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Delhi District Court

Sh.Uttam Chand Bhatia vs M/S Bharat Hotels Limited on 31 May, 2014

        IN THE COURT OF SH. CHANDRA GUPTA
 PRESIDING OFFICER LABOUR COURT­X  KARKARDOOMA 
                  COURTS, DELHI.


D.I.D. No.                                                     :202/09
Date of Institution of the case                                :19.05.2008
Date on which reserved for order on the enquiry issue     :15.02.2014
Date on which order on the enquiry is passed                   :31.05.2014

Unique ID No. 02402C0378222008

Sh.Uttam Chand Bhatia, S/o Sh.Gurwanta Ram,
U.P.L.F, 8/440, Trilokpuri,
Delhi­110091.                            .................Workman

Versus

M/s Bharat Hotels Limited,
Barakhamba Lane, Connaught Place,
New Delhi­110001.                    ...............Management



ORDER ON THE  ENQUIRY ISSUE
                         The workman Sh.Uttam Chand Bhatia, raised an industrial 
dispute regarding the termination of his services by the management of 
M/s Bharat Hotels Limited. Direct statement of claim was filed by the 
workman in the Court which was later on amended on the moving of an 
appropriate   application   on   behalf   of   the   workman   in   this   regard,   on 
record. In the amended statement of claim, it was stated by the workman 

D.I.D. No. 202/09                                                Page 1 out of 106 
 that the workman was appointed at the post of General Worker vide letter 
dated 27.06.1989; that the management issued charge sheet vide a letter 
dated 04.01.2007; that the workman gave his reply vide his letter dated 
20.01.2007; that the management did not find his reply correct appointed 
Enquiry Officer to enquire into the matter vide its letter dated 31.01.2007; 
that the Enquiry Officer submitted his report and on the basis of enquiry 
report   the   management   dismissed   his   services   vide   its   letter   dated 
06.02.2008; that  after the receipt of dismissal letter the workman sent his 
demand notice to the management vide his letter dated 14.02.2008; that 
the   vital   point   was   the   complainant   had   not   taken   the   name   of   the 
workman; that there was no eyes witness in the matter; that the charge 
sheet had not been issued by the competent man; that the Enquiry Officer 
had not been appointed by the disciplinary authority; that the charge did 
not reveal which clauses of certified standing orders and rules applicable 
on the Hotel had been violated by the workman; that the Enquiry Officer 
was biased and started enquiry after closing it as the workman was not on 
duty when the stolen goods had been alleged; that the Enquiry Officer 
Smt. Jyotica Bhasin as indicated in her correspondence operated from the 
office of B­33 (LGF), South Extension Part­II, New Delhi­110049, which 
was   the   legal   office   of   Sh.   Alok   Bhasin,   Sh.   Amit   Bhasin,   who   also 
shared the same High Court Chamber being Chamber No. 149 Lawyers 
Chamber   with   Sh.   Ashok   Bhasin,   Senior   Advocate;   that   the   Bhasin 
family were group of lawyers who had been representing and giving legal 
counseling to the management and therefore, Smt. Jyotica Bhasin being a 

D.I.D. No. 202/09                                                  Page 2 out of 106 
 relative of Bhasin family and a part of it was obviously pre­disposed to 
favour   the   management;   that,   therefore,   the   workman   could   not   have 
expected a fair and impartial hearing at the hands of the Enquiry Officer 
Smt. Jyotica Bhasin; that in fact Smt. Jyotica Bhasin was the Treasurer of 
the Commercial and industrial Employers' Association on whose behalf 
Sh. Amit Bhasin also filed an affidavit indicating the same address as 
General Secretary seeking  to contest the instant case  on behalf  of the 
respondent   management;   that   in   fact   the   Enquiry   Officer   who   was   a 

family member of the firm of lawyers who were assisting the management and advising the management in conducting the enquiry adopting a biased manner by refusing to summon the important documents sought by the workman such as the duty register; that the enquiry was also vitiated as the enquiry was held by competent lawyer and the workman was a simple room attendant who was not provided effective representation in the enquiry; that the procedure of the enquiry was neither explained nor the particular standing order under which the employee was charged and subsequently found guilty of mis­conduct was not set out; that in fact, the defence assistant Sh. Surjeet Singh Malik in the middle of the enquiry was prevailed upon by Smt. Shalini Upreti who was inimical to the workman to abandon the enquiry and not appear in favour of the workman as it would affect his own career; that when this issue was verbally appraised to the Enquiry Officer, she simply brushed it aside without ascertaining whether the workman would wish to be defended by another defence assistant; that the Enquiry Officer despite D.I.D. No. 202/09 Page 3 out of 106 repeated requests of the workman that he had been forcibly compelled to give statement dated 12.12.2006 by Mehfooz Hassan, Santan Singh Rawat, Sanjay Sharma did not summon these witnesses to examine the fairness of the statement and relied upon such statement; that the Enquiry Officer who was a legally trained person continued with the enquiry without giving the workman, who was a simple floor attendant, an opportunity to be effectively represented in the departmental enquiry; that the workman was not in a position to defend himself in a complicated enquiry where there were serious allegations against him on account of lack of effective representation as the management effectively ensured that his defence assistant abandoned him; that the penalty of termination from service was highly disproportionate, unjustified and shockingly unfair given the fact that the workman had such a long tenure and the mis­conduct had not even been proved on preponderance of probabilities; that assuming though not admitting the enquiry to be fair, the penalty of termination from service was unjust and was a victimization of the workman for demanding increments in the past; that assuming though not admitting that the enquiry was fair and reasonable, even the material on record did not establish the commission of mis­conduct as it was undisputed that the records of the management indicated that the workman was given duty at 04.45 P.M. whereas the entry was at 4.27 P.M.; that also, the admitted position was that other persons had also entered the room during that relevant period and there was no material to show directly or indirectly the involvement of the workman other than D.I.D. No. 202/09 Page 4 out of 106 mere speculation, conjectures and surmises; that the services of the workman had been terminated on false charges and enquiry conducted illegally to prove guilt of the workman; that hence, the termination/dismissal order was illegal and the workman had been victimized due to unfair labour practice of the management; that the workman was unemployed since the dismissal of his services inspite of his best efforts. Hence, the workman has prayed for declaration that the domestic enquiry conducted by the management was illegal and dismissal order was also illegal and for his reinstatement in service with full back wages, continuity of his service and all consequential benefits.

Notice of the filing of statement of claim was sent to the management which had appeared and contested the case of the workman by filing its written statement to the amended statement of claim. In the amended written statement filed by the management, it has taken the preliminary objections that the management at the outset submitted that the workman had been dismissed from service after holding a valid and proper enquiry and the management relied upon the same in the first instance; that in case this Hon'ble Court came to the conclusion that the enquiry suffered from any infirmity and was vitiated, in that event the management craved leave of this Court to lead fresh evidence before this Hon'ble Court and substantiated the charges; that on 12.12.2006, a guest Ms. Kanika Sharma checked in Hotel Room No.2206 at about 1.50 P.M.; that she stayed in her room for about 20­30 minutes and thereafter left the room; that the guest subsequently reported to the management that when D.I.D. No. 202/09 Page 5 out of 106 she came back to her room at 07.30 P.M., she did not find her mobile phone which she had left on the table while going out of the room; that during the investigation which followed the complaint, the workman informed having gone to Room No.2206 at about 5.00 P.M. for giving service, but having found that the room had DND (Do Not Disturb) sign, he did not go inside the room and came back without giving service; that subsequent checking of the electronic data machine, however, showed that the Room No. 2206 had in fact been opened at 5.06 P.M. with floor card No. 05000089; that the record further revealed that this card was issued to the workman and he had opened various other rooms as well using the aforesaid floor card on 12.12.2006; that it was thus, conclusively established from the above that the workman had entered Room No. 2206 at about 5.06 P.M. to give service by using the floor card No. 05000089; that the workman having found the mobile phone lying on the table, picked up the same and in order to ensure that he was not blamed for the theft of the mobile phone, deliberately made a false statement that he did not give any service in the room as it had DND sign; that the workman also mentioned in his statement that the guest was not IN as the door light was not on; that the guest in her complaint clearly stated that she had not put up any DND card while leaving her room; that the DND sign is put up by the guest when he/she is inside the room and does not want to be disturbed and, as such, there was no occasion for the guest to have put up the DND sign while leaving her room; that since the aforesaid conduct of the workman constituted misconduct, he was issued D.I.D. No. 202/09 Page 6 out of 106 a charge sheet dated 04.01.2007; that it was also alleged against the workman that his past record of service was also most unsatisfactory and previously also he had been found fiddling with the bag of a guest lying in the room; that the workman tendered his explanation vide letter dated 20.01.2007; that in his explanation, the workman stated that when he first went to give service in the room, the room had DND sign, but when he went again at about 6 past 5 P.M., there was no DND sign and that he came back after doing his work in the room; that he further stated that he somehow forgot to write time in the Section copy that the room had DND sign when he had first visited the room and stated that it was his mistake; that the explanation tendered by the workman having been found unsatisfactory, the management decided to hold an enquiry; that one Ms. Jyotica Bhasin, Advocate, an impartial person was appointed as the Enquiry Officer; that the enquiry was conducted in accordance with principles of natural justice, equity and fairplay; that the workman all through the proceedings participated in the enquiry; that at his request, the proceedings were recorded in Hindi; that copies of all documents filed by the management were also provided to the workman; that he was also allowed to be represented by a co­worker of his choice, namely Sh. Surjit Singh Mallick; that all the statements of the management witnesses were recorded in the presence of the workman and his representative and full opportunity was given to him to cross examine the said witnesses; that the workman duly availed of the opportunity and cross­examined the management witnesses at length; that after the close of the evidence of D.I.D. No. 202/09 Page 7 out of 106 the management, opportunity was also given to the workman to lead evidence in defence; that the Enquiry Officer based on evidence on record, came to the conclusion that the charges leveled against the workman stood established; that a copy of the report of the Enquiry Officer was duly sent to the workman for his comments, if any; that the management having examined the enquiry proceedings and the report of the Enquiry Officer, came to the conclusion that the enquiry conducted against the workman was fair and proper and that findings of the Enquiry Officer were based on evidence on record; that the management, accordingly, concurred with the findings of the Enquiry Officer; that the workman having been employed in a service industry and in view of his nature of duties which entitled him to have direct access in the hotel rooms, the management also came to the conclusion that no further confidence could be reposed in the workman; that the workman was, accordingly, dismissed from service vide letter dated 06.02.2008; that the dismissal of the workman on the facts and circumstances of the present case was, thus, valid and in accordance with law. On merits, it was stated that the charge sheet as stated above was issued to the workman; that the explanation tendered by the workman was, however, found to be unsatisfactory; that the explanation tendered by the workman having been found unsatisfactory an impartial person was appointed as an Enquiry Officer; that the Enquiry Officer conducted the enquiry in accordance with natural justice and full opportunity was given to the workman to defend the charges; that based on evidence on record, the Enquiry Officer D.I.D. No. 202/09 Page 8 out of 106 found the workman guilty of charges; that since the charges leveled against the workman stood established and the management could no longer repose any confidence in the workman, he was rightly and lawfully dismissed from service; that a demand notice was received which was suitably replied; that the evidence on record clearly and conclusively proved the act of misconduct committed by the workman; that the evidence on record proved the act of misconduct; that the Enquiry Officer had been validly and lawfully appointed; that mere non­ mentioning of the clauses of Standing Orders would not invalidate the action taken against the workman; that it was denied that the Enquiry Officer was biased; that the Enquiry Officer gave full opportunity to the workman to defend the charges; that merely because the Enquiry Officer, Mrs. Jyotica Bhasin operated from the office at B­33 (LGF), South Extension Part­II, New Delhi­110049, which was also the legal office of Shri Alok Bhasin and Shri Amit Bhasin, could not make the Enquiry Officer biased, and no such inference of bias or the like could be drawn; that the purported reference made to Mr. Ashok Bhasin, Sr. Advocate was wholly irrelevant and untenable; that the said Mr. Ashok Bhasin, Sr. Advocate had never been associated with Mr. Alok Bhasin and Mr.Amit Bhasin; that Mr. Alok Bhasin and Mr. Amit Bhasin had never shared the same High Court Chamber with Mr. Ashok Bhasin, Sr. Advocate; that Chamber No.149, High Court Chambers was allotted to Mr. Vinay Bhasin, Sr. Advocate and not to Mr. Ashok Bhasin, Sr. Advocate; that it seemed that the confusion in the mind of the workman/workman's D.I.D. No. 202/09 Page 9 out of 106 Learned Counsel with regard to Mr. Ashok Bhasin, Sr. Advocate had been caused because in the Order dated 05.05.2011 as passed by the Hon'ble High Court, the name of Mr. Ashok Bhasin, Advocate had been inadvertently typed in the place of Mr. Alok Bhasin, Advocate; that it was clarified that Mr. Ashok Bhasin, Sr. Advocate never appeared on behalf of the management before the High Court and his name had been wrongly typed in the place of Mr. Alok Bhasin, Advocate, who had appeared before the Hon'ble High Court; that the purported reference made a Bhasin family was wholly unwarranted, uncalled for, motivated, irrelevant, misconceived, erroneous, misplaced and legally untenable; that in any case, it was denied that the Bhasin family was a group of Lawyers who had been representing and giving legal counsel to the management; that the purported averment that Mrs. Jyotica Bhasin being a relative of Bhasin family and part of it was predisposed to favour the management was baseless, misconceived, erroneous, misplaced, legally untenable and devoid of any merit and as such, categorically denied; that similarly, there was no substance or merit in the purported averment that the workman could not have expected a fair and impartial hearing at the hands of the Enquiry Officer, Mrs. Jyotica Bhasin; that the purported reference made to Mrs. Jyotica Bhasin being the Treasurer of the Commercial and Industrial Employer's Association was also wholly unwarranted, misconceived, erroneous, misplaced and untenable; that without prejudice to the above, it was also submitted that the workman never objected to the appointment of Mrs.Jyotica Bhasin as Enquiry D.I.D. No. 202/09 Page 10 out of 106 Officer at any time during the course of the enquiry proceeding; that the workman participated in the enquiry proceeding without any demur or protest, and submitted himself to the jurisdiction of the Enquiry Officer; that a number of witnesses were examined before the Enquiry Officer and also cross examined; that the workman also produced his evidence in the enquiry; that the workman having not raised any objection of bias or the like, against the Enquiry Officer during the pendency of the enquiry proceedings was now estopped from assailing the enquiry on the purported ground that the Enquiry Officer was biased; that it was denied that the Enquiry Officer was biased or that she refused to summon important documents sought by the workman, such as the duty register; that the purported allegation as made was absolutely baseless, incorrect and contrary to the factual position and, as such categorically denied; that the purported reference made to the Enquiry Officer being a family member of the firm of Lawyers representing the management was wholly unwarranted, uncalled for, irrelevant, motivated and untenable; that the purported contention that the Lawyers forming part of the firm, which had been giving legal advice to the management, were "assisting" the management and "advising" the management "in conducting the enquiry"

was incorrect, motivated, untenable and devoid of merit and, as such, not admitted; that it was incorrect that the workman was not provided effective representation in the enquiry; that it was also denied that the procedure of enquiry was not explained to the workman; that it was absolutely incorrect to allege that the Defence Assistance, Mr. Surjit D.I.D. No. 202/09 Page 11 out of 106 Singh Malik in the middle of the enquiry was prevailed upon by Smt. Shalini Upreti to abandon the enquiry and not to appear in favour of the workman as it would affect his own career; that it was incorrect to allege that Smt. Shalini Upreti was inimical to the workman; that the purported allegation that when this issue was verbally apprised to the Enquiry Officer, she simply brushed it aside without ascertaining whether the workman would wish to be defended by any other Defence Assistance was also baseless, incorrect and devoid of any substance and, as such, not admitted; that all allegations as made by the workman in this regard were baseless and incorrect and had been fabricated by him as an afterthought for motivated reasons; that nothing stopped the workman from bringing any other representative after his earlier representative Mr. Surjit Singh Malik declined to represent him any further in the enquiry on 01.06.2007; that as a matter of fact on 01.06.2007 the Enquiry Officer had clearly informed the workman that he was free to bring any other representative in the enquiry; that the workman, however, chose not to bring any other representative in the enquiry after 01.06.2007; that no prejudice was caused to the workman by the procedure adopted by the Enquiry Officer or by reason of the Enquiry Officer being an Advocate; that there was therefore, no substance or merit in the purported averments of the workman that the enquiry was vitiated for the reasons as alleged by him in the Para under reply; that suffice it, however, to state that the Enquiry Officer afforded fully opportunity to the workman in the enquiry, including opportunity of effective representation as well; that suffice, it D.I.D. No. 202/09 Page 12 out of 106 however, to state that the purported averments that the workman was not in a position to defend himself in a complicated enquiry on account of lack of effective representation or that the management ensured that his defence Assistant abandoned him, etc, were all absolutely false, baseless, incorrect and fabricated by the workman as an afterthought for motivated reasons and, as such not admitted; that it was denied that the penalty of termination from service was unjust or the same amounts to victimization of the workman for demanding increments in the past; that the Enquiry Officer had given cogent and valid reasons to hold the workman guilty of the charges levelled against him; that all allegations and averments as made by the workman seeking to assail the enquiry or the enquiry findings were baseless, misconceived and devoid of any merit and as such not admitted; that the services of the workman had been validly and lawfully terminated after he was found guilty of the charges; that it was denied that the dismissal of the workman was illegal; that it was further denied that the workman had been victimized; that to the best of their knowledge the workman was gainfully employed elsewhere; that the workman had been rightly and lawfully dismissed from service after holding a valid and proper enquiry. All other allegations were denied. Hence, it was prayed that the statement of claim be dismissed.

