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Delhi District Court

Sh. Ansar Ahmed Khan vs M/S Taj Air Caterers on 18 July, 2009

                                                                    ID No.307/08
                                     1

              IN THE COURT OF SH. S.K. KAUSHIK
           PRESIDING OFFICER LABOUR COURT NO. XII,
                KARKARDOOMA COURTS, DELHI
ID No.307/08

Industrial Dispute Between

Sh. Ansar Ahmed Khan
R/o H. No. 508, Phase­I, 
Manglapuri, Palam,
New Delhi
                                                                    ........Workman
And

1.

M/s Taj Air Caterers Indira Gandhi International Airport Complex, New Delhi

2. M/s Taj Mahal Hotel, Mansingh Road, New Delhi .....Management Date of institution : 04.05.1998 Date of argument : 08.07.2009 Date of award : 18.07.2009 AWARD

1. An Industrial Dispute between the management of 1) M/s Taj Air Caterers, Indira Gandhi International Airport Complex, New Delhi, 2) M/s Taj Mahal Hotel, Mansingh Road, New Delhi and it's workman Sh. ID No.307/08 2 Ansar Ahmed Khan R/o H. No. 508, Phase­I, Manglapuri, Palam, New Delhi was referred by Secretary (Labour), Government of National Capital Territory of Delhi for adjudication in exercise of powers conferred by Section 10 (1) (c) and 12 (5) of the Industrial Dispute Act 1947 (in short Act) vide his Order No. F.24 (1547)/1998 - Lab./ 14003 - 85 dated 29.04.1998 with the following terms of reference:

Whether the dismissal of Sh. Ansar Ahmed Khan is illegal and / or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?
2. Notice of the reference was issued to the workman who filed his statement of claim alleging that he was appointed as utility worker vide appointment letter dated 6.4.1983 by management no.2 on monthly salary of Rs.350; that later on his service was transferred by management no.2 to management no.1 vide letter dated 30.11.1983 where he joined his duty on 1.12.1983 and since then he continuously worked with the management no.1; that he was discharging his duties to the entire satisfaction of the management; that suddenly he received a ID No.307/08 3 letter dated 4.7.1996 wherein it had been alleged that on 27.6.1996 at about 16.15 hours when he was leaving the premises, Security Guard Mangal Singh frisked him on feeling that he had concealed some thing under his vest and that on being questioned he allegedly told him that he was carrying some toffees and when he refused to show the toffees then he abruptly left the security office upon which Mangal Singh followed him and he allegedly saw him throwing a packet out side the wall adjacent to security office; that it was also alleged in the notice that he (workman) ran out of the gate and boarded an outgoing coach of Oberoi Flight Catering and Mangal Singh went near the wall and collected the packet which allegedly contained Air India Silver cutlery containing 71 knives, 16 forks and 14 spoons all wrapped in an Indian Airlines cloth/napkin and that silver cutlery belonged to Air India as bounded item; that he submitted a reply to the charge sheet vide his reply dated 12.7.1996 stating that he had been falsely implicated and nothing was recovered from his possession or at his instance and the entire allegations were false, frivolous and concocted with a view to ID No.307/08 4 compel him to leave the service; that he stated in his reply that on that day and time so many persons were out side the gate but security guard Mangal Singh did not ask any one of them for help; that he also stated in his reply that three security guards always remain posted and if he was trying to run away then why guard Mangal Singh did not ask other guards to apprehend him and why Mangal Singh did not get the bus stopped; that security guard Mangal Singh cooked up a story in connivance with the management; that he had specifically mentioned in his reply dated 12.7.1996 that he was on duty on 28.6.1996 but nothing was asked from him on that day about the occurrence that allegedly took place on 27.6.1996; that if there was any truth in the allegation then why his explanation was not taken on 28.6.1996 or why he was not refused duty on 28.6.1996; that management was bent upon to terminate his service on one pretext or the other and to achieve this purpose it started the disciplinary enquiry and during that enquiry the enquiry officer did not apply his judicial mind and did not conduct the enquiry as per principles of natural justice; that the enquiry officer did ID No.307/08 5 not give weight to the statement of independent witnesses as well as other witnesses which management was bound to produce for proving the allegations; that the enquiry officer failed to consider the letter dated 10.1.1997 wherein he stated that statement of security guard Mangal Singh had not been recorded according to the law and verbatim; that in his letter he also stated that enquiry officer recorded the statement of Satish Uniyal which was against the principles of natural justice; that management did not produce another guard Umed Singh as a witness who allegedly was one of the eye­witnesses of the alleged incident; that statement of Mangal Singh is a false statement; that in the letter dated 4.7.1996 management had mentioned that the alleged articles were concealed by the workman under his vest but during recording of the evidence before the enquiry officer Mangal Singh stated that articles were concealed by the workman around his stomach under the clothes which he was wearing; that the weight of the alleged concealed items must be approximately five kilograms and it was impossible to conceal such weighty articles under the wearing shirt and Mangal Singh also ID No.307/08 6 did not mention in his statement that Deepak Hemrajani and Kuldeep Singh were present or that he had handed over these articles to them but instead Mangal Singh specifically stated that no security officer/ Manager was present in the security office; that Mangal Singh himself admitted that the alleged articles were not opened in the presence of the security officers; that Mangal Singh also stated that no one was present at the gate at that time while other witnesses stated that Umed Singh was also there; that management examined Mr. Deepak Hemrajani but he did not support the case of the management and enquiry officer failed to appreciate that Mr. Deepak Hemrajani stated that silver articles which were recovered or attempted to have committed the theft are the same; that in absence of identification of the articles/ recovered and prove that these were the same articles allegations could not have been proved and also for the reason that Mr. Deepak Hemrajani did not state that workman had committed a theft of any articles; that Kuldeep Singh Asst. Manager (Security) also did not support the version of the management; that management failed to ID No.307/08 7 produce the author of the complaint made to the police as well as concerned police official; that management did not produce Sh. Michael Miranda Assistant Manager (Security) as well as SHO PS Mahipalpur and so in absence of their statements the report made to the police cannot be proved; that after the departmental enquiry he received a letter from the management to which he gave his reply stating that he was innocent but the management without considering his reply terminated his service and sent a letter stating therein about his full and final payment; that conciliation proceedings failed as management did not cooperate; that since then he is unemployed and could not get any service despite his efforts. Workman claimed that he is entitled to reinstatement with continuity of service and full back wages.
3. Notice of the claim was issued to the management.

