Delhi District Court
Sh. J.S. Rawat vs M/S Taj Palace Hotel on 17 September, 2007
ID No. 38/2006/2002
1
IN THE COURT OF SH. S.K. SARVARIA,
PRESIDING OFFICER LABOUR COURT, No. XII,
KARKARDOOMA COURTS, DELHI
ID No. 38/2006/2002
BETWEEN
Sh. J.S. Rawat,
D - 354 / 13, Laxmi Nagar,
Delhi - 110092. ...........Workman.
AND
M/s Taj Palace Hotel,
2, Sardar Patel Marg,
Diplomatic Enclave,
New Delhi - 110021. ..........Management.
ORDER
1. The Industrial Dispute between the management of Taj Palace Hotel, 2, Sardar Patel Marg, Diplomatic Enclave, New Delhi
- 110021 and its workman Sh. J.S. Rawat, D - 354 / 13, Laxmi Nagar, Delhi - 110092 was referred by Secretary (Labour), Government of The National Capital Territory of Delhi for adjudication in exercise of powers conferred by section 10 (1) (c), 10 (1) (d) and 12 (5) of the ID No. 38/2006/2002 2 Industrial Dispute Act 1947 (in short Act) vide his Order No. F.24 (1160)/ 2002/Lab./14465 to 69, Dated 24.7.2002 with the following terms of reference:
"Whether Sh. J.S. Rawat S/o Sh. B.S. Rawat has been dismissed from service illegally and / or unjustifiably by the management and if so, to what sum of money as monetary relief along with other consequential benefits in terms of existing Law/Govt. Notifications and to what other relief is he entitled and what directions are necessary in this respect? "
2. The notice of the reference was issued to the workman who filed statement of claim alleging in belief that he has been appointed on 12.2.85 by the management. His designation was steward vide ticket No. 4430 and his last drawn wages were Rs. 3000/- per month besides other perks and benefits. He was a permanent employee having been appointed on permanent basis after successful completion of the probation period. On 06.11.91 the workman as usual reported for his duty at about 1040 PM he saw that Sh. Jagat Singh and Mohan Singh have been sitting outside the employees gate when he asked the reason they told that they were estopped to enter into the gate by security guards. After some time police officials came and at about 1AM the police officials had taken away the workman and other employees to police station along with Ranbir ID No. 38/2006/2002 3 Saran and other officials and at about 4.30am, the workman along with other employees came back to hotel from police station but he was informed to come in the evening. On 07.11.01 at about 10.40pm when he reported for duty he was informed by the officers that he will not be taken on duty and they also gave him a charge sheet. On that day i.e. 06.11.91 a case U/s 107/151 of Cr.P.C. was registered by the police PS Chankyapuri agaisnt Sh. K.N. Sharma, Asst. Security Manager Sh.Ranbir Saran, and Sh. Rajeev Anand, Security Manager. Later on they were discharged by Ld. Special Executive Magistrate.
3. The management vide its charge sheet dated 07.11.91 levelled certain charges of misconduct to have been committed by workman. In the charge sheet dated 07.11.91, it was alleged that on 06.11.91 at about 9.15PM Sh. Jagat Singh and Sh. Mohan Singh were rostered for duty in the night shift from 12 midnight to 8am, however, Sh. Jagat Singh came at the employee's gate of the hotel and wanted to go inside the Hotel, since his duty was to commence at 12 midnight, he was not be allowed entry into the Hotel after that they sent message inside the hotel through some of the employees that they had been stopped at the employee's gate and were not being allowed entry.
ID No. 38/2006/2002 4 After this message was flashed other employees left their places of duty and marched in the procession towards the time office at about 10.25PM. The security guards stopped the said mob of about 10 persons and told them they could not be permitted to go out without the permission of the departmental Heads. On this the said mob of employees became agitated and threatened the security guards of physical assault if they made any attempt to stop them. It was alleged in the charge-shet dated 07.11.91 that the aforesaid group of employees were instigated by the workman not to listen to the security personnel and also told them to beat up the security personnel if they stopped them. Then the group of employees on the instigating of the workman, became violent and they started physically beating of security guards and Sh. Ranbir Saran, Asst. Security Manager who was also present there at that time. It was alleged that in the charge sheet that the workman also shouted with abusive language and the aforesaid conduct of workman was a gross misconduct and workman was called upon to submit his explanation within 48 hours of receipt of the charge sheet as to why disciplinary action should not be taken against him.
