Delhi District Court
Sh. Om Prakash vs M/S. Bharat Hotels Limited on 2 February, 2009
1
IN THE COURT OF SHRI GIRISH KATHPALIA;
PRESIDING OFFICER, LABOUR COURT XIX
KARKARDOOMA COURTS:DELHI
LIR D NO. 891/06
SH. OM PRAKASH ...WORKMAN
vs
M/s. BHARAT HOTELS LIMITED ...MANAGEMENT
ORDER (ENQUIRY ISSUE)
1. By way of statement of claim filed directly in this court under the provisions of Section 10(4A) of the Industrial Disputes Act workman sought reinstatement of his services with the management with continuity and back wages. As pleaded by workman he was working with the management since 15.06.94 as driver, his last drawn monthly salary being Rs. 4220/. As per workman, the management was indulging in antilabour and unfair labour practices and used to victimize the "union minded" workers by invoking transfer clause of appointment letter. On 16.09.03 management of M/s Intercontinental The Grand, New Delhi issued letter dated 13.09.03 to the workman, LIRD NO. 891/06 Page 1 of 37 pages 2 thereby transferring his services to The Grand Goa International Resort with effect from 17.09.03. Workman was not given any TA/DA or any other allowance by the management. Nor did the management even book a train ticket for the workman. As per workman, management transferred him only to victimize him since he was an active member of Hotel Karamchari Sangh. After 17.09.03, management at Delhi refused to take the workman on duty and asked him to sit at staff gate. Despite repeated requests management did not take him back in Delhi, so workman was compelled to take salary advance on 25.09.03. Management ignored even the legal notice got issued by the workman for his reinstatement in Delhi. In an effort to give legal shape to their decision, management appointed Ms. Jyotica Bhasin, Advocate as Enquiry Officer, who conducted the enquiry in violation of principles of natural justice. Ms. Bhasin is professional Enquiry Officer, who works for several managements and delivers report always against the workers. Enquiry Officer rejected workman's demand for bringing one of his union representatives as defence assistant. Procedure of enquiry was not explained to the workman. Finally, the workman was dismissed from service with effect from LIRD NO. 891/06 Page 2 of 37 pages 3 4.12.04. As per workman, punishment of dismissal from service was disproportionate to the alleged misconduct. Hence this claim.
2. Management in their written statement pleaded that since there was a requirement of driver at Goa Hotel of the company, due to bonafide exigencies of work, services of the workman were transferred to Goa vide letter dt. 13.9.03. In terms with transfer order, workman was required to report for duty at Goa within 15 days. On 17.9.03 workman came to the Hotel of management in Delhi and got his clearance after receiving advance payment for the month of September, 2003. But deliberately, workman did not collect his train ticket from the Hotel and did not report for duty at Goa. Since workman started absenting from duties, he was issued charge sheet dt. 2.1.04 and a domestic enquiry was conducted against him in accordance with principles of natural justice. Workman participated in the enquiry and was explained the procedure of enquiry at the outset. Copies of all the documents were supplied to the workman, opportunity was given to the workman to crossexamine witnesses of the management and to lead his evidence in defence. Workman was also allowed to LIRD NO. 891/06 Page 3 of 37 pages 4 be represented by a coemployee in accordance with rules. The enquiry officer held the workman guilty of charges. Copy of report of the enquiry officer was sent to the workman, who submitted his comments but the same were found without any merit. Management concurred with the findings of the enquiry officer and dismissed the workman from service with effect from 4.12.04. Management denied having asked the workman to sit at staff gate after 17.9.03 as workman had been directed to report for duty at Goa. As per management, punishment of dismissal for the act of misconduct of workman in refusing to obey transfer orders was not disproportionate.
3. Workman filed a rejoinder, denying the pleadings of the management and reaffirmed claim contents. Workman pleaded that he repeatedly requested the management to give him train ticket and TA/DA but management refused to do so. Transfer of the workman was ordered with oblique purposes of dismissing him from service.
4. On the basis of pleadings, my ld. predecessor framed the following issues:
1. Whether the enquiry conducted by the management was not valid and proper and against the principles LIRD NO. 891/06 Page 4 of 37 pages 5 of natural justice? (OPW)
2. Whether the termination of services of the workman was illegal and/or unjustifiable?
2. Relief.
5. Vide order dt. 11506, after framing issues as described above, my ld. predecessor held that Issue no. 1 shall be treated as preliminary issue and directed both the parties to lead evidence on the same. In support of his case, workman appeared as his solitary witness while three witnesses were examined by the management.
