Delhi High Court
Shafali R. Chopra vs Ifci Infrastructure Development ... on 19 March, 2019
Equivalent citations: AIRONLINE 2019 DEL 839
Author: Suresh Kumar Kait
Bench: Suresh Kumar Kait
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 06.02.2019
Pronounced on: 19.03.2019
+ W.P.(C) 4495/2016 & CM APPLN. 10462/2017
SHAFALI R. CHOPRA ..... Petitioner
Through: Mr. Arunabh Chowdhury, Mr.Karma
Dorjee, Mr. Vaibhav Tomar,
Mr.Abhishek Roy and Ms.Shruti
Choudhry, Advocates
versus
IFCI INFRASTRUCTURE DEVELOPMENT LIMITED (IIDL) &
ORS ..... Respondents
Through: Mr. Rahul Narayanan, Adv. for R-1
Mr. Moazzam Khan, Mohammad
Kamran and Mr.Brijesh Kumar,
Advocates for R-2
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
JUDGMENT
1. Vide the present petition, petitioner seeks direction thereby to quash the orders dated 29.12.2016 and 05.02.2016 passed by the respondent No. 3. Consequently, restrained the said respondent for taking any further steps in terms of the orders mentioned above.
W.P.(C) 4495/2016 Page 1 of 31
2. The brief facts of the case are that the petitioner is a widow and has been in the business of hospitality for the past 29 years and has worked in various capacities for reputable luxury business Hotels like the Oberois and the Radisson. The Petitioner has been associated with Frasers Hospitality Pvt. Ltd., a joint venture between Frasers Hospitality Pvt. Ltd. and IFCI Infrastructure Development Limited (IIDL) since 03.11.2011, where she joined as a Resident Manager for Fraser Suites New Delhi. The Respondent No. 1 is a Government Company incorporated under Section 617 of the Companies Act, 1956. The Respondent No. 2 is a company incorporated under the laws of Singapore. The said Respondent is operating and managing the Serviced Apartments Called "Frasers Suites, New Delhi"
commissioned by the Respondent No. 1 under the Management Agreement dated 17.07.2009. Under the said Agreement, the Respondent No. 2 is the sole and exclusive operator of the Serviced Apartments and has been conferred uninterrupted and exclusive control of the operation, management, direction and supervision of the said Serviced Apartments for an initial period of 10 years commencing from the operation date i.e. 01.10.2011. The terms and conditions of the Management Agreement dated 17.07.2009 is in the nature of a joint venture between the Respondent No. 1 and the W.P.(C) 4495/2016 Page 2 of 31 Respondent No. 2 Company for operating and managing the Serviced Apartments mentioned above. The Respondent No. 3 is Managing Director, IFCI Infrastructure Development Limited and is mastermind of the whole conspiracy hatched against the Petitioner in connivance and in complicity with Respondent No. 4 and other officials of IIDL, with the sole purpose of humiliating, defaming and removing the Petitioner from her position as the General Manager of FSND. The Respondent No. 5 is the AVP (Legal) of the Respondent No. 1 Company who was appointed as the Enquiry Officer to conduct the proceedings against the Petitioner. The Respondent No. 5 directly reports to the Respondent No. 3 in her capacity as AVP (Legal). The said Respondent No. 5 was privy to the allegations levelled against the Petitioner from the very beginning and her advice was sought even before filing of the Charge-Sheet. The said Respondent has conducted a sham enquiry and acted under the dictates of the Respondent No. 3 and her conduct was unbecoming of an Enquiry Officer. There are serious allegations of malafide and abuse of the office by the Respondent Nos. 3, 4 & 5 and, therefore, the said respondents have been arraigned as party Respondents in the present Petition.W.P.(C) 4495/2016 Page 3 of 31
3. Learned counsel on behalf of the petitioner submits that the terms and conditions of the Management Agreement dated 17.07.2009 and particularly Clause 5.1 thereof evidences that the Respondent No. 1 has engaged the Respondent No. 2 as the sole and exclusive provider of the services during the term and the sole and exclusive operator of the Serviced Apartments in accordance with the terms of the Agreement. By virtue of Clause 5.3, the Respondent No. 1 has conferred on the Respondent No. 2 herein "the uninterrupted and exclusive control of the operation, direction, management and supervision of the Serviced Apartments." Clause 5.5.1 confers the right on the operator to manage and operate the Serviced Apartments in accordance with the approved Annual Plan and "make decisions on matters relating to personnel, including matters relating to Key Personnel, in consultation with the owner." Under Clause 5.8, it is the Respondent No. 2 who has been conferred the right of selection, recommendation, nomination and change in the General Manager of the Serviced Apartments. Clause 5.8 & 5.9 of the Management Agreement which are of some relevance are extracted herein below:
"5.8 The Operator shall recommend the appointment of key employees in managerial and executive positions including the financial controller (" Key Personnel") to operate and manage the Serviced Apartments, and the W.P.(C) 4495/2016 Page 4 of 31 Parties shall mutually consult and agree on such appointments, provided that Operator shall have the right of selection, recommendation, nomination and change in the general manager of the Serviced Apartments, and the appointment and change of the general manager shall not be without taking the Owner into confidence. Any objections raised by the Owner in regard to any key personnel or their appointment shall be given complete weightage and consideration by the Operator. 5.9 All employees including Key Personnel shall be employed by the owner on terms as proposed by the Operator in consultation with the owner. The operator is entitled, but not obliged, to second any of its executive personnel to the Owner as the Key Personnel."
