Delhi District Court
Labour Court No. Vii vs Sh. Mohinder Pal Verma Raised An on 17 March, 2007
IN THE COURT OF SH. O.P. SAINI, PRESIDING OFFICER,
LABOUR COURT NO. VII, DELHI.
I.D. NO. : 89/2001
BETWEEN
The workman Sh. Mohinder Pal Verma
R/o 49 Gagan Vihar, Delhi-51.
AND
M/s Taj Mahal Hotel,
1, Man Singh Road,
New Delhi.
Ref.: F.24(749)/2001-Lab./13414-18 dated 23.6.01.
AWARD
1. Workman Sh. Mohinder Pal Verma raised an
industrial dispute against his illegal removal from the
services, which was referred to this court for adjudication by
the Secretary (Labour), Government of NCT of Delhi, in the
following terms of reference :
"Whether the termination of services of Sh.
Mohinder Pal Verma by the management is
illegal and/or unjustified, and if so, to what
relief is he entitled and what directions are
necessary in this respect?"
2. Brief facts of the case as made out from the record
1
are that workman was working with the management as
houseman since 20.7.1981 on monthly salary of Rs. 6,976/-.
He had unblemished record of service. However, he was
dismissed vide letter dated 22.6.2000. The workman was
suffering from some sickness and was undergoing treatment
for two and a half years and on account of this the
management chargesheeted him on the basis of false
allegations. An enquiry was conducted against him in which
he was held guilty. It is repeatedly claimed that the enquiry
was conducted in violation of principles of natural justice in
which he had no opportunity to defend himself. It is alleged
that the witness examined by the management did not testify
against him. It is repeatedly claimed that the charge was false
and baseless and the enquiry report is perverse as it is not
supported by any legally admissible evidence. It is submitted
by him that after his dismissal he raised an industrial dispute
as well as served a demand notice on the management.
However, the dispute could not be settled and came to be
referred to this court in the above terms of reference. It is
prayed that since the enquiry was conducted in violation of
principles of natural justice, the same may be set aside and the
management may be directed to take the workman back on
2
duty with all consequential benefits including continuity of
service and full back wages.
3. Management contested the claim and filed its written
statement admitting that the workman was employed with it.
It is also admitted that he was chargesheeted vide chargesheet
dated 12.5.1988 on the allegations that he stole a Timex watch
from room no. 304 on 8.5.1998 and in apprehension of being
caught restored the watch after some time in the same room.
An enquiry was conducted against him in which he was held
guilty by the enquiry officer. The findings of the enquiry
officer were accepted by the management and he was
dismissed. It is repeatedly claimed that the enquiry was
conducted fairly and properly in accordance with principles of
natural justice in which the workman had full opportunity to
defend himself. It is prayed that claim of the workman is false
and the same may be dismissed.
4. Workman filed rejoinder to the written statement
denying the averments made therein and reiterating the
averments made in the claim petition.
3
5. On the pleadings of the parties, following issues were
settled for trial by my learned predecessor vide order dated
14.7.2003:-
(i) Whether a fair and proper enquiry was
not conducted by the management in
accordance with principles of natural
justice?
(ii) As per terms of reference.
6. In support of his case, workman examined himself as
WW-1 and placed on record his affidavit EX.WW1/A
alongwith documents EX.WW1/1 to 16.
7. On the other hand, management has examined MW-1
Sh. Alok Bhasin, who has placed on record his affidavit
EX.MW1/A alongwith documents EX.MW1/1 and 2.
8. I have heard the arguments at the bar and have
carefully gone through the file.
9. My findings on the issues are as under:-
ISSUES NO. 1 :
10. This issue was disposed of by me vide order dated
4
06.03.2007 with the following observations :-
"Workman was working as houseman
with the management. However, he was
chargesheeted on the allegations that he stole a
Timex watch of a guest in a room no. 304 and
thereafter, in apprehension of being caught he
unauthorizedly opened the room and again
placed the watch there. A domestic enquiry was
conducted against the workman wherein he was
found guilty and was thereafter, terminated
which led to the instant reference. Workman has
examined himself as WW-1 whereas
management has examined enquiry officer
MW-1 Sh. Alok Bhasin on the issue of
enquiry.