6. Workman appeared in the box as WW1 to depose on oath the above mentioned contents of his pleadings and placed on record the relevant documents as Ex. WW1/19. In his cross examination, workman admitted having participated in the domestic enquiry and stated that he is well conversant with Hindi language. He admitted having signed all the proceedings of the enquiry including the proceedings sheets Ex. WW1/MX1 to Ex. WW1/MX3. He admitted that statements of management witnesses were recorded in his presence and he was allowed to crossexamine them. He admitted having LIRD NO. 891/06 Page 5 of 37 pages 6 been allowed to bring his evidence in defence also. As per WW1, during the enquiry proceedings from the side of management at times their personnel officer Mr. Verma and at times a female employee used to appear.
7. Enquiry Officer Ms. Jyotica Bhasin appeared as MW1 and deposed that the domestic enquiry against the workman was conducted by her in accordance with principles of natural justice. At option of workman, inquiry was conducted in Hindi and workman was allowed to be represented by any co employee of his choice. MW1 placed on record the enquiry proceedings as Ex. MW1/1 (colly) and her enquiry report as Ex. MW1/2. In her crossexamination, MW1 stated that she does not hold any post in the Commercial and Industrial Employers Association and she did not know if the said association is a legal advisor of the management. She also did not know if her husband is an office bearer of the said association. As per MW1, management of Inter Continental The Grand had appointed her as Enquiry Officer. MW1 admitted that she is a practicing advocate. Management was being represented by Mrs. Versha Khurana, a part of Personnel Department of the management. She did not remember if the LIRD NO. 891/06 Page 6 of 37 pages 7 management had any certified standing orders or rules which prohibit appearance of a defence assistant of workman's choice.
8. MW2 is a record keeper in Personnel Department of the management, who placed on record a copy of Employee Hand Book as Ex. MW2/1 and stated that every employee of the hotel is supplied this hand book as it contains service conditions. MW2 also placed on record as Ex. MW2/2 an acknowledgment receipt executed by the workman when he was supplied this hand book. In his crossexamination MW2 placed on record a copy of his identity card as Ex. MW2/WX1.
9. Mrs. Versha Khurana, Assistant Manager, Personnel appeared as MW3 and proved on record as Ex. MW3/1 copy of enquiry proceedings dated 13.05.04 (wherein workman had stated that he did not comply with transfer orders since the transfer did not benefit him in any manner) and as Ex. MW3/2, copies of train ticket of workman and clearance documents. In her crossexamination MW3 admitted that Bhasin & Bhasin Associates are legal advisors of the management but expressed ignorance that Ms. Jyotica Bhasin is wife of Sh. Amit Bhasin.
10. No other evidence was brought. I have heard authorised representative for both the sides and perused the record. My LIRD NO. 891/06 Page 7 of 37 pages 8 findings on issue no.1 are as under:
ISSUE NO.1
11. On behalf of workman it was argued that the enquiry stood vitiated since workman was not allowed to be represented by his union leader as defence assistant. Enquiry officer vide proceedings Ex. WW1/MX2 rejected request of the workman for bringing his union leader as defence assistant, placing reliance on service conditions, but the said service condition have not been filed. It was argued that since management did not produce certified standing orders, Model Standing Orders would apply, which permit a union representative to act as defence assistant. Since Enquiry Officer was a lawyer and presenting officer was legally trained officer from Personnel Department, workman had a right to be represented by a union leader and rejection by enquiry officer of workman's request for permission to bring in union leader as defence assistant violated workman's right of effective representation.
12. Secondly, it was argued that since workman has been employee of the management M/s Bharat Hotels Limited, chargesheet issued by Inter Continental The Grand and LIRD NO. 891/06 Page 8 of 37 pages 9 subsequent enquiry proceedings are liable to be quashed for lack of locus standi. Inter Continental The Grand had no disciplinary control over the workman, so could not have issued the chargesheet.
13. Thirdly, workman alleged it to be a case of his victimization and bias. Despite his objections, management did not change their enquiry officer Ms. Jyotica Bhasin, who is wife of Sh. Amit Bhasin of Bhasin & Bhasin Associates, the legal advisors of the management. It was argued that Ms. Bhasin is a professional enquiry officer engaged by the management in various cases, so the enquiry stood vitiated.
14. Although in statement of claim, workman also alleged that procedure of enquiry was not explained to him, this ground was not pressed during arguments. Apparently, authorised representative for workman was conscious of enquiry proceedings dated 26.02.04 Ex. WW1/MX1 which clearly reflect that entire enquiry procedure had been explained to the workman in detail.