4. It is further submitted that in accordance with the Management Agreement dated 17.07.2009, the Respondent No. 2 started its operations. On 16.11.2011, the Petitioner was appointed as the Resident Manager assigned to Frasers Suites, New Delhi w.e.f. 03.11.2011. The Petitioner was appointed by the Respondent No.2 with the approval of the Respondent No.1. vide "offer of Employment" dated 16.11.2011 which is annexed as Annexure P-2. On 01.05.2012, the performance of the Petitioner was reviewed by IIDL and as the Petitioner was working tirelessly to bring FSND to new heights, she was awarded ₹1,50,000/- as Performance Linked Incentive. On 22.05.2014, the Petitioner was promoted from her original position as the Resident Manager to the post of General Manger, FSND with an increase in her salary and others increments. However, there were other W.P.(C) 4495/2016 Page 5 of 31 certain disputes regarding the day to day operations and management of FSND between the Respondent No.1 and the Respondent No.2, more specifically with regard to the completion of FSND, which was delayed for nearly 2 years. Moreover, there was some disagreement with regard to the pay management and trademark license fees between IIDL and Frasers Hospitality. Amongst many other daily disagreements between Frasers and IIDL, IIDL had insisted that FSND increase the room tariffs by 10% but Frasers Hospitality Pvt. Ltd. was not comfortable with the increase as they felt that any increase would result in drop in the market share. Therefore, when the Petitioner on the instruction of Frasers Hospitality refused to increase the room rates, the Petitioner was humiliated by the Board of IIDL and was even thrown out of the Board room by Mr. Anchal Kumar Gupta, Vice Chairman, IFCI and the Respondent No.3. Accordingly, on 29.06.2015 a written complaint was filed by one Ms. Poonam Saini, an Employee of FSND against Ms. Erum Khan (respondent no.4) for misbehaviour and for abusing Ms. Poonam Saini. The petitioner in her capacity as the General Manager and the overall incharge of FSND had intervened on receipt of the said complaint against the respondent no.4. The petitioner had also reprimanded her on numerous previous occasions too, whenever found W.P.(C) 4495/2016 Page 6 of 31 guilty of misbehaviour and for dereliction of her assigned duty. The petitioner has been in hospitality service for more than 3 decades and has an unblemished illustrious career. She had never used any unparliamentarily language or displayed any unprofessional conduct while intervening and action on the said complaint of Ms. Poonam Saini. The respondent no.4 instead of amending her unprofessional conduct, in criminal complicity with Mr. Samik Das Gupta (respondent no.3) and other officials of IIDL used this incident as a catalyst to illegally out the petitioner from her position as the General Manager of FSND by levelling all sorts of false, slanderous, malicious and unsubstantial charges against the petitioner. On 30.06.2015 and other dates, the respondent no.4 with a malicious intent and in connivance and complicity with other employees of IIDL including the respondent no.3 addressed numerous emails to the Shri Jayant Sinha, Minister of Finance, MoS, Government of India levelling all kinds of false/reckless allegations against the petitioner, including that of the petitioner being a racist, with the sole purpose to illegally remove her from her position. The true malicious intent of the respondent no.4 was got clear when on 02.07.2015, she communicated a list of demands to the Management through Mr. Sumit Tiwari, Assistant Manager, Reservation W.P.(C) 4495/2016 Page 7 of 31 Department. The demands therefore, in unequivocal terms demonstrate the true nature of the conspiracy that has been masterminded and orchestrated by the respondent no.3. On 10.07.2015, the petitioner was suspended from her position as the General Manager, without affording her any opportunity whatsoever to put forth her case. Along with the petitioner, four other officials of FSND were also suspended and subsequently removed from their positions.