It is submitted by the learned AR for
the workman that the enquiry was not
conducted fairly and properly. Complainant
was not examined. The workman has no
opportunity to defend himself. It is submitted
that the report of the enquiry officer is perverse
as the same is not based on on any legal
evidence. My attention has been invited to the
following authorities:-
(I) Hardwari Lal Vs. State of U.P. and others,
(1999) 8 SCC 582.
(II) Kuldeep Singh, Appellant Vs. The
Commissioner of Police and others,
Respondents, AIR 1999 SC 677.
5
(III) Madikal Service Co-op. Bank Ltd. and another Vs. Labour Court, Kozhikode and another, II LLJ, High Court Kerela, page 49.
On the other hand, learned AR for the management submitted that the enquiry was conducted fairly and properly in which workman had full opportunity to defend himself. My attention has been invited to cross- examination of workman as WW-1. My attention has been invited to the following authorities:-
(I) Ramesh Singh Vs. Union of India & Others, II LLJ HC page 261.
H.M.T. Vs. Mrs. Chaya Srivastasa, 2003 LLR
878. (II) Aligarh Muslim University and others Vs. Mansoor Ali Khan, 2001 (91) FLR 28, SC. (III) Kandla Port Trust and another, Petitioners Vs. K.R. Chauhan and another, Respondents, 1998 LAB. I.C. 3085, Gujarat High Court.
Both parties have filed written submissions also.
I have carefully perused the entire proceedings of the enquiry placed on record by the parties. I find that management had examined eight witnesses and all the eight witnesses were duly cross-examined by the workman in the course of enquiry. Similarly, the workman had also led his evidence. It is 6 instructive to take note of the relevant part of the cross-examination of the workman. It is extracted as under:-
"It is correct that I was offered full opportunity to put my defence in the enquiry. It is correct that I was allowed an Adv. to represent me in the enquiry by the enquiry officer. It is correct that statement of management witnesses were recorded in my presence who were cross-examined by my Adv. during the enquiry."
A bare perusal of his statement shows that he admits that he had full opportunity to put his evidence in the enquiry and he was also represented by an Advocate in the enquiry. He admits that the statement of witnesses were recorded in his presence and full opportunity was granted to him to cross-examination them. He also admits that enquiry officer was impartial. On the other hand, in the cross- examination of MW-1, Sh. Alok Bhasin, enquiry officer there is nothing of any significance which could either discredit his testimony or the enquiry proceedings.
I have also carefully perused the case law and written submissions placed on record by the workman. The case law cited by the workman is not applicable to the facts of the case.
7I find that witnesses have clearly testified in the enquiry that the watch was removed by the workman and he admitted this before the witnesses. In this regard statement of MW-4 Sh. J.B.S. Rana and MW-7 Sh. Ravinder Negi is quite important as both have testified that the workman admitted his fault in picking up the watch and then restoring it in room no.
304. Workman has not been able to specify as to how he was denied the opportunity to defend himself. He is also not specific as to which principle of natural justice was violated during the enquiry. The enquiry report is based on good evidence and , as such, it cannot be said that it is perverse. I may add that in such cases examination of the complainant or aggrieved person is not necessary as it is the management which has to protect its prestige and reputation by taking action against the misconduct of the workman. Moreover, in the instant case it is the hotel which was aggrieved as the workman had unauthorizedly removed a watch from one of its rooms in the absence of guest and, thereafter, unauthorizedly restored it in the same room in the apprehension of being caught.
8In an authority reported as Workmen of M/s Firestone Tyre and Rubber Company of India Ltd. Vs. The Management AIR 1973 SC 1227, Hon'ble Supreme Court dealing with validity of enquiry observed in paragraph 32 (3) as under :-
"When a proper enquiry has been held by an employer, and the finding of misconduct is plausible conclusion flowing from the evidence adduced at the said enquiry, the tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide"
In view of the above discussion I am satisfied that the enquiry was conducted fairly and properly. The issue is decided in favour of the management and against the workman."
ISSUE NO. 2 :
11. It is submitted by the Sh. S.P. Singh, learned AR for the workman that the punishment of dismissal is harsh and 9 disproportionate to the facts of the case. It is submitted by him that the same may be set aside and some other punishment may be imposed in place of dismissal.