ID No. 38/2006/2002 5
4. The claimant / workman submitted his explantion (reply) to the charge sheet to the Area Manager of the Hotel, denying each and every allegation and also denied charges of alleged miscodnuct as mentioned in the charge sheet dated 07.11.91 and protested about the levelling of false and baseless charges and demanded that he may be reinstated. However the management decided to conduct a domestic enquiry and Sh. R.P. Dutta, Joint Labour Commissioner (Retd.) was appointed as enquiry officer.
5. The inquiry officer acted prejudicially, partially and held the enquiry with a biased and predetermined mind against which the claimant / workman protested from time to time even during the inquiry proceedings itself, although the same did not have any effect and the workman concerned had to participate in the inquiry. The report and inquiry were based on conjectures and surmises. The inquiry suffers from infirmity and non - application of mind and ought not to have been to accept by the management, the same being perverse and unsustainable. The inquiry officer submitted inquiry report on 22.6.94 and the termination order was issued only on 28.1.1995 i.e. after lapse of seven months. The termination of the ID No. 38/2006/2002 6 services of the workman tantamount of retrenchment, the same is bade in law as the relevant / mandatory provisions of law in this regard were not complied. The workman sent a demand letter dated 28.8.01 to the management which was duly served upon the management but management has not acted upon it. The workman filed claim before learned conciliation officer Govt. of NCT of Delhi, Labour Office, Kasturba Gandhi Marg, New Delhi for settlement of dispute but conciliation proceedings could not be succeeded hence the reference.
6. The workman has prayed for reinstatement to the job, continuity of service and full back wages by the award of this Labour Court.
7. Management contested the claim of the workman and filed written statement by taking one of the preliminary objection that the workman was dismissed from service vide letter dated 16.3.95 and has raised the present dispute in December 2001, so dispute raised is highly belated and is liable to be dismissed.
8. The case of the management is that the on 06.11.91 S/Sh. Jagat ID No. 38/2006/2002 7 Singh and Mohan Singh were rostered for duty in the night shift from 12 midnight to 8AM. Sh. Jagat Singh, however, came at the employees gate of the hotel at about 9.15PM and wanted to go inside the hotel. Sh. D.K. Barua, Security Officer informed Sh. Jagat Singh that since his duty was to commence only at 12 midnight, he could not be allowed entry into the hotel. Sh. Mohan Singh Doorman, thereafter, came to the hotel at about 10PM and since his duty as well commenced only at 12 midnight he along with Sh. Jagat Singh sat at the employees' gate. They however, sent message inside the hotel through some of the employees that they had been stopped at the employees gate and were not being allowed entry. After this message was flashed S/Sh. Rajinder Singh, Leela Dhar, Gyan Dev, Sunil Wankhede, Jang Bahadur, D.Singh and few others left their places of duty and marched in a procession towards the Time Office at about 10.25PM. S/Sh. K.N. Sharma and Krishna Bahadur, the security Guards on duty stopped the said mob of about 10 persons and told them that they could not be permitted to go out without the permission of the Department Heads. On this S/Sh. Rajinder Singh, Leela Dhar, Gyan Dev, Sunil Wankhede, Jang Bahadur, D.singh and others became agitated and threatened the Security Guards of physical ID No. 38/2006/2002 8 assault if they made any attempt to stop them from going out as they had to bring into the hotel S/Sh. Jagat Singh and Mohan Singh who were not allowed entry by the security staff on duty. Sh. J.S. Rawat instigated the aforesaid group of workmen not to listen to the security personnel and told them to beat up the security personnel if they stop them. On the instigation of Sh. J.S. Rawat, the said mob became violent, physically pushed the security guards on duty and rushed out of the time office. Sh. J.S. Rawat, thereafter, shouted from outside the time office for S/Sh. Jagat Singh and Mohan Singh who were at that time at the employees gate and told them:
"Tum log andar aa jao, mai dekhta hoon kaun madarchod tumko hotelk jane sey rokta hai. In security officer behenchoodo ko dikha dounga agar kisine ino rokane ki koshish kee"
