Delhi District Court
Sh. Mohan Lal vs M/S Hotel Marina on 27 November, 2007
1
IN THE COURT OF MS. NISHA SAXENA, POLC, FAST
TRACK-XXI, KARKARDOOMA COURTS, DELHI
ID No. 326/06/98
Sh. Mohan Lal,
R/o H-426,
Raj Nagar-II,
Palam Colony,
New Delhi-45. ..........Workman
Versus
M/s Hotel Marina,
C-Block,
Connaught Circus,
New Delhi-1. ............ Management
Date of Institution : 07.01.98
Date of reserving for award : 20.11.07
Date of award : 27.11.07
Appearances : AR for workman Shri Rajinder Singh.
AR for the management Shri Alok Bhasin.
References : 1. APSRTC vs. Raghuda Siva Sankar Prasad
(2007) 1 Supreme Court Cases (L&S) 151.
2. Divisional Controller, KSRTC (NWKRTC) vs. A.T.
2
Mane 2005 SCC (L&S) 407.
3. Prasad Film Laboratories vs. Presiding Officer, 2001
volume 1 CLR 748.
4. Union of India and anr. vs. G. Ganayutham, JT 1997(7)
SC 572.
5. Ganga Ram vs. Pepsu Road Transport Corporation
and another 1995 - I LLN 1035.
AWARD
01. Secretary (Labour) Govt. of the National Capital Territory of
Delhi vide his order No. F.24(4103)/97-Lab./39161-65 dated
24.12.97 has referred the industrial dispute between M/s Hotel
Marina, C-Block, Connaught Circus, New Delhi-1 and its
workman Sh. Mohan Lal, R/o H-426, Raj Nagar-II, Palam
Colony, New Delhi-45 for adjudication as per the following terms
of reference:-
"Whether the services of Shri Mohan Lal
have been terminated illegally and/or
unjustifiably by the management, and if so,
to what relief is he entitled and what
directions are necessary in this respect?"
3
02. Briefly stated, the facts are that the claimant was
appointed as a Waiter in Hotel Marina on 27.7.87. He was charge-
sheeted on 11.1.1994 on the allegations that he had not deposited
Rs. 153.60/- to the cashier which was collected by him from a
guest. A domestic enquiry was conducted against him. He has
challenged domestic enquiry on the ground that it was in violation
of the principles of natural justice. Consequent upon the findings
of the Enquiry Officer, he was discharged from the services on
12.12.95. He has challenged the punishment awarded to him on
the ground that the punishment awarded by the disciplinary
authority is disproportionate to the misconduct proved against
him. He has sought reinstatement in service alongwith all
consequential benefits.
03. To decide the present reference, following issues need to
be settled.
1.Whether the enquiry was not conducted according to the principles of natural justice? If so, its effect?
2. As per terms of reference.
4
04. In support of their case, both parties were called upon to lead their respective evidence. Claimant Mohan Lal examined himself as WW1 and proved his affidavit as Ex. WW1/A and the documents proved on record are Ex. WW1/1 to Ex. WW1/17. In support of its case on behalf of the management MW1 Shri Amit Bhasin, Enquiry Officer was examined who proved his affidavit as Ex. MW1/A and proved the documents as Ex. WW1/M2 and Ex. WW1/M3.
05. I have meticulously and scrupulously gone through the entire record and given my anxious consideration to the rival contentions of AR for workman Shri Rajinder Singh and AR for the management Shri Alok Bhasin.
06. My findings on the issues are as hereunder.
Issue No. 1 :- Whether the enquiry was not conducted according to the principles of natural justice? If so, its effect?
Issue no. 1 was decided by the predecessor of the court Shri C.K. Chaturvedi, the then presiding officer, Labour Court no. 5 II vide order dated 23.2.04 holding that there was no impropriety or illegality or irregularity in the enquiry conducted against the workman. The issue was decided in favour of the management and against the workman.
07. Issue No. 2 : - As per terms of reference.
The workman was inducted in hotel Marina as a waiter on 27.7.87. He was charge-sheeted on 11.1.94 on the allegations that a foreign guest staying in room no. 224 checked out of hotel on 4.1.94. At about 11.10 AM while the Guest was checking out, he was presented his bills for payment. While checking the bills, the Guest found that he had been charged for the Beer, Tea etc. served to him vide cheque no.s 49.006626/0057369 and 49.088369/0053881. He demanded from the cashier as to why he had been charged against the aforesaid two cheques as he had already paid cash to the waiter at the time of service itself. He became extremely furious and lost his temper at the Front Office Employees. He called everyone as thieves and cheats. The Guest was so angry that he took out Rs. 200/- and 6 threw them at the Cashier and then he tore off Rs. 200/- notes and threw them. The matter was subsequently inquired into and it was revealed that claimant was the concerned waiter who had served the aforesaid items to the aforesaid Guest on 3.1.1994 at about 7.15 PM in Room no. 224. He also presented to the guests cheques no. 49.006626/0057369 and 49.088369/0053881 for Rs. 78.40/- and Rs. 75.20/-, the total of which came to Rs. 153.60/-. The relevant contents of the charges sheet are as under, "You are fully aware that the signature of any Guest are taken on the cheques/Bills only if such Guest does not make the cash payment, and in such a case the amount of the bill is debited to the Guest's Account for collection at the time of check-out. However in case the Guest chooses to make cash payment, the concerned waiter is required to deposit the cash payment with the cashier and to deliver the copy of Bill having paid stamp to the Guest.