12. On the other hand, learned AR for the management submitted that the workman was guilty of stealing a Timex watch from the room of a guest. It is submitted that the theft is a serious misconduct and cannot be condoned. The management has lost faith in the workman. It is submitted by him that dismissal of the workman is lawful and justified. My attention has been invited to an authority reported as Rustom and Hornsby (I) Limited Vs. T.B. Kadam, 1975 II LLJ
352.
13. Section 11 A of the Industrial Disputes Act (hereinafter to be referred as the "Act") provides as under:-
"Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen.-Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal 10 or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require:
Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be , shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter."
14. In an authority reported as Life Insurance Corporation of India Vs. R. Dhandapani, 2006 1 LLJ SC 329, Hon'ble Supreme Court dealt with powers of court under section 11A of the Act and observed in paragraphs 8 to 10 as under:-
"8. It is not necessary to go into in detail regarding the power exercisable under Section 11A of the Act. The power under said Section 11A has to be exercised judiciously and the Industrial Tribunal or the Labour Court, as the case may be, is expected to interfere with the decision of a management under Section 11-A of the Act only when it is satisfied that punishment imposed by the management is wholly and shockingly 11 disproportionate to the degree of guilt of the workman concerned. To support its conclusion the Industrial Tribunal or the Labour Court, as the case may be, has to give reasons in support of its decision. The power has to be exercised judiciously and mere use of the words 'disproportionate' or 'grossly disproportionate' by itself will not be sufficient.
9. In recent times, there is an increasing evidence of this, perhaps well- meant but wholly unsustainable, tendency towards a denudation of the legitimacy of judicial reasoning and process. The reliefs granted by the Courts must be seen to be logical and tenable within the framework of the law and should not incur and justify the criticism that the jurisdiction of the Courts tends to degenerate into misplaced sympathy, generosity and private benevolence. It is essential to maintain the integrity of legal reasoning and the legitimacy of the conclusions. They must emanate logically from the legal findings and the judicial results must be seen to be principled and supportable on those findings. Expansive judicial mood of mistaken and misplaced compassion at the expense of the legitimacy of the process will eventually lead to mutually irreconcilable situations and denude the judicial process of its dignity, authority, predictability and respectability.
10. Though under Section 11-A, the Tribunal has the power to reduce the quantum of punishment it has to be done within the parameters of law. Possession of power is itself not sufficient; it has to be exercised in accordance with law."12
15. In an authority reported as State Bank of India Vs. G.D. Sharma, 2007 III AD (DELHI) 65, Hon'ble High Court while dealing with the question of a bank employee who had committed fraud with bank accounts observed in paragraph 16 as under:-
"16. The disciplinary authority also had the interest of the customers in mind. The loss of confidence was a factor reckoned by disciplinary authority, as is evident from the order of the disciplinary authority. Loss of confidence is a good ground for dismissal from service of an employee. The Supreme Court in 1992 (2) SCC 569 held that where employer loses confidence in his employee, there can be no justification directing his reinstatement. In Regional Manager Vs. Hotilal 2003 II AD (S.C.) 483 = (2003) 3 SCC 605, the Supreme Court observed as under:
"If the charged employee holds a position of trust where honesty and integrity are in built requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions of acts in a fiduciary capacity, the higher degree of integrity and trustworthiness is a must and 13 unexceptionable."
16. In the instant case the workman was held guilty of stealing a Timex watch from room no. 304. Theft of property belonging to a guest in a hotel is a serious misconduct and in no circumstance can be condoned. I find that the punishment of dismissal is lawful and justified and is proportionate to the misconduct committed by the workman and it does not call for any interference by the court. The workman, as such, is not entitled to any relief. The issue is accordingly decided in favour of the management and against the workman.
17. In view of above discussion, reference is answered in above terms and award is passed accordingly. Six copies of the award be sent to the appropriate Govt. for publication. File be consigned to record room.
Announced in open court. ( O.P. SAINI ) DATED : 17.03.2007 PRESIDING OFFICER :
LABOUR COURT NO.VII : DELHI 14 ID 272/00 17.03.07 Present: Workman with Sh. S.P. Singh, AR.
Sh. Amit Bhasin, AR for the management. Arguments on quantum of punishment heard. Put up for order at 2.00 p.m. POLC-VII/ 17.03.07 At 2.00 p.m. 17.03.07 Present: None.
Vide my separate order award is passed in favour of the management and against the workman. Six copies of the award be sent to the appropriate Government for publication. File be consigned to record room.
POLC-VII/ 17.03.07 15