5. Learned counsel for the petitioner further submits that the role of the respondent no.3 being the master mind of the whole conspiracy hatched against the petitioner is evident from the fact that on 11.07.2015, the respondent nos. 3 and 4 with the purpose of intimidating and harassing the petitioner sent unknown persons to the residence of the petitioner and on failing to find her at residence, the said persons threatened petitioner‟s house maid and thereafter, forcibly took photographs and videos of petitioner‟s residence. The petitioner was compelled to file a complaint of the aforesaid incident before the Nizamuddin Police Station. However respondent no.3 on 24.08.2015 issued a chargesheet against the petitioner, levelling nine charges which are as under:
i. "As per the statement received from FSND, you and your family members have used salon services worth W.P.(C) 4495/2016 Page 8 of 31 ₹1.25 lac without any payment. (As per the details attached.) ii. As per the statement received from front office department and other staff members, your family members like son, daughter-in-law, grandson, maid and daughter have stayed in the property last year in Room no. 109 and 110 from May 2014 to January 2015 without any payment.
iii. As per the statements received form HR, FSND you had deployed FSND staff at your residence for renovation works particularly Mr. Sanjay, Mr. Nasim, Mr. Suman, Ms. Monika Dagur and outsourced staff of Kintre contractor.
iv. As per the statement received form HR, FSND you had advised them to misrepresent the staff salary detail by showing 15% hike in the departmental report sought by IIDL.
v. As per the statement received form staff, you were receiving unaccounted cash generated from property services like rooms (particularly Mr. Sachin Chikkara and Mr. Javed), banquets (receipt of cash on Birthday party of Mr. Syed‟s son) and F&B services (cash generated from the biker group visiting the property for morning breakfast).
vi. Handing over unaccounted cash worth ₹2,38,410/-
to Mr. Kunal Agarwal, Deputy Manager-F&A. vii. Scrap and discarded material from the property has been removed without any gate pass and sold on your behest without accounting for the proceeds.
viii. You were informed by Frasers Hospitality in the month of May 2014 about your promotion to General Manager post with a raise of ₹75,000/- pm. You instructed accounts department to enhance your W.P.(C) 4495/2016 Page 9 of 31 salary in the next month without the knowledge or consent of Head Office. The amount of increment was later returned by you due to lack of approval form head office. However, you started drawing ₹ 75,000/- in cash every month from unaccounted receipts.
ix. You had directed F&A department to reimburse your personal expenses using company‟s funds."
6. Further submitted, the chargesheet issued by the respondent no. 3 acting as the disciplinary authority on behalf of the respondent no.1 is ex facie without jurisdiction as the petitioner was admittedly the employee of the respondent no.2 herein and therefore, no chargesheet could have been issued by the respondent no.1 unilaterally. That apart, the chargesheet wrongly refers to the petitioner as Resident Manager whereas she was promoted as the General Manager w.e.f. 01.01.2014. Along with the said chargesheet, a two page document was annexed which purportedly shows the facilities/services availed by the petitioner and her family members on various dates ranging from 12.01.2013 to 23.06.2015. On 15.09.2015, the petitioner submitted a detailed reply refuting and countering each and every allegation levelled by the respondent no.3. The petitioner in her reply had levelled serious allegations against the respondent no.3 of being the mastermind of the entire episode against her and had caste her doubts W.P.(C) 4495/2016 Page 10 of 31 against the Departmental proceedings of being a farce, as the respondent no.3 was at the helm of the said proceedings thereby, acting as the Judge, Jury and Executioner. Therefore, requested the respondent no.3 to rescue himself from the said Enquiry proceeding and thereafter, to constitute a fair, independent and impartial enquiry commission. On 29.09.2015, Ms. Neha Malik, Senior Manager, IIDL addressed a letter to the petitioner stating that the reply had been placed before the disciplinary authority and the same was not accepted. Moreover, it was disclosed that Ms. Neha Kapur, AVP-Legal (respondent no.5) had been appointed as the enquiry officer and Ms. Mala Sharma, Executive Assistant as the presenting officer. On the very next day when respondent no.5 was appointed as the enquiry officer, the respondent no.1 issued an advertisement in a leading newspaper namely The Times of India for filing up the post of the General Manager, FSND. The respondent no.5 on her appointment as the Enquiry officer sent a letter dated 07.10.2015 calling upon the petitioner to attend the enquiry proceedings on 16.10.2015. The petitioner sent a reply dated 14.10.2015 stating her strong objections to the appointment of Ms. Mala Sharma as the presenting officer and of the respondent no.5 as the enquiry officer, as these officials report directly to the respondent no.3, the mastermind of the whole conspiracy. The petitioner W.P.(C) 4495/2016 Page 11 of 31 vide the same letter requested the respondent no.5 to provide her with all the necessary and relevant documents that were sought to be relied during the enquiry proceedings. The petitioner on a later date came to know that a police complaint was filed by the respondent no.3 against the petitioner before the Mayur Vihar Police Station which was registered as FIR No. 0671/2015 on 13.10.2015, alleging all kinds of reckless and baseless allegations against the petitioner. The respondent no.5 in her reply dated 29.09.2015 to the letter of the petitioner dated 14.10.2015 stated that the list of documents have already been supplied to the petitioner and the documents would be shown at the time of the enquiry proceedings which was scheduled to be held on 16.10.2015 at 10 am. The petitioner in her letter dated 15.10.2015 again reiterated her stand for constitution of an independent impartial enquiry committee as the petitioner had strong reasonable apprehension of bias against the respondent no.5.
