*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 11th January, 2013
+ LPA No.842/2012
MAHENDRA PAL VERMA ..... Appellant
Through: Mr. R.A. Mishra, Adv. with Mr. R.P.
Bansal & Mr. Jagannath Jha, Advs.
Versus
THE TAJ MAHAL HOTEL ..... Respondent
Through: None.
CORAM :-
HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW RAJIV SAHAI ENDLAW, J
1. This intra-court appeal impugns the order dated 17.10.2012 of the learned Single Judge of dismissal of W.P.(C) No.18/2008 preferred by the appellant. The said writ petition was preferred by the appellant impugning the Award dated 17.03.2007 of the Industrial Adjudicator on the following reference:
"Whether the termination of services of Sh. Mohinder Pal Verma by the management is illegal and / or unjustified, and if so, to what relief is he entitled and what directions are necessary in this respect?" LPA No.842/2012 Page 1 of 11
2. The appellant was employed for Housekeeping in the respondent Hotel since the year 1981. He was on 12.05.1998 charged with having on 08.05.1998 stolen the Timex watch of a guest / patron of the respondent Hotel from the room of the said guest / patron. The departmental inquiry conducted found the appellant guilty and the Disciplinary Authority of the respondent Hotel inflicted the punishment of dismissal from service on the appellant. The appellant raised an industrial dispute and on which the reference aforesaid was made.
3. The Industrial Adjudicator framed a preliminary issue as to the fairness and propriety of the departmental inquiry and on which preliminary issue evidence was led. The Industrial Adjudicator vide order dated 06.03.2007, on the basis of evidence led before him, held, that the appellant in his cross examination had admitted that he had full opportunity to put his evidence in the inquiry and that he was also represented by an advocate in the inquiry and that the statements of all the witnesses were recorded in his presence and full opportunity had been granted to him to cross examine them; the appellant in the said cross examination further admitted that the Enquiry Officer was impartial. The Industrial Adjudicator held that the vague pleas taken by the appellant of having been denied opportunity to LPA No.842/2012 Page 2 of 11 defend and / or of the principles of natural justice having been violated in the inquiry had remained unsubstantiated. The Industrial Adjudicator accordingly vide order dated 06.03.2007 (supra) held the departmental inquiry to have been conducted fairly and properly and accordingly decided the preliminary issue in favour of the respondent employer.
4. The Industrial Adjudicator having done so, in the Award dated 17.03.2007 proceeded to consider whether the punishment of dismissal from employment was harsh and disproportionate. It was the plea of the appellant before the Industrial Adjudicator as is also before us that the appellant prior to his dismissal had 17 years of unblemished service and the punishment of dismissal was thus harsh. The Industrial Adjudicator relying on Life Insurance Corporation of India Vs. R. Dhandapani 2006 1 LLJ SC 329 held that the powers under Section 11A of the Industrial Disputes Act, 1947 could be exercised only in accordance with law, judiciously and for valid reasons; further relying on State Bank of India Vs. G.D. Sharma 2007 III AD (Delhi) 65, it was held that misconduct by the appellant of theft of a watch of a guest of a hotel was a serious one and could not be condoned and thus punishment meted out of dismissal could not be said to be disproportionate requiring interference.
LPA No.842/2012 Page 3 of 11
5. The learned Single Judge in challenge by the appellant to the aforesaid Award, went through the records and found evidence to the effect that the appellant while doing housekeeping of the said room, from which the guest / patron of the Hotel had not checked out, picked up a watch but on hue and cry being raised placed the watch again in the room. The learned Single Judge further found the evidence on record to the effect that the appellant had initially made a confession before the Assistant Manager (F&B) of the Hotel. The appellant before the learned Single Judge also sought to challenge the departmental inquiry but the learned Single Judge relying on Cholan Roadways Ltd. Vs. G. Thirugnanasambandam AIR 2005 SC 570 held that the evidence in the departmental inquiry was sufficient and the findings of the Inquiry Officer and the Disciplinary Authority could not be said to be perverse.
6. The counsel for the appellant has before us also sought to challenge the finding of the departmental inquiry. This is not the stage for the same. Upon dispute being raised by the appellant, the Industrial Adjudicator went through the record of the departmental inquiry and did not find any perversity in the findings arrived at. On challenge by the appellant, the learned Single Judge also undertook the said exercise. We have however, to LPA No.842/2012 Page 4 of 11 satisfy our conscience, again gone through the records and are unable to arrive at a different conclusion.
7. The counsel for the appellant next sought to impugn before us the findings of the Industrial Adjudicator of the departmental inquiry having been conducted fairly and properly and in accordance with the principles of natural justice. No averment as to the impartiality of the Inquiry Officer was however found in the Statement of Claim made by the appellant before the Industrial Adjudicator. Admittedly, no challenge to the impartiality of the Inquiry Officer was made during the inquiry proceedings also. The counsel for the appellant during the hearing however handed over a copy of the replication filed to the written statement of the respondent employer before the Industrial Adjudicator but the only plea taken therein also is of the Inquiry Officer being under the influence of the management and no further. The counsel for the appellant is also unable to show any basis having been laid for such argument in the evidence recorded before the Industrial Adjudicator. We thus do not find any merit in the said plea.