15. Authorised representative for workman placed reliance on the judgments in the cases VIJAY THAKUR vs VSNL, 2007 LLR 690; BOARD OF TRUSTEES OF THE PORT OF BOMBAY vs LIRD NO. 891/06 Page 9 of 37 pages 10 DILIP KUMAR RAGHAVENDER NATH, 1983 FLR 30; GHATGE PATIL TRANSPORT vs B K ETALE, 1984 LLN 294; and M/s KAVITHA MOVIE HOUSE vs P.M. MARY, 1979 LLJ 10.
16. On behalf of management, it was argued with the help of numerous judicial precedents, discussed hereafter, that workman does not have an integral right to bring a stranger as defence assistant. Such a right has to be conferred by the rules, or the standing orders and it was for the workman to establish the same. It was argued that workman never pleaded applicability of model standing orders; such applicability being a mixed question of law and fact, issue ought to have been framed so as to give an opportunity to both the sides to lead evidence as to whether or not management's hotel is an industrial establishment ; since there were no pleadings, no issues and no evidence, such an argument cannot be entertained. Further, it was argued that what is to be seen is as to what prejudice was caused to the workman by not allowing a union leader as defence assistant. So far as supply of service conditions (on the basis whereof enquiry officer rejected workman's request to bring union leader as defence assistant) is concerned, authorised representative for management pointed out Ex.
LIRD NO. 891/06 Page 10 of 37 pages
11
WW1/7 as well as Ex. MW2/2 to show that the service
conditions/rule book Ex. MW2/1 was not only filed in the enquiry proceedings but also supplied to the workman on 03.08.99. It was argued that there is no evidence on record that the presenting officer MW3 was a law graduate.
17. So far as locus standi of Inter Continental is concerned, ld. authorised representative for management pointed out that the same is only a brand name and not company name; charge sheet clearly specified at its bottom that Inter Continental is a unit of Bharat Hotels Limited. Despite this clarification in the written statement, workman did not specifically deny the same in rejoinder. Besides, ld. authorised representative for management took me through various documents which show that workman was throughout aware about status of Inter Continental in relation to Bharat Hotels, so he did not take up this plea ever in his chief affidavit.
18. So far as the bias alleged against the enquiry officer is concerned, it was argued that merely because enquiry officer is a relative of the legal advisors of management, her impartiality cannot be questioned. Ld. authorised representative for management pointed out that in her crossexamination the LIRD NO. 891/06 Page 11 of 37 pages 12 presenting officer MW3 clearly stated that a number of workers against whom Ms. Bhasin conducted enquiry were exonerated and there is no further crossexamination in that regard. As regards the alleged victimization, it was argued that workman failed to give any specific instance of the same.
19. Ld. authorised representative for management also argued that in view of the clear admission of the workman that he did not comply with transfer order, violations, even if any, of principles of natural justice pale into insignificance.
20. In nutshell, workman has raised three fold challenge to the validity of enquiry, namely denial of defence assistance, his victimization & bias of enquiry officer and locus standi of Inter Continental to issue charge sheet. It would be appropriate to take up these challenges topicwise.
DENIAL OF DEFENCE ASSISTANCE
21. As mentioned above, grievance of the workman is that the enquiry officer, making a reference of conditions of service, rejected workman's request for permission to bring a union leader as his defence assistant. That rejection, as per workman abrogated his right to be heard, which is an integral part of jus naturale.
LIRD NO. 891/06 Page 12 of 37 pages 13
22. At the very outset, it needs to be appreciated that law does not concede an absolute right of representation as an aspect of right to be heard. As laid down in a catena of judicial pronouncement discussed hereafter, in the Indian legal system, a delinquent has no right to be represented through a counsel or agent unless law specifically confers such right.
23. In the case of KALINDI (N) vs TATA LOCOMOTIVE AND ENGINEERING COMPANY LIMITED, 1960 INDLAW SC 157, the question before Hon'ble Supreme Court was as to whether denial of permission to the workmen for being represented by a representative of the Jamshedpur Union to which they belonged, vitiated the enquiry. Hon'ble Supreme Court concluded that in the concerned rules no provision was made that the person against whom an enquiry is held may be represented by anyone else, so the workmen had no right to be represented in the enquiry by a representative of the union.