In rejoinder to the amended written statement of the management to the amended statement of claim all the averments of the amended written statement of the management were denied and that of the amended statement of claim were reaffirmed by the workman.

D.I.D. No. 202/09 Page 13 out of 106 On the pleadings of the parties vide order dated 26.07.2011, the following issues were framed:­

(i) Whether the enquiry conducted by the management was fair and proper?

(ii)Whether the services of the workman have been terminated illegally and/or unjustifiably by the management?

(iii) Relief.

No other issue arose or pressed for and the case was fixed for workman evidence.

Thereafter, pursuant to order dated 29.08.2011 passed by the Hon'ble High Court of Delhi in W.P. (C) 6291/2011 and C.M. No.12650/2011 between the parties, on record, the leading of evidence by the parties has been limited to the issue of validity of the enquiry which has been ordered to be treated as a preliminary issue vide order dated 13.01.2012 of the Hon'ble High Court of Delhi in the aforesaid proceedings between the parties, on record.

In support of his case, workman himself appeared as WW1 in workman evidence on the enquiry issue, tendered his affidavit by way of evidence Ex.WW1/A as also relied upon documents Exts.WW1/1 to WW1/6 in the same, on record.

After examining WW1, workman evidence on the enquiry issue has been closed, on record.

In support of its defence, the management has examined Ms. D.I.D. No. 202/09 Page 14 out of 106 Jyotica Bhasin, Enquiry Officer of the management as MW1 in management evidence on the enquiry issue, who has tendered her affidavit by way of evidence Ex.MW1/A as also relied upon documents enquiry report Ex.MW1/1 Colly (page nos. 1 to 28) and enquiry record Ex.MW1/2 Colly (page nos. 29 to 165) in the same.

The management has further led the evidence of Sh. Himanshu Pandey, Senior Manager (Legal & Secretarial) of the management as MW2 in management evidence on the enquiry issue, who has tendered his affidavit by way of evidence Ex.MW2/A as also relied upon document Ex.MW2/1 in the same.

After examining MW2, management evidence on the enquiry issue has been closed, on record.

Arguments on the enquiry issue have been heard. Written submissions on the enquiry issue have also been filed on the part of the parties, on record. AR for the workman has relied upon citations viz. Indian Iron & Steel Co., Ltd. & Anr. Vs. Their workmen MANU/SC/0084/1957; AIR 1958 SC 130, Roop Singh Negi Vs. Punjab National Bank and Ors. (2009) 2 SCC 570, Delhi Cloth and General Mills Co. Vs. Ludh Budh Singh (1972) 1 SCC 595, Rajinder Kumar Kindra Vs. Delhi Administration through Secretary (Labour) and Ors. (1984) 4 SCC 635, Indu Bhushan Dwivedi Vs. State of Jharkhand and Anr. AIR 2010 SC 2472, Delhi Transport Corporation Vs. Harish Babu MANU/DE/4380/2012, in support of his submissions on behalf of the D.I.D. No. 202/09 Page 15 out of 106 workman on the enquiry issue.

AR for the management has also relied upon citations viz. Syndicate Bank and Others vs. Venkatesh Gururao Kurati, 2006 Ind Law SC 22; 2006 I LLJ 988, Indra Bhanu Gaur vs. Committee, Management of M.M. Degree College and Ors., 2003 Ind Law SC 957; AIR 2004 SC 248, U.P. State Textile Corporation Ltd. vs. P.C. Chaturvedi and Ors., 2005 Ind Law SC 858, H.V. Nirmala vs. Karnataka State Financial Corporation and others, (2008) 7 SCC 639, Biecco Lawrie Limited and Another­Appellants Vs. State of West Bengal and Anr.­Respondents, (2009) 10 SCC 32, Saran Motors Private Ltd. New Delhi vs. Vishwanath and Anr.,(1964) 2 LLJ 139 SC; (1964) 9 FLR 7, S.C., M/s Dalmia Dadri Cement Ltd. vs. Murari Lal Bikaneria, (1970) 2 LLJ 416; (1970) 21 FLR 201, S.C., High Court of Judicature at Bombay­ Appellant vs. Shrishkumar Rangrao Patil and Anr.­ Respondents, (1977) 6 SCC 339, H.C. Sarin­Appellant vs. Union of India and Ors.­Respondents, (1976) 4 SCC 765, B.C. Chaturvedi vs. Union of India and Ors., 1997 (4) LLN 65 S.C., Employers Management West Bokaro Colliery of Tisco Limited vs. Concerned Workman, Ram Pravesh Singh, 2008 Ind Law S.C. 132, Usha Breco Mazdoor Sangh vs. Management of Usha Breco Ltd. and Another, 2008 II LLJ 945 (S.C.), I.T.D.C. Ltd. vs. S.K. Roy & Ors., 2007 LLR 693, The East India Hotels­Appellant vs. Their Workmen and Ors­ D.I.D. No. 202/09 Page 16 out of 106 Respondents, AIR 1974 S.C. 696, State of Haryana and Another vs. Ratan Singh, 1982 1 LLJ 46, Shri J.D. Jain vs. The management of State Bank of India and another, 1982 (1) LLJ 54 S.C., I.T.D.C. (Ashoka Hotel Unit) vs. Ram Kumar, 2002 Ind Law DEL 1391; 2002 (97) DLT 184, Divisional Controller, KSRTC (NWKRTC) vs. A.T. Mane, 2004 III L.L.J, 1074, S.C. in support of his submissions on behalf of the management on the enquiry issue.

My findings on the enquiry issue are as under:­ Issue no. 1 It is seen from the record that the workman has appeared in the workman evidence on the enquiry issue as WW1, tendered his affidavit by way of evidence Ex.WW1/A as also relied upon documents Exts. WW1/1 to WW1/6 in the same. In his affidavit by way of evidence Ex.WW1/A he has reiterated the contents of his amended statement of claim to the effect that the workman was appointed at the post of General Worker vide letter dated 27.06.1989; that the workman had continuously discharged his services to the management aforesaid with utmost dedication to the entire satisfaction of his superiors and he had unblemished record of service to his credit; that the management issued charge sheet dated 04.01.2007 to the workman and he gave his reply vide his letter dated 20.01.2007; that the management did not find the reply submitted by the workman satisfactory and appointed enquiry officer to enquire into the matter vide its letter dated 31.01.2007; that the enquiry D.I.D. No. 202/09 Page 17 out of 106 officer submitted his report and on the basis of enquiry report the management dismissed the workman vide its letter dated 06.02.2008; that after the receipt of dismissal letter, the workman sent his demand notice to the management vide his letter dated 14.02.2008; that the dismissal of the services of the workman on the basis of the report of the Enquiry Officer was illegal, unjustified and bad in law; that the enquiry conducted by the management was an eye wash and empty formality to get rid of the workman; that the domestic enquiry conducted by the management against the workman was vitiated on the following amongst other grounds; that the complainant had not taken the name of the workman; that there was no eye witness in the matter; that the charge sheet had not been issued by a competent man; that the Enquiry Officer had not been appointed by the disciplinary authority; that the charge did not reveal which clauses of certified standing orders and rules applicable on the Hotel had been violated by the workman; that the Enquiry Officer was biased and started enquiry after closing it as the workman was not on duty when the stolen goods had been alleged; that the Enquiry Officer Smt. Jyotika Bhasin had indicated in her correspondence operated from the office of B­33 (LGF), South Extension Part­II, New Delhi­110049, which was the legal office of Sh. Alok Bhasin, Sh. Amit Bhasin, who also shared the same High Court Chamber being Chamber No. 149 Lawyers Chamber with Sh. Ashok Bhasin, Senior Advocate; that the Bhasin family were group of lawyers who had been representing and giving legal counseling to the management and therefore, Smt. Jyotica Bhasin being a D.I.D. No. 202/09 Page 18 out of 106 relative of Bhasin family and a part of it was obviously pre­disposed to favour the management; that therefore, the workman could not have accepted a fair and impartial hearing at the hands of the Enquiry Officer Smt. Jyotica Bhasin; that in fact Smt. Jyotica Bhasin was the Treasurer of the Commercial and Industrial Employers' Associations on whose behalf Sh. Amit Bhasin also filed an affidavit indicating the same address as General Secretary seeking to contest the instant case on behalf of the respondent management; that the Enquiry Officer who was a family member of the firm of lawyers who were assisting the management and advising the management in conducting the enquiry adopting a bias manner by refusing to summon the important documents sought by the workman such as the duty register; that the enquiry was also vitiated as the enquiry was held by competent lawyer and the workman was a simple room attendant who was not provided effective representation in the enquiry; that the procedure of the enquiry was neither explained nor the particular standing order under which the employee was charged and subsequently found guilty of mis­conduct was not set out; that in fact, the defence assistant Sh. Surjeet Singh Malik in the middle of the enquiry was prevailed upon by Smt. Shalini Upreti who was inimical to the workman to abandon the enquiry and not appear in favour of the workman as it would affect his own career; that when this issue was verbally appraised to the Enquiry Officer, she simply brushed it aside without ascertaining whether the workman would wish to be defended by another defence assistant; that the Enquiry Officer despite repeated D.I.D. No. 202/09 Page 19 out of 106 requests of the workman that he had been forcibly compelled to give statement dated 12.12.2006 by Mehfooz Hassan, Santan Singh Rawat, Sanjay Sharma did not summon these witnesses to examine the fairness of the statement and relied upon such statement; that the Enquiry Officer who was a legally trained personnel continued with the enquiry without giving the workman, who was a simple floor attendant, an opportunity to be effectively given in the departmental enquiry; that the workman was not in a position to defend himself in a complicated enquiry where there were serious allegations against him on account of lack of effective manner as the management effectively ensured that his defence assistant did not explore; that the services of the workman had been terminated on false charges and enquiry conducted illegally to prove guilt of the workman; that the workman was unemployed since his dismissal of his services inspite of his best efforts.

Ex.WW1/1 being appointment letter dated 27.06.1989 of the management in respect of the workman; Ex.WW1/2 being copy of the Hindi translation of the charge sheet dated 04.01.2007 of the management to the workman, Ex.WW1/3 being copy of reply dated 20.01.2007 of the workman to the abovesaid charge sheet of the management to him, Ex.WW1/4 being letter dated 31.01.2007 of the management to the workman in respect of appointment of Ms. Jyotica Bhasin as Enquiry Officer to conduct an enquiry into the allegations of misconduct of the management against the workman vide its charge sheet against him, as abovesaid, Ex.WW1/2, Ex.WW1/5 being the termination/dismissal letter D.I.D. No. 202/09 Page 20 out of 106 dated 06.02.2008 of the management in respect of the workman, Ex.WW1/6 being copy of the demand notice dated 14.02.2008 of the workman to the management.

This witness has been cross examined at length on behalf of the management in the workman evidence on the enquiry issue, in which he has deposed that it was correct that he had received charge sheet dated 04.01.2007 and he had given reply to the same vide his reply dated 20.01.2007; that it was correct that thereafter, enquiry proceedings were held in his respect; that it was correct that he had been appearing before the enquiry officer on the dates of hearing fixed in the same; that his presence had also been recorded in the enquiry proceedings on the dates of hearing in the same; that it was correct that on his request, the proceedings of the enquiry were conducted in Hindi; that it was correct that he had been represented in the enquiry by his defence representative namely Sh. Surjeet Singh Malik; that it was correct that statement of the management witnesses were recorded in the presence of himself and his defence representative in the enquiry; that it was correct that his defence representative had cross examined the witnesses on his behalf in the enquiry; that it was correct that he had been given an opportunity to produce his witnesses before the enquiry; that he had given his statement before the enquiry officer; that it was correct to suggest that in the management evidence before the enquiry officer management had produced witness namely Sh. Mehfooz Hasan; that it was correct to suggest that his defence assistant Sh. Surjit Singh had cross examined the D.I.D. No. 202/09 Page 21 out of 106 said witness on his behalf during the enquiry proceedings; that it was correct to suggest that another witness namely Sh. Santan Singh Rawat had also appeared on behalf of the management before the enquiry officer who had also been cross examined on his behalf by his defence assistant; that it was correct that pages number 34 to 39 of the enquiry proceedings of the date 16.10.2007 Ex.WW1/M1 were bearing his signatures at points A thereon; that it was wrong to suggest that he was given full opportunity to defend himself in the enquiry; that it was wrong to suggest that the enquiry officer had conducted the enquiry in an impartial manner and fully in accordance with the principles of natural justice; that it was wrong to suggest that he had supplied all the relevant documents by the management during the enquiry; that he could not say who was the competent authority for issuance of charge sheet or appointing enquiry officer in his respect; that it was wrong to suggest that the charge sheet had been issued by the competent authority; that it was wrong to suggest that various allegations made against the enquiry officer were baseless and after thought; that it was wrong to suggest that he had made false allegation that Smt. Shalini Upreti had prevailed upon his defence assistant Sh. Surjit Singh Malik in the middle of the enquiry to not appear on his behalf in the same; that it was wrong to suggest that the enquiry officer gave her findings based on materials and evidence on record; that it was wrong to suggest that he was deposing falsely.

Thereafter, the workman evidence on the enquiry issue has been closed, on record.

D.I.D. No. 202/09 Page 22 out of 106 In the management evidence on the enquiry issue, the management has led the evidence of Ms. Jyotica Bhasin, Enquiry Officer of the management as MW1, who has tendered her affidavit by way of evidence Ex.MW1/A in the same as also relied upon documents enquiry report Ex.MW1/1 Colly (page nos.1 to 28) and enquiry record Ex.MW1/2 Colly (page nos. 29 to 165), on record.