In the above case however you asked the Guest to make th cash payment and surprisingly when the Guest paid the cash to you, you for obvious dishonest intentions, asked the Guest to sign 7 on the bill in order to present false picture that the Guest had opted for credit payment, whereas on the contrary the Guest had made cash payment. You thereafter pocketed the aforesaid amount of Rs. 153.60/- and did not deposit the same with the cashier.
Consequently, the amounts of the aforesaid cheques were debited to the Guest's account. By your aforesaid conduct you have brought dis-repute to the good name of the Hotel. The Guest created a scene in the presence of a number of other Guests. The charges, if found proved, would result in total loss of confidence in you."
On the basis of these charges, a domestic enquiry was conducted against him and the same has been proved as Ex. WW1/M2. The Enquiry Officer gave his findings vide Ex. WW1/M3. Consequent upon the findings of the Enquiry Officer, vide letter dated 12.12.95 Ex. WW1/M6, the management discharged him from services. The relevant portion of the letter of discharge dated 12.12.95 is in the following terms. 8 9
"The charges found proved against you are extremely grave and the same merit your dismissal from service as the management has lost confidence in you. In the event of your dismissal from service you will also forefeit your right to receive gratuity and payment of bonus due, if any.
As a very special case, but without creating any precedent, the management has decided not to inflict the extreme punishment of dismissal and instead taking a lenient view of the matter and in order to soften the rigourous of your termination of service, you are hereby discharged from service. You will be paid one month's salary in lieu of one month's notice and 15 days wages as retrench compensation for each completed year of service in addition to the legal dues payable to you.
Enclosed please find our two cheques bearing No.s 051992 and 051993 both dated 12.12.95 drawn on Allahabad Bank, Industrial Finance Branch, New Delhi for Rs. 8716/- & Rs. 13090/85 = Total Rs. 21,806/85 (Rupees twenty one thousand eight hundred six and paise eighty five only) as per details given below : 10
Date of Joining 27.7.1987 HRA Rs. 117.00
Conv Rs. 94.00 Rs. 211/-
Suspension Rs. 792.30
allowance @ 75%
for 12 days of
1 December,
Encashment of 18 Rs. 1637.40
days Un-availed P.L.
upto 5.1.94 Rs.
2 2729/-
One month salary in Rs. 2,729.00
3 lieu of notice pay
Retrenchment Rs. 8,187.00
compensation @ 15 Total
Rs. 13,345.70
days for 6 completed
4 years service
Less : ESI on 1 Rs. 11.88
above @ 1.5%
Less : EPF on 1 & 2 Rs. 243.00 Rs. 254.85
above
Rs. 13,090.85
Gratuity for 6 years Rs. 8,716/-
5 months & 10 days
say 6 years @ Rs.
5 2518/- per month
Rs. 21,806.85
Rs. 2729/-(-) HRA
Rs. 117/- & Conv
Rs. 94/-
Rs. 211/-
Rs. 2513/- x 6 x 15
26
08. The workman has challenged the punishment of discharge awarded to him on the ground that it is highly disproportionate, harsh and is liable to be substituted by a lighter 11 punishment. Per contra, it has been contended by AR for the management that the management is running a prestigious hotel by the name of Hotel Marina. A hotel is a service and hospitality industry. Not only Indians but also foreigners as well come to stay in the hotel of the management. For the management, its reputation and goodwill is most dear and important to it. The reputation of a hotel spreads by word of mouth. If an employee of the management cheats a hotel guest, then needless to state that such guest would definitely spread the name of the hotel. In such cases, therefore, the amount of money involved is not very important or relevant. It is the act which is important. The purported argument of the workman, therefore, that the amount involved was only Rs. 153/- is devoid of any merit and is wholly misconceived and untenable. By cheating the concerned guest, the workman forfeited the confidence of the management and in no case could the management repose trust and confidence in him. However, to lessen the impact of punishment and purely on compassionate grounds, the management decided not to inflict the 12 extreme punishment of dismissal and took a lenient view of the matter, claimant was discharged from the service and paid one month's salary in lieu of one month's notice and 15 days wages as retrenchment compensation for each completed year of service in addition to legal dues.