8. We are of the opinion that once the inquiry is found to have been conducted in accordance with the applicable rules and the principles of natural justice, in any case it is not open to the Industrial Adjudicator to LPA No.842/2012 Page 5 of 11 revisit the factual findings arrived at therein. As far as the refusal of the Industrial Adjudicator to exercise powers under Section 11A of the I.D. Act to vary the punishment is concerned, though Industrial Adjudicator has in that regard given cogent reasons, we may add the following case law in support thereof:
(a) Uttar Pradesh State Road Transport Corporation Vs. Nanhe Lal Kushwaha (2009) 8 SCC 772 reiterating that if the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently and misconduct in such cases has to be dealt with iron hands;
(b) Employers, Management, Colliery, M/s. Bharat Coking Coal Ltd. Vs. Bihar Colliery Kamgar Union 2005 Lab.I.C. 1341 (SC) where the order of the Tribunal substituting the punishment of dismissal with that of reinstatement without back wages and stoppage of one increment for the misconduct of assault was held to be unjustified;
LPA No.842/2012 Page 6 of 11
(c) Madhya Pradesh Electricity Board Vs. Jagdish Chandra Sharma AIR 2005 SC 1924, where also interference with the punishment for misconduct of hitting superior officer and subsequent unauthorized absence was held to be not justified;
(d) South Indian Bank Ltd. Vs. V.G. Krishnakumar 2006 LLR 415 (Kerala), where interference with the punishment of dismissal for misconduct of abusing Branch Manager and customers was held to be not justified;
(e) Elder Pharmaceuticals Ltd. Vs. Krishna Vithal Bendre 2006 LLR 1226 (Bombay), where punishment of dismissal for the misconduct of assault was held to be not disproportionate;
(f) G. Vijayan Vs. Presiding Officer, Labour Court, Salem (Madras), 2008 LLR 48 (Madras) where interference with the punishment of dismissal for the misconduct of habitual absence was held to be a case of misplaced sympathy;
(g) The Branch manager, Central Bank of India, Amreli Vs. Hasanbhai Nazbuddin Vankar 2006 LLR 425 (Gujarat), holding that LPA No.842/2012 Page 7 of 11 merely characterizing the misconduct as minor lapse of negligence not warranting dismissal is not permissible.
9. We may further note:
i. the Supreme Court in Bharat Heavy Electricals Ltd. Vs. M.
Chandrasekhar Reddy AIR 2005 SC 2769 held that when an employer loses confidence in his employee particularly in respect of a person who is discharging a function of trust/confidence, there cannot be any justification for directing his reinstatement;
ii. the Supreme Court in Apparel Export Promotion Council Vs. A.K. Chopra (1999) 1 SCC 759 reiterated that the jurisdiction to interfere with the disciplinary matters of punishment cannot be equated with appellate jurisdiction and that it is appropriate to remember that the power to impose penalty on a delinquent officer is conferred on the Competent Authority and if there has been an inquiry consistent with the Rules and in accordance with the principles of natural justice, what punishment would meet the ends of justice is a matter within the jurisdiction of the LPA No.842/2012 Page 8 of 11 Competent Authority and it is only when the punishment imposed shocks the conscience, should the power to mould the punishment be exercised;
iii. the same principles were reiterated recently in State Bank of Bikaner and Jaipur Vs. Nemi Chand Nalwaya (2011) 4 SCC 584;
iv. reference in this regard may also be made to State of Meghalaya v. Mecken Singh N. Marak (2008) 7 SCC 580 laying down that it would not be proper to deal with the matter leniently where the charged employee holds the position of trust and misconduct in such cases has to be dealt with iron hands.
v. the Supreme Court in Mahindra and Mahindra Ltd. v. N.B.
Naravade AIR 2005 SC 1993 held that the discretion vested in the Industrial Adjudicator under Section 11A of the Industrial Disputes Act to interfere with the quantum of punishment awarded by the management is to be exercised only on the existence of certain factors like punishment LPA No.842/2012 Page 9 of 11 being disproportionate to the gravity of misconduct so as to disturb the conscience of the Court, or the existence of any mitigating circumstances which require the reduction of the sentence, or the past conduct of the workman and in the absence of any such factor, the Industrial Adjudicator cannot, by way of sympathy alone exercise the power under Section 11A and reduce the punishment.
10. The counsel for the appellant has lastly also urged that even the guest / patron of the respondent Hotel whose watch was stolen was not examined and in the absence thereof the inquiry was bad. Suffice it is for us to state that the principle laid down in State Bank of India Vs. Tarun Kumar Banerjee (2000) 8 SCC 12 to the effect that non examination of a customer of a Bank in a domestic inquiry is not fatal, applies.
11. Yet another submission of the counsel for the appellant is that the punishment is disproportionate since according to the inquiry also, the stolen watch was returned by the appellant. Again that has no relevance. The Supreme court in Disciplinary Authority-cum-Regional Manager Vs. Nikunja Bihari Patnaik (1996) 9 SCC 69 and in Chairman & Managing Director, United Commercial Bank Vs. P.C. Kakkar (2003) 4 SCC 364 LPA No.842/2012 Page 10 of 11 held that once an employee is held guilty of acting without authority, it is no defence to say that there was no loss caused therefrom.
12. We may further add that once an employer loses confidence in his employee, there cannot be any justification for directing his reinstatement. Reliance in this regard can be placed on Bharat Heavy Electricals Ltd. Vs. M. Chandrasekhar Reddy AIR 2005 SC 2769.
13. We thus do not find any merit in this appeal which is dismissed.
No costs.
RAJIV SAHAI ENDLAW, J CHIEF JUSTICE th JANUARