workman refused to oblige the management. It is further stated that the management vindictively suspended the workman for no fault of his by issuing false and baseless allegation on the workman on 11.03.05 and thereupon the management issued a vindictive chargesheet dt. 12.09.05 on the workman. The workman rebutted the charges vide his reply dt. 23.03.05. It is stated that the management foisted a farcical enquiry against the workman and appointed Ms. Jyotica Bhasin, Advocate, a professional Enquiry Officer to conduct the enquiry against the workman. It is further stated that the workman participated in the enquiry and rebutted all the charges levelled him, however, management did not consider any of his reply. It is further stated that the enquiry conducted by the management was against the principles of natural justice and was just a mere eye wash. It is also stated that the points raised by the workman during the enquiry was not recorded by the Enquiry Officer and he tailored the findings just to suit the management. It is further stated that the Enquiry officer only recorded the version of the management and whatever the workman said during the enquiry was never recorded and the workman was even threatened on several occasions by the Enquiry Officer. It is further stated that as the workman was an illiterate and being not aware of the procedure of the enquiry was not allowed to be represented by the representative of his choice 2/16 3 and the management was represented by a legally trained person. It is further stated that relying upon the inquiry report the management illegally and wrongfully terminated the permanent services of the workman w.e.f. 22082005 without giving him notice or pay, no retrenchment compensation was offered to the workman. It is further stated that no show cause notice was given to the workman before terminating the services of the workman. It is further stated that thereupon the management gave a cheque to the workman amounting to Rs. 32,231/ which the workman accepted under protest and without prejudice to his claims and contentions. The workman thereupon served a demand notice on the management dated 11102005 to reinstate the workman with continuity of service and full back wages, though in receipt of the demand notice the management did not concede his demand. It is further stated that the management's action is illegal, wrongful and malafide besides being an act of victimization and unfair labour practice. It is further stated that the workman is entitled to be reinstated with continuity of service and full back wages. It is further stated that the workman has been unemployed since his illegal and wrongful termination and he could not get any job despite his best of efforts.
2. Notice of claim was issued to management. AR for management appeared and filed WS wherein it is stated that the 3/16 4 workman has been dismissed from service after holding a proper enquiry and, as such, the Management relies upon the same in the first instance. It is further sated that on 10.03.2005, at about 1115 hours, Mr. S. Kumar, Transport Supervisor instructed the workman to pick up Mr. Dudeja, Head Company Secretary & Legal from the Airport. He also handed over to the workman the Paging Sheet. It is further stated that the workman, however, without any rhyme, reason or justification refused to go the Airport and pick up Mr. Dudeja. It is further stated that not only that he refused to obey the lawful orders of his superiors, he also tore up the Paging Sheet. It is further stated that the matter was then reported to Mr. Virender Gupta, ManagerTransport. Since the workman had refused to carry out the assigned duties and pick up Mr. Dudeja from the Airport, the ManagerTransport on the advice of Human Resources Manager, marked the workman absent from duty and asked him to go home. At about 2.45 P.M., the workman entered the office of Mr. Virender Gupta and started shouting on the top of his voice, abusing him in filthy and obscene language referring to his mother and sister. He also threatened to beat him outside. When Mr. Virender Gupta asked the workman to behave, he lost his temper and gave him a fist blow. It is further stated that thereafter, the Security had to be summoned and the workman was taken to the security officer. Even in the security office, the workman kept on shouting and abusing Mr. Virender Gupta in filthy language threatening him of 4/16 5 dire consequences. The matter was then reported to Mr. Avinash Verma, HRD Manager who also came to the security office and in his presence also, the workman refuse to calm down, continued to shout and abuse Mr. Vijender Gupta in filthy and obscene language. It is further stated that since the aforesaid conduct of the workman constituted misconduct, Ms. Jyotica Bhasin, Advocate, an impartial person unconnected with the affairs of the Hotel was appointed as the Enquiry Officer. It is further stated that the Enquiry Officer conducted the enquiry in accordance with principles of natural justice and she gave full opportunity to the workman to defend the charges. The workman was allowed to be represented in the enquiry by a co workman and due opportunity was given to him to crossexamine the Management witnesses and which opportunity was duly availed of by him. After the conclusion of the Management evidence, the workman was given opportunity to lead evidence