24. In the case of CRESCENT DYES AND CHEMICALS LIMITED vs RAM NARESH TRIPATHI, 1993 (2) SCC 115, the issue that came up before Hon'ble Supreme Court was as to whether a delinquent is entitled to be represented by an office bearer of other trade union, who is not a member of either a LIRD NO. 891/06 Page 13 of 37 pages 14 recognised union or a non recognised union functioning within the undertaking in which the delinquent is employed, notwithstanding the statutory limitation contained in the certified standing orders. View taken by the Hon'ble High Court had been that where delinquent workman is not allowed to be represented by a person of his choice, it could be well said that principles of natural justice are violated. Setting aside the impugned judgment, Hon'ble Supreme Court held as under:
"17.It is, therefore, clear from the above caselaw that the right to be represented through counsel or agent can be restricted, controlled or regulated by statute, rules, regulations or Standing Orders. A delinquent has no right to be represented through counsel or agent unless the law specifically confers such a right. The requirement of the rule of natural justice insofar as the delinquent's right of hearing is concerned, cannot and does not extend to a right to be represented through counsel or agent. In the instant case the delinquent's right of representation was regulated by the LIRD NO. 891/06 Page 14 of 37 pages 15 Standing Orders which permitted a clear or a workman working with him in the same department to represent his and this right stood expanded on Section 21 and 22 (ii) permitting representation through an officer, staff member or a member of the union, albeit on being authorised by the State Government. The object and purpose of such provisions is to ensure that the domestic enquiry is completed with dispatch and is not prolonged endlessly. Secondly, when the person defending the delinquent is from the department or establishment in which the delinquent is working he would be well conversant with the working of that department and the relevant rules and would, therefore, be able to render satisfactory service to the delinquent. Thirdly, not only would the entire proceedings be completed quickly but also inexpensively. It is, therefore, not correct to contend that the Standing Order or Section 22 (ii) of the Act conflicts with the principles of natural justice."(emphasis supplied) LIRD NO. 891/06 Page 15 of 37 pages 16
25. In the case of BPCL vs MAHARASTRA GENERAL KAMGAR UNION, 1999 (1) SCC 626, the question that came up before the Hon'ble Supreme Court was as to whether a delinquent employee can claim to be represented by a person, though member of trade union but not coemployee of the delinquent. The conflict in that case was mainly that while under the Model Standing Orders, a delilnquent can be represented by an office bearer of a union of which he is a member, such a right was not provided under the Draft Standing Orders, as certified by the appellate authority, which restrict his right of representation by a fellow workman of his choice from amongst the employees of the appellant. Hon'ble Supreme Court making reference of various precedents observed that the basic principle is that an employee has no right to representation in the departmental proceedings by another person or a lawyer unless the service rules specifically provide for the same. Finally, the apex court held as under:
"38.The Model Standing Orders, no doubt, provided that a delinquent employee could be represented in the disciplinary proceedings through another employe who may not be the LIRD NO. 891/06 Page 16 of 37 pages 17 employee of the parent establishment to which the delinquent belongs and may be an employee elsewhere, though he may be a member of the trade union, but this rule of representation has not been disturbed by the certified Standing Orders, inasmuch as it still provides that the delinquent employee can be represented in the disciplinary proceedings through an employee. The only embargo is that the representative should be an employee of the parent establishment. The choice of the delinquent in selecting his representative is affected only to the extent that the representative has to be a coemployee of the same establishment in which the delinquent is employed. There appears to be some logic behind this as a co employee would be fully aware of the conditions prevailing in the parent establishment, its Service Rules, including the Standing Orders, and would be in a better position, than an outsider, to assist the delinquent in the domestic proceedings for a fair and early disposal. The basic features LIRD NO. 891/06 Page 17 of 37 pages 18 of the Model Standing Orders are thus retained and the right of representation in the disciplinary proceedings through another employee is not altered, affected or taken away. The Standing Orders conform to all standards of reasonableness and fairness and, therefore, the appellate authority was fully justified in certifying the Draft Standing Orders as submitted by the appellant."(emphasis supplied)
26. In the case of CIPLA LIMITED vs RIPU DAMAN BHANOT, 1999 I CLR 1077 Hon'ble Supreme Court held that where service rules indicated that a delinquent is entitled to assistance of a co representative of his choice, denial of permission to be represented by advocate would not vitiate the enquiry.
27. In the case of INDIAN OVERSEAS BANK vs INDIAN OVERSEAS BANK OFFICERS ASSOCIATION, 2001 (9) SCC 540, Hon'ble Supreme Court held "6. We have carefully considered the submissions made as above. The issue ought to have been considered on the basis of the nature and character or the extent of rights, if any, of an LIRD NO. 891/06 Page 18 of 37 pages 19 officeremployee to have, in a domesticdisciplinary enquiry, the assistance of someone else to represent him for his defence in contesting the charges of misconduct.
