Delhi District Court
Sh. J.S. Rawat vs M/S Taj Palace Hotel on 17 October, 2008
ID No. 38/2006/2002
1
IN THE COURT OF SH. S.K. KAUSHIK
PRESIDING OFFICER LABOUR COURT, No. XII,
KARKARDOOMA COURTS, DELHI
ID No. 38/2006/2002
INDUSTRIAL DISPUTE BETWEEN
Sh. J.S. Rawat
S/o Sh. B.S. Rawat
R/o D - 354 / 13, Laxmi Nagar,
Delhi - 110092.
...........Workman
AND
M/s Taj Palace Hotel,
2, Sardar Patel Marg,
Diplomatic Enclave,
New Delhi - 110021
..........Management
Date of Institution: 11.09.2002
Date of Arguments: 03.10.2008
Date of Award: 17.10.2008
AWARD
1. An Industrial Dispute between the management of Taj Palace Hotel,
2, Sardar Patel Marg, Diplomatic Enclave, New Delhi - 110021 and its
ID No. 38/2006/2002
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workman Sh. J.S. Rawat R/o D - 354 / 13, Laxmi Nagar, Delhi -
110092 was referred by Secretary (Labour), Government of The
National Capital Territory of Delhi for adjudication in exercise of powers
conferred by section 10 (1) (c), 10 (1) (d) and 12 (5) of the Industrial
Dispute Act 1947 (in short Act) vide his Order No. F.24 (1160)/
2002/Lab./14465 - 69 dated 24.7.2002 with the following terms of
reference:
"Whether Sh. J.S. Rawat S/o Sh. B.S. Rawat has been
dismissed from service illegally and / or unjustifiably by
the management and if so, to what sum of money as
monetary relief along with other consequential benefits in
terms of existing Law/Govt. Notifications and to what
other relief is he entitled and what directions are
necessary in this respect? "
2. The notice of the reference was issued to the workman who
filed statement of claim alleging that he was appointed by the
management on probation as Steward vide ticket No. 4430 on 12.2.85
and his last drawn monthly wages were Rs. 3000/- besides other perks
and benefits and after completion of the probation period, he became a
permanent employee. It is stated that on 06.11.91 he reported for his
duty at about 10:40 PM when he saw that Sh. Jagat Singh and Mohan
ID No. 38/2006/2002
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Singh had been sitting outside the employees gate who on his enquiry
told him that they were not permitted to enter into the gate by security
guards; that at about 01:00AM police came who took him away along
with other employees including Ranbir Saran and other officials to police
station where a case U/s 107/151 of Cr.P.C. was registered at PS
Chankyapuri against Sh. K.N. Sharma, Asst. Security Manager Sh.
Ranbir Saran and Sh. Rajeev Anand Security Manager, who were later
on discharged by Special Executive Magistrate and at about 4.30AM he
along with other employees came back to the hotel where he was
directed to report in the evening; that on 07.11.01 at about 10.40PM he
reported for duty but officers of the management refused to take him on
duty and he was served with a charge sheet, inter-alia, alleging that he
committed misconduct on 06.11.91 by instigating the hotel employees
not to listen to the security personnel and to beat them up if they stopped
them, due to which a group of employees became violent and started
physically beating Security Guards and Sh. Ranbir Saran Assistant
Security Manager present at that time and that he also shouted abusive
language and he was directed to submit his explanation within 48 hours
ID No. 38/2006/2002
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as to why disciplinary action be not taken against him; that he submitted
his explanation (reply) to the charge sheet to the Area Manager of the
Hotel, denying each and every allegation and also denied charges of
alleged misconduct and then a domestic enquiry was conducted by Sh.
R.P. Dutta, Joint Labour Commissioner (Retd.). He has alleged that the
inquiry officer acted prejudicially, partially and conducted the enquiry
with a biased and predetermined mind to which he protested from time
to time; that the report of the enquiry officer and enquiry is based on
conjectures and surmises and suffers from infirmity and non -
application of mind and for this reason the same is perverse and
unsustainable and management should not have accepted this report.