In her affidavit by way of evidence Ex.MW1/A she has deposed that the management of Bharat Hotels Limited appointed her as Enquiry Officer to conduct a domestic enquiry into certain charges of misconduct leveled against Sh.Uttam Chand Bhatia (workman, for short) vide charge sheet dated 04.01.2007; that she thereafter, conducted the enquiry into the charges leveled against the workman; that she conducted the enquiry independently, impartially and without any bias for or against any party; that she recorded the enquiry proceedings truthfully and correctly and the same represent the correct and factual position as to what happened at the enquiry; that the copies of the enquiry record, which includes the enquiry proceedings, correspondence exchanged regarding the enquiry and the documents, etc. filed in the enquiry were collectively Ex.MW1/1; that the enquiry proceedings bear his signatures as well as those of the management representative, the workman, workman's representative and the witnesses who deposed in the enquiry; that she said that she conducted the enquiry fully in accordance with the principles of natural justices, fair play and equity; that the enquiry was conducted and recorded in Hindi; that copies of all documents relied upon D.I.D. No. 202/09 Page 23 out of 106 by the management as also the documents demanded by the workman and which were available with the management, were supplied to the workman; that the witnesses of the management were examined in the presence of the workman; that she gave full opportunity to the workman/workman's representative to cross­examine the witnesses of the management; that the workman/workman's representative availed of the said opportunity and cross examined the management witnesses; that after the conclusion of the evidence of the management, she gave full opportunity to the workman to produce his evidence in defence, which opportunity as well was availed of by the workman; that no prejudice was caused to the workman by the procedure adopted by her in the domestic enquiry; that she also allowed the workman to be represented in the enquiry by a co­employee of his choice, namely, Mr. Surjit Singh Mallick; that she said that she was an independent advocate; that merely because she also operate from the office at b­33, LGF, South Extension Part­II, New Delhi­110049, which was also the legal office of Mr. Alok Bhasin and Mr. Amit Bhasin, Advocates did not render her incompetent to conduct the enquiry; that to her knowledge, Mr. Alok Bhasin, Advocate and Mr. Amit Bhasin, Advocate had never shared the High Court Chambers with Mr. Ashok Bhasin, Senior Advocate; that she categorically denied that she was biased or that she refused to summon important documents sought by the workman, such as the Duty Register; that she submits that merely because she happened to be a family member of the firm of Lawyers representing the management, could not D.I.D. No. 202/09 Page 24 out of 106 make her a biased Enquiry Officer; that she had no connection with the affairs of the management; that she never gave any advice to the management with regard to the workman; that he gave full opportunity to the workman to participate in the enquiry and to defend himself in the enquiry; that the workman participated in the enquiry throughout, without any demur or protest; that she also explained the procedure of the enquiry to the workman at the very outset; that on 01.06.2007 the workman's representative Mr. Surjit Singh Mallick declined to represent the workman any further in the enquiry; that on the said date, she clearly informed the workman that he was free to bring any other representative in the enquirys; that however, the workman chose not to bring any other representative in the enquiry after 01.06.2007; that the workman never made any complaint that his representative was prevailed upon by Mrs. Shalini Upreti to abandon the enquiry and not to appear in favour of the workman; that nor was any such complaint made by the workman's representative; that she specifically enquired from him why he was withdrawing from the enquiry at that stage; that the workman's representative stated that he had not interested to represent the workman further; that after the enquiry was conducted and concluded, she submitted her enquiry report dated 17.12.2007; that she submits that her findings were based on evidence and material on record in the enquiry. Copy of the enquiry report which bears her signatures was Ex.MW1/2.

Ex.MW1/1 Colly (page nos. 1 to 28) being the enquiry report of the Enquiry Officer MW1 Ms. Jyotica Bhasin of the management in D.I.D. No. 202/09 Page 25 out of 106 respect of the enquiry conducted by her at the instance of the management on the allegations of misconduct as leveled by the management against the workman vide its charge sheet dated 04.01.2007 to the workman in this regard, Ex.MW1/2 Colly (page nos. 29 to 165) being the enquiry proceeding in respect of the enquiry conducted by the MW1 Ms. Jyotica Bhasin, Enquiry Officer of the management into the allegations of mis­conduct as leveled by the management against the workman vide its subject charge sheet dated 04.01.2007 to the workman.

This witness has been cross examined at length on behalf of the workman in the management evidence on the enquiry issue, in which she has deposed that copy of the complaint received from the guest was at page nos. 130 and 131 of the enquiry record Ex.MW1/2 Colly; that no FIR had been lodged by the management or the complainant on the said complaint; that the workman had also filed a copy of a letter purported to be written by the complainant during the enquiry proceedings, which was at page no. 158 of the same; that it was correct that the complainant/guest had not appeared in the enquiry; that it was correct that the letters at page nos. 130­131 and 158 had not been sent for examination and report regarding their authenticity to the handwriting expert; that she could not said whether the letter at page no. 158 of the enquiry record Ex.MW1/2 Colly was in the handwriting of the complainant/guest or not; that she also could not say whether the letter at page no. 130­131 of the complainant/guest in the enquiry record Ex.MW1/2 Colly was in the handwriting of the complainant/guest or not; that it was wrong to suggest D.I.D. No. 202/09 Page 26 out of 106 that her finding in her enquiry report Ex.MW1/1 Colly in respect of the above letters was perverse or incorrect; that it was correct that she was working from the premises bearing no. B­33, South Extension Part­II, New Delhi; that it was correct that the office of S/Sh. Alok Bhasin and Amit Bhasin, Advocates was also situated at the said premises; that she could not say whether S/Sh. Alok Bhasin and Amit Bhasin were the legal advisors of the management or not; that she had conducted several enquiries at the instance of the management; that it was wrong to suggest that in all the enquiries conducted by her at the instance of the management, she had given her finding against the workman­employee; that she also could not say whether S/Sh. Alok Bhasin and Amit Bhasin were representing the management as Counsels in the court; that it was correct that Sh. Alok Bhasin was representing the management as its counsel in the instant proceedings; that it was correct that she was a member of Commercial and Industrial Employer's Association; that she could not say whether she had been Treasurer of the same or not; that it was wrong to suggest that she had conducted the enquiry in a partial manner or that she was biased in favour of the management; that it was correct that she was legally qualified as also was enrolled as an Advocate with the Bar Council of Delhi; that it was wrong to suggest that she had not explained the procedure of the conduct of the enquiry to the workman­employee before commencing it. Vol. She had explained the same verbally as also in writing to the workman­employee; that she could not say whether she had explained the particular standing order under D.I.D. No. 202/09 Page 27 out of 106 which the workman had been chargesheeted to him or not during the enquiry; that Ms. Shalini Uprati did not represent the management in the enquiry; that it was correct that Sh. Surjeet Singh Malik was representing the workman initially in the enquiry; that it was wrong to suggest that Ms. Shalini Uprati had pressurized Sh. Surjeet Singh Malik to withdraw as the defence assistant of the workman in the enquiry; that it was incorrect to suggest that the workman had ever intimated to her in this regard during the enquiry; that it was incorrect to suggest that she had not given an opportunity to the workman to bring a fresh defence assistant in place of Sh. Surjeet Singh Malik in the enquiry; that it was wrong to suggest that witnesses namely S/Sh. Mahfooz Hassan, S.S. Rawat and Sanjay Sharma were refused to be summoned in the enquiry on the request of the workman. Vol. Witnesses S/Sh. Mahfooz Hassan and S.S. Rawat had duly appeared as management witnesses in the enquiry and had been cross examined by the workman in the same and the name of Sh. Sanjay Sharma had never been mentioned in the enquiry; that it was wrong to suggest that the name of Sh. Sanjay Sharma to be summoned as a witness in the enquiry had been given by the workman in the same; that Documents filed in the enquiry by the management were matter of record in the same; that it was correct that the room lock audit report at page no. 132 of the enquiry record Ex. MW1/2 Colly was the authentic record of the opening of the guest rooms of the hotel; that it was correct that she had relied upon the room lock audit report at page no. 132 of the enquiry record Ex. MW1/2 Colly in arriving at her finding vide her report D.I.D. No. 202/09 Page 28 out of 106 Ex.MW1/1 Colly; that it was wrong to suggest that her reliance on the said record in arriving at her finding was incorrect or perverse; that it was wrong to suggest that she conducted the enquiry at the behest of the management to prove the charges against the workman; that it was wrong to suggest that she conducted the enquiry in violation of the principles of natural justice; that it was further wrong to suggest that her findings vide her enquiry report were perverse and based on no evidence; that it was wrong to suggest that she was deposing falsely.

The management has further led the evidence of Sh.

Himanshu Pandey, Senior Manager (Legal & Secretarial) of the management as MW2 in management evidence on the enquiry issue, who has tendered his affidavit by way of evidence Ex.MW2/A as also relied upon documents Ex.MW2/1.

In his affidavit by way of evidence he has deposed to the effect that he was working with the management with effect from November, 2009; that he was currently employed as Senior Manager, Legal & Secretarial, with the management; that he was aware of the facts of this case and competent to swear to the contents of this affidavit; that Ex.MW2/1 was photocopy of the delegation of powers dated 17.10.2006 in favour of General Manager and H.R. Manager for performing the requisite acts as stated therein; that the said delegation had been signed by Mr. Vijay Kumar Verma, the then Vice President & Company Secretary; that the said Mr. Verma was in the employment of the management till 30th August 2011; that being in the same department and D.I.D. No. 202/09 Page 29 out of 106 having worked under him, he identified his signatures on the aforesaid delegation, copy of which had been attested by Mr. S. Prabhakar, the current vice President­Legal & Company Secretary whose signatures he also identified; that he submits that the charge sheet was issued and the enquiry officer was appointed by officer(s) who were competent and authorized to do so.

Ex.MW2/1 being attested copy of delegation of powers to General Manager and HR Manager, of the management.

This witness has been cross examined at length on behalf of the workman in management evidence on the enquiry issue in which he has deposed that Sh. Vijay Kumar Verma, Vice President and company secretary who had issued Ex.MW2/1 was no longer in the employment of the management but came to the management of and on; that he could not say whether he could have come to depose on behalf of the management or not; that the management had not asked him to depose on its behalf on that day; that it was wrong to suggest that Ex.MW2/1 was not bearing the signatures of Sh. Vijay Kumar Verma, V.P and Company Secretary of the management and was a false and forged document; that Sh.S. Prabhaker who had attested the said document was working with the management as vice president and company secretary presently; that he had not been asked by the management to depose on its behalf on that day; that it was wrong to suggest that the document was not bearing the signatures of Sh. S.Prabhakar in attestation of the same; that it was wrong to suggest that he did not recognize the signatures of either Sh. Vijay D.I.D. No. 202/09 Page 30 out of 106 Kumar Verma or Sh. S. Prabhakar appearing on the said document; that it was wrong to suggest that he was deposing falsely.

Thereafter, management evidence on the enquiry issue has been closed, on record.

It is the submission of the AR for the workman inter alia that the enquiry conducted by the enquiry officer was not fair and proper and that the enquiry officer who had conducted the enquiry into the charges of alleged misconduct against the workman was not an independent and impartial person; that the workman was neither explained the procedure of the enquiry nor was apprised of the particular standing order under which he was charged and subsequently found guilty of misconduct; that the workman was deprived of the assistance of his defence assistant Sh. Surjeet Singh Malik in the subject enquiry and was thus deprived assistance of any account during the enquiry proceedings against the workman by the enquiry officer.

It is further the submission of the AR for the workman that even the substantiative aspect of the enquiry conducted into the allegations/charges of misconduct against the workman vide the charge sheet Ex.WW1/2 was not fulfilled and that there was not sufficient evidence, on record, to hold the workman/charge sheeted employee guilty of the charge alleged against him; that the record of the management indicates that the workman was given duty at 04.45 P.M. whereas the entry was at 04.25 P.M., also the admitted position was that the other persons had also entered the room during the relevant period and there D.I.D. No. 202/09 Page 31 out of 106 was no material to show directly or indirectly the involvement of the workman other than mere speculation, conjectures and surmises on the part of the enquiry officer MW1 Ms. Jyotica Bhasin of the management in the management evidence; that the workman had already moved an application under Section 11 3 (b) of the Industrial Disputes Act, 1947 for direction to the management to produce inter alia copy of duty roster for the date viz.12.12.2006 for all the floor attendants including the workman and key opening record of all the rooms on the 22nd floor for the date 12.12.2006 which the management had failed to produce and therefore an adverse inference was liable to be drawn against the management in this regard; that the enquiry conducted by the management was vitiated on both the grounds procedural as well as substantiative and accordingly, the enquiry proceedings be held to be vitiated, on record.

It is seen from the record that it is further the argument of the AR for the workman vide written note of arguments filed on behalf of the workman on the enquiry issue, on record, to the effect that it is the allegation of the management vide its charge sheet dated 04.01.2007 Ex.WW1/2 as also forming part of the Ex.MW1/2 Colly (page nos. 29 to

165) in management evidence, on record, that on 12.12.2006, guest Ms. Kanika Sharma checked in Hotel Room No.2206 at about 1.50 P.M.(the guest card indicates 12.11 PM); she stayed in her room for about 20­30 minutes and thereafter left the room; the guest subsequently reported to the management that when she came back to her room at 07.30 P.M., she D.I.D. No. 202/09 Page 32 out of 106 did not find her mobile phone which she had left on the table while going out of the room; during the investigation which followed the complaint, the workman informed having gone to room No.2206 at about 05.00 P.M. for giving service, but having found that the room had DND (Do Not Disturb) sign, he did not go inside the room and came back without giving service; subsequent checking of the electronic data machine, however, showed that the Room No. 2206 had in fact been opened at 05.06 P.M. with floor card No. 05000089; the record further revealed that this card was issued to the workman and he had opened various other rooms as well using the aforesaid floor card no.05000089 on 12.12.2006; that it was thus, conclusively established from the above that the workman had entered Room No. 2206 at about 05.06 P.M. to give service by using the floor card No. 05000089; the workman having found the mobile phone lying on the table, picked up the same and in order to ensure that he was not blamed for the theft of the mobile phone, deliberately made a false statement that he did not give any service in the room as it had DND sign; the workman had also mentioned in his statement that the guest was not in as the door light was not on; the guest in her complaint clearly stated that she had not put up any DND card while leaving her room; moreover DND sign was put up by the guest when he/she was inside the room and did not want to be disturbed and, as such there was no occasion for the guest to put up the DND sign while leaving her room; the management having examined his personal file, also find that his past record of service was also most unsatisfactory and D.I.D. No. 202/09 Page 33 out of 106 previously also he had also been found fiddling with the bag of a guest lying in the room; the workman had not shown any improvement in his work and conduct despite long latitude given to him; that the aforesaid conduct of the workman constituted gross mis­conduct; the charges, if found proved would result in total loss of confidence in him; that he was therefore, called upon to submit his explanation within 48 hours of the receipt of the chargesheet as to why disciplinary action be not taken against him; if no explanation was received within the stipulated period, it would be inferred that the workman admitted the correctness of the charges leveled against him and had no explanation to offer in his defence, to which the workman has replied vide his reply dated 20.01.2007 to the same Ex.WW1/3, on record, refuting the allegation of the management against him vide the charge sheet, as abovesaid on the ground inter alia that he had initially gone for his duty to the room concerned which was DND; however, when he had again gone for his duty to the room concerned at about 05.06 P.M. it was not DND at that time and he had performed his duty in the room concerned and had come out, however, he had forgotten to write the time in the section copy due to which the first entry in the section copy of DND remained which was his fault which entry of his into the room concerned at 05.06 P.M. on the date concerned was evident from the electronic data machine viz. feeding of his entry vide his floor card into the subject room on the relevant time whereas he has opened many rooms at the same time and accordingly the statement that he had only opened the room at the relevant time was D.I.D. No. 202/09 Page 34 out of 106 incorrect; he had also opened other rooms to perform his duties and there had been no complaint from any of the occupants from which it is evident that the allegations leveled against him were false; he has not committed the misconduct as alleged against him vide subject charge sheet viz. stealing of the mobile phone of the occupant of the room no. 2206 on 12.12.2006 the date alleged; he had come to his duty at 04.30 P.M. on that day prior to that supervisor miniver room service, deputy house keeper, house keeper, duty manager, bell boys were present who were also in the possession of the room key; to state of certainty that the mobile was on the table in room no. 2206 on the part of the management whereas the room is in the occupation of the guest is closed by him/her as also the allegation of his having stolen the mobile phone of the guest from the room no. 2206 in the relevant date and time was a false and concocted story on the part of the management and in order to evade the responsibility for the incident he was being falsely implicated in the same; the factum of no report of the alleged theft of mobile phone in the subject room of the management on the part management to the concerned police also goes to show that the person chargesheeted is a conspiracy on the part of the management against him why no report had been lodged by the management in the incident to the concerned police from which it is evident that the instant charge sheet is only a bid to falsely implicate him in the subject incident as also a conspiracy on the part of the management against him and the entire allegations were false and concocted; the further allegation of the management that it was D.I.D. No. 202/09 Page 35 out of 106 evident from his personal file that the workman had previously also fiddled with the belongings/baggages of the guest of the management and that he had not improved despite opportunity given by the management to him was also false and concocted whereas the truth was that there had been no charge against him in this regard and he had been given appreciation certificate by the management for his exemplary work and allegation of the workman with regard to his being told to improve himself in the performance and conduct of his duty/obligations was false and untrue; he had been discharging his duties to the management with utmost sincerity, honesty and devotion and would continue to do so; that his reply to the charge sheet was true and correct and that justice be done to him by the management.