09. No doubt, section 11A confers power to substitute lesser punishment in lieu of order of discharge or dismissal but it is not an arbitrary power given to the court. Such power is to be exercised only when the punishment imposed by the management is highly disproportionate to the degree of guilt of the workman concerned. The labour court can only interfere if there is want of good faith or there is victimization. In the present case, the misconduct that has been proved against the workman is that of misappropriation of the amount for causing unlawful gain to himself. While considering whether the punishment is proportionate or disproportionate, the court has to see if the charged employee holds the position of trust where honesty and integrity are inbuilt requirements of functioning, if found so, it 13 would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the persons deal with public money or is engaged in financial transactions or acts in a fiduciary capacity, highest degree of integrity and trustworthiness is must. In the instant case, there was inbuilt requirement to act carefully and the carelessness on the part of the delinquent employee invited action. The act committed by the workman was either dishonest or so grossly negligent that the workman was not fit to be retained in services. In APSRTC vs. Raghuda Siva Sankar Prasad (2007) 1 Supreme Court Cases (L&S) 151, the court observed, "Once an employee has lost the confidence of the employer, it would not be safe and in the interest of the corporation to continue the employee in the service. The loss of confidence occupies the primary factor and not the amount of money and sympathy and generosity cannot be a factor which is permissible in law in such matters. When the employee is found guilty of theft, there 14 is nothing wrong in the corporation losing faith in such an employee and awarding punishment of removal. In such cases, there is no place for generosity or sympathy on the part of the judicial forums and interfering with the quantum of the punishment. The punishment, imposed by the management in the facts and circumstances of the case, is not disproportionate and the punishment of removal from service is just and reasonable and proportionate to the proved misconduct." The court further went on to observe that "the past conduct of the workman is not relevant in departmental proceedings. The Single Judge has erred in holding that since the workman was not involved in any misconduct of theft during his past services and on that ground wrongly granted reinstatement with continuity of service." While considering quantum of punishment one should bear in mind that it was not the amount of money misappropriated that becomes the primary factor for awarding punishment, on the 15 contrary it is the loss of confidence which is primary factor to be taken into consideration. When a person is found guilty of misappropriating the funds, there is nothing wrong in the management losing confidence or faith in such a person and award punishment of dismissal. In the same strain is Divisional Controller, KSRTC (NWKRTC) vs. A.T. Mane 2005 SCC (L&S) 407.
10. Another relevant case law on the point is Prasad Film Laboratories vs. Presiding Officer, 2001 Volume 1 CLR 748, where it was observed that the property stolen may be small or large but it is the act of theft that is relevant for imposing penalty and any sympathy shown in such a case is totally uncalled for. Workman was employed in an industry where confidence of customers was paramount for the success of the business. Therefore, the effect of continuation of the employment of employee who has lost confidence of the employer will be very serious. In Union of India vs. another vs. G. Ganayutham, JT 1997(7) SC 572, it was held as follows : "To judge the 16 validity of any administrative order or statutory discretion, normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision maker could, on the material before him and within the framework of the law, have arrived at. The court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bonafide. The court would also consider whether the action was not bonafide. The court would also consider whether the decision was absurd or perverse. The court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the court substitute its decision to that of the administrator."
11. It has been contended by AR for workman that in the 17 past, the workman never committed any such act of misappropriation. However, the fact of misappropriation cannot be minimized by the fact that earlier he was not caught indulging in such dishonest conduct. In Ganga Ram vs. Pepsu Road Transport Corporation and another 1995 - I LLN 1035, the court held that when the domestic enquiry has been properly held and the charge of embezzlement has been proved against the workman there is no reason to award him lesser punishment merely because the amount embezzled was small. Embezzlement, even if, it be of a small amount, is a serious offence and punishment of dismissal cannot be said to disproportionate to the proved charge and the amount embezzled whether small or large does not affect the seriousness of the charge and the criminality of the act of the workman.
12. It has been held in a catena of judgments that loss of confidence is a primary factor and not the amount of money involved and that sympathy and generosity cannot be a factor for interfering with the quantum of punishment. In the present case, 18 the management cannot be faulted for losing confidence in the claimant. The question is not of loss of Rs. 50/- or Rs. 5/- that may have been caused due to dishonest act of the claimant. The question is that the management is running a hotel which is a service industry and such act of employee cannot be taken lightly by the management. The misconduct committed by the workman has caused loss of confidence. In these circumstances, I am of the view that the case calls for no interference in the quantum of punishment imposed by the management. I, accordingly hold that the services of the claimant Mohan Lal have not been terminated illegally and unjustifiably. He is not entitled for any relief from the court. Issue no. 2 is accordingly decided in favour of the management and against the workman.
13. Reference is answered accordingly. Six copies of the award be sent to the Secretary (Labour) for publication within 30 days. File be consigned to the record room.
ANNOUNCED IN THE OPEN COURT ON : 27.11.2007 (NISHA SAXENA) 19 PRESIDING OFFICER, LABOUR COURT, KARKARDOOMA COURTS, SHAHDARA, DELHI.