He stated that the enquiry officer submitted his report on 22.6.94 and the
termination order was issued only on 28.1.1995 i.e. after lapse of seven
months and so the termination of his service amounts to retrenchment
being in violation of provisions of ID Act. It is stated that he sent a
demand notice dated 28.8.01 but management did not act upon it. It is
stated that he filed his claim before conciliation officer but conciliation
proceedings failed resulting into this reference. Workman claimed that
ID No. 38/2006/2002
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he is entitled to be reinstated with continuity of service and full back
wages.
3. Management contested the claim and filed written statement. By
way of preliminary objection it is stated that the workman was dismissed
from service vide letter dated 16.3.95 and he raised the present dispute
in December 2001 and so dispute raised by him is highly belated and is
liable to be dismissed. Before submitting para wise reply, management
stated following brief facts :
(i) On 06.11.91 S/Sh. Jagat Singh and Mohan Singh were
rostered for duty in the night shift from 12 midnight to 8AM. Sh.
Jagat Singh, however, came at the employees gate of the hotel at
about 9.15PM and wanted to go inside the hotel. Sh. D.K. Barua,
Security Officer informed Sh. Jagat Singh that since his duty was to
commence only at 12 midnight, he could not be allowed entry into
the hotel. Sh. Mohan Singh, Doorman, thereafter, came to the
hotel at about 10PM and since his duty was also to commence at
ID No. 38/2006/2002
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12 midnight he along with Sh. Jagat Singh sat at the employees'
gate.
(ii) Jagat Singh and Mohan Singh sent message inside the hotel
through some of the employees that they had been stopped at the
employees gate and were not being allowed entry. After this
message was flashed S/Sh. Rajinder Singh, Leela Dhar, Gyan Dev,
Sunil Wankhede, Jang Bahadur, D.Singh and few others left their
duty places and marched in a procession towards the Time Office
at about 10.25PM. S/Sh. K.N. Sharma and Krishna Bahadur, the
security Guards on duty stopped the said mob of about 10 persons
and told them that they could not be permitted to go out without the
permission of the Department Heads, upon which S/Sh. Rajinder
Singh, Leela Dhar, Gyan Dev, Sunil Wankhede, Jang Bahadur, D.
Singh and others became agitated and threatened the Security
Guards of physical assault if they even attempted to stop them
from going out as they had to bring S/Sh. Jagat Singh and Mohan
Singh in the hotel.
ID No. 38/2006/2002
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(iii) The aforesaid group of workmen insisted and agitated for
going out through the time office to Rani Bagh, Sh. J.S. Rawat
Steward whose duty was to commence at 11PM onwards also
arrived at the scene. Sh. J.S. Rawat, instigated the aforesaid group
of workmen not to listen to the Security Personnel and told them to
beat them up if they stopped him. On the instigation of Sh. J.S.
Rawat, the said mob became violent, physically pushed the
security guards on duty and rushed out of the time office. Sh. J.S.
Rawat, thereafter, shouted from outside the time office for S/Sh.
Jagat Singh and Mohan Singh who were at that time at the
employees gate and told them:
"Tum log andar aa jao, mai dekhta hoon
kaun madarchod tumko hotel jane sey
rokta hai. In security officer behenchoodo
ko dikha dounga agar kisine ino rokane ki
koshish kee"
(iv) At the instigation of Sh. J.S. Rawat, Sh. Jagat Singh and Sh.
Mohan Singh came inside the employees gate and stood along with
ID No. 38/2006/2002
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other workmen at the entrance of the time office and insisted upon
entering the hotel forcibly. Sh. Ranbir Sasson Assistant Security
Manager who was also present throughout, once again advised Sh.
J.S. Rawat, Jagat Singh, Mohan Singh, Rajinder Singh and others
not to take the law in their hands as S/Sh. Jagat Singh and Mohan
Singh could not be allowed to enter the hotel as their duty was to
commence only at 12 midnight. S/Sh. J.S. Rawat, Jagat Singh,
Mohan Singh, Rajinder Singh and Leela Dhar shouted down to the
Assistant Security Manager and told him in a rude insulting and
abusive language:
"Tu maliko ka kutta hai. Tu inko kya
rokega. Himmat hai rok key dikha. Hum
to andar jayange. Pitna hai to roke, nahi
to hame jane do."