It is further the submission of the AR for the workman that the allegations of misconduct of the alleged theft of mobile phone by the workman from the room No. 2206 of the guest Ms. Kanika Sharma on 12.12.2006 at 05.06 P.M. is not made out/proved against the workman by way of the enquiry proceeding Ex.MW1/2 Colly (page nos.29 to 165) conducted by the management against the workman through the MW1 Ms. Jyotica Bhasin, Enquiry Officer of the management as also vide the report of the Enquiry Officer MW1 Ms. Jyotica Bhasin of the management Ex.MW1/1 Colly (page nos. 1 to 28), on record, even by way of preponderance and probability since the key register which is a document which records when the keys to the rooms are issued to the staff which document has been filed by the management itself in the D.I.D. No. 202/09 Page 36 out of 106 enquiry proceedings and is at page no. 150 of Ex.MW1/2 Colly (page nos. 29 to 165) indicates that the floor card No. 05000089 was issued to the workman at 04.45 P.M. and room lock audit report/opening records in respect of the room No. 2206 at page no. 132 in the enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to 165) shows that the subject room had been opened on the relevant date at 12.11 P.M. vide guest card No. 00000004, at 04.27 P.M. vide floor card No. 05000089 which had been issued to the workman only at 04.45 P.M. vide the key register (page no.

150) of the enquiry proceedings Ex.MW1/2 Colly (page nos.29 to 165), at 02.05 P.M. vide building card No. 0800001D which as per the Lock Audit Report/Opening Record Ex.MW1/1 in the enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to 165) at page no. 132 of the same has been used by the room service B/C and then again at 05.52 P.M. vide guest card No. 00000004 as mentioned in the subject opening records Ex.MW1/1 at page no. 132 of the enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to 165), at 02.05 P.M. in the absence of the guests involved the placing of complementary fruits, cakes and chocolates on the table in the subject room, apart from at 05.06 P.M. vide floor card No.05000089 on the relevant date viz. 12.12.2006, the entry alleged against the workman.

It is the submission of the AR for the workman that the said factum of entries into the subject room on the relevant date in the absence of the guest who has allegedly complained that in her absence her mobile phone had been stolen from her room subject matter of the allegations of D.I.D. No. 202/09 Page 37 out of 106 misconduct/charge sheet dated 04.01.2007 of the management against the workman is corroborated vide the said alleged complaint of the guest at page no. 130­131 of the enquiry proceedings Ex.MW1/2 Colly (page nos.29 to 165) when she states in the same "the table on which mobile phone was lying, contained only three apples when I left. When I came back, there was a congratulatory cake lying on the table along with few chocolate cookies."

It is further the submission of the AR for the workman that it has come in the enquiry proceedings that persons namely Sh. Rohit, trainee as also one Sh. Shantanu along with Ms. Jaya Raghu of the management have also entered the room of the guest in her absence as is evident from their statements at page nos.147­148 of the enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to 165) in which they had admitted that they had indeed entered the subject room on the relevant date in the absence of the guest to place fruits, cakes and chocolates on the table lying there on which allegedly the mobile phone of the guest was also lying and which is alleged to have been stolen on the relevant date in her absence by the guest vide her complaint not proved or even formally tendered in the enquiry proceedings on the part of the management since admittedly the guest has not been summoned to appear as a witness in the enquiry proceedings against the workman/delinquent employee nor the same taken, on record, in the enquiry proceedings through/by way of any management witness in the same though figuring at page nos. 130­131 of the enquiry proceedings Ex.MW1/2 Colly (page nos.29 to 165) when she D.I.D. No. 202/09 Page 38 out of 106 states in the same as quoted hereinabove and accordingly it is established, on record, in the enquiry proceedings Ex.MW1/2 (page nos. 29 to 165) that there are other entries in the subject room during the period when the guest is admittedly absent from her/subject room vide room Lock Audit Report/Opening Records of the subject room viz. room No. 2206 of the relevant date specifically entries vide the floor card No. 05000089 of house keeping at 04.27 P.M., building card No. 0800001D of room service B/C at 02.05 P.M. when the aforesaid three persons viz. Sh. Rohit, trainee as also Sh. Shantanu and Ms. Jaya Raghu of the management have admittedly entered the subject room in the absence of the guest to place congratulatory cake, chocolates and cookies on the table inside the subject room on which the guest is alleged to have left her mobile phone and from which the same is alleged to have been stolen during the period of absence of the guest from her room vide her alleged complaint undated allegedly to the management in this regard which admittedly has not been proved or even formally tendered in the enquiry proceedings against the workman/delinquent employee by the management, as abovesaid.

It is further the submission of the AR for the workman that admittedly the keys of the subject room have been handed over to the workman by the management for performance of his duties in the evening shift on the relevant date at 04.45 P.M. as per the key register of the management in this regard at page no.150 of the enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to 165) and accordingly the workman by D.I.D. No. 202/09 Page 39 out of 106 no stretch of imagination can be said to have entered the subject room prior to 04.45 P.M. on the subject date viz. 12.12.2006 on which he is alleged to have committed theft of a mobile phone of the guest from her room no. 2206 in her absence at 05.06 P.M. vide the relevant charge sheet Ex.WW1/2 as also forming part of enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to 165), on record, at page nos. 128­129 of the same and accordingly the entries to the subject room prior to 05.06 P.M. on the relevant date evident from the room lock audit report/opening records in respect of the subject room no. 2206 of the relevant date viz. 12.12.2006 Ex.MW1/1 in the enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to

165) at page no. 132 of the same viz. at 04.27 P.M. and 02.05 P.M. in the subject room in the absence of the guest cannot be attributable to the workman and have in fact not been attributed to the workman by the management in the subject charge sheet/enquiry proceedings conducted by the management in respect of the allegations of misconduct against the workman in the same, evidently the entry at 02.05 P.M. vide building card No. 0800001D by room service B/C into the subject room in the absence of the guest on the relevant date being of S/Sh.Rohit, trainee, Shantanu of room service as also Ms.Jaya Raghu of housekeeping morning shift of the management for the purpose of placing complementary cake, chocolates and cookies on the table in the same as is evident from statements given to the management at page nos.147­148 of the enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to 165) to the effect in respect of Sh.Rohit, Trainee of the management as follows:­ D.I.D. No. 202/09 Page 40 out of 106 To, The H.O.S, Inter Continental The Grand, Respected Sir, My self Rohit, Trainee No. 73. I and Mr. Shantanu had gone for giving service on 22nd floor, in room no. 2206. I and Mr.Shantanu told Mrs. Jaya H.Keeping Room attendant to open the Room No.2206. Then she opened the door. I and Mr. Shantanu both entered the room. Mr. Shantanu placed the fruit, cake and chocolates in the room, at that time I was standing near wardrobe table and Mr. Jaya was also standing there. After placing amenities I and Shantanu came out of the room. Thanking You.

Yours faithfully Sd./­ (Rohit) 19.12.2006 and in respect of Ms. Jaya Raghu of housekeeping of the management as follows:­ To, Security Officer, Hotel Inter­Continental The Grand, New Delhi.

Respected Sir, I Jaya Raghu H.K. (1046) on 12th December, 2006. I was on 22nd floor for work. 2 persons came from room service to place the cake. I have opened the door for them and they both went inside the room to place the cake and fruits and they came back within few seconds and I D.I.D. No. 202/09 Page 41 out of 106 shut the door. Guest was not in the room.

Yours Sincerely Sd/­ (Jaya Raghu) 1046 H.K. It is further the submission of the AR for the workman that admittedly entry has also been made into the subject room at 04.27 P.M. vide floor card No. 05000089 in the absence of the guest on the relevant date (not attributed to the workman) vide which floor card No. 05000089 workman is alleged to have entered the subject room in the absence of the guest at 05.06 P.M. on the relevant date viz. 12.12.2006 and which floor card has admittedly been issued to the workman by the management only at 04.45 P.M. on the relevant date viz. 12.12.2006 vide photocopy of the key register filed at page no. 150 by the management itself in the enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to 165), the duty of the workman having admittedly commenced with effect from 04.30 P.M. in the evening shift on the relevant date as is evident from the enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to 165), on record, which has not been explained at all on the part of the management in the subject enquiry proceedings conducted by the management, as abovesaid, against the workman.

It is further the submission of the AR for the workman that the personnel of the management viz. S/Sh. Rohit, Trainee and Shantanu of room service as also Ms. Jaya Raghu of housekeeping of the management who have admittedly entered/accessed the room of the guest in her D.I.D. No. 202/09 Page 42 out of 106 absence, as abovesaid, have not been probed by the management in any manner whatsoever so as to exclude their culpability in the alleged act of misconduct/offence nor any investigative report of the management in this regard proved in the enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to 165), on record, since even the alleged investigative report of Sh. Mehfooz Hassan, Security Officer of the management MW1 in the enquiry proceedings has not been proved in the same, on record and only a photocopy of the same allegedly bearing the signature of the MW1 at Mark A on the same has been filed at page nos. 135 to 137 of the same.

It is further the submission of the AR for the workman that the role of the person(s) who have entered the subject room at 02.05 P.M. and 04.27 P.M. on the relevant date in the absence of the guest (which entries are not attributed to the workman) has not been probed or any domestic enquiry conducted on the part of the management in this regard as is evident from the cross examination of the MW1 Sh. Mehfooz Hassan, Security Officer of the management in the enquiry proceedings by the charge sheeted employee/workman at page no. 107 of the enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to 165) when it has been asked by the charge sheeted employee/workman to the said MW1 that the subject room has been first opened at 02.05 P.M. and then at 04.27 P.M. on the relevant date in the absence of the guests and why no domestic enquiry has been held/conducted in respect of the person/persons who have first entered, the subject room on the relevant date in the absence of the guests which question of the workman to the MW1 has been opposed D.I.D. No. 202/09 Page 43 out of 106 on behalf of the management on the ground that the same was the discretion of the management as to investigation/enquiry of which person is to be done by the management and the management witness is not bound to answer the said question which objection of the management has been upheld by the Enquiry Officer as is evident from the proceedings of the enquiry Ex.MW1/2 Colly (page nos.29 to 165) at page no. 107 of the same which was illegal and from which it is evident that in fact no investigation and/or domestic enquiry has been conducted on the part of the management into/in respect of the entries at 02.05 P.M. and 04.27 P.M. into the subject room on the relevant date in the absence of the guests (which entries are not attributed to the workman, as abovesaid) and accordingly in the face of the workman having not been named/incriminated in the alleged complaint of the guest in respect of the alleged incident at page nos. 130­131 of the enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to 165) forming subject matter of the allegations of misconduct/charge sheet dated 04.01.2007 against the workman Ex.WW1/2 as also forming part of Ex.MW1/2 Colly (page nos.29 to 165), on record, at page nos. 128­129 of the same and admittedly no incriminatory material viz. the alleged mobile phone which is alleged to have been stolen from the subject room of the guest on the relevant date and time by the workman vide charge sheet against him in this regard, as abovesaid, having been recovered either from his person or from his locker, as is evident from the enquiry proceedings conducted by the management against the workman in this regard D.I.D. No. 202/09 Page 44 out of 106 Ex.MW1/2 Colly (page nos.29 to 165), it cannot be said even by way of preponderance of probability that it is the workman and the workman alone who has committed the alleged misconduct of which he stood charged vide the subject chargesheet against him in this regard, as abovesaid, i.e. stealing/theft of the mobile phone of the guest from her room in her absence at 05.06 P.M. on the relevant date viz. 12.12.2006 vide floor card No. 05000089 as alleged by the management against the workman vide the subject chargesheet dated 04.01.2007, as abovesaid, against him.

It is further the submission of the AR for the workman that the management has presumed that the workman is guilty of the alleged misconduct of having stolen/committed theft of the mobile phone of the guest from her room vide his entry into the same in her absence at 05.06 P.M. on the relevant date viz. 12.12.2006 vide his floor card No. 05000089 which vide the key register of the management, photocopy of which is at page no. 150 of the enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to 165), on record, has been issued to the workman only at 04.45 P.M. on the said date, only on the basis of the allegation that the workman in his first statement to the management Ex.MW1/3 in the enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to 165) at page no.134 of the same had stated that he Sh. Uttam Chand Bhatia, Cloak No. 1148 was working in the housekeeping; that on that day viz. 12.12.2006 his duty was on the 22nd floor; that when at 05.00 P.M. on the said date he had gone to give service to the room then room No. 2206 was DND D.I.D. No. 202/09 Page 45 out of 106 (Do Not Disturb) he had come back; that according to him there was no guest in the room at that time since the door light of the room was not on which by no stretch of imagination can be said to prove the alleged misconduct as leveled by the management against the workman vide the subject charge sheet against him i.e. of having stolen/committed theft of the mobile phone of the guest from her room in her absence at 05.06 P.M. on the relevant date viz. 12.12.2006 by using his floor card No. 05000089 in the face of there being multiple entries into the subject room in the absence of the guest on the relevant date i.e. at 02.05 P.M. as also at 04.27 P.M. on the relevant date as is evident from the lock audit report/opening records in respect of the subject room viz. room no. 2206 of the relevant date viz. 12.12.2006 Ex.MW1/1 in the enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to 165) at page no.132 of the same not attributed by the management to the workman which entries are admittedly even prior to the commencement of the duty of the workman with the management in respect of the subject room viz. at 04.30 P.M. on the relevant date and handing over of the key/floor card of the subject room on the part of the management to him vide its key register photocopy of which is at page no. 150 of the enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to 165), on record, on the relevant date apart from there being no recovery of any incriminating article viz. the alleged stolen mobile phone either from his person or from his locker as is evident from the enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to 165), on record, there being no allegation in respect of the alleged D.I.D. No. 202/09 Page 46 out of 106 misconduct qua/against the workman in the alleged complaint of the guest to the management, which complaint has not been proved or even formally tendered on the part of any management witness in the enquiry proceedings Ex.MW1/2 Colly (page nos.29 to 165) against the workman and original of which is not even on the record of the same, though an alleged copy of the same is at page nos. 130­131 of the enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to 165), as abovesaid, on record.

It is further the submission of the AR for the workman that in view of the alleged complaint of the guest in respect of the alleged incident forming subject matter of the allegations of mis­conduct vide the subject chargesheet, as abovesaid, against the workman having not been proved or even filed on the part of the management in the enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to 165) conducted by the management into the allegations of misconduct in respect of the same vide the subject charge sheet against the workman, the same cannot be said to have been proved by the management in the enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to 165), on record, conducted by the management in respect of the same, against the workman.

It is further the submission of the AR for the workman that the workman had interalia sought the following documents from the enquiry officer viz. (a) copy of the duty roster for the date 12.12.2006 for all the floor attendants including the workman and (b) copy of the key opening record of all the rooms on the 22nd floor for the date 12.12.2006 which D.I.D. No. 202/09 Page 47 out of 106 request of the workman had not been entertained by the Enquiry Officer; that on an application under Section 11 (3) (b) of the Industrial Disputes Act, 1947 (as amended upto date) on similar lines in the instant proceedings the management had filed a reply stating that the duty roster or copy thereof for the date 12.12.2006 for all the floor attendants including the workman of the concerned floor was not traceable and as such could not be filed and that the copy of the key opening record of all the rooms on 22nd floor for the date 12.12.2006 was part of the enquiry record and the same had already been filed before this Hon'ble Court.

It is the submission of the AR for the workman that supply of the duty roster for 12.12.2006 for all the floor attendants including the workman of the concerned floor would have established as to who were the attendants on duty on the said floor during the relevant period, it would also have established that the workman was performing his duties in other rooms during the said period; that neither the duty roster or copy thereof for the date 12.12.2006 for all the floor attendants including the workman in respect of the concerned floor as also copy of key opening record of all the rooms on 22nd floor for the date 12.12.2006 has been filed on the part of the management, on record, and only the key opening record of room No. 2206 has been filed on the part of the management, on record. It is thus the submission of the AR for the workman that the workman has been prejudiced in presentation of his defence to the allegations of misconduct of the management vide its subject charge sheet against the workman by virtue of non supply of the subject vital D.I.D. No. 202/09 Page 48 out of 106 documents, as abovesaid, on the part of the management to the workman during the enquiry proceedings even on the asking for the same in the same and that the same have not been produced on the part of the management even on the moving of an appropriate application under the provisions of Section 11 (3) (b) of the Industrial Disputes Act, 1947 (as amended upto date) on the part of the workman against the management in the instant proceedings in this regard, as abovesaid, and accordingly an adverse inference be drawn against the management in the instant proceedings in this regard to the effect that had the subject documents been produced by the management the same would have gone in favour of the workman.