This aspect has been the subject matter of consideration by this Court on several occasions and it has been categorically held that the law in this country does not concede an absolute right of representation to an employee in domestic enquiries as part of his right to be heard and that there is no right to representation by somebody else unless the rules or regulation and standing orders, if any, regulating the conduct of disciplinary proceedings specifically recognize such a right and provide for such representation. (N. Kalindi & Others vs M/s Tata Locomotive & Engineering Co. Ltd., Jamshedpur 1960 Indlaw SC 157); Dunlop Rubber Co. (India) Ltd. s. Their workmen 1964 Indlaw SC 199); Crescent Dyes and Chemicals Ltd. vs. Ram Naresh Tripathi 1992 Indlaw SC 788) and Bharat Petroleum Corporation Ltd. vs. LIRD NO. 891/06 Page 19 of 37 pages 20 Maharashtra Central Kamgar Union & Others. 1998 Indlaw SC 1829).
Irrespective of the desirability or otherwise of giving the employees facing charges of misconduct in a disciplinary proceeding to ensure that his defence does not get debilitated due to inexperience or personal embarrassments, it cannot be claimed as a matter of right and that too as constituting an element of principle of natural justice to assert that a denial thereof would vitiate the enquiry itself."(emphasis supplied)
28. In the case of MANAGEMENT OF NATIONAL SEEDS CORPORATION LIMITED vs K.V. RAMA REDDY, 2006 INDLAW SC 566, Hon'ble Supreme Court setaside judgment of Hon'ble High Court whereby having accepted that there was no legal right to ask for engagement of a legal practitioner , Hon'ble High Court had held that the enquiry officer in the factual scenario could permit engagement of the lawyer, though the charge related to misappropriation and factual position was within the knowledge of the delinquent. After discussing various precedents, Hon'ble Supreme Court observed that it had not LIRD NO. 891/06 Page 20 of 37 pages 21 been shown as to how a legal practitioner would be in a better position to assist the delinquent so far as the documentary evidence involved was concerned. What is to be seen is whether denial of engagement of a lawyer caused any prejudice to the delinquent.
29. In the case of TAGRA SL vs NEW INDIA ASSURANCE COMPANY LIMITED, 1998 (72) DLT 97, Hon'ble Delhi High Court held as under:
"20. In view of the aforementioned decision, when the service rules applicable to the petitioner do not entitle him to engage a legal practitioner by way of assistance but only enables him to have assistance of any other employee, it cannot be said that the said rule is discriminatory or violative of principles of natural justice. The petitioner has no right to be represented by a legal practitioner either under service regulation or otherwise, even in a case where the Presenting Officer may be a C.B.I Officer. In Crescent Dyes and Chemicals Ltd's case (supra) the LIRD NO. 891/06 Page 21 of 37 pages 22 object and purpose of similar service rules, which is impugned in this case has been considered, that deniel of right to be represented by Counsel is to ensure that domestic enquiry is completed with dispatch and is not prolonged endlessly. When the person defending the delinquent is from the department or establishment in which the delinquent is working, he would be well conversant with the working of that department and the relevant rules and would be able to render satisfactory service to the delinquent and that the entire proceedings would not only be completed quickly but also inexpensively."
30. Coming to the judicial precedents cited by authorised representative for workman, all those judgments are on distinguished footing. In the case of VIJAY THAKUR (supra) service rules specifically provided that an employee could take assistance of any other public servant or a legal practitioner with the permission of the enquiry officer, while in the present case there is no such rule of service conditions. In the case of LIRD NO. 891/06 Page 22 of 37 pages 23 BOARD OF TRUSTEES (supra) the relevant regulation gave discretion to the Enquiry Officer to allow the workman representation through legal practitioner and management was being represented by two legally trained minds while workman was asked to either fend himself in person or have assistance of another employee, which is not the present case. In the case of GHATGE PATIL TRANSPORT(supra), workman was being asked to put forward his case in person though the enquiry involved several disputed questions of law and fact, while in present case no disputed question of law and/ or fact was involved and even otherwise, Hon'ble Bombay High Court in that case clearly observed that the prejudice being found was on the basis of facts and circumstances of that particular case. In the case of KAVITHA MOVIE HOUSE (supra) also, Hon'ble Kerala High Court observed that the decision was in the facts and circumstances of that particular case where an uneducated female workman who was not a member of any union was being denied defence assistance of a lawyer, which is not the present case.