(v) Having said so, S/Sh. J.S. Rawat, Jagat Singh, Mohan Singh,
Rajinder Singh and Leela Dhar turned to the group of workmen
collected at the Time Office and exhorted them to force their entry
inside the hotel and beat up the Assistant Security Manager and
ID No. 38/2006/2002
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other security personnel if they attempted to stop them from
entering the hotel as it was time for: -
"In kutton ko sabak sikhana padega tabhi
baaz ayenge"
(vi) Having said so, Jagat Singh, Mohan Singh, J.S. Rawat,
Rajinder Singh and Leela Dhar started forcing their entry inside the
Time Office and asked others to follow them. The Assistant Security
Manager along with other security personnel on duty formed a
human chain to stop them from entering into the hotel. S/Sh. J.S.
Rawat, Jagat Singh, Mohan Singh, Rajinder Singh and Leela Dhar
physically pushed the Assistant Security Manager and other
security personnel on duty and rushed inside the Time Office, took
out the time cards and the same was forcibly punched by S/Sh.
Jagat Singh and Mohan Singh. When Sh. Rajeev Anand, Security
Assistant objected to the taking out of the time cards and punching
unauthorizedly, S/Sh. Leela Dhar, the Utility Worker and Rajinder
Singh Utility Worker physically caught hold of Sh. Rajeev Anand
ID No. 38/2006/2002
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and gave him fist blow on his body. At the instigation of Jagat
Singh and others, the aforesaid group of workmen also raised
slogans, held demonstration and used abusive language against
the management.
(vii) It was about 11PM that Sh. Triloknath Joshi. Asst. F&B
Manger, Sh. S.S. Pillai, stewarding Manager, Sh. P.P. Kasaria,
Cafetaria Incharge and some other officers of the hotel also arrived
at the scene. Sh. Joshi tried to pacify Sh. J.S. Rawat who at that
time was in a extremely violent mood. Sh. J.S. Rawat, instead of
heeding to the advice of the senior officer, shouted at Mr. Triloknath
Joshi and abused him by saying:
"Madarchod tu apne department ko jakar
dekh. Tere Bato me ham nehin anewale.
Aaj to ham eent se eent baja denge. Hotel
ko aag lagana pade to wobhi lagadenge."
(viii) S/Sh. J.S. Rawat, Rajinder Singh, Leela Dhar, Jagat Singh
and Mohan Singh, thereafter, one by one made inflammatory
ID No. 38/2006/2002
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speeches exhorting the workmen to resort to violence and beat up
the officers who were trying to take action against the workers. Sh.
Leela Dhar instigated the workmen who were yet to resume their
duties to go to the locker room, change and come down as:
"In madarchodo ko sabak sikhana hai"
(ix) At the instigation of S/Sh. Leela Dhar, J.S. Rawat and others
mentioned above, S/Sh. Jagat Singh, Mohan Singh as well as J.S.
Rawat went to the locker rooms, changed into uniforms and they
collected a mob of about 15 to 20 employees and marched towards
the Time office in a procession raising slogans at the top of their
voice. On arriving at the Time Office, S/Sh. Jagat Singh, Mohan
Singh. J.S. Rawat, Leela Dhar and Rajinder singh shouted at the
mob, instigating them to resort to violence and beat up the security
personnel by saying:
"Dekhte kay ho? In sab salon ko taiya
coat aur pant uthar do. Inku iysa peeto
ID No. 38/2006/2002
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ki yeh afsari bhool jayange".
(x) Having said so S/Sh. J.S. Rawat, Rajinder Singh, Leela Dhar,
Jagat Singh and Mohan Singh started beating the security
personnel on duty. J.S. Rawat caught hold of Assistant Security
Manager Sh. Sasson by his collar, pulled his tie thereby tightening
its noose and making him uncomfortable and also gave him
repeated slaps on his face. S/Sh. K.N. Sharma and Krishna
Bahadur, Security Guards were physically caught hold of by Sh.