It is further the submission of the AR for the workman that in view of the above evidence in the shape of the Room Lock Audit Report/Opening Records in respect of the room no. 2206 of the relevant date viz. 12.12.2006 Ex.MW1/1 in the enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to 165) at page no. 132 of the same, on record, showing multiple entries, as abovesaid, in the subject room in the absence of the guest during which period the alleged mobile phone of the guest is alleged to have been stolen from the same, subject matter of the charge sheet, as abovesaid, against the workman not all of which entries are attributable to the workman or in fact have been attributed by the management to the workman, except entry at 05.06 P.M. vide his floor card No. 05000089 on the relevant date, which floor card admittedly has been issued to him on the part of the management only at 04.45 P.M. on D.I.D. No. 202/09 Page 49 out of 106 the relevant date vide key register of the management in respect of the same of the said date at page no. 150 of the enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to 165), on record, vide the relevant charge sheet dated 04.01.2007 of the management in this regard against the workman Ex.WW1/2 as also at page nos. 128­129 of the enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to 165), the finding of the enquiry officer MW1 Ms.Jyotica Bhasin vide her enquiry report Ex.MW1/1 Colly (page nos. 1 to 28) to the effect "Even though the mobile phone was not recovered from the CSE, the Lock Audit Report, Floor Attendant Report, contradictory statements by the CSE on 12.12.2006 and his explanation to the Charge Sheet dated 20.01.2007 clearly show that the CSE cannot be absolved of the charges of having lifted the mobile phone as he is the only person who had entered the room of the guest in their absence and had a questionable past record involving a similar complaint. No benefit of doubt can thus be given to the CSE", the operative part in the same to come to the conclusion that it was the workman alone who had committed the alleged misconduct was perverse and not based on the evidence adduced by the management itself in the enquiry proceedings, as abovesaid, in the same, on record.

It is thus, the submission of the AR for the workman that it is evident from the operative part of the enquiry report of the MW1 Ms. Jyotica Bhasin, Enquiry Officer of the management that she has come to the conclusion that it was the workman alone who had committed the alleged misconduct viz. theft of the mobile phone of the guest from the D.I.D. No. 202/09 Page 50 out of 106 subject room in her absence on the relevant date i.e. vide his entry at 05.06 P.M. on 12.12.2006 through his floor card/key No. 05000089 admittedly issued to the workman at 04.45 P.M. by the management itself on the said date vide key register of the management in this regard, copy of which is at page no. 150 of the enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to 165) brought, on record, by the management itself in the subject enquiry proceedings initiated by it against the workman to enquire into the charges of misconduct vide the subject charge sheet, as abovesaid, against the workman, on the basis of her finding in the operative part of the same, as abovesaid, to the effect "........as he is the only person who had entered the room of the guest in their absence....." which is contrary to the evidence brought, on record by the management itself in the enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to 165), as abovesaid, viz. the Room Lock Audit Report/Room Opening Records in respect of the subject room of the guest viz. room no.2206 Ex.MW1/1 in the enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to 165) at page no.132 of the same, from which the mobile phone of the guest is alleged to have been stolen by the workman in her absence vide the relevant charge sheet of the management, as abovesaid, against him Ex.WW1/2 as also forming part of Ex.MW1/2 Colly (page nos. 29 to

165) at page nos. 128­129 of the same.

It is further the submission of the AR for the workman that the observations of the Enquiry Officer MW1 Ms. Jyotica Bhasin in her enquiry report Ex.MW1/1 Colly (page nos. 1 to 28) to the effect that D.I.D. No. 202/09 Page 51 out of 106 "The Punch Record Detail clearly shows that on 12.12.2006 the CSE entered the premises of the hotel at 15:32 P.M. though his duty started at 16:30 P.M.. No explanation has been forthcoming from the CSE to explain what he was doing inside the premises of the hotel at least one hour before his duty commenced." to come to the conclusion vide her subject enquiry report that the workman/delinquent employee was guilty of the allegation of misconduct as leveled by the management against him vide its subject charge sheet against the workman, as abovesaid, on record, viz. theft of the mobile phone of the guest of the management from the subject room in her absence on the relevant date and time, is extraneous since the same is not forming subject matter of mis­conduct as alleged against the workman by the management vide its charge sheet dated 04.01.2007 in this regard Ex.WW1/2 as also forming part of enquiry proceedings Ex.MW1/2 Colly (page nos.29 to 165) at page nos. 128­129 of the same and as such the conclusion and findings of the Enquiry Officer against the workman vide her subject enquiry report Ex.MW1/1 Colly (page nos. 1 to 28) that it was the workman who had committed the theft of the mobile phone of the guest from the subject room in her absence on the relevant date and time and none else on the basis of the said observations was totally perverse and against the evidence brought on record of the enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to 165) by the management itself vide the Room Lock Audit Report/Opening Records in respect of the subject room of the relevant date viz. 12.12.2006, Ex.MW1/1 in the enquiry proceedings D.I.D. No. 202/09 Page 52 out of 106 Ex.MW1/2 Colly (page nos. 29 to 165) at page no. 132 of the same as also vide the photocopy of the key register at page no. 150 of the enquiry proceedings, as abovesaid, on record.

It is further the submission of the AR for the workman that further the findings and conclusions of the enquiry officer MW1 Ms.Jyotica Bhasin in her enquiry report Ex.MW1/1 Colly (page nos. 1 to 28) to the effect that "I have carefully perused the photocopy of the Key Register which has been filed by the management which indeed shows that the key was issued to the CSE at 04.45 P.M.. The question then that arises is how could have the CSE entered the room at 04.27, if this was so? At the same time it is the case of the CSE that when he first went to the floor at 04.45 with the key, the room was DND and in the continuing absence of the guests at 05.06 it was NOT DND. The lock audit shows that guests came back at 05.52. Therefore the above submission by the CSE is highly improbable, and it is clear that the CSE has concocted up a story.

The key register entry shows that all keys have been issued to all staff for 15­16 floor, for 19­20 floor, for 21­22 floor and 23­24 floor at 04.45 P.M.. It is obvious that the entry in the register has been made only after the keys have been issued for the 6 floors to the persons incharge. Logically the above exercise would have taken 15­20 minutes and the entry has been made thereafter. Hence, it is apparent that the said entry of 04.45 P.M. has been made in a mechanical manner by the person who issued the key. The CSE reported for duty at 15.32, changed into his uniform and went to the floor after getting the key issued to him, and the D.I.D. No. 202/09 Page 53 out of 106 same may have been noted later. The copy of the key register has however been placed on the enquiry record only on 26.09.2007. This also strengthens my conclusion, that entry regarding the time of issue of the key is a mechanical procedure and is more for record as to whom the key is issued to, rather than for exact time record."

are also not based on any evidence, on record, and in fact are extraneous and contrary to the evidence in the enquiry proceedings, on record, in the shape of the allegations of misconduct vide the subject charge sheet of the management against the workman, as abovesaid, as also photocopy of the Key Register of the management, as abovesaid, in the enquiry proceedings, on record, which are the documents of the management itself in the enquiry proceedings conducted by it against the workman, vide which viz. the subject charge sheet it has only been alleged that the workman has committed theft of the alleged mobile phone from the subject room of the guest in her absence on the relevant date and time i.e. on 12.12.2006 at 05.06 P.M. whereas vide the abovesaid observations, conclusions and findings the Enquiry Officer MW1 Ms. Jyotica Bhasin was analyzing and contemplating the entry of the workman in the subject room at 04.27 P.M. vide the Room Lock Audit Report/Opening Records in respect of the subject room viz. room No. 2206 of the relevant date viz. 12.12.2006 Ex.MW1/1 in the enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to 165) at page no.132 of the same in the management evidence, on record, which entry has in fact not even been alleged by the management against the workman qua the D.I.D. No. 202/09 Page 54 out of 106 alleged act of misconduct i.e. of theft of the alleged mobile phone of the alleged guest from the subject room in her absence on the relevant date and time viz. at 05.06 P.M. on 12.12.2006 vide the subject charge sheet dated 04.01.2007 of the management against the workman in this regard Ex.WW1/2 as also at page nos.128­129 of the enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to 165) in management evidence, on record, and accordingly, the subject observation, conclusion and finding of the Enquiry Officer, MW1 Ms. Jyotica Bhasin vide her enquiry report Ex.MW1/1 Colly (page nos. 1 to 28) in order to come to the conclusion that it was the workman who had committed the misconduct as alleged against him i.e. stealing/theft of the mobile phone of the alleged guest from her subject room on the relevant date and time in the same was extraneous illegal, uncalled for and unjustified showing the bias/prejudice of the Enquiry Officer against the workman to somehow or the other fix the culpability of the alleged misconduct against him in her subject enquiry report Ex.MW1/1 Colly (page nos. 1­28) in management evidence, on record.

It is further the submission of the AR for the workman that observations, conclusions/findings of the Enquiry Officer, MW1 Ms. Jyotica Bhasin vide her enquiry report Ex.MW1/1 Colly (page nos. 1 to

28) in the management evidence, on record, to the effect "The key register entry shows that all keys have been issued to all staff for 15­16 floor, for 19­20 floor, for 21­22 floor, and 23­24 floor at 04.45 P.M. It is obvious that the entry in the register has been made only after the keys D.I.D. No. 202/09 Page 55 out of 106 have been issued for the 6 floors to the persons incharge. Logically the above exercise would have taken 15­20 minutes and the entry has been made thereafter. Hence, it is apparent that the said entry of 04.45 P.M. has been made in a mechanical manner by the person who issued the key." as abovesaid is again based on no evidence to the said effect in the enquiry proceedings and is based on surmises and conjunctures on the part of the Enquiry Officer in this regard since the subject document viz. photocopy of the Key Register filed and relied upon by the management itself in the enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to 165) at page no. 150 of the same is a document being maintained by the management with no part of the workman/delinquent employee in the maintenance of the same and which, in fact, has not been disowned by the management in the enquiry proceedings, on record, and accordingly the abovesaid observations, conclusions and findings of the Enquiry Officer MW1 Ms. Jyotica Bhasin in respect of the contents of the said document in refutation of the factum of the subject key/floor card having been issued to the workman by the management itself at 04.45 P.M. on the relevant date viz.12.12.2006 are not borne out from the evidence, on record, extraneous and the surmises and conjectures of the Enquiry Officer MW1 Ms. Jyotica Bhasin in her enquiry report Ex.MW1/1 Colly (page nos. 1 to 28) in the management evidence, on record, and thus not supporting her conclusion/finding of the workman being guilty of the alleged misconduct/charge vide the subject charge sheet of the management, as abovesaid, against him vide her subject enquiry report D.I.D. No. 202/09 Page 56 out of 106 Ex.MW1/1 Colly (page nos. 1 to 28) in management evidence, on record.

It is further the submission of the AR for the workman that the further observation, conclusion/finding of the Enquiry Officer MW1 Ms. Jyotica Bhasin in her enquiry report Ex.MW1/1 Colly (page nos. 1 to 28) in management evidence, on record, to the effect that "The CSE reported for duty at 15.32, changed into his uniform and went to the floor after getting the key issued to him, and the same may have been noted later. The copy of the key register has however been placed on the enquiry record only on 26.09.2007. This also strengthens my conclusion, that entry regarding the time of issue of the key is a mechanical procedure and is more for record as to whom the key is issued to, rather than for exact time record."

also, as abovesaid, is again based on no evidence in the enquiry proceedings, on record, besides not forming subject matter of the allegations of misconduct vide the relevant chargesheet of the management against the workman Ex.WW1/2 as also at page nos. 128­ 129 of the enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to 165), on record, thus being merely the conjectures and surmises of the Enquiry Officer, MW1 Ms. Jyotica Bhasin against the workman in this regard which cannot be said to be logical, valid, legal and justified conclusion and finding on the part of the Enquiry Officer MW1 Ms. Jyotica Bhasin in her enquiry report Ex.MW1/1 Colly (page nos. 1­28) in management evidence, on record, to come to the conclusion of the culpability of the workman/delinquent employee in respect of the allegations/charge of D.I.D. No. 202/09 Page 57 out of 106 misconduct as leveled by the management against him in the subject charge sheet of the management against him, as abovesaid, on record, vide her subject enquiry report Ex.MW1/1 Colly (page nos.1­28) in management evidence, on record.

It is further the submission of the AR for the workman that the observation, conclusion/findings of the Enquiry Officer MW1 Ms. Jyotica Bhasin in her enquiry report Ex.MW1/1 Colly (page nos. 1 to 28) in management evidence, on record, to the effect "It is also pertinent to note that even though the copy of the key register had been filed on the record on 26.09.2007 by the management, and a copy was given to the CSE on the same day, the CSE has not mentioned a word about the time of issue of the key to him in his evidence/defence at which point he could have been cross­examined by the management. Therefore, the photocopy (original not seen) of the key register cannot come to the aid of the CSE." is also not correct or sound since the key register/photocopy of the key register has been filed in the enquiry proceedings, on record, by the management itself and was thus the document of the management in the same, contents of which had to be read as evident from the same in the absence of any disowning of the same on the part of the management or any evidence having come, on record, to the contrary which was not the case in the instant enquiry proceedings qua the same and accordingly the observation/conclusion/finding of the Enquiry Officer MW1 Ms. Jyotica Bhasin that the photocopy of the key register of the management at page no. 150 of the enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to D.I.D. No. 202/09 Page 58 out of 106

165) in the management evidence, on record, was not coming to the aid of the workman/charge sheeted employee vide her enquiry report Ex.MW1/1 Colly (page nos. 1 to 28) in management evidence, as abovesaid, was erroneous, unfounded, not based on any evidence, on record and in fact showed her bias and prejudice against the workman to somehow or the other fix the culpability of the misconduct alleged against him upon him vide her subject enquiry report Ex.MW1/1 Colly (page nos. 1­28) in management evidence, as abovesaid, on record.

It is further the submission of the AR for the workman that even the complaint of the alleged guest on the basis of which the subject charge sheet containing the allegations of misconduct has been issued on the part of the management against the workman has not been proved on the part of the alleged guest in the enquiry proceedings, on record, or even formally tendered on the part of the management through any of its management witnesses in the same, on record, and thus the very basis of the charges/allegations of misconduct against the workman for which he has been held guilty on the part of the Enquiry Officer MW1 Ms. Jyotica Bhasin of the management vide her enquiry report Ex.MW1/1 Colly (page nos.1 to 28) in the management evidence, on record, have not been proved by the management in the enquiry proceedings, on record, and nor even the workman has been confronted with the subject complaint on the part of the management in the enquiry proceedings held on the allegations of misconduct against the workman vide the subject charge sheet of the management against him on the basis of the same and nor even the copy D.I.D. No. 202/09 Page 59 out of 106 of the alleged complaint supplied to the workman along with the charge sheet issued to him in this regard on the basis of the same and accordingly the alleged misconduct/charge cannot be said to have been proved by the management against the workman even by way of preponderance of probability which is the yardstick of appreciation of evidence in a domestic enquiry and not beyond reasonable doubt as the case is in a criminal trial for proving of an offence under the provisions of the Code of Criminal Procedure as held by the Hon'ble Supreme Court of India in a catena of decisions.