7. Learned counsel for the petitioner further submits that the manner in which the enquiry was being conducted gave rise to justifiable doubts in the minds of the petitioner and she therefore, sought assistance of an Advocate to appear in the enquiry proceedings. However, the respondent no.5 denied her assistance of an advocate from attending the enquiry proceedings. As the W.P.(C) 4495/2016 Page 12 of 31 documents provided by the presenting officer were incomplete, the petitioner on 27.10.2015 sent an email to the respondent no.5 drawing her attention to the documents and evidences alongwith the CCTV footages which were not provided to her and for the supply of the same at the earliest. The respondent no.5 vide her email dated 02.11.2015 replied to the request of the petitioner by stating that the petitioner may see the CCTV footage at their office during the enquiry proceedings and that the other documents cannot be provided. The respondent no.3 in his capacity as the Disciplinary authority issued a letter dated 03.11.2015 to the petitioner directing her to appear before the enquiry officer on 19.11.2015, failing which the disciplinary authority would take Ex-parte decision against the petitioner. The petitioner in her reply to the letter dated 03.11.2015 issued by the respondent no.3 again requested the respondents to provide the petitioner with the complete set of documents/statement of witnesses before the next date of enquiry and also calling upon the respondent no.3 to rescue himself from being at the helm of the enquiry proceedings and to thereof, constitute an independent and impartial enquiry committee consisting of members with impeccable and unblemished reputation and character. W.P.(C) 4495/2016 Page 13 of 31
8. Further submitted, on 19.11.2015, the petitioner attended the enquiry proceedings wherein she again categorically requested the respondent no.5 to provide her with all the documents, CCTV footages, log books, rules and regulations and other documents. On 22.11.2015 also, the petitioner addressed a letter to the respondent no.5 and the presenting officer, requesting to provide with all the documents mentioned above. The said letter was replied by respondent no.3 vide letter dated 23.11.2015 stating that all the necessary documents have already been provided and further directed the petitioner to appear for enquiry on 24.11.2015, failing which ex- parte order would be passed. Thereafter, nothing was heard from the respondent no.5. The petitioner was not informed as to whether any enquiry report was submitted nor was the petitioner furnished with any such enquiry report by the respondents. However, on 29.12.2015, respondent no.3 passed an ex parte order against the petitioner which is annexed as Annexure P-28. The respondent no.3 at paragraph 4 had stated that he has gone through the reports of investigation conducted by FSND and also the forensic auditors and have found irregularities in the operations in which the petitioner was involved. Furthermore, the respondent no.3 on the basis of such findings has imposed a cash penalty of ₹18,00,000/- being 12 months of the petitioner‟s W.P.(C) 4495/2016 Page 14 of 31 salary in addition to termination from service. The order also called upon the petitioner to appear in person before the respondent no.3 on 04.01.2016 to submit comments in her defence, failing which, a final view of the charges would be taken. Thereafter vide letter dated 01.01.2016 addressed to the petitioner postponed the date from 04.01.2016 to 07.01.2016 for appearance. The petitioner vide letter dated 07.01.2016 communicated her displeasure as to how the whole enquiry proceedings has been conducted in a biased and prejudicial manner. The petitioner in her reply also highlighted all the instances to prove as to how the inquiry proceedings was a sham and was being conducted under the guidance and supervision of Mr.Samik Das Gupta. On 05.02.2016, respondent no.3 vide his final order confirmed his findings dated 29.12.2015 thereby terminating the services of the petitioner and further imposing a cash penalty of ₹18,00,000 being petitioner‟s 12 months‟ salary.
9. Learned counsel for the petitioner while concluding his arguments submitted that there was a bias attitude of the respondents by not furnishing complete set of documents, the inquiry reports, CCTV footages and not giving her proper time to make representation against the inquiry report; thus, the respondents have violated the principles of natural justice and fair W.P.(C) 4495/2016 Page 15 of 31 chance to defend in the departmental inquiry. Thus, the present petition is liable to be allowed.