Jagat Singh, Mohan Singh, Leela Dhar, J.S. Rawat, Rajinder Singh
and Gyan Dev and were given fist blows all over their body. Sh.
J.S. Rawat and Sh. Leela Dhar shouted:
"Jisne ma ka doodh piya hai wo bahar
aajaye. Sabko domestic enquiry khlenge.
Aaj kisi ko bhi jinda ghar nahi jaane denge"
(xi) Since aforesaid conduct on the part of the claimant constituted
an act of gross misconduct, he was issued a charge sheet dated
07.11.91 and his explanation was also called for. In view of the
ID No. 38/2006/2002
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gravity of the charges and in the interest of discipline, he was also
placed under suspension. Mr. R.P. Dutta a retired officer of the
Labour Department, Delhi was appointed as the Enquiry officer. Mr.
R.P. Dutta, an impartial person being not connected with the affairs
of the company, conducted the enquiry in accordance with
principles of natural justice. He gave full opportunity to the claimant
to rebut the charges levelled against him. Workman was also
allowed to be represented by a person of his choice in the enquiry.
(xii) Enquiry officer submitted his report dated 22.6.94 based on
evidence on record and held the claimant guilty of the charges. A
copy of the enquiry report was sent to the claimant on 14.1.95 but
claimant deliberately avoided to take delivery of the report when
tendered by the postal authority and the same was returned to the
management as undelivered.
(xiii) On examining the enquiry proceeding, report of the Enquiry
Officer and all relevant material on record, management came to
ID No. 38/2006/2002
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the conclusion that the enquiry was conducted in accordance with
the principles of natural justice and that the workman had been
given full opportunity to rebut the charges. The management,
therefore, concurred with the findings of the Enquiry Officer.
(xiv) Since the charges found proved against the workman were
serious in nature, management came to the conclusion that his
retention in employment was not conducive to the interest of the
organization in general and discipline in particular and, as such, a
second show cause notice dated 28.1.95 was issued to the
claimant, calling upon him to show cause as to why he be not
dismissed from service.
(xv) The claimant, once again, did not take delivery of the second
show cause notice when tendered by the postman and so the
same was also returned to the management as undelivered. In
view of the gravity of the charges, management ultimately
dismissed the workman from service vide letter dated 16.3.95.
ID No. 38/2006/2002
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4. In para wise reply to the statement of claim, management denied
each and every claim of the workman and stated that his claim is liable
to be dismissed. By way of additional plea management prayed for leave
to lead evidence on merits in case the enquiry was found to have been
vitiated on any ground. Management submitted that workman is not
entitled for any relief under the facts and circumstances of the case.
5. In the rejoinder the workman controverted the averments as
contained in the written statement and reaffirmed the averments as
stated in the statement of claim.
6. From the pleadings of the parties following issues were framed
for trial:
1. Whether the enquiry conducted by the management is not fair
and proper?
2. As per terms of reference.
ID No. 38/2006/2002
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7. When the case was at the stage of workman evidence, authorized
representative for the workman moved an application dated 05.4.2004
for disposal of the referred industrial dispute in terms of the judgment of
the Apex Court in Jaipur Zila Sahkari Bhoomi Vikas Bank Ltd. Vs. Shri
Ram Gopal Sharma and others: 2002 (92) FLR 667 (SC) as
management did not obtain approval of the Industrial Tribunal before
dismissing the workman, as an Industrial Dispute of general demands
was pending before the Industrial Tribunal - II. Management contested
this application by filing detailed reply stating inter alia that the
proceedings in ID No. 06/1992 before Industrial Tribunal did not
constitutes an Industrial Dispute and so provision of Section 33 ID Act
had no application. Vide order dated 26.10.2004 it was ordered that this
application shall be disposed off while answering the reference.