9. At the instigation of Sh. J.S. Rawat, Sh. Jagat Singh and Sh.
Mohan Singh came inside the employees gate and stood along with the other workmen at the entrance of the time office and insisted upon entering the hotel forcibly. Sh. Ranbir Sasson Assistant Security Manager who was also present throughout once again advised workman and others not to take the law in their hands as S/Sh. Jagat Singh and Mohan Singh could not be allowed to go to the hotel as ID No. 38/2006/2002 9 their duty was to commence only at 12 midnight. S/Sh. J.S. Rawat, jagat Singh, Mohan Singh, Rajinder Singh and Leela Dhar shouted down to the Assistant Security Manager and told him in a rude insulting and abusive language:
"Tu maliko ka kutta hai. Tu inko kya rokega. Himmat hai rok key dikha.
Hum to andar jayange. Pitna hai to roke, nahi to hame jane do."
10. Thereafter S/Sh. J.S. Rawat Jagat Singh, Mohan Singh, Rajinder Singh and Leela Dhar turned to the group of workmen collected at the Time Office and exhorted them to force their entry inside the hotel and beat up the Assistant Security Manager and other security personnel if they made any effort to stop them from entering into the hotel as it was time for: -
"In kutton ko sabak sikhana padega tabhi baaz ayenge"
11. The assistant security Manager along with other security personnel on duty formed a human chain to stop them from entering into the hotel. S/Sh. J.S. Rawat, Jagat Singh, mohan Singh, Rajinder Singh and Leela Dhar physically pushed the Assistant Security Manager and other security personnel on duty and rushed inside the Time Office, took out the time cards and the same was forcibly ID No. 38/2006/2002 10 punched by S/Sh. Jagat Singh and Mohan Singh. When Sh. Rajeev Anand, Security Assistant objected to the taking out of the time cards and punching unauthorizedly, S/Sh. Leela Dhar, the Utility Worker and Rajinder Singh Utility Worker physically caught hold of Sh. Rajeev Anand and gave him first blow on his body. It was about 11PM that Sh. Triloknath Joshi. Asst. F&B Manger, Sh. S.S. Pillai, stewarding Manager, Sh. P.P. Kasaria, Cafetaria Incharge and some other officers of the hotel also arrived at the scene. Sh. Joshi Asst. F&B Manager, tried to pacify Sh. J.S. Rawat who at that time was in a extremely violent mood. Sh. J.S. Rawat, instead of heeding to the advice of the senior officer, shouted at Mr. Triloknath Joshi and abused him by saying:
"Madarchod tuy apne department ko jakhar dekh. Tere Bato me ham nehin anewale. Aaj tu ham eent se eent baja denga. Hotel ko aag lagana pade to wobhi lagadenge."
12. S/Sh. J.S. Rawat, rajinder Singh, Leela Dhar, Jagat Singh and Mohan Singh, thereafter, one by one made inflammatory speeches exhorting the workmen to resort to violence and beat up the officers who were trying to take action against the workers. Sh. Leela Dhar instigated the workmen who were yet to resume their duties to go to the locker room, change and come down as:
ID No. 38/2006/2002 11 "In madarchodo ko sabak sikhana hai"
13. At the instigation of S/Sh. Leela Dhar, J.S. Rawat and others mentioned above, S/Sh. Jagat Singh, Mohan Singh as well as J.S. Rawat went to the locker rooms, changed into uniforms and they collected a mob of about 15 to 20 employees and marched towards the Time office in a procession raising slogans at the top of their voice. On arriving at the Time Office, S/Sh. Jagat Singh, Mohan Singh. J.s. Rawat, Leela Dhar and Rajinder singh shouted at the mob, instigating them to resort to violence and beat up the security personnel by saying:
"Dekhte kay ho? In sab salon ko taiya coat aur pant uthar do. Inku iysa peeto ki yeh afsari bhool jayange".