31. In the case of JANKI NATH SARANGI vs STATE OF ORISSA, 1970 I LLJ 356 Hon'ble Supreme Court held as under:
LIRD NO. 891/06 Page 23 of 37 pages 24 "5. ......There is no doubt that if principles of natural justice are violated and there is a gross case, this court would interfere by striking down the order of dismissal; but there are cases and cases. We have to look to what actual prejudice has been caused to a person by the supposed denial to him of a particular right."(emphasis supplied) In the cases of INDRA BHANU GAUR vs COMMITTEE MANAGEMENT OF MM DEGREE COLLEGE, 2003 INDLAW 957 SC and HARYANA FINANCIAL CORPORATION vs KAILASH CHANDRA AHUJA, 2008 INDLAW 1130 SC also, Hon'ble Supreme Court held that what is to be seen is the actual prejudice caused to the delinquent on account of denial of any request of his by the enquiry officer.
32. Falling back to the present case, workman sought permission of the enquiry officer to bring in his union leader Sh. Deshraj as the defence assistant. Enquiry Officer rejected this request vide proceedings Ex. WW1/MX2 on the grounds that the union, whose leader was being called by the workman was not recognised union of the management and such a representation LIRD NO. 891/06 Page 24 of 37 pages 25 of an outsider was not permitted under the service conditions. While rejecting workman's request, Enquiry Officer in Ex. WW1/MX2 granted another opportunity to the workman to consult his co workers and intimate name of the defence assistant by the next date.
33. What is to be seen is as to whether the conditions of service of the workman entitled him to engage a stranger as his defence assistant; unless the service conditions specifically confer such a right, it cannot be imported under the garb of jus naturale.
34. Ex. MW2/1 is the hand book of service conditions, which had been supplied to the workman vide Ex.MW2/2 in the year 1999, much before the enquiry initiated. Rule F19 thereof clearly stipulates as under:
"In the enquiry, the chargesheeted employee shall be allowed to defend himself with the help of any other employee and shall intimate the name of such employee to the enquiry officer. However, the chargesheeted employee shall not be permitted to be assisted or represented by an outsider."(emphasis supplied) LIRD NO. 891/06 Page 25 of 37 pages 26 Thence, decision of the enquiry officer not to allow the union leader Sh. Deshraj to be brought as defence assistant was fully in consonance with the service conditions of the workman.
35. So far as applicability of Model Standing Orders, as relied upon by workman is concerned, no such plea was ever raised by the workman in his pleadings or even chief examination and at this stage, such a plea cannot be raised to the prejudice of the other side. As rightly argued by authorised representative for management, had the workman taken this plea in his pleadings, appropriate issue would have been framed and evidence would have been led.
36. Provisions of the Industrial Employment (Standing Orders) Act apply vide Section 1 (3) thereof to an industrial establishment where 100 or more workmen are employed or were employed on any day of the preceding one year. Vide Section 2 (e) of the said Act, "industrial establishment" means an industrial establishment as defined under Payment of Wages Act or a factory as defined under Factories Act or a railway as defined under the Indian Railways Act or the establishment of a person who for fulfilling a contract with the owner of any industrial establishment, employs workman. Since no pleadings LIRD NO. 891/06 Page 26 of 37 pages 27 were there on these lines, no issues were framed and consequently no evidence was led by either side to show as to whether or not hotel of the management falls within the scope of Section 2 (e) of the Industrial Employment (Standing Orders) Act. Further, even the relevant rule, Rule 14 (4) (ba) of the Industrial Employment (Standing Orders) Central Rules, 1946 contemplate the delinquent workman to be entitled to appear in person or to be represented by an office bearer of a trade union of which he is member. The trade union contemplated by the said Rule cannot be a trade union which is not recognized by the establishment of the management, since such a reading of the Rule would imply a right to the workman to bring in a stranger to the establishment as his defence assistant, which could not be the intention of the legislature in view of the legal position that per se a delinquent workman has no right to be represented through a counsel or agent unless law specifically confers such a right.
37. Most importantly, neither in pleadings nor in evidence nor even in arguments any whisper was made by authorised representative for workman as to what prejudice was caused to the workman due to non assistance of the union leader Sh.
LIRD NO. 891/06 Page 27 of 37 pages 28 Deshraj. Nothing has been shown to establish that the enquiry against the workman involved any complicated question of law and/ or facts. It was a simple case of blatant refusal of the workman to comply with transfer orders. It has not been explained as to how the union leader Sh. Desraj would have been able to provide any special assistance in the defence of workman during enquiry.