Thereafter workman moved another application dated 25.7.2005 for
recalling the order dated 26.10.04. The Ld. Predecessor dismissed this
application of the workman vide order dated 13.3.06. Thus the
application dated 05.4.04 of the workman is also to be disposed off vide
this award.
ID No. 38/2006/2002
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8. Both the parties led evidence on issue no.1 which was treated as
preliminary issue by the Ld. Predecessor. Workman filed his affidavit
Ex.WW1/A. He relied upon 3 documents Ex.WW1/1 to Ex.WW1/3. He
was cross examined by Authorised Representative for the management.
9. Management filed affidavit Ex.MW1/A of MW1 Sh. Ramesh Shokeen
it's Assistant Manager (Industrial Relations and Welfare) who relied
upon eleven documents Ex.MW1/1 to Ex.MW1/11 and Ex.WW1/M3. He
was cross examined by AR for the workman. Parties did not lead
evidence on the reference issue.
10. I have heard learned authorized representatives (hereinafter to be
referred as AR) of the parties and have gone through the record.
Findings on the issues are as under: -
ISSUE NO. 1
11. This issue was treated as preliminary issue and was disposed of by
ID No. 38/2006/2002
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the Ld. Predecessor of the court vide his separate order dated 17.9.2007
whereby it was held that the domestic enquiry was conducted as per
principles of natural justice and this issue was decided against the
workman and in favour of management. This order on enquiry issue
passed by the Ld. Predecessor is to form a part of this award.
ISSUE NO.2
12. Before proceeding further, one contention of AR for workman needs
to be considered as this contention has a bearing on disposal of this
issue. He submitted that dismissal of the workman by the management
was illegal in view of the judgement of Apex Court reported as Jaipur
Zila Sahkari Bhoomi Vikas Bank Ltd. Vs. Shri Ram Gopal Sharma
and others: 2002 (92) FLR 667 (SC) (hereinafter to be referred Jaipur
Jila's case). Elaborating his contention he submitted that workmen of
the management had raised a dispute which was referred to the
Industrial Tribunal-II at Tis Hazari Courts vide reference No. F.24(3940)/
91 - Lab. 36619 - 24 dated 27.12.91 registered as ID No. 06/1992 in
which an award was passed by the Industrial Tribunal on 29.5.1995. He
ID No. 38/2006/2002
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submitted that since a dispute was pending before Industrial Tribunal-II
Delhi and so management could not have dismissed the service of the
workman J.S. Rawat without seeking approval U/s 33 (2) (b). He
submitted that in this case management moved an application seeking
approval of the Industrial Tribunal but later on this application was
withdrawn and so dismissal of the workman on the basis of domestic
enquiry during pendency of the industrial dispute was illegal and
unjustified in view of the judgment of Apex Court in Jaipur Jila's Case.
13. In reply, AR for the management submitted that reliance placed by
AR for the workman upon Jaipur Jila's Case is misconceived as this
decision has no application to the facts of the instant case because
reference in I.D. No. 6/92 did not constitute an industrial dispute as
subject matter of the reference was never espoused by the workmen
employed with the management and also for the reason that reference in
I.D. No.6/92 was barred by an existing settlement dated 10.6.1988 and
workman Sh. J.S. Rawat during cross-examination admitted that
reference in I.D. No. 6/92 was barred by an existing settlement and that
ID No. 38/2006/2002
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dispute in I.D. No. 6/92 was never espoused by the workers of Hotel Taj
Palace. He submitted that as per his own admission of the workman,
reference in I.D. No. 6/92 did not constitute an industrial dispute and so
the proceedings pertaining to this reference before Industrial Tribunal did
not meet the requirement of Section 33 I. D. Act and so there was no
legal requirement for the management to obtain approval of the Tribunal
in respect of dismissal of the workman from service and withdrawal of
the approval application by the management is of no consequences as
there was no requirement in law in the first instance for the management
for obtaining any approval. He submitted that the law is well settled that
mere pendency of any proceeding before various authorities mentioned
in section 33 I. D. Act is not sufficient to attract this provision as what is
necessary is that such proceedings should be in respect of an industrial
dispute. He relied upon the judgments reported as Essorpe Mills
Limited vs. Presiding Officer, Labour Court and Others : (2008) 2
Supreme Court Cases (L&S) 436 (hereinafter to be referred as
Essorpe Mills's case), Chandermani Vs. P.K. Jain & Ors. : (2003) 102
FJR 351 (Delhi), Gowri Shanker Oil Mills vs. Industrial Tribunal :
ID No. 38/2006/2002
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1962 (2) LLJ 527 (Mysore) and Pheros & Company Limited vs.