in defense as well. The enquiry, thus, has been conducted in consonance with the principles of natural justice. It is further stated that based on the evidence on record, the Enquiry Officer held the workman guilty of the charges. A copy of the report of the Enquiry Officer was sent to the workman for his comments vide letter dated 06.06.2005. It is further stated that the workman duly submitted his representation to the report of the Enquiry Officer vide his letter dated 13.6.2005. It is further stated that the management having found no substance or merit in the 5/16 6 representation made and having found that the enquiry had been conducted properly and in accordance with principles of natural justice, came to the conclusion that the enquiry was conducted fairly and that the findings of the Enquiry Officer holding the workman guilty of the charges were based with the findings of the Enquiry Officer. It is further stated that In view of the gravity of the misconduct and in the absence of any extenuating circumstances, the workman was dismissed from service vide letter dated 22.08.2005. It is further stated that the dismissal of the workman on the facts and circumstances stated above, is valid and in accordance with law.
In reply on merits, management denied the allegations levelled by the workman in his statement of claim.
3. Subsequently, Rejoinder to the W.S. of the management was filed wherein the workman has denied the allegations made in the WS and reiterated the averments contained in the claim.
4. After completion of pleadings, following issues were framed on 19.12.06 :
1. Whether the management has conducted fair, proper enquiry and according to the principles of natural justice?
2. Whether the management has terminated services of 6/16 7 workman illegally or unjustifiably and if so, to what relief is he entitled and what directions can be given in this regard?
Issue of enquiry was treated as preliminary issue and case was adjourned for leading evidence.
5. Parties led their evidence.
On behalf of workman, workman Sh. Ramesh Kumar examined himself as WW1 On behalf of management, Ms. Jyotica Bhasin deposed as MW1 and Sh. Sant Ram as MW2.
6. WW 1 in evidence by way of affidavit supported the averments made in the claim and got exhibited the documents Ex. WW1/1 to WW1/5.
In his cross examination, he admitted that he was issued an appointment letter Ex. WW1/M1. He further admitted that he had signed at point A on Ex. WW1/M2 in token of receiving handbook containing my service conditions. He further admitted his signatures at point A on suspension letter Ex. WW1/M3. He also admitted that he was issued charge sheet dt. 21.03.05 Ex. WW1/M4 which bears his signature at point A. He deposed that copy of his explanation is Ex. WW1/M5. He admitted that thereafter the management instituted a domestic enquiry into the 7/16 8 charges levelled against him and he was issued letter dt. 28.03.05 and copy of the same is Ex. WW1/M6 bearing his signature at point A. He admitted that he participated in the enquiry throughout and signed the enquiry proceedings. He deposed that copies of the enquiry proceedings dt. 04.04.05, 07.04.05, 13.04.05, 15.04.05, 21.04.05,25.04.05, 28.04.05, 09.05.05, 13.05.05, 17.05.05, 20.05.05, 25.05.05, 27.05.05 and 28.05.05 bear his signature. He admitted that he had submitted Ex. WW1/M8 in the enquiry. He deposed that he had also submitted letter dt. 04.05.05 and 27.05.05 in the enquiry and copy of the same is Ex. WW1/M9 and Ex. WW1/M10. He admitted that he was supplied copy of the enquiry report. He also deposed that copy of management's letter dt. 06.06.05 bears his signature at point A which is Ex. WW1/M11. He further admitted that he had submitted letter dt. 13.06.05 Ex. WW1/M12. He further admitted that the copy of the enquiry officer's letter dt. 02.07.05 bears his signature at point A in token of receipt of the enquiry report and the same is Ex. WW1/M13. He deposed that his grievance against the enquiry that though the inquiry officer was an advocate and the management representative was the Personal Manager of the hotel and thus fully well versed with law. He stated that he was not allowed to bring his union representative Mr. Des Raj and instead he was asked to bring only a coemployee. He deposed that the said Des Raj was an outsider and did not work with the management. He further 8/16 9 deposed that he wanted to produce Mr Ravinder Thakur, Security Officer in the management as defence witness during enquiry but he was not allowed to appear as a witness during enquiry and he was terminated from his services. He suggested it wrong he had produced the aforesaid Ravinder Thakur as his witness in the enquiry and his statement was duly recorded in the enquiry as his witness. He suggested it wrong that he stated in the enquiry that he did not wish to bring any representative and that he would conduct his case himself. He deposed that he did not give in writing to the management or the enquiry officer that he wants to bring any particular co employee as his representative. He suggested it wrong that Mr. Avinash Verma had only appeared during enquiry for his statement and cross examination. He deposed that he had not written any letter to the management, enquiry officer or any union or the labour department that the enquiry was not being conducted in a proper manner because he cannot read or write.