10. On the other hand, learned counsel appearing on behalf of respondent No.1 submits that at the relevant time the Petitioner was General Manager at the Serviced Apartments, was suspended from her position with the Respondent No.1 Company on the 10.07.2015 with immediate effect. On investigation, certain records maintained by the staff at the hotel such as handover register from May 2014 to June 2015 maintained by Room Services personnel, computer records for the period June 2015, and night car register from 24.02.2015 to 09.07.2015, were collected which showed that the rooms which were to be rented out for cash payment were shown vacant in the system, however, the room service staff was asked to clean these rooms and they noted these rooms in their register as "physically occupied". Similarly the night car register maintains a record of all vehicles entering and leaving the Hotel and it shows frequent visit by the petitioner‟s son & daughter-in-law in their car with the car staying overnight. The son of the Petitioner stayed in Room No. 110 for several months and without paying any rent, as testified by several employees, however, Room No. 110 was shown „out of service‟ for that period. Thus, the Petitioner has misused the W.P.(C) 4495/2016 Page 16 of 31 hotel facilities, services, vehicles, rooms and staff. Further, no bills were raised for Food & Beverages consumption of her family. The Petitioner and her family had used salon and spa services worth ₹1.25 lacs without any payment and the same was testified by the Spa Manager, FSND who confirmed that the Petitioner‟s family have used the spa facility and bills were never raised. The CCTV footage clearly shows them entering and leaving the spa an hour and a half later. As per her contract, the Petitioner was entitled to stay in a studio room but her family was not entitled to any complimentary stays unless such stay was in the unit allotted to the Petitioner. However, it was also found that Unit 109 & 110 were being used by the Petitioner‟s family for more than one year and these rooms were at times placed out of order but occupied by the Petitioner‟s family. During investigation it was disclosed that when food & beverages was consumed by the Petitioner and her family, no bill was ever raised.
11. It is further submitted by the counsel of respondent No.1 that in the month of May, 2014, the Petitioner instructed the Accounts Department to enhance her salary in the next month without the knowledge and consent of the Respondent No.1. The Respondent No.2 was informed by the Respondent No.1 that they were not made aware of the Petitioner‟s W.P.(C) 4495/2016 Page 17 of 31 promotion & salary increment that took place in 2014 and had not received the letter sent by Respondent No. 2 stating the change in the title from Resident Manager to General Manager and salary increment of ₹75,000/-. However, later the petitioner herself told the department concerned that the Respondent No. 1 had not approved her promotion & salary increment and therefore requested to reverse the amount in her July salary. However, she kept on receiving the salary amounting to ₹75,000/- in cash from July, 2014 onwards. Respondent No. 1 also sent an email requesting an explanation from the Petitioner as to why she was using General Manager title when IIDL records showed her title as Resident Manager to which the Petitioner replied that her promotion was approved by Respondent No. 2 in June 2014. On 13.07.2015, an amount of ₹2,38,410/- which was part of unaccounted proceeds of hotel rooms and banquets was handed over to the Respondent No. 1. As per the statement of the employees the said amount in cash has come from the rental amount received for banquets and rooms without entering into the system which was kept with the Finance Controller on the instructions of the Petitioner. The Petitioner has played huge fraud on Respondent No. 1 and has misused her position and was involved in the illegal and unethical activities in the hotel which has adversely affected the W.P.(C) 4495/2016 Page 18 of 31 image of the organization and thereby caused huge financial loss & reputational losses to Respondent No. 1. Accordingly, the disciplinary proceedings were initiated against the Petitioner. The Petitioner was terminated from her employment by a letter dated 05.02.2016. It is further submitted that independent investigation reports confirmed that the Petitioner was indeed guilty of several offences. The Enquiry report itself takes note of the Investigation Report undertaken by the Respondent No. 2 from the 12th to the 17th July, 2015. It can be clearly seen that the independent investigations of Respondent No.2, as submitted to Respondent No. 1 also confirm that the Petitioner has been guilty of several acts of omission and commission for which disciplinary proceedings were initiated. The Enquiry Report and all documents relating to the enquiry were provided to her on 16.10.2015 and 28.10.2015. Further, the Petitioner was also provided the option of viewing certain CCTV footage regarding the charges against her at the enquiry, and was also offered the assistance of any other co-employee during the hearing.
12. Learned counsel further submits that the petitioner‟s guilt with regard to various acts of embezzlement and malfeasance had stood independently established by atleast two independent organisations, i.e. the Respondent W.P.(C) 4495/2016 Page 19 of 31 No. 2 herein and the independent auditor. Even after the Enquiry report as well as the independent auditor‟s report was submitted, on the 07.01.2016, the Petitioner was given a further opportunity to rebut the charges against her. However, on baseless pretexts, the Petitioner has not actually replied to any of the charges levelled against her.