Presiding Officer Labour Court : 1971 (23) FLR 77 (Assam).
14. I have carefully considered the contentions raised by the AR for
parties and have considered judgments cited by them.
15. Facts of the Essorpe Mill's case (Supra) were that two workmen of
the management struck work on 18.11.1990 in the blow room resulting in
the stoppage of entire operation of the textile mill of the appellant and
other workmen followed. In all 55 workers proceeded on strike and later
on they were suspended. All these 55 workers were charged for mis-
conduct. 34 of these workers apologized and they were taken back into
the service and thereafter three other workers also apologized and they
were also allowed to join duty and respondents no.2 to 23 did not relent.
On 14.3.1991 General Secretary of the Tamil Nadu Panchalai Workers' Union served a strike notice on the management U/s 22 (1) of the Act stating that strike would commence on or after 24.3.1991 and on 8.4.1991, 24.4.1991 and 13.5.1991. Respondents no. 2 to 23 were ID No. 38/2006/2002 22 dismissed from service after holding a disciplinary enquiry. Dismissed workers filed objections U/s 2 (A) of the Act for reinstatement with back wages and continuity of service. Labour Court vide its award dated 24.1.1994 held that the strike was illegal and by exercising power U/s 11 A of the Act, Labour Court substituted the punishment of dismissal by order of discharge and awarded compensation of Rs.50,000/- to each workman. This award was challenged by the appellant as well as by the workmen before the High Court. Ld. Single Judge allowed the writ petition of the respondents no.2 to 23 on the ground of non-compliance of section 33 (2) (b) of the Act and directed reinstatement with full back wages and continuity of service by holding that a copy of the strike notice dated 14.3.1991 was sent to the Conciliation Officer and therefore conciliation proceedings were pending on the date of dismissal and since dismissal was without approval of the Conciliation Officer and so the same was illegal. Appellant's writ petition against alteration of punishment was dismissed. On 30.12.2003 division bench of the High Court dismissed the writ appeals filed by appellant. Thereafter the matter came up before The Apex Court. Their Lordships observed that ID No. 38/2006/2002 23 as per the notice dated 14.3.1991, strike was to commence on or before 24.3.1991 and thereby union did not give six weeks' time as per section 22 (1) of the Act and so this notice of the union could not be treated to be one U/s 22 of the Act. Their Lordships held that Jaipur Jila's Case (supra) had no application since notice given was not in accordance with law. Their Lordships held that conciliation proceedings must be one of meeting requirement of law. Point for consideration is whether the judgment of the Apex Court in Essorpe Mills' Case helps the management in meeting the contention of the AR for the workman. Determination of this point requires consideration of the terms of reference to the Tribunal. Here one contention of AR for the workman needs to be discussed. He submitted that the award passed by the Industrial Tribunal in I.D. No.06/1992 operates as an estoppel against the management and management cannot contend that the reference in I.D. No.6/92 did not constitute an industrial dispute. In reply to this contention, AR for the management submitted that award passed in I.D. No.6/92 was not on merits but was passed in terms of the settlement because several issues on the merits of the reference had been framed ID No. 38/2006/2002 24 such as whether the Taj Palace Intercontinental Union had locus standi to raise the dispute and whether espousal was mandatory and whether there was a valid and legal espousal and whether the reference was barred by settlement dated 10.6.1988 and the Industrial Tribunal did not give any finding on these issues and so in absence of findings of the Industrial Tribunal on these issues the award passed by the Industrial Tribunal cannot operate as res judicata against the management and no estoppel can operate against the management and management cannot be estopped from pleading that the dispute referred to the Tribunal was not an industrial dispute in absence of a valid espousal and that union had no locus standi to raise the dispute and that the reference made to the Tribunal was barred by an existing settlement as there can be no estoppal against law. He relied upon three judgments reported as Krishan Lal vs. State of J&K : 1994 SCC (L&S) 885, State of Maharashtra vs. National Construction Company : AIR 1996 SC 2367 and State of U.P. vs. Civil Judge, Nainital : (1986) 4 SCC 558.