7. MW1 in his examination in chief supported the averments made in the WS and got exhibited the documents ex. MW1/1 and MW1/2.
In cross examination, she deposed that she is practicing advocate. She admitted that Mr. Amit Bhasin is a practising advocate. She suggested it wrong that Mr. Amit Bhasin is an officer bearer of commercial and industrial employers 9/16 10 association. She further deposed that she had conducted several enquiries in respect of the employees of M/s Bharat Hotel. She suggested it wrong that in all the enquiries, she has held the workman guilty of charges levelled against him. She suggested it wrong that the workman requested to bring his defence assistant from the union which was refused by her. She deposed that she does not know if the management has its own certified standing orders or not. She voluntarily deposed that they have their own service conditions. She deposed that it is a matter of record whether copy of service conditions were supplied to workman or not during enquiry proceedings. She suggested it wrong that workman had told her that he was appointed by Bharat Hotel Ltd. and not by Intercontinental and therefore, present management has no right to hold enquiry against him.
8. After examining MW1 Ms. Jyotica Bhasin, ME was closed. However, an application was filed on behalf of management for placing additional documents on record. The application was allowed and on submissions of AR for management, MW 1 Ms. Jyotica Bhasin was further examined for proving documents Ex. MW1/3 and MW1/4.
She was again cross examined in which she suggested it wrong that the documents Ex. MW1/3 and MW1/4 were never filed in the enquiry or that the original thereof were never shown 10/16 11 in the enquiry. She further suggested it wrong that the documents produced today were intentionally not produced during enquiry proceedings. She further suggested it wrong that the copy was not supplied to the workman.
9. MW2 in his examination in chief supported the averments made in the WS and got exhibited the documents Ex. MW2/1 to MW2/3.
In cross examination, he admitted that Ex. MW2/2 does not bear his signature. He deposed that he joined the management on 01.01.88 as Record Keeper. He suggested it wrong that he was appointed as peon. He also suggested it wrong that Ex. MW2/2 is a fabricated document. He also suggested it wrong that the same does not bear the signature of workman and no employee hand book was ever furnished by the management. He admitted that the personal department had issued the appointment letter to the workman. He further suggested it wrong that no employee handbook was given to the workman at the time of issuance of appointment letter to the him. He further suggested it wrong that no terms and conditions of services were explained to the workman at the time of appointment.
10. Arguments on enquiry issue addressed by both the parties.
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12 It is argued by AR for the workman that the enquiry violated the principles of natural justice. It is further stated that the workman was not given opportunity of his defence during the enquiry proceedings. It is further argued that neither the charges were explained to the workman nor any documents were supplied. Workman was also not allowed to be represented by counsel. Management violated the principles of natural justice and passed the order of termination against the workman. Accordingly, it is prayed that the order be set aside and the workman be reinstated. On the enquiry issue, it is stated that the enquiry be held to be vitiated on principles of natural justice.