Management contested the claim by filing written statement. Under the head "facts in brief", management stated that workman was issued a charge­sheet dated 4.7.1996 on account of gross mis­conduct ID No.307/08 8 committed by him to which explanation dated 28.7.1996 given by the workman was found to be unsatisfactory and so a domestic enquiry was conducted in Hindi. It is stated that copies of all the documents were given to the workman; statement of management witnesses was recorded in presence of the workman and workman was given full opportunity to cross­examine the witness and he was allowed to be represented by a representative of his choice. It is stated that enquiry officer submitted his report dated 4.8.1997 holding the workman guilty of the charges as per charge­sheet dated 11.7.1996. It is stated that copy of the enquiry report was sent to the workman for his comments but workman did not submit his comments. It is stated that management was satisfied that enquiry had been conducted properly and as per principles of natural justice and by accepting the findings of the enquiry officer second show cause notice dated 1.10.1997 was issued to the workman calling upon him to show cause as to why punishment of dismissal be not inflicted upon him. It is stated that workman submitted his reply dated 06.10.1997 which was not satisfactory and so he was ID No.307/08 9 dismissed from service vide letter dated 9.10.1997 which was perfectly legal and justified. Management stated that in case this court holds that the enquiry stood vitiated on any ground then management be given an opportunity to prove the charges before the court.

4. In para wise reply to the claim, management reiterated what has been stated under the heading "facts in brief". Management denied the allegations levelled against the enquiry officer. Management asserted that the enquiry officer fully applied his mind and evaluated the entire evidence. It stated that there was no necessity to produce Umed Singh as charges stood established on the basis of evidence of other witnesses. Management stated that Umed Singh could not be produced as a witness as he was an employee of the security contractor and had left the service of the contractor. Management denied that statement of Mangal Singh was not recorded correctly and that enquiry officer recorded statement of Satish Uniyal instead of statement of Mangal Singh. Management denied that it was impossible or difficult for the ID No.307/08 10 workman to conceal stolen items under the vest and alleged that workman failed to substantiate his version during enquiry. Management reiterated that enquiry officer conducted the enquiry as per principles of natural justice and alleged that averments of the workman regarding non examination of Mr. Michael Miranda are baseless. It is denied that police complaint is a manipulated complaint. It is stated that workman was dismissed due to charges of gross mis­conduct and such an employee cannot be thrust upon by the management. Management alleged that workman is gainfully employed and prayed for dismissal of the claim.

5. In the rejoinder to the written statement, workman controverted the averments as contained in the written statement and reaffirmed the averments as stated in the statement of claim.

6. From the pleadings following issues were framed for trial: ID No.307/08 11

1. Whether enquiry held by the management is not fair and proper?"
2. Whether service of the workman was terminated illegally and / or unjustifiably?
3. Whether workman is gainfully employed?
4. Relief.

7. Both the parties led evidence only on the enquiry issue which has been considered while deciding the enquiry issue. Both the parties did not lead any further evidence.

8. I have heard Ld. Authorized Representative (hereinafter to be referred as AR) for the parties and gone through the record. Findings on the issue are as under:

ISSUE NO. 1

9. This issue was decided vide separate detailed order dated 08.7.09 whereby it has been held that workman has failed to prove that enquiry was not fair and proper. Accordingly this issue has been ID No.307/08 12 decided against the workman. The order on enquiry issue shall form part of this award.