16. I have carefully considered the rival contentions. In my considered ID No. 38/2006/2002 25 view this contention of the AR for the workman is without any merit because when he has taken the plea that management could not have dismissed the workman from service without approval of the Tribunal before whom proceedings were pending then for considering the merit of this contention and reply of the management that proceedings that were pending before the Industrial Tribunal did not pertain to an industrial dispute and so no approval U/s 33 I.D. Act was required then this court has to see whether the proceedings then pending before Industrial Tribunal - II pertained to an industrial dispute. In my considered view it is not necessary to determine as to whether the award of the Industrial Tribunal operated as res judicata or not and whether or not management is estopped from raising this plea in reply to the contention of AR for the workman.
17. As per the copy of the Award of the Industrial Tribunal - II, filed by the workman, reference contained the following terms :
i) Whether the workmen are entitled to enhancement in pay scales and if so, what ID No. 38/2006/2002 26 directions are necessary in this regard?
ii) Whether the workmen are entitled to fixed dearness allowance and variably dearness allowance and if so, what directions are necessary in this regard?
iii) Whether the workmen are entitled to house rent allowance and if so, what directions are necessary in this regard?
iv) Whether the workmen are entitled to CCA and if so, what directions are necessary in this regard?
v) Whether the workmen are entitled to free transport from residence to office and back or conveyance allowance in lieu thereof and if so what directions are necessary in this regard?
vi) Whether the workmen are entitled to LTA and if so, what directions are necessary in this regard?
vii) Whether the workmen are entitled to free meals and if so, what directions are necessary in this regard?
viii) Whether the security guards deployed as velly drivers are entitled to be regularized as velly drivers and if so, what directions are necessary in this regard?
ix) Whether the workmen are entitled to loans and if so, what directions are necessary in this regard?
ID No. 38/2006/2002 27
18. Management contested the claim of the workmen by filing written statement. In the written statement management, inter alia, stated that it had entered into a settlement dated 2.12.1991 with 550 workmen out of 680 workmen whereby they had signed and accepted the settlement and received a sum of Rs.520.20/- as their raised emoluments. The Tribunal framed following issues from the pleadings of the parties :
(i) Whether the Taj Palace Intercontinental Hotel Karamchari Union has the locus standi to raise dispute on behalf of the workmen?
(ii) Whether espousal in this case is
mandatory?
(iii) If issue no.2 is proved, whether there has
been a legal and valid espousal in this case?
(iv) Whether the reference is barred by settlement dated 10.6.1988 as alleged in preliminary para 4 of the written statement?
(v) Whether Sh. Rajiv Goel is competent to
sign the statement of claim on behalf of the
workmen?
(vi) Whether term no. 9 of the reference
constitutes an industrial dispute?
ID No. 38/2006/2002
28
(vii) As per terms of reference.