It is the submission of the AR for the workman that the charge sheet of the management in respect of the allegations of misconduct against the workman to the effect that he has committed theft of the alleged mobile phone of the alleged guest from her room viz. room no. 2206 in her absence on the relevant date has proceeded qua the said allegations on the part of the management against the workman on the basis that the workman has allegedly not given a true statement on the date of the alleged incident viz. 12.12.2006 vide his statement given to the MW1 Sh. Mehfooz Hassan, Security Officer of the management in the alleged investigation carried out by the said employee of the management into the subject/alleged incident, Ex.MW1/3 in the enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to 165) at page no. 134 of the same to the effect that the workman/delinquent employee was working in the housekeeping department of the management having Cloak No.1148; that on 12.12.2006 his duty was on the 22nd floor; that D.I.D. No. 202/09 Page 60 out of 106 he had gone to the subject room at 05.00 P.M. to perform his duties when the room viz. room no. 2206 was DND; that he had come back; that as per him guest was not present in the room since the door light of the room was not on at that time, which allegations of the management have been also relied upon by the Enquiry Officer in arriving at her impugned finding of the guilt of the workman/delinquent employee qua the allegation of misconduct of the theft of the alleged mobile phone of the alleged guest from the subject room viz. room no. 2206 in her absence on the relevant date viz. 12.12.2006 vide her impugned enquiry report Ex.MW1/1 Colly (page nos. 1 to 28) when she states in her findings and conclusions that It is the case of the management that the CSE had entered the room and lifted the mobile phone and deliberately showed the room as DND in his section copy, when in fact it was not. The CSE has tried to explain this lapse by merely stating that it was his mistake that he did not make a fresh entry into the section copy when he entered the room at 05.06 P.M.. However, this is a subsequent admission by the CSE that he gave service to the room, but forgot to mention it in his Section Copy. Hence, it becomes clear that the CSE is spinning a yarn, and has tried to cover up his action of entry into the room which he had hitherto denied., as also the allegation of the MW1 Sh. Mehfooz Hassan, Security Officer of the management in his deposition in the enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to 165) that he had told the CSE to wait for him outside the security office; that he would enquire from him subsequently, at that time supervisor Sh. Devender Dutt was also present D.I.D. No. 202/09 Page 61 out of 106 there; that the charge sheeted employee CSE was changing his statement again and again; that after 5­10 minutes when he came out to enquire from CSE, the CSE was not present there; that he had specifically told the charge sheeted employee that he wanted to search his locker; that he had not found the CSE outside his office and had found him near his locker; that he had enquired from CSE as to why he had come near to his locker when he had been told to wait outside his office to which the CSE had replied that he had gone to the toilet; that he had then told the CSE that he should have informed him before going; that the locker of the CSE was searched from which no mobile phone was recovered as the CSE had already gone to his locker which has been relied upon by the enquiry officer MW1 Ms. Jyotica Bhasin of the management to come to her impugned finding of the workman being guilty of the charge against him vide the subject charge sheet of the management in this regard, as abovesaid, against the workman in her enquiry report Ex.MW1/1 Colly (page nos. 1­28) in management evidence, on record, when she states in the findings and conclusions of the same to the effect All along it has been the case of the CSE that the mobile phone was not recovered from his possession or from his locker despite the fact that his locker was subjected to checks on 12 and 13 of December, 2006. I find no reason to disbelieve MW2 Mr. S.S. Rawat, that he had brought the CSE from the floor to the Security Office upon instructions of Mr. Hassan without knowing the reason why the CSE was called. A careful assessment of the evidence shows that despite specific instructions, the CSE had disobeyed D.I.D. No. 202/09 Page 62 out of 106 Mr. Hassan and did not stand outside the Security Office but was found in the lockers by Mr. Rawat. The CSE denied this by first putting it to MW1 (QUES 13 of cross examination) that he had all along been sitting on the sofa at the time office, then in his own cross examination by the MR the CSE replied (to Ques. 35) by taking a different and wholly contradictory stand, that he had not gone anywhere and was outside in the corridor all along. This also points a finger of suspicion towards the CSE, since he is clearly lying and even before his locker could be searched, the CSE had already visited his locker.

which it is the submission of the AR for the workman are at the most suspicious circumstances against the workman which do not go to prove the allegation as leveled by the management against the workman i.e. stealing/theft on his part of the alleged mobile phone of the alleged guest from the subject room in her absence on the relevant date vide the subject charge sheet of the management against him in this regard, as abovesaid, in the face of the circumstance of the alleged investigation report of the MW1 Sh. Mehfooz Hassan Security Officer of the management in respect of the alleged incident having not been formally proved in the enquiry proceedings in respect of the authorization of the subject MW1 Sh. Mehfooz Hassan, Security Officer of the management on the part of the management in this regard, as also in respect of its authenticity, validity and admissibility under the standing orders of the management in this regard in order for the same to have any evidentiary value in the enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to 165) D.I.D. No. 202/09 Page 63 out of 106 in the management evidence, on record, for the Enquiry Officer MW1 Ms. Jyotica Bhasin to base her findings on the same apart from the factum of the same being in the nature of mere allegations of the MW1 Sh.Mehfooz Hassan, Security Officer of the management against the workman in the enquiry proceedings held against him, as abovesaid, on record, and the factum of non­recovery of the alleged stolen mobile phone from the person/possession of the workman/delinquent employee along with the factum of the commencement of the duty of the workman with the management on the relevant date viz. 12.12.2006 only at 04.30 P.M. with the subject floor card/key having been issued to him by the management vide its key register in this regard only at 04.45 P.M. on the subject date and there being multiple entries into the subject room in the absence of the alleged guest on the relevant date vide the Room Lock Audit/Opening Record of the subject room, Ex.MW1/1 at page no.132 of the enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to 165) in the management evidence, on record, not all attributed by the management to the workman and only the entry at 05.06 P.M. on the relevant date being attributed by the management to the workman in this regard vide the subject charge sheet of the management against the workman in this regard Ex.WW1/2 as also at page nos. 128­129 of the enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to 165) in the management evidence, on record, which allegations of the management have been duly denied on the part of the workman vide his reply to the subject charge sheet, Ex.WW1/3 in workman evidence, on record.

D.I.D. No. 202/09 Page 64 out of 106 It is further the submission of the AR for the workman that the Enquiry Officer MW1 Ms. Jyotica Bhasin has committed gross illegality in considering the alleged past record of the workman in arriving at her impugned finding of guilt qua the workman in respect of the allegations of misconduct/charges as leveled by the management against him vide the subject charge sheet of the management against the workman in this regard, as abovesaid, on record viz. theft of the alleged mobile phone of the alleged guest from the subject room viz. room no. 2206 in her absence on the relevant date and time when she states in her findings and conclusions in her enquiry report Ex.MW1/1 Colly (page nos. 1­28) A charge sheet dated 15.03.2005 had also been placed on the enquiry record to show that even on earlier occasion the CSE had been warned against fiddling with the baggage of the guest. The CSE has himself admitted in cross­examination that he confronted the guest who had said that nothing was missing. Hence, the CSE's story that he was being falsely implicated in that case as well has been demolished by his own admission. There would be no occasion for the management to confront a guest with a member of housekeeping unless there was a complaint against him. The above shows that the CSE has a tainted past record of service., as also when she states in the operative part of her findings that Even though the mobile phone was not recovered from the CSE, the Lock Audit Report, Floor Attendant Report, contradictory statements by the CSE on 12.12.2006 and his explanation to the Charge Sheet dated 20.01.2007 clearly show that the CSE cannot be absolved of the charges D.I.D. No. 202/09 Page 65 out of 106 of having lifted the mobile phone as he is the only person who had entered the room of the guest in their absence and had a questionable past record involving a similar complaint. No benefit of doubt can thus be given to the CSE., thereby rendering the report of the Enquiry Officer MW1 Ms. Jyotica Bhasin, Ex.MW1/1 Colly (page nos. 1 to 28) in management evidence, on record, totally perverse and not binding upon the workman/delinquent employee apart from the submissions of the same being not based on the evidence, on record, in the enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to 165) in management evidence, on record, and in fact being contrary to the same and as abovesaid based on surmises and conjectures of the Enquiry Officer MW1 Ms. Jyotica Bhasin, admittedly no FIR having been alleged by the management against the workman in respect of the allegation of misconduct of the management against him vide the subject charge sheet of the management against the workman in this regard, as abovesaid, viz. committing the offence of the theft of the alleged mobile phone of the alleged guest from her subject room in her absence on the relevant date and time and thereby no proper investigation having been gone through on the part of the management into the alleged incident in order to come to the finding that it was the workman alone who had committed the alleged theft, the alleged complaint of the complainant viz. the alleged guest in the subject room in respect of the alleged theft of her mobile phone in her absence from the same on the relevant date, on the basis of which the subject charge sheet has been issued on the part of the D.I.D. No. 202/09 Page 66 out of 106 management to the workman in respect of its allegations of misconduct constituting the charge against him i.e. of the theft of the alleged mobile phone of the alleged guest from her room in her absence on the relevant date and time on his part, having not been proved on the part of the management in the enquiry proceedings either through the deposition of the alleged guest concerned in respect of her alleged complaint in the enquiry proceedings or through any other management witness who has appeared in the enquiry proceedings on its behalf viz. MWs 1 to 3 in the same and nor copy of the alleged complaint or alleged investigation report of the MW1 Sh. Mehfooz Hassan, Security Officer of the management having been supplied to the workman on the part of the management along with the subject charge sheet issued to the workman on the part of the management in this regard and accordingly the charges vide the subject charge sheet of the management against the workman, as abovesaid, in respect of which the subject enquiry proceedings, as abovesaid, have been conducted by the management against the workman cannot be said to have been proved on the part of the management against the workman in the same leading to the imposition of punishment of dismissal of the workman on the part of the management vide the relevant order of the management against the workman in this regard in the instant proceedings, on record, apart from the enquiry report in respect of the subject enquiry proceedings, as abovesaid, on record, being vitiated, on record, in view of the submissions of the AR for the workman in its respect, as abovesaid.

D.I.D. No. 202/09 Page 67 out of 106 AR for the management has however, argued to the contrary to the effect that the enquiry conducted by the management against the workman into the allegations/charges of misconduct against him as mentioned vide charge sheet dated January, 04, 2007 Ex.WW1/2 as also part of Ex.MW1/2 Colly at page nos.128­129 of the same, on record, is fair and proper and in accordance with the principles of natural justice.

It is further the submission of the AR for the management that the workman has been provided due opportunity to defend himself and to present his case before the enquiry officer appointed by the management to conduct the enquiry into the charges of misconduct against the workman vide charge sheet Ex.WW1/2, on record as also forming part of Ex.MW1/2 Colly, on record.

It is further the submission of the AR for the management that the enquiry officer MW1 Ms. Jyotica Bhasin had conducted the enquiry into the allegations/charges of mis­conduct against the workman vide charge sheet Ex.WW1/2 as also forming part of Ex.MW1/2 Colly, on record, fairly and properly and without any prejudice or bias against him as alleged by the workman and thus had conducted a fair, proper, legal and impartial enquiry vide Ex.MW1/2 Colly (page nos. 29 to 165), on record, and thereafter had given a balanced, impartial, reasoned and justified report on the same Ex.MW1/1 Colly (page nos. 1 to 28) on record, which was not assailable on any ground whatsoever and accordingly the management had proved the charges of mis­conduct as alleged by the management against the workman vide its charge sheet dated 04.01.2007 D.I.D. No. 202/09 Page 68 out of 106 in this regard against the workman Ex.WW1/2 as also forming part of Ex.MW1/2 Colly, on record, by way of the enquiry proceedings conducted into the same Ex.MW1/2 Colly (page nos. 29 to 165) and report of the Enquiry Officer MW1 Ms. Jyotica Bhasin Ex.MW1/1 Colly (page nos.1 to 28) on the same, as abovesaid, on record.

It is further the submission of the AR for the management that the charges as leveled against the workman viz. stealing/theft of the mobile phone of the alleged guest from her room in her absence on the relevant date and time as alleged by the management against the workman vide the subject charge sheet issued by the management against him in this regard have been duly proved in the enquiry proceedings conducted/held on the part of the management against the workman through the Enquiry Officer MW1 Ms. Jyotica Bhasin Ex.MW1/2 Colly (page nos. 29 to 165), on record, as also vide the enquiry report of the Enquiry Officer MW1 Ms. Jyotica Bhasin Ex.MW1/1 Colly (page nos.1 to 28) on the same in the management evidence, on record.

It is further the submission of the AR for the management vide written submissions filed on behalf of the management, on record, inter alia that the enquiry was conducted in accordance with principles of natural justice, equity and fair­play; that the workman all through the proceedings participated in the enquiry; that at his request, the proceedings were recorded in Hindi; that copies of all documents filed by the management were provided to the workman; that he was also allowed to be represented by a co­worker of his choice, namely Shri Surjit Singh D.I.D. No. 202/09 Page 69 out of 106 Mallick; that all the statements of the management witnesses were recorded in the presence of the workman and his representative; that full opportunity was given to the workman to cross­examine the management witnesses; that the workman duly availed of the opportunity and cross­ examined the management witnesses at length; that after the conclusion of the evidence of the management, full opportunity was given to the workman to produce his evidence in defence, which opportunity as well was duly availed of by the workman; that it was, thus, clearly established that the Enquiry Officer conducted the enquiry in accordance with natural justice and full opportunity was given to the workman to defend the charges.

It is thus, the submission of the AR for the management that no infirmity has been done in the matter of conducting the enquiry proceedings into the allegations of misconduct vide the subject charge sheet of the management against the workman on the part of either the management or the Enquiry Officer and the report of the Enquiry Officer on the same is reasoned, justified and her findings and conclusions in the same are borne out from the evidence, on record and are sound, logical as also based on evidence, on record, in the enquiry proceedings and thereby suffered from no infirmity or perversity as alleged by the workman.

I find force in the submissions of the AR for the workman, as abovesaid. Indeed vide the Room Lock Audit Report/Opening Records of the subject room viz. room no.2206 of the relevant date of the management itself Ex.MW1/1 in the enquiry proceedings Ex.MW1/2 D.I.D. No. 202/09 Page 70 out of 106 Colly (page nos. 29 to 165) at page no. 132 of the same, there are multiple entries into the subject room in the absence of the guests viz. between 12.11 P.M. and 05.52 P.M. as is evident from the same viz. at 02.05 P.M. by room service comprising of S/Sh. Rohit, trainee and Shantanu of the management along with Ms. Jaya Raghu of housekeeping of the management in the morning shift till 04.30 P.M. (MW3 in the enquiry proceedings Ex.MW1/2 Colly page nos.29 to 165) when they have admittedly placed the congratulatory cake, chocolates and cookies on the table in the room of the guest in her absence from which the mobile phone is alleged to have been stolen by the workman/delinquent employee vide the subject charge sheet of the management against him, as abovesaid, as also at 04.27 P.M. on the said date viz. 12.12.2006 which entry is also prior to the commencement of the duty of the workman in the housekeeping department of the management evening shift at 04.30 P.M. on the said date which has not been explained by the management in the enquiry proceedings and which entries are not attributed to the workman by the management vide its subject charge sheet, as abovesaid, against the workman and only the entry at 05.06 P.M. on the said date viz. 12.12.2006 having been attributed by the management to the workman in respect of its allegations of misconduct against him viz. theft of the mobile phone of the alleged guest from her room in her absence on the relevant date viz. 12.12.2006 vide its subject chargesheet against him in this regard, as abovesaid, with the role of the said personnel of the management viz. S/Sh. Rohit, trainee and Sh.

D.I.D. No. 202/09 Page 71 out of 106 Shantanu of the room service of the management and Ms. Jaya Raghu of the housekeeping morning shift of the relevant date of the management (MW3 in the enquiry proceedings Ex.MW1/2 Colly page nos.29 to 165) having not been probed or enquired into on the part of the management in any valid, admissible and justifiable manner under the provisions of its standing orders, if any, in this regard in order to rule out the possibility of their culpability/involvement in the alleged incident for it to initiate the subject disciplinary proceedings by way of its said charge sheet Ex.WW1/2 as also forming part of the enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to 165) at page nos. 128­129 of the same against the workman in this regard, admittedly, the alleged investigation report of Sh. Mehfooz Hassan, Security Officer of the management (MW1 in the enquiry proceedings Ex.MW1/2 Colly page nos. 29 to 165) in this respect having not been proved in the enquiry proceedings as having been conducted by way of any valid, admissible, authorized authority on the part of the management to him in this regard under any rules, regulations and orders of the management in this regard in order for the same to have any admissibility, force, authority or legal basis in respect of its contents in respect of the alleged incident against the workman/delinquent employee in the enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to

165) as also in view of it having been admitted by the MW1 Sh. Mehfooz Hassan, Security Officer of the management in his cross examination on behalf of the workman/delinquent employee in the enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to 165) viz. Question­9. The room was D.I.D. No. 202/09 Page 72 out of 106 first opened at 02.05 P.M. and then at 04.27 P.M. Why no domestic enquiry has been conducted in respect of the persons who have first opened the room? Answer­9. Objected to by the Management Representative. It is the discretion of the management as to in whose respect the enquiry is to be conducted by the management. The management witness has got nothing to say in this regard. Enquiry Officer: There is force in the submission of the Management Representative. Hence, question dis­allowed.