13. Learned counsel appearing on behalf of respondent No. 1 further submitted that the relevant findings of the investigation conducted by the respondent No. 3 are as under:-
"During our investigation, we asked Erum about the list of demands she had apparently made via Sumit Tiwari (Asst. Reservation Manager) in regards to promotion, incentive for making bookings, and written apology from a staff (Poonam Saini) for an issue they had.
Erum stated that Sumit had approached her and wanted to discuss what her misgivings were and help to address them. Sumit had taken notes of the conversation. The notes were shown to Kamlesh and Shafali but it was misinterpreted to be demands made. Copies of the notes taken by Sumit are kept on file.
When asked about this incident, Shafali stated that Sumit came to her and said these are Erum‟s demands and if they are not met, she will make further allegations against Shafali to the IIDL MD. Shafali right away sent an email with the demands to Fabien and IIDL.
We were informed that Erum‟s employee file was tampered with under instruction of Shafali. After investigation further we found that backdated verbal warning letters were created and filed in Erum‟s personal folder. Sumit, Erum‟s superior mentioned that he had W.P.(C) 4495/2016 Page 20 of 31 been approached by Syed to proceed to Tanpreet‟s office where he was asked to write down the verbal warning letters against Erum. Sumit printed out all the guest complaints about Erum and proceeded to prepare the backdated verbal warning letters in Tanpreet‟s office. Syed was present during this time."
14. Learned counsel for the respondent No. 2 submits that the petitioner has filed the present petition against respondent Nos. 1 to 5 for seeking relief in the nature of mandamus inter alia, (1) quash and set aside the orders passed by respondent No. 3 dated 29.12.2015 and 02.02.2016, (2) restrain respondent No. 1, its officers/ agent from acting upon the disciplinary orders and (3) imposed explanatory damages upon respondents for mental harassment and humiliation caused to petitioner.
15. He further submits that scope of writ of mandamus is limited to enforcement of a public duty. It is the nature of duty to be enforced which determines whether the writ of mandamus would lie against a particular authority/person/ entity. The duty cast on the authority/person/entity may either be statutory or otherwise but nevertheless, there must be the public law element in such action. In the case of K. K. Saksena v. International Commission on Irrigation and Drainage & Ors.: (2015) 4 SCC 670 the Hon‟ble Supreme Court has held as under:-
"43. What follows from a minute and careful reading of W.P.(C) 4495/2016 Page 21 of 31 the aforesaid judgments of this Court is that if a person or authority is a „State‟ within the meaning of Article 12 of the Constitution, admittedly a writ petition Under Article 226 would lie against such a person or body. However, we may add that even in such cases writ would not lie to enforce private law rights. There are catena of judgments on this aspect and it is not necessary to refer to those judgements as that is the basic principle of judicial review of an action under the administrative law. Reason is obvious. Private law is that part of a legal system which is a part of Common Law that involves relationships between individuals, such as law of contract or torts. Therefore, even if writ petition would be maintainable against an authority, which is „State‟ Under Article 12 of the Constitution, before issuing any writ, particularly writ of mandamus, the Court has to satisfy that action of such an authority, which is challenged, is in the domain of public law as distinguished from private law."
16. The Hon‟ble Supreme Court, in K.K. Saksena Case further held:
"There is yet another very significant aspect which needs to be highlighted at this juncture. Even if a body performing public duty is amenable to writ jurisdiction, all its decision are not subject to judicial review, as already pointed out above. Only those decisions which have public element therein can be judicially reviewed under writ jurisdiction. In the Praga Tools Corporation v. Shri C.A. Imanual and Ors. (1969) 1 SCC 585, as already discussed above, this Court held that the action challenged did not have public element and writ of mandamus could not be issued as the action was essentially of a private character. That was a case where the concerned employee was seeking reinstatement to an office."
17. Counsel further submitted that in order to obtain a relief in the nature W.P.(C) 4495/2016 Page 22 of 31 of writ of mandamus the Petitioner has to satisfy that it is invoking the jurisdiction of this Court to enforce a public duty. The Petitioner is an employee of Respondent No.1. The relationship of Petitioner with Respondent No. 1 is that of an employer-employee which is governed by the terms of the Offer Letter dated 16.11.2011. The dispute agitated by the Petitioner against Respondents falls, strictly within the purview of the aforesaid offer Letter. The present dispute is private in nature and hence outside the purview of Article 226 of the Constitution of India. In the case of Joshi Technologies International Inc. V. Union of India: (2015) 7 SCC 728, the Hon‟ble Supreme Court has, inter-alia observed:
"If the contract between private party and the State/instrumentality and/or agency of State is under the realm of a private law and there is no element of public law, the normal course for the aggrieved party, is to invoke the remedies provided under ordinary civil law rather than approaching the High Court Under Article 226 of the Constitutional of India and invoking its extraordinary jurisdiction."