14. The workman and other workers started beating the security personnel on duty. The workman caught hold of the Assistant Security Manager Sh. Sasson by his collar, pulled his tie thereby tightening its noose and making the Security Manager uncomfortable and also gave him repeated slaps on his face. S/Sh. K.N. Sharma and Krishna Bahadur, security guards were physiclaly caught hold of by Sh. Jagat Singh, Mohan Singh Leela Dhar, J.S. Rawat and ID No. 38/2006/2002 12 Rajinder Singh and Gyan Dev and were given fist blows all over their body. Sh. J.S. Rawat and Sh. Leela Dhar shouted:
"Jisne ma ka doodh piya hai wo bahar aajaye. Sabko domestic enquiry khlenge. Aaj kisi ko bhi jinda ghar nahi jaane denge:
15. Since aforesaid conduct on the part of the claimant constituted an act of gross misconduct, he was issued a charge sheet dated 07.11.91 and his explanation was also called for. In view of the gravity of the charges and in the interest of discipline, he was also placed under suspension. Mr. R.P. Dutta a retired officer of the Labour Department, Delhi was appointed as the Enquiry officer. The inquiry was conducted in accordance with the principles of natural justice and after receipt of the inquiry report the management dismissed the workman on 16.3.95 but the workman raised the dispute for the first time only in the year 2001 after about a total silence of about 6 years. The management has denied the other facts stated in the statement of claim and has prayed for its dismissal.
16. In the rejoinder the workman has denied the averments made in the written statement and has reaffirmed the facts stated in ID No. 38/2006/2002 13 the statement of claim.
17. The controversies between the parties in the pleadings resulted in framing of the following issues by the tribunal on 22.9.2003: --
ISSUES
1. Whether the inquiry conducted by the management is not fair and proper?
2. As per terms of reference.
18. The issue No. 1 was treated a preliminary issue.
19. In support of his case the workman filed his affidavit in evidence. He was cross examined before learned local commissioner appointed by this tribunal, after which, he closed its evidence on the preliminary issue pertaining to inquiry.
20. The management also examined only one witness namely MW1 Sh. Ramesh Shokeen Assistant Manager (Industrial Relations and Welfare) and filed his affidavit in evidence. He was also cross ID No. 38/2006/2002 14 examined before learned local commissioner, after which the management also closed its evidence.
21. I have heard learned authorized representatives of parties and have gone through the records of the case and relevant provision of law carefully, my findings on the preliminary issue are as under:
ISSUE NO.1
22. The contention on behalf of the workman is that the fair opportunity to defend the workman was not given in the inquiry proceedings by the inquiry officer as no documents, complaints and other supporting documents which support the chargesheet were supplied to the workman despite demand. No list of witnesses has been filed by the management still they produced witnesses. These contention made on behalf of workman are met on behalf of the management in the arguments by arguing that for the first time the contention of non supplying of document and list of witness and complaint is raised in the arguments. Neither in the statement of claim her nor before inquiry officer any such demand were made. Reliance ID No. 38/2006/2002 15 is placed upon the authority Shankar Chakarvarti Vs. Britannia Biscuit Company Ltd. 1979(39) FLR 70 SC.
23. The workman who has not taken any objection in the statement of claim pertaining to non supplying of documents statement of claim and list of witness cannot now travel beyond pleadings in the light of Shankar Chakarvarti's case (supra) to raise contention in this regard at the time of arguments on preliminary issue.
24. It is contended on behalf of the workman that the workman during inquiry proceedings informed the inquiry officer about change of his address but the inquiry officer did not informed the workman about the next date of hearing and proceeded the workman ex.parte in the inquiry proceedings on 11.5.94.