19. A perusal of the copy of the award shows that during pendency of this reference some workmen moved an application for grant of Rs.520.50/- as an interim relief which was being paid to the other workmen in terms of settlement dated 02.12.1991. Management also moved an application for passing of the award in terms of the settlement dated 02.12.1991. The Tribunal dismissed the application of the workman vide order dated 23.12.92. Taking note of the submission of the AR for the workmen that if the award was to be passed in terms of the settlement dated 02.12.1991 then the award be also passed in terms of the settlement dated 01.7.1994. Tribunal passed the award in terms of the settlement dated 02.12.1991 and 01.7.1994. In my considered view there is no need to analyse this award any further and even otherwise this court is not competent to do so but by considering that during cross examination workman J.S. Rawat admitted that the reference in ID No. 06/1992 was barred by an existing settlement and that dispute in ID No. 06/1992 was never espoused by the workers of Hotel Taj Palace, I hold ID No. 38/2006/2002 29 that the facts of this case are squarely covered by the principle of law laid down by the Apex Court in Essorpe Mill's case (supra) and in my considered view management was competent to act upon the findings of the enquiry officer as per law without seeking approval of the Tribunal under Section 33 ID Act. Contentions raised by the AR for the parties stand disposed off accordingly. In view of the foregoing discussion I further hold that the application dated 05.4.04 moved by the workman is without any merit and the same stands dismissed.
20. Now coming to the merits of issue No.2. Since enquiry issue has been decided in favour of the management and against the workman now the only point for consideration is whether punishment of dismissal from service by the management needs to be interfered by this court or not.
21. With the insertion of Section 11 - A in the Industrial Dispute Act, the Labour Court can interfere in the punishment inflicted by the management but it will do so only when it is found that the punishment ID No. 38/2006/2002 30 inflicted upon the workman is disproportionate to the misconduct. It is a settled law that the management has power to direct its own internal administration and discipline but the power is not unlimited and when the dispute arises Labour Courts have been given powers to see whether the termination of service of a workman is justified. In cases of dismissal on misconduct a Labour Court does not, however, act as Court of Appeal and cannot substitute its own judgment for that of the management.
22. In a case reported as Chairman & Managing Director: United Commercial Bank and others Vs. P.C. Kakkar: 2003 LLR 436 (SC) Their Lordships after referring to several authorities, held in para 11 and 12 of the judgment as under:
"11. The common thread running through in all these decisions is that the court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was a defiance of logic or moral ID No. 38/2006/2002 31 standards. In view of what has been stated in the Wednesbury's case (supra) the court would not go into the correctness of choice made by the administrator open to him and the court should not substitute its decision to that of the administration. The scope of judicial review is limited to the deficiency in decision-making process and not the decision.
12. To put differently unless the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the court / tribunal, there is no scope for interference. Further to certain litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In a normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the disciplinary authority to the appellate authority to reconsider the penalty imposed."
23. In a case reported as Anantnathi Maharaj Jain Temple and its Sadharan Funds, Mumbai Vs. Rajan G. Pandey and another: 2001 ID No. 38/2006/2002 32 LLR 645, Their Lordships in para 4 of the judgment observed as under:
"It is very well settled that when the misconducts are proved in a fair and proper domestic enquiry, it is for the employer to consider the question of punishment and it is not for the court to interfere with such punishment unless it is shockingly disproportionate and unless no reasonable man would act in that manner....................."
24. The principal of law laid down by Their Lordships in the judgment reported as Apparel Export Promotion Council Vs. A.K. Chopra: AIR 1999 SC 625 is that courts are not to normally interfere with either the factual findings regarding guilt or punishment imposed by departmental authorities.
25. On a careful consideration of the nature of charges against the workman I hold that the punishment of dismissal from service cannot be held to be shockingly disproportionate to the charge and shocking to the conscience of the court and it is not a case for interference in the ID No. 38/2006/2002 33 correctness of the choice made by the management. Accordingly I hold that dismissal of the workman from service under these facts and circumstances was neither illegal nor unjustified. This issue is accordingly decided in favour of the management and against the workman.
RELIEF
26. In view of foregoing findings on issue No. 1 & 2 I hold that workman is not entitled for any relief.
27. Award is passed as per foregoing findings on the issues and reference stands answered accordingly. Copy of the award be sent to learned Secretary (Labour) Government of National Capital Territory of Delhi for necessary action. The award be also sent to server (www.delhicourts.nic.in). The file be consigned to record room. Announced in the open court today on 17.10.2008 S.K. KAUSHIK PRESIDING OFFICER LABOUR COURT NO.XII, KARKARDOOMA COURTS, DELHI.