18. The dispute agitated by the Petitioner in the present case is with respect to her termination from employment. It is submitted that such disputes fall purely within the domain of private law as held in case of W.P.(C) 4495/2016 Page 23 of 31 Praga Tools Corporation v. Shri C.A. Imanual and Ors.: (1969) 1 SCC 585, the Hon‟ble Supreme Court has held:
"In our view the High Court was correct in holding that the writ petition filed under Article 226 claiming against the company mandamus or an order in the nature of mandamus was misconceived and not maintainable. The writ obviously was claimed against the company and not against the conciliation officer in respect of any public or statutory duty imposed on him by the Act as it was not be but the company who sought to implement the impugned agreement. No doubt, Article 226 provides that every High Court shall have power to issue to any person or authority orders and writs including writs in the nature of habeas corpus, mandamus etc., or any of them for the enforcement of any of the rights conferred by Part III of the Constitution and for any other purpose. But it is well understood that a mandamus lies to secure the performance of a public or statutory duty in the performance of which the one who applies for it has a sufficient legal interest. Thus, an application for mandamus will not lie for an order of restatement to an office which is essentially of a private character nor can such an application be maintained to secure performance of obligations owed by a company towards its workmen or to resolve any private dispute...""
19. It is further submitted that Respondent No. 2 is a private company registered under the laws of Singapore. It has no public duty and discharges no public function. It is not set up by the Centre or State Government, therefore, it is not answerable for its activities to the Centre or State W.P.(C) 4495/2016 Page 24 of 31 Government. Though, Respondent No.2, cannot be regarded as an "authority" or a "person" for the purpose of Article 226 and therefore, is not amenable to the writ jurisdiction of this Court. Since Respondent No.2, is not amenable to the writ jurisdiction under Article 226, no relief against respondent No. 2 can be granted by this Court, thus, the respondent No. 2 has been wrongly impleaded as a party by the petitioner. Respondent No. 2 is neither a "necessary" nor a "proper" party. Moreover, there is no relief claimed against Respondent No. 2 in the present proceedings. The Petitioner has challenged the Disciplinary Proceedings Orders passed by Respondent No. 1. Enquiry proceedings were conducted by officials of Respondent No. 1. All communications regarding the suspension / termination of employment of the Petitioner was sent by Respondent No. 1 and its officials. Furthermore, Respondent No. 2 was not involved in disciplinary proceedings. Moreover, there is no allegations of any wrong- doing on part of Respondent No. 2 in the present Petition. None of the documents placed on record by the Petitioner demonstrate any wrong-doing by Respondent No. 2 in process of Petitioner‟s suspension / termination from the employment. It is established from the record, no official of Respondent No. 2 was involved in the enquiry proceedings of the Petitioner W.P.(C) 4495/2016 Page 25 of 31 which resulted in her suspensions and ultimately, termination. The petitioner, therefore, does not have any right to relief against Respondent No. 2 in the present proceedings. The Petitioner has sought reliefs in the nature of writ effectively against Respondent No. 1, its officers / agents including Respondent Nos. 3 to 5. Thus, the present petition deserves to be dismissed against respondent no.2.
20. I have heard learned counsel for the parties.
21. The petitioner was appointed by respondent no.1 and continued in employment of the said respondent even after amendment agreement dated 17.07.2009. If any promotion or salary has been increased by respondent no.2, that will not change the service conditions of the petitioner.
22. In the present petition, respondent no.2 is a private company registered under the laws of Singapore. It has no public duty and discharges no public function. The said respondent is not set up by the Centre or State Government. The chargesheet was issued by respondent no.1, inquiry was directed to be conducted by respondent no.1 and accordingly, punishment imposed by disciplinary authority of respondent no.1, therefore, respondent no.2 is neither a necessary party nor a proper party. Moreover, there is no relief claim against the respondent no.2 in the present proceedings. The W.P.(C) 4495/2016 Page 26 of 31 petitioner has challenged the disciplinary proceedings order passed by respondent no.1. All communications regarding suspension/termination of employment of the petitioner was sent by respondent no. 1 and its officials. Furthermore, Respondent No. 2 was not involved in the disciplinary proceedings. There are no allegations of any wrong-doing on part of Respondent No. 2 in the present Petition. No official of Respondent No. 2 was involved in the enquiry proceedings which resulted in her suspensions and ultimately, termination.