38. Although, authorised representative for workman repeatedly argued it to be a case of unequal strength in the sense that the presenting officer was a legally trained professional while workman was a mere driver, there is absolutely no evidence on record to show that the presenting officer MW3 was legally trained or qualified. At the same time, it is not that the enquiry officer totally denied defence assistance to the workman; enquiry officer even gave time to the workman to engage some co employee as defence assistant as per service conditions.
39. In view of above discussion, first ground of challenge to the enquiry as regards alleged denial of defence assistance must fail.
LIRD NO. 891/06 Page 28 of 37 pages
29
VICTIMIZATION OF WORKMAN & BIAS OF ENQUIRY
OFFICER
40. Grievance of the workman is that despite his objections management did not change their enquiry officer Ms. Jyotica Bhasin, who is wife of Sh. Amit Bhasin of Bhasin & Bhasin Associates, the legal advisors of the management. It was argued that Ms. Jyotica Bhasin is a professional enquiry officer engaged by the management in various cases and in all the enquiries, she decides against the workman and that vitiates the enquiry. It was further argued that management did not consider request of the workman not to be transferred to Goa and in fact the transfer was an act of victimization of the workman.
41. As rightly argued by the ld. authorised representative for management, merely because the enquiry officer happens to be wife of an Advocate who is one of the associates of legal advisors of the management, bias cannot be inferred against the enquiry officer. No specific instance was cited by authorised representative for workman from record, which could support his allegation of bias against the enquiry officer.
42. In the case of SARAN MOTORS PRIVATE LIMITED vs VISHWANATH, 1964 (9) FLR 7, Hon'ble Supreme Court rejected a similar challenge, holding as under:
LIRD NO. 891/06 Page 29 of 37 pages 30 "We have repeatedly pointed that domestic enquiries in industrial relations must be fairly conducted and whenever we are satisfied that any enquiry was not fairly conducted or the conclusions were not supported by evidence, we have unhesitatingly ignored the findings recorded in such an enquiry and held that tribunals must deal with the merits of the dispute for themselves; but it is impossible to accept the argument that because a person is sometimes employed by the employer as a lawyer, he becomes incompetent to hold a domestic enquiry. It is well known that enquiries of this type are conducted by the officers of the employer and in the absence of any special individual bias attributable to a particular officer, it has never been held that the enquiry is bad just because it is conducted by an officer of the employer. If that be so, it is obviously unsound to take the view that a lawyer who is not a paid officer of the employer, is incompetent to hold the enquiry, because he is the LIRD NO. 891/06 Page 30 of 37 pages 31 employer's lawyer and is paid remuneration for holding the enquiry."(emphasis supplied)
43. In the case of DALMIA DADRI CEMENT LIMITED vs SH. MURARI LAL BIKANERIA, 1970 (3) SCC 259 also, such a challenge was repelled by the apex court holding:
"19. The tribunal seems to have been greatly impressed by the fact that instead of appointing someone in the appellant's factory itself as the enquiry officer the works manager had brought in an outsider who was no other than a junior advocate occasionally assisting Anand Prakash, their counsel, in some matters. The tribunal's view that this was wholly unwarranted and done with the purpose of loading the dice against the workmen appears to be unreasonable. Merely because the enquiry officer was a junior advocate and that he had on occasions been engaged by the appellant, it is not possible to take the view that he would necessarily be biased against the workmen."(emphasis supplied)
44. Falling back to the present case, the enquiry officer Ms. LIRD NO. 891/06 Page 31 of 37 pages 32 Jyotica Bhasin was not even a counsel of the management in any case, as per workman's own pleadings. Bias against Ms. Bhasin has been sought to be inferred merely because she happens to be wife of Sh. Amit Bhasin, who is one of the advocates of the leading firm Bhasin & Bhasin Associates, who in turn, are legal advisors of the management. So far as Ms. Bhasin having been engaged as enquiry officer in number of cases is concerned, that also cannot be a ground to read bias against her. MW3 categorically stated that a number of workers who faced enquiry conducted by Ms. Bhasin were exonerated and there is no further examination on this aspect.
45. I am of the considered view that by engaging an independent professional instead of a paid employee as enquiry officer, the management provided better conditions to the workman, in so far as Ms. Bhasin, as an advocate was much beyond influence of the management.
46. As such, the challenge of bias alleged against the enquiry officer must fail.
47. So far as the victimization by way of transfer is concerned, firstly the argument falls beyond the scope of issue under consideration as regards validity of the enquiry; secondly, as LIRD NO. 891/06 Page 32 of 37 pages 33 rightly argued by the authorised representative for management placing reliance on the judgments BIKASH BHUSHAN GHOSH vs NOVARTIS INDIA LIMITED, 2007 LLR 903 SC and SHYAM SUNDER AGGARWAL vs GLOBE DETECTIVE AGENCY, 2007 LLR 390 DELHI, a dispute assailing transfer can become industrial dispute only on espousal and cannot be raised in the claim filed directly in court by virtue of Section 2 A of the Industrial Disputes Act.