ISSUE NO. 2

10. Now coming to the question of legality or illegality and/or un­ justifiability of dismissal of service of the workman. Point that comes up for consideration is whether under the facts and circumstances of this case call for an interference into the punishment awarded to the workman by the management.

11. Settled law is that with the insertion of Section 11 - A in the Industrial Dispute Act, a Labour Court can interfere in the punishment awarded by the management but it will do so only when it is found that the punishment is disproportionate to the misconduct. It is a settled law that the management has power to direct its own internal administration and discipline but the power is not unlimited and when the dispute arises, Labour Courts have been given powers to see whether ID No.307/08 13 termination of service of a workman is justified. In cases of dismissal on misconduct a Labour Court does not, however, act as Court of Appeal and cannot substitute its own judgment for that of the management.

12. In the judgment reported as Chairman & Managing Director:

United Commercial Bank and others Vs. P.C. Kakkar: 2003 LLR 436 (SC) Their Lordships after referring to several authorities, held in para 11 and 12 of the judgment as under:
"11. The common thread running through in all these decisions is that the court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was a defiance of logic or moral standards. In view of what has been stated in the Wednesbury's case (supra) the court would not go into the correctness of choice made by the administrator open to him and the court should not substitute its decision to that of the administration. The scope of judicial review is limited to the deficiency in decision­making process and not the decision.
12. To put differently unless the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of ID No.307/08 14 the court / tribunal, there is no scope for interference. Further to certain litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In a normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the disciplinary authority, to the appellate authority to reconsider the penalty imposed."

13. In the judgment reported as Anantnathi Maharaj Jain Temple and its Sadharan Funds, Mumbai Vs. Rajan G. Pandey and another:

2001 LLR 645, Their Lordships in para 4 of the judgment observed as under:
"It is very well settled that when the misconducts are proved in a fair and proper domestic enquiry, it is for the employer to consider the question of punishment and it is not for the court to interfere with such punishment unless it is shockingly disproportionate and unless no reasonable man would act in that manner....................."

14. The Apex Court in the judgment reported as Apparel Export Promotion Council Vs. A.K. Chopra: AIR 1999 SC 625 observed that courts are not to normally interfere with either the factual findings ID No.307/08 15 regarding guilt or punishment imposed. Another judgment that can be referred in this behalf is the judgment reported as Chairman & MD V.S.P. & Ors. Vs. Goparaju Sri Prabhakara Hari Babu: 2008 IV AD (S.C.) 382 wherein their lordships in para 17 of the judgment observed that once it is found that all the procedural requirements have been complied with, the courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee. It is was further observed that the superior courts, only in some cases, may invoke the doctrine of proportionality and if the decision of an employer is found to be within the legal parameters, the jurisdiction would ordinarily not be invoked when the misconduct stands proved. Their Lordships referred to the earlier judgment reported as Sengeroid Remedies Ltd. Vs. Union of India & Ors.: (1999) 1 SCC 259.

15. In the written statement management has stated that workman was dismissed from service as it lost confidence in him. It is also stated that such an employee cannot be thrust upon the management. Point ID No.307/08 16 for consideration is whether a Labour Court can consider the plea of the workman regarding harshness of punishment of dismissal from service when management has justified its action of dismissal on the basis of the loss of confidence. Here it is useful to refer to the judgment reported as Air India Corporation, Bombay Vs. V.A. Rebellow and another: 1972 I LLJ 501, wherein Their Lordships in para 18 of the judgement held that:

"Once bonafide loss of confidence is affirmed the impugned order must be considered to be immune from challenge. The opinion formed by the employer about the suitability of his employee for the job assigned to him even though erroneous if bonafide is in our view final and not subject to review by the industrial adjudication."

16. In view of the law laid down by the judgments referred hereinabove, I hold that the punishment of dismissal from service cannot be held to be shockingly disproportionate to the charge and shocking to the conscience of the court and it is not a case for interference in the correctness of the choice made by the management and so dismissal of workman Ansar Ahmed Khan from service under ID No.307/08 17 these facts and circumstances was neither illegal nor unjustified. This issue is accordingly decided against the workman and in favour of the management.

ISSUE NO. 3

17. This issue was framed because management has alleged that workman is gainfully employed. In fact findings on this issue would have been necessary only when this court had come to the conclusion that dismissal of the workman from service was illegal. Since the enquiry issue has been decided in favour of the management and the dismissal of the workman from service has been held to be not shocking to the conscience of the court, I hold that findings on this issue are not necessary. This issue stands disposed of accordingly. RELIEF

18. In view of the foregoing findings on issue no.1 and 2, I hold that workman is not entitled to any relief.

ID No.307/08

18

19. Award is passed as per foregoing findings on the issues and reference stands answered accordingly. A copy of the award be sent to Ld. Secretary (Labour) Government of National Capital Territory of Delhi for necessary action. Award be also sent to server (www.delhicourts.nic.in). File be consigned to record room. Announced in the open court on 18 Day of July 2009 th S.K. Kaushik Presiding Officer Labour Court No. XII, Karkardooma Courts, Delhi.