23. Accordingly, the present petition is dismissed qua respondent no.2 in view of above discussion and settled position of law.
24. In case of Sub-Divisional Officer, Konch vs. Maharaj Singh: 2003 (9) SCC 191 whereby the Supreme Court has held that the Court would not be justified in reappreciating the evidence adduced in a disciplinary proceedings to alter the findings of the enquiring authority.
25. In case of State of UP vs. Sheo Shanker Lal Srivastava & Ors: 2006 (3) SCC 276 whereby the Hon‟ble Supreme Court has held that the doctrine of proportionality can be invoked only under certain situations. The Court shall be very slow in interfering with the quantum of punishment, unless it is found to be shocking to one‟s conscious.
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26. In B.C. Chaturvedi vs. Union of India & Ors.: (1995) 6 SCC whereby it is held that a judicial review is not an appeal from a decision but a review of the manner in which the decision is made. The power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the Court. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence.
27. From the record of the file, it reveals that the inquiry report records were provided to the petitioner on 16.10.2015 and 28.10.2015. The petitioner was also provided the option of viewing certain CCTV footage regarding the charges against her at the enquiry, and was also offered the assistance of any other co-employee during the hearing.
28. The petitioner has also been provided with all documentation relevant to the charges against her. Even the Enquiry report as well as the independent auditor‟s report was submitted on 07.01.2016 and the petitioner was given a further opportunity to rebut the charges against her. However, W.P.(C) 4495/2016 Page 28 of 31 the petitioner has not actually replied to any of the charges levelled against her.
29. The disciplinary authority not only dismissed the petitioner from service but also imposed a cash penalty of ₹ 18 lacs being 12 months of the petitioner‟s salary. The allegations against the petitioner are that certain records maintained by the staff at the hotel such as handover registers from May 2014 to June 2015 maintained by Room Services personnel, computer records for the period June 2015, and night car register from 24.02.2015 to 09.07.2015, showed that the rooms which were to be rented out for cash payment were shown vacant in the system, however, the room service staff was asked to clean these rooms and they noted these rooms in their register as "physically occupied". Similarly, the night car register maintains a record of all vehicles entering and leaving the Hotel and it shows frequent visit by the petitioner‟s son & daughter-in-law in their car with the car staying overnight. The son of the petitioner stayed in Room No. 110 for several months and without paying any rent, as testified by several employees, however, Room No. 110 was shown „out of service‟ for that period. In addition to above, no bills were raised for Food & Beverages consumed by the family of the petitioner. The petitioner and her family had W.P.(C) 4495/2016 Page 29 of 31 used salon and spa services worth ₹ 1.25 lacs without any payment. As per her contract, the petitioner was entitled to stay in a studio room but her family was not entitled to any complimentary stays unless such stay was in the unit allotted to the petitioner. However, it is also found that Unit 109 & 110 were being used by the petitioner‟s family for more than one year and these rooms were at times placed out of order but occupied by the petitioner‟s family.
30. Accordingly, by calculating the loss damages accrued to the respondent nos.1 & 2, the disciplinary authority of respondent no.1 has slapped with an amount of ₹ 18 lacs as cash penalty being 12 months of petitioner‟s salary.
31. It is pertinent to mention here that during the arguments of the present case, I for my satisfaction played CD which is on record, on the desktop of the court and found that no activities were there. As per the record of the respondent nos.1 & 2 is concerned, it is not properly quantified that to what amount the petitioner has caused loss and to what extent. Moreover, no such charge was there upon the petitioner, therefore, she has no opportunity to defend the same during inquiry. Even otherwise, if any loss is caused to the respondent no.2 by the petitioner who is an W.P.(C) 4495/2016 Page 30 of 31 employee of respondent no.1, the respondents may avail a proper remedy under the civil law where evidence can be led from both sides.
32. In departmental proceedings, strict proof is not required. It is based on the probability. There are allegations against the petitioner, accordingly, departmental proceedings were initiated. Proper opportunity to defend has been given and thereafter, the order of termination was passed. There is no violation of natural justice. Therefore, no interference is required as the termination order is concerned.
33. In view of above discussion and settled law, I hereby while maintaining order of termination, set aside the impugned order to the extent of cash penalty and accordingly, the present petition is partly allowed. CM APPL. No. 10462/2017
34. In view of the order passed in the present writ petition, the application has been rendered infructuous and is accordingly, disposed of.
(SURESH KUMAR KAIT) JUDGE MARCH 19, 2019 ab/rd W.P.(C) 4495/2016 Page 31 of 31