Question­24. In respect of both the persons who have opened the room at 02.05 P.M. and 04.27 P.M. why no action/proceedings have been taken/initiated in their respect?

Answer­24. I had enquired from them. Rest it is the decision of the management as to against whom it wishes to commence proceedings/take action or not., apart from the factum of the alleged complaint of the complainant/alleged guest of the management in respect of her allegations of the alleged theft of her mobile phone from her room during her absence on the relevant date viz. 12.12.2006 having not been proved in the enquiry proceedings Ex.MW1/2 Colly (page nos. 29­165) in the management evidence, on record, either through her or through any management witness appearing on behalf of the management in the enquiry proceedings viz.MW1 to MW3 in the same, on record, and nor the same having been even formally tendered through any management witness in the enquiry proceedings, on record, or even introduced on the part of the management in the same, on record, so much so that it has not D.I.D. No. 202/09 Page 73 out of 106 come on record, in the enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to 165) as to in what manner the subject complaint of the alleged guest at page nos. 130­131 of the same, which it is seen from the same is undated, has come on the record of the enquiry proceedings and which in fact is forming subject matter of the allegations of the management against the workman constituting the contents of the charge sheet of the management against the workman in this regard, as abovesaid, viz.Ex.WW1/2 as also at page nos. 128­129 of the enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to 165), on record, in respect whereof the subject enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to 165) have been conducted on the part of the management against the workman and the enquiry report on the same given by the Enquiry Officer MW1 Ms. Jyotica Bhasin of the management, Ex.MW1/1 Colly (page nos. 1­28) in the management evidence, on record, and accordingly it cannot be said by any degree of certainty that it was the workman alone who could have committed the alleged misconduct viz. stealing/theft of the alleged mobile phone of the alleged guest from the subject room in her absence on the relevant date and time viz. on 12.12.2006 at 05.06 P.M. as alleged by the management against the workman/delinquent employee vide the subject charge sheet of the management against him in this regard, as abovesaid, on record, as held by the Enquiry Officer vide the operative part of her enquiry report Ex.MW1/1 Colly (page nos.1 to 28) in the management evidence, on record, to the effect Even though the mobile phone was not recovered from the CSE, the Lock Audit Report, Floor D.I.D. No. 202/09 Page 74 out of 106 Attendant Report, contradictory statements by the CSE on 12.12.2006 and his explanation to the Charge Sheet dated 20.01.2007 clearly show that the CSE cannot be absolved of the charges of having lifted the mobile phone as he is the only person who had entered the room of the guest in their absence and had a questionable past record involving a similar complaint. No benefit of doubt can thus be given to the CSE., rendering the said finding of the Enquiry Officer MW1 Ms. Jyotica Bhasin of the management vide her enquiry report Ex.MW1/1 Colly (page nos. 1 to 28), on record, perverse and not operative/binding upon the workman/delinquent employee which is also evident from the cross­ examination of the MW1 Ms. Jyotica Bhasin of the management on behalf of the workman in management evidence on the enquiry issue in the instant proceedings when she states in the same to the effect Copy of the complaint received from the guest is at page nos. 130 and 131 of the enquiry record Ex.MW1/2 Colly. No FIR had been lodged by the management or the complainant on the said complaint. The workman had also filed a copy of a letter purported to be written by the complainant during the enquiry proceedings, which is at page no. 158 of the same. It is correct that the complainant/guest had not appeared in the enquiry. It is correct that the letters at page no. 130­131 and 158 had not been sent for examination and report regarding their authenticity to the handwriting expert. I cannot say whether the letter at page no. 158 of the enquiry record Ex.MW1/2 Colly is in the handwriting of the complainant/guest or not. I also cannot say whether the letter at page no.

D.I.D. No. 202/09 Page 75 out of 106 130­131 of the complainant/guest in the enquiry record Ex. MW1/2 Colly is in the handwriting of the complainant/guest or not. It is wrong to suggest that my finding in my enquiry report Ex.MW1/1 Colly in respect of the above letters is perverse or incorrect.

I further find from the record that the Enquiry Officer MW1 Ms. Jyotica Bhasin of the management has misdirected herself/committed an illegality when she states in her findings and conclusions vide her enquiry report Ex.MW1/1 Colly (page nos. 1­28) in the management evidence, on record, The Punch Record Detail clearly shows that on 12.12.2006 the CSE entered the premises of the hotel at 15:32 P.M. though his duty started at 16:30 P.M. No explanation has been forthcoming from the CSE to explain what he was doing inside the premises of the hotel at least one hour before his duty commenced. I have carefully perused the photocopy of the key register which has been filed by the management which indeed shows that the key was issued to the CSE at 04.45 P.M.. The question then that arises is how could have the CSE entered the room at 04.27, if this was so? At the same time it is the case of the CSE that when he first went to the floor at 04.45 with the key, the room was DND and in the continuing absence of the guests at 05.06 it was NOT DND. The lock audit shows that guests came back at 05.52. Therefore the above submission by the CSE is highly improbable, and it is clear that the CSE has concocted up a story. The key register entry shows that all keys have been issued to all staff for 15­16 floor, for 19­20 floor, for 21­22 floor, and 23­24 floor at 04.45 P.M. It is obvious that the entry in the register D.I.D. No. 202/09 Page 76 out of 106 has been made only after the keys have been issued for the 6 floors to the persons incharge. Logically the above exercise would have taken 15­20 minutes and the entry has been made thereafter. Hence, it is apparent that the said entry of 04.45 P.M. has been made in a mechanical manner by the person who issued the key. The CSE reported for duty at 15.32, changed into his uniform and went to the floor after getting the key issued to him, and the same may have been noted later. The copy of the key register has however been placed on the enquiry record only on 26.09.2007. This also strengthens my conclusion, that entry regarding the time of issue of the key is a mechanical procedure and is more for record as to whom the key is issued to, rather than for exact time record. It is also pertinent to note that even though the copy of the key register had been filed on the record on 26.09.2007 by the management, and a copy was given to the CSE on the same day, the CSE has not mentioned a word about the time of issue of the key to him in his evidence/defence at which point he could have been cross­examined by the management. Therefore, the photocopy (original not seen) of the key register cannot come to the aid of the CSE., since the same are not forming part of the charge sheet containing the allegations of misconduct of the management against the workman in respect where of the subject enquiry has been got conducted by the management qua the workman through its Enquiry Officer MW1 Ms. Jyotica Bhasin as also are based on the surmises and conjectures of the Enquiry Officer MW1 Ms. Jyotica Bhasin of the management when she arrives at the above findings and conclusions in D.I.D. No. 202/09 Page 77 out of 106 respect of the allegations of misconduct against the workman on the charge sheet of the management to him in this regard viz. the entry of the workman in the hotel premises on 12.12.2006 at 15.32 P.M. though his duty started at 16.30 P.M.. No explanation has been forthcoming from the CSE to explain what he was doing inside the premises of the hotel at least one hour before his duty commenced as also the finding of the Enquiry Officer I have carefully perused the photocopy of the key register which has been filed by the management which indeed shows that the key was issued to the CSE at 04.45 P.M.. The question then that arises is how could have the CSE entered the room at 04.27, if this was so? Then again the key register entry shows that all keys have been issued to all staff for 15­16 floor, for 19­20 floor, for 21­22 floor, and 23­24 floor at 04.45 P.M. It is obvious that the entry in the register has been made only after the keys have been issued for the 6 floors to the persons incharge. Logically the above exercise would have taken 15­20 minutes and the entry has been made thereafter. Hence, it is apparent that the said entry of 04.45 P.M. has been made in a mechanical manner by the person who issued the key. The CSE reported for duty at 15.32, changed into his uniform and went to the floor after getting the key issued to him, and the same may have been noted later. The copy of the key register has however been placed on the enquiry record only on 26.09.2007. This also strengthens my conclusion, that entry regarding the time of issue of the key is a mechanical procedure and is more for record as to whom the key is issued to, rather than for exact time record., D.I.D. No. 202/09 Page 78 out of 106 and again when she states It is also pertinent to note that even though the copy of the key register had been filed on the record on 26.09.2007 by the management, and a copy was given to the CSE on the same day, the CSE had not mentioned a word about the time of issue of the key to him in his evidence/defence at which point he could have been cross examined by the management. Therefore, the photocopy (original not seen) of the key register cannot come to the aid of the CSE., which apart from not forming subject matter of the charge sheet/allegations of misconduct of the management against the workman, as abovesaid, on record, are also not based on any evidence in the enquiry proceedings, on record, and in fact are contrary to the admitted facts between the parties i.e. commencement of the duty hours of the workman with the management in the evening housekeeping shift on 12.12.2006 at 04.30 P.M., delivery of the floor card/key of the room concerned on the part of the management to him for the discharge of his duties qua his jurisdiction on the relevant date only at 04.45 P.M. vide the key register of the said date of the management in this regard, photocopy of which is at page no. 150 of the enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to 165), on record, which document has, in fact, been placed on record in the enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to 165), on record, by the management itself through its Management Representative in the same as is evident from proceedings dated 26.09.2007 of the same and in fact has not been disowned by the management and accordingly, the findings and conclusions of the Enquiry Officer MW1 Ms. Jyotica Bhasin D.I.D. No. 202/09 Page 79 out of 106 in respect of the same, as abovesaid, are not based on the evidence on record in the enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to 165), on record, in fact, are contrary to the same and are merely conjectures and surmises of the Enquiry Officer MW1 Ms. Jyotica Bhasin of the management in this regard rendering her finding of guilt of the workman/delinquent employee in respect of the allegations of misconduct as leveled by the management against him vide its subject charge sheet in this regard, as abovesaid, on record, perverse and not operative/binding upon the workman.

I further find from the record that the Enquiry Officer MW1 Ms. Jyotica Bhasin of the management has committed gross illegality in considering the alleged past record of the workman in arriving at her finding of guilt qua the workman in respect of the allegations of misconduct as leveled by the management against him vide the subject chargesheet of the management against the workman/delinquent employee in this regard, as abovesaid, on record, on which the enquiry has been conducted on the part of the management through the Enquiry Officer MW1 Ms. Jyotica Bhasin of the management, Ex.MW1/2 Colly (page nos. 29 to 165), on record, when she states in her enquiry report Ex.MW1/1 Colly (page nos. 1 to 28) on the same A Charge Sheet dated 15.03.2005 had also been placed on the enquiry record to show that even on earlier occasion the CSE had been warned against fiddling with the baggage of the guest. The CSE has himself admitted in cross­examination that he confronted the guest who had said that nothing was missing.

D.I.D. No. 202/09 Page 80 out of 106 Hence, the CSE's story that he was being falsely implicated in that case as well has been demolished by his own admission. There would be no occasion for the management to confront a guest with a member of housekeeping unless there was a complaint against him. The above shows that the CSE has a tainted past record of service., as also vide the operative part of her enquiry report Ex.MW1/1 Colly (page nos.1 to 28), on record, when she states in the same Even though the mobile phone was not recovered from the CSE, the Lock Audit Report, Floor Attendant Report, contradictory statements by the CSE on 12.12.2006 and his explanation to the Charge Sheet dated 20.01.2007 clearly show that the CSE cannot be absolved of the charges of having lifted the mobile phone as he is the only person who had entered the room of the guest in their absence and had a questionable past record involving a similar complaint. No benefit of doubt can thus be given to the CSE.(emphasis supplied), which was not within her domain as also not relevant to the enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to 165), on record, conducted on the part of the management to enquire into the allegation of mis­conduct forming subject matter of the chargesheet of the management against the workman Ex.WW1/2 as also part of enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to 165) at page nos. 128­129 of the same viz. the alleged theft of the alleged mobile phone of the alleged guest from the subject room in her absence at 05.06 P.M. on 12.12.2006 being not directly connected to the same and not constituting any evidence in respect of the alleged commission of the alleged mis­ D.I.D. No. 202/09 Page 81 out of 106 conduct, as abovesaid, on the part of the workman in the subject enquiry proceedings conducted to enquire into the same besides the abovesaid findings and conclusions of the Enquiry Officer MW1 Ms. Jyotica Bhasin of the management being contrary to the evidence on record in the enquiry proceedings Ex.MW1/2 Colly (page nos. 29 to 165), as abovesaid/already observed hereinabove thereby rendering the finding of guilt as arrived at by the Enquiry Officer MW1 Ms. Jyotica Bhasin of the management vide her subject enquiry report Ex.MW1/1 Colly (page nos. 1 to 28) in respect of the alleged misconduct of the workman as alleged against him by the management vide its subject charge sheet against him in this regard, as abovesaid, on record, on the basis of the alleged past record of the workman as mentioned in the same perverse and not operative/binding upon the workman.

It has been held vide citation viz. Roop Singh Negi­Appellant Vs. Punjab National Bank and Ors­Respondents, (2009) 2 SCC 570; MANU/SC/8456/2008:

"10. Indisputably, a departmental proceeding is a quasi judicial proceeding. The Enquiry Officer performs a quasi judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected D.I.D. No. 202/09 Page 82 out of 106 during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the Enquiry Officer on the FIR which could not have been treated as evidence. We have noticed hereinbefore that the only basic evidence whereupon reliance has been placed by the Enquiry Officer was the purported confession made by the appellant before the police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the police station. Appellant being an employee of the bank, the said confession should have been proved. Some evidence should have been brought on record to show that he had indulged in stealing the bank draft book. Admittedly, there was no direct evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the Enquiry Officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence D.I.D. No. 202/09 Page 83 out of 106 was committed in such a manner that no evidence was left.

11. In Union of India v. H.S.Goel MANU/SC/0271/1963:

(1964) ILLJ38SC, it was held:

......The two infirmities are separate and distinct though, conceivably, in some cases, both may be present. There may be cases of no evidence even where the Government is acting bona fide; the said infirmity may also exist where the Government is acting mala fide and in that case, the conclusion of the Government not supported by any evidence may be the result of mala fides, but that does not mean that if it is proved that there is no evidence to support the conclusion of the Government, a writ of certiorari will not issued without further proof of mala fides. That is why we are not prepared to accept the learned Attorney­General's argument that sine no mala fides are alleged against the appellant in the present case, no writ of certiorari can be issued in favour of the respondent.

That takes us to the merits of the respondent's contention that the conclusion of the appellant that the third charge framed against the respondent has been D.I.D. No. 202/09 Page 84 out of 106 proved, is based on no evidence. The learned Attorney­ General has stressed before us that in dealing with this question, we ought to bear in mind the fact that the appellant is acting with the determination to root out corruption, and so, if it is shown that the view taken by he appellant is a reasonably possible view, this Court should not sit in appeal over that decision and seek to decide whether this Court would have taken the same view or not. This contention is no doubt absolutely sound. The only test which we can legitimately apply in dealing with this part of the respondents case is, is there any evidence on which a finding can be made against the respondent that charge No. 3 was proved against him? In exercising its jurisdiction under Article 226 on such a plea, the High Court cannot consider the question about the sufficiency or adequacy of evidence in support of a particular conclusion. That is a matters which is within the competence of the authority which dealt with the question; but the High Court can and must enquire whether there is any evidence at all in support of the impugned conclusion. In other words, if the whole of the evidence led in the enquiry is accepted D.I.D. No. 202/09 Page 85 out of 106 as true, does the conclusion follow that the charges in question is proved against the respondent? This approach will avoid weighing the evidence. It will take the evidence as it stands and only examine whether on that evidence legally the impugned conclusion follows or not. Applying this test, we are inclined to hold that the respondent's grievance is well­founded because, in our opinion, the finding which is implicit in the appellant's order dismissing the respondent that charge number 3 is proved against him is based on no evidence.

12. In Moni Shankar v. Union of India and Anr.

MANU/SC/7298/2008 : (2008) 3 SCC 484, this Court held:

17.The departmental proceeding is a quasi­judicial one. Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with.