On the other hand, AR for the management states that the enquiry was conducted according to principles of natural justice. All the documents were supplied to the workman in Hindi. Workman was also allowed to be represented by his representative but he himself declined for the same. Sufficient opportunities were also given to the workman to cross examine management witness during enquiry and all the MW were duly cross examined by the workman. It is further argued that the management conducted the enquiry in fair and proper manner and on the basis of the enquiry report, services of the workman were dispensed with.
AR for management cited UCO Bank Vs. Presiding Officer, 1999 LLR 1036, Delhi, wherein it was held that:
"the burden lies on the workman to 12/16 13 prove that the enquiry is against the principles of natural justice."
AR for management further cited :
Crescent Dyes and Chemicals Ltd. 1993 Volum 1 LLJ 907 SC para 17, Bharat Petroleum Corporation Ltd. Vs. Maharashtra General Kamgar Union, 1999 Volum 1 LLJ 352 SC Cipla Ltd. 1999 Volume 1 CLR 1077 SC Management of National Seeds Corporation Ltd.
(2007) 2 LLJ 30 SC St. Stephens Hospital Vs. Workman S.K. Adhikari 2008 INDLAW, Delhi 1423 DG, Railway Protection Force Vs. K.R. Babu 2008 INDLAW SC 555.
it was held that :
"it is not the right of the workman to engage any outside person or lawyer as per the hand book Ex. MW2/1 and only a coemployee can be called to defend the workman. Since the workman wants to engaged a person other than the coemployee, his request was declined which was as per the employees' hand book ."13/16
14 AR for management further cited Saran Motors Private Ltd. Vs. Vishwanath 1964 Volume 9 FLR P.7 SC and Dalmia Dadri Cement Ltd. 1970 volume 2 LLJ 416 SC, wherein it was held that:
"Merely because enquiry was conducted by an advocate does not vitiate the proceedings."
AR for management further cited Indra Bhanu Gaur Vs. Committee Management of MM Degree college 2003 Indlaw SC 957 2004 (1) SCC 281, Janki Nath Sarangi Vs. State of Orissa (1970( 1 LLJ 356 SC and Haryana Financial Corporation vs. K.c. Ahuja, 2008 Indlaw SC 1130, wherein it was held that:
"that the charges were explained to the workman, enquiry proceedings were conducted in Hindi, he was allowed to cross examine the management witness, he was also given opportunity to examine his own witnesses, hence no prejudice was caused to the workman in the matter of defending himself in the enquiry."
11. I have seen the file and my inference on the basis of claim, reply and evidence on record are that there was proper and fair enquiry in accordance with principles of natural justice 14/16 15 and the enquiry issue be decided in favour of management and against the workman on the following grounds:
i) It is a fact that the workman was supplied the charge sheet and even the workman filed the reply to the chargesheet.
ii) It is further a fact that at the initiation of the enquiry, workman has insisted to record the proceedings in Hindi.
Accordingly, all the proceedings were recorded in Hindi. Each page of the enquiry proceedings is duly signed by the workman alongwith Enquiry Officer.
iii) Enquiry proceedings shows that after examination of MW, the witnesses were duly cross examined by the workman. The cross examination is in the form of question and answer.
iv) After the conclusion of management evidence, the enquiry proceedings shows that the workman was given opportunity to lead evidence.
v) During the proceedings, workman wanted to engage one Des Raj. It is a fact that Mr. Des Raj was not a co worker and as per the employees' handbook, only a co 15/16 16 worker could be engaged by the workman.
vi) In the charge sheet, it is alleged that workman refused the duty. I have seen the reply to the show cause notice. it is an admitted fact that he refused the duty. Reason may be whatever.
12. In the light of ratio of case laws, reasons and discussions as above, it is held that enquiry was conducted in a fair and proper manner and according to principles of natural justice and findings of enquiry officer were not perverse. This issue of enquiry is decided accordingly.
Announced in the Open Court (DAYA PRAKASH) on 6th March, 2010 Additional District & Session Judge Presiding Officer labour Court XVI Karkardooma Courts : Delhi.
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