25. The perusal of the inquiry proceedings and evidence on record of this case show that in the inquiry proceedings the workman has examined as much as six witness in his defence. It is not a case in which the workman has no knowledge of inquiry at all. The workman was allowed by the inquiry officer to be represented by the ID No. 38/2006/2002 16 representative of his choice and the management witnesses were cross examined before inquiry officer on behalf of the workman and workman also produced witness in his defence. Therefore, the contention regarding change of address of workman or any bias on the part of the inquiry officer regarding not informing him at new address about inquiry proceedings does not hold any water. On behalf of the workman the contention is raised that inquiry officer submitted report on 26.6.94 and show cause notice was issued on 14.1.95, after lapse of 7 months and dismissal letter was issued on 28.1.95 without giving any opportunity to workman to submit comment on the inquiry report. Reliance is placed upon the authority Union of India and others Vs. Mohd. Ramzan Khan, AIR 1991 SC 471. This contention raised on behalf of the workman is beyond the scope of present preliminary issue where only validity and propriety of the inquiry proceedings conducted by the inquiry officer and his inquiry report are to be seen. The dismissal order was passed on the inquiry report and the act of supplying of the copy of the inquiry report for this purpose by management to the workman, relates to the post inquiry proceedings which are not relevant for the purpose of present preliminary issue. Therefore, this contention may be raised by the ID No. 38/2006/2002 17 workman at the time of final disposal of the present industrial dispute but, for the purpose of preliminary issue, this contention cannot be gone into.
26. Similarly the contention is made on behalf of the workman that management filed a application for approval under Section 33(2)(b) of the Act before Industrial Tribunal No. 2. The said application was withdrawn by management without any reason on 04.5.98, which shows that application was not allowed, hence dismissal of the workman was illegal. Again this contention raised on behalf of the workman cannot be gone into in the present issue pertaining to vires of domestic inquiry and workman may raise this contention at the time of passing of final award.
27. In State of Haryana v. Rattan Singh AIR 1977 SC 1512, it as held that:
"4. It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is ID No. 38/2006/2002 18 strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fair play is the basis and if perversity or arbitrariness, bias or surrender or independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunals cannot be held good. However, the courts below misdirected themselves, perhaps in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The 'residuum' rule to which counsel for the respondent referred, based upon certain passages from American Jurisprudence does not go to that extent nor does the passage from Halbsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence - not in the sense of the technical rules governing regular court proceedings but in a fair common sense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record. We find, in this case, that the evidence of Chamenlal, Inspector of the flying squad, is some evidence which has relevance to the charge levelled against the respondent. Therefore, we are unable to hold that the order in invalid on that ground."
28. Coming to the facts of the case, the workman participated in the inquiry proceedings and was represented by the proper ID No. 38/2006/2002 19 representative and cross examination of the witnesses of management was done on behalf of the workman and workman produced as much as 6 witness in his defence before inquiry officer. The inquiry report and inquiry proceedings shows that it is not a case where it can be said there is no evidence or not even some evidence against the workman to justify the inquiry report as submitted by inquiry officer. Therefore, in the light of Ratan Singh's case (supra) it cannot be said that inquiry report was perverse and not based on the evidence and record before inquiry officer.
29. The burden to prove that the inquiry was not fair and proper was upon the workman who has alleged so in the statement of claim. This view is supported by the authority UCO Bank Vs. Presiding Officer and another 1999 LLR 1036 Delhi relied upon by learned authorized representative of the workman. Some other arguments are also raised on behalf of the management based upon the authorities mentioned in the written arguments but in the light of above discussion and Ratan Singh's case (supra) and since the workman was afforded opportunity of being heard by the inquiry officer as referred before, there is no need to go into other arguments raised on ID No. 38/2006/2002 20 behalf of the management and authorities produced by the management.
30. In the light of the above I hold that fair and proper inquiry was got conducted by the management against the workman and the principles of natural justice were followed by the inquiry officer by affording opportunity of being heard to the workman. The issue No.1 is accordingly decided in favour of the management and against the workman. The order be sent to server (WWW.delhicourts.nic.in).
Announced in the open court
today on 17.09.2007 (S.K.SARVARIA)
PRESIDING OFFICER LABOUR COURT NO.XII,
KARKARDOOMA COURTS, DELHI.