The Court exercising power of judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts D.I.D. No. 202/09 Page 86 out of 106 have been excluded therefrom. Inference on facts must be based on evidence which meet the requirements of legal principles. The Tribunal was, thus, entitled to arrive at its own conclusion on the premise that the evidence adduced by the department, even if it is taken on its face value to be correct in its entirely, meet the requirements of burden of proof, namely­preponderance of probability. If on such evidences, the test of the doctrine of proportionality has not been satisfied, the Tribunal was within its domain to interfere. We must place on record that the doctrine of unreasonableness is giving way to the doctrine of proportionality.

13. In Narinder Mohan Arya v. United India Insurance Co. Ltd. and Ors. (supra), whereupon both the learned Counsel relied upon, this Court held:

26. In our opinion the learned Single Judge and consequently the Division Bench of the High Court did not pose unto themselves the correct question. The matter can be viewed from two angles. Despite limited jurisdiction a civil court, it D.I.D. No. 202/09 Page 87 out of 106 was entitled to interfere in a case where the report of the Enquiry Officer is based on no evidence. In a suit filed by a delinquent employee in a civil court as also a writ court, in the event the findings arrived at in the departmental proceedings are questioned before it should keep in mind the following: (1) the enquiry officer is not permitted to collect any material from outside sources during the conduct of the enquiry. [See State of Assam and Anr. v. Mahendra Kumar Das and Ors.

MANU/SC/0491/1970 : [1971] 1SCR87] (2) In a domestic enquiry fairness in the procedure is a part of the principles of natural justice [See Khem Chand v. Union of India and Ors.

MANU/SC/0408/1962 : (1963) ILLJ665SC and State of Uttar Pradesh v. Om Prakash Gupta MANU/SC/0513/1969 : AIR1970SC679] (3) Exercise of discretionary power involve two elements (i) Objective and (ii) subjective and existence of the exercise of an objective element is a condition precedent for exercise of the subjective element. [See K.L.Tripathi v. State of Bank of D.I.D. No. 202/09 Page 88 out of 106 India and Ors. MANU/SC/0334/1983 : (1984) ILLJ2SC]. (4) It is not possible to lay down any rigid rules of the principles of natural justice which depends on the facts and circumstances of each case but the concept of fair play in action is the basis. [See Sawai Singh v. State of Rajasthan MANU/SC/0340/1986 : (1986) IILLJ390SC] (5) the enquiry officer is not permitted to travel beyond the charges and any punishment imposed on the basis of a finding which was not the subject matter of the charges is wholly illegal. [See Director (Inspection & quality Control) Export Inspection Council of India and Ors. v. Kalyan Kumar Mitra and Ors. 1987 (2) Cal.LJ 344. (6) Suspicion or presumption cannot take the place of proof even in a domestic enquiry. The writ court is entitled to interfere with the findings of the fact of any tribunal or authority in certain circumstances. [See Central Bank of India Ltd. v. Prakash Chand Jain MANU/SC/0416/1968 :(1969) IILLJ377SC, Kuldeep Singh v. Commissioner of Police and Ors.

MANU/SC/0793/1998 : (1999) ILLJ604SC]. The D.I.D. No. 202/09 Page 89 out of 106 judgment and decree passed against the respondent therein had attained finality.

In the said suit, the enquiry report in the disciplinary proceeding was considered, the same was held to have been based on no evidence.

Appellant therein in the aforementioned situation filed a Writ Petition questioning the validity of the disciplinary proceeding, the same was dismissed. This court held that when a crucial finding like forgery was arrived at on the evidence which is non est in the eye of the law, the civil court would have jurisdiction to interfere in the matter. This court emphasized that a finding can be arrived at by the Enquiry Officer if there is some evidence on record. It was furthermore found that the order of the appellate authority suffered from non application of mind. This Court referred to its earlier decision in Capt. M.Paul Anthony v.

Bharat Gold Mines Ltd. MANU/SC/0225/1999 :

(1999)ILLJ1094SC to opine:

41. We may not be understood to have laid down a law that in all such circumstances the decision of D.I.D. No. 202/09 Page 90 out of 106 the civil court or the criminal court would be binding on the disciplinary authorities as this Court in a large number of decisions points that the same would depend upon other factors as well.

[See e.g.Krishnakali Tea Estate vs. Akhil Bharatiya Chah Mazdoor Sangh and Anr.

MANU/SC/0743/2004 :(2004) IIILLJ772SC and Manager, Reserve Bank of India Bangalore v. S. Mani and Ors. MANU/SC/0204/2005 : (2005) IILLJ258SC. Each case is, therefore, required to be considered on its own facts. 42.It is equally well settled that the power of judicial review would not be refused to be exercised by the High Court, although despite it would be lawful to do so. In Manager, Reserve Bank of India Bangalore (supra) this Court observed:

39. The findings of the learned Tribunal, as noticed hereinabove, are wholly perverse. It apparently posed unto itself wrong questions. It placed onus of proof wrongly upon the appellant.

Its decision is based upon irrelevant factors not germane for the purpose of arriving at a correct D.I.D. No. 202/09 Page 91 out of 106 finding of fact. It has also failed to take into consideration the relevant factors. A case for judicial review, thus, was made out.

14. In that case also , the learned single judge proceeded on the basis that the disadvantages of an employer is that such acts are committed in secrecy and conspiracy with the person affected by the accident, stating:

.....No such finding has been arrived at even in the disciplinary proceedings nor any charge was made out as against the appellant in that behalf. He had no occasion to have his say thereupon.

Indisputably, the writ court will bear in mind the distinction between some evidence or no evidence but the question which was required to be posed and necessary should have been as to whether some evidence adduced would lead to the conclusion as regard the guilt of the delinquent officer or not. The evidence adduced on behalf of the management must have nexus with the charges. The Enquiry Officer cannot base his findings on mere hypothesis. Mere ipso dixit on his part cannot be a substitute of evidence.

D.I.D. No. 202/09 Page 92 out of 106

45. The findings of the learned Single Judge to the effect that 'it is established with the conscience (sic) of the Court reasonably formulated by an Enquiry Officer then in the eventuality' may not be fully correct inasmuch as the court while exercising its power of judicial review should also apply its mind as to whether sufficient material had been brought on record to sustain the findings. The conscience of a court may not have much role to play. It is unfortunate that the learned Single Judge did not at all deliberate on the contentions raised by the appellant. Discussion on the materials available on record for the purpose of applying the legal principles was imperative. The Division Bench of the High Court also committed the same error.

15.Yet again in M.V. Bijlani v. Union of India and Ors. MANU/SC/1857/2006 : (2006) IILLJ800SC, this Court held:

....Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry D.I.D. No. 202/09 Page 93 out of 106 Officer performs a quasi­judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.

16.Yet again in Jasbir Singh v. Punjab & Sind Bank and Ors. MANU/SC/8590/2006 :(2007)1SCC566, this Court followed Narinder Mohan Arya v. United India Insurance Co. Ltd. and Ors. (supra), stating:

12. In a case of this nature, therefore, the High Court should have applied its mind to the fact of the matter with reference to the materials brought on records. It failed so to do.

17.Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any D.I.D. No. 202/09 Page 94 out of 106 reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the Criminal Court on the basis of self­same evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which was legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the Enquiry Officer was based on merely ipse dixit as also surmises and conjectures, the same cold not have been sustained. The inferences, drawn by the Enquiry Officer apparently were not supported by any evidence. Suspicion, as is well known, however, high may be, can under no circumstances be held to be a substitute for legal proof." Vide citation Delhi Cloth and General Mills Co. Vs. Ludh Budh Singh, MANU/SC/0423/1972, it has been held:

"39.The Industrial Tribunal had to consider whether D.I.D. No. 202/09 Page 95 out of 106 the appellant has made out a prima facie case for permission being granted for the action proposed to be taken against the workman. For that purpose the Tribunal was justified in considering the nature of the allegations made against the workman, the findings recorded by the Enquiry Officer and the materials that were available before the Enquiry Officer, on the basis of which such findings had been recorded. Accepting the contention of Mr. Anand that it was within the jurisdiction of the Enquiry Officer to accept the evidence of Sujan Singh and Rampal will be over­ simplifying the matter and denying the legitimate jurisdiction of the Tribunal in such matters to consider whether the findings are such as no reasonable person could have arrived at on the basis of the materials before the Enquiry Officer. If the materials before the Enquiry Officer are such, from which the conclusion arrived at by the Enquiry Officer could not have been arrived at by a reasonable person, then it is needless to state, as laid down by this Court in Central Bank of India Ltd., New Delhi v. Shri Prakash Chand Jain MANU/SC/0416/1968 :(1969) IILLJ377SC that the D.I.D. No. 202/09 Page 96 out of 106 finding has to be characterised as perverse. If so the Industrial Tribunal had ample jurisdiction to interfere with such a finding."

Vide citation Rajinder Kumar Kindra Vs. Delhi Administration through Secretary (Labour) and Ors., MANU/SC/0285/1984, it has been held :

"16. Mr. Jain contended that once Mr. Kakkar came to the conclusion that the appellant was given full opportunity to participate in the domestic enquiry neither High Court under Article 226 nor this Court under Article 136 can sit in appeal over the findings of the enquiry officer and reappraise the evidence. We have not at all attempted to reappreciate the evidence though in exercise of the jurisdiction conferred by Section 11­A of the Industrial Disputes Act, 1947 both arbitrator and this Court can reappraise the evidence led in the domestic enquiry and satisfy itself whether the evidence led by the employer established misconduct against the workman. It is too late in the day to contend that the arbitrator has only the power to decide whether the conclusions reached by the enquiry officer were plausible one deducible from the evidence led in the D.I.D. No. 202/09 Page 97 out of 106 enquiry and not to reappreciate the evidence itself and to reach the conclusion whether the misconduct alleged against the workman has been established or not. This Court in Workmen of Firestone Tyre & Tubber Company of India (P) Ltd. v. Management and Ors. MANU/SC/0305/1973 : (1973)ILLJ278SC, held that since the introduction of Section 11­A in the Industrial Disputes Act, 1947, the Industrial Tribunal is now equipped with the powers to reappraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied upon by the employer establishes the misconduct alleged against the workman. It is equally well­settled that the arbitrator appointed under Section 10­A is comprehended in Section 11­A. This Court in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha MANU/SC/0369/1979 :(1980) ILLJ137SC, held that an arbitrator appointed under Section 10­A of the Industrial Disputes Act, 1947 is comprehended in Section 11­A and the arbitrator reference apart from Section 11­A is plenery in scope. Therefore, it would be within the jurisdiction both of the arbitrator as well as this Court to reappreciate the D.I.D. No. 202/09 Page 98 out of 106 evidence though it is not necessary to do so in this case. It is thus well­settled that where the findings of misconduct are based on no legal evidence and the conclusion is one to which no reasonable man would come, the arbitrator appointed under Section 10­A or this Court in appeal under Article 136 can reject such findings as perverse. Holding that the findings are perverse does not constitute reappraisal of evidence, though we would have been perfectly justified in exercise of powers conferred by Section 11­A to do so.

17. It is equally well­settled that where a quasi­judicial tribunal or arbitrator records findings based on no legal evidence and the findings are either his ipse dixit or based on conjectures and surmises, the enquiry suffers from the additional infirmity of non­application of mind and stands vitiated. The industrial tribunal or the arbitrator or a quasi judicial authority can reject not only such findings but also the conclusion based on no legal evidence or if it is merely based on surmises and conjectures unrelated to evidence on the ground that they disclose total non­application of mind. Viewed from either angle, the conclusion of the enquiry officer D.I.D. No. 202/09 Page 99 out of 106 as well as of the arbitrator Mr. Kakkar are wholly perverse and hence unsustainable. The High Court, in our opinion, was in clearly error in declining to examine the contention that the findings were perverse on the short, specious and wholly untenable ground that the matter depends on appraisal of evidence.

18. Between appraisal of evidence and total lack of evidence there is an appreciable difference which could never be lost­sight of and the High Court ought not to have short circuited the writ petition.

19. If there is absolutely no evidence in support of the only allegation of misconduct namely negligence in keeping one's private cheque book in safe custody, the conclusion is not only not a plausible one but it is wholly perverse and we are in complete agreement with findings recorded by Mr. G.C.Jain that the findings of enquiry officer were perverse and the enquiry was wholly vitiated.

20. Where the order of dismissal is sought to be sustained on a finding in the domestic enquiry which is shown to be perverse and the enquiry is vitiated as suffering from non­application of mind the only D.I.D. No. 202/09 Page 100 out of 106 course open to us is to set it aside and consequently relief of reinstatement must be granted and nothing was pointed to us why we should not grant the same."

Vide citation Delhi Transport Corporation Vs. Harish Babu, MANU/DE/4380/2012, it has been held :

"3. Insofar as fairness of inquiry is concerned, the learned Single Judge has repelled the challenge of the DTC in the following words:

13.In the enquiry, the enquiry officer had at the commencement of the enquiry asked the respondent­workman whether he was admitting the charges or not to which his reply was that he had availed of leave because of his sickness and he had submitted leave applications with medical certificate. Thereafter, the enquiry was closed without recording any evidence from either side. It alleged that after closing the enquiry proceedings the enquiry officer got some file from the management and after perusing the same at the back of the workman he held him guilty and he also observed that even the past record of the respondent was bad. The enquiry officer had no business to go D.I.D. No. 202/09 Page 101 out of 106 into the past record of the respondent and surprisingly, even the observation was not made on the basis of any material brought on record before the enquiry officer in the presence of the respondent. In my view, that was no enquiry at all and the enquiry officer could not have taken into consideration any record which nobody had produced in the enquiry from the side of the management. There was thus total violation of the principles of natural justice. Even the Learned Counsel for the petitioner could not seriously defend the enquiry officer's approach in the conduct of the Enquiry.

4. The aforesaid procedure adopted by the Inquiry Officer in conducting the inquiry is, ex facie, faulty. No doubt, past record of an employee can be seen, but that would be for the purpose of awarding punishment. A finding of guilt cannot be arrived at on the basis of part record without confronting the same to the workman. In the present case, there is a flagrant violation of principles of natural justice in the conduct of inquiry at two levels viz:

(a) On the first date, the workman is asked whether he D.I.D. No. 202/09 Page 102 out of 106 admits the charge or not. His reply was that he had availed the leave due to sickness and he submitted the leave application. This is neither gone into, nor the workman is given an opportunity to substantiate this evidence by leading evidence. On the contrary, after recording his statement, the inquiry is closed by the Inquiry Officer and no evidence is recorded from either side. Thus, not only there is evidence produced by the management in support of the change, but opportunity was denied to the workman also to prove his defence.

(b) As pointed out above, past record was gone into and some material was brought on record before the Inquiry Officer after the closure of inquiry and in the absence of workman. This was clearly impermissible.

5. Such a procedure is clearly faulty and against the basic tenets of natural justice. In the case of Roop Singh Negi Vs. Punjab National Bank and others MANU/SC/8456/2008: (2009) 2 SCC 570 almost in identical circumstances enquiry was held to be vitiated as is clear from the following discussion in the said judgment:­

14. Indisputably, a departmental proceeding is a D.I.D. No. 202/09 Page 103 out of 106 quasi­judicial proceeding. The enquiry officer performs a quasi­judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence.

6. To the same effect is the judgment of the Apex Court in State of Uttar Pradesh and Others Vs. Saroj Kumar Sinha MANU/SC/0082/2010: (2010) 2 SCC 772 wherein this principle was reiterated in the following manner:­ An inquiry officer acting in a quasi­judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the D.I.D. No. 202/09 Page 104 out of 106 department/disciplinary authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.

7. Thus, we do not find any merit in the plea of the appellant on this count and hold that the learned Labour Court was right in arriving at a finding that the departmental inquiry was not conducted fairly." In view of my above observations and findings I find that the enquiry report of the Enquiry Officer MW1 Ms. Jyotica Bhasin of the management Ex.MW1/1 Colly (page nos. 1 to 28) in respect of the allegations of misconduct of the management against the workman vide the subject charge sheet of the management against the workman in this regard Ex.WW1/2 as also part of enquiry proceedings Ex.MW1/2 Colly (pages nos. 29 to 165), on record, at page nos. 128­ 129 of the same is perverse and accordingly stands vitiated qua the D.I.D. No. 202/09 Page 105 out of 106 workman, on record. The same is hereby, accordingly, held to be as such.

Announced in the open Court 
on 31.05.2014                                       (Chandra Gupta)           
                                          Presiding Officer Labour Court­X
                                             Karkardooma Courts, Delhi.




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