LOCUS STANDI OF INTER CONTINENTAL
48. Workman raises a challenge that since he had been appointed by M/s Bharat Hotels, management of M/s Inter Continental The Grand was incompetent to issue him chargesheet and conduct the domestic enquiry, as such the enquiry proceedings are liable to be set aside. In their written statement, management clearly pleaded that Bharat Hotels Limited is the owning company and the General Manager of the Company who dismissed the workman from service is also an employee of Hotel Inter Continental and therefore fully competent to institute disciplinary enquiry and take disciplinary action against workman. Although workman filed a rejoinder, he opted not to specifically refute the said pleadings of the LIRD NO. 891/06 Page 33 of 37 pages 34 management. Even in his chief affidavit workman did not raise any such plea. Rather, as reflected from the record of enquiry proceedings, even during the enquiry workman never challenged locus standi of Inter Continental, which lends credence to the stand of the management that Bharat Hotels and Inter Continental are not distinct entities, even in the mind of the workman.
49. Chargesheet issued to the workman on letter head of Inter Continental The Grand clearly shows printed at its bottom that it is a unit of Bharat Hotels.
50. Workman himself also was communicating with the management addressed as Inter Continental The Grand. Legal notice dated 30.09.03 on the record of enquiry proceedings was issued by the workman, addressing the management as Inter Continental The Grand. Reply dated 07.10.03 to the said notice, also on record of enquiry proceedings was issued by Inter Continental The Grand. Transfer letter dated 13.09.03 was received by the workman on 16.09.03 on the letter head of management as Inter Continental The Grand. Significantly, in his notice dated 30.09.03 workman himself stated that he had been working with the addressee, Inter Continental The Grand.
LIRD NO. 891/06 Page 34 of 37 pages 35
51. Under these circumstances, challenge pertaining to locus standi of Inter Continental The Grand is baseless and must fail. ADMISSION OF CHARGES BY THE WORKMAN
52. Citing the judgments of DTC vs SHYAM LAL, 2004 III LLJ 532 SC and ENGINEERING PROJECTS INDIA LIMITED vs S.K. MALHOTRA, 2006 INDLAW DELHI 391, it was contended on behalf of management that since the workman admitted during enquiry the charges against him, the discussion on the alleged violations of principles of natural justice pales into insignificance.
53. As reflected from the enquiry proceedings Ex. MW3/1, workman made a clear admission during the same to the effect that since the transfer did not benefit him, it did not fetch him any allowances or increments or promotion, he did not report at the transferee place in Goa. These proceedings are signed by the workman and there was no crossexamination of MW3 on this aspect. Ex. MW3/2 colly are the train ticket of workman to the transferee place and his clearance documents, arranged by the management.
54. I am in agreement with management on this aspect also, in view of the judicial precedents cited above. Even in his LIRD NO. 891/06 Page 35 of 37 pages 36 statement of claim workman has not denied that he failed to comply with the transfer orders.
CONCLUSION
55. There is no other challenge to the enquiry conducted against the workman. Perusal of enquiry proceedings would show that workman was duly served with chargesheet; he was explained procedure of enquiry; the proceedings were conducted in Hindi; copy of each of the proceedings was supplied to the workman; workman crossexamined all the witnesses who appeared on behalf of management; and it is nobody's case that findings of the enquiry officer are not based on evidence.
56. As held in the case of UCO BANK vs THE PRESIDING OFFICER 1999 LLR 1036 by Hon'ble Delhi High Court, this court has no jurisdiction to sit in judgment over the decision of the management as an appellate body and findings of the enquiry can be interfered with only if the findings are perverse or management is guilty of unfair labour practice or victimization or malafides, which is not the present case.
57. In view of above discussion, issue no.1 is decided against the workman and it is accordingly held not proved that enquiry LIRD NO. 891/06 Page 36 of 37 pages 37 conducted against the workman by the management was not valid or was improper or was in violation of principles of natural justice.
ANNOUNCED IN THE OPEN COURT ON 2nd FEBRUARY 2009 (GIRISH KATHPALIA) ADDITIONAL DISTRICT & SESSIONS JUDGE, PRESIDING OFFICER, LABOUR COURTXIX, KARKARDOOMA COURTS, DELHI LIRD NO. 891/06 Page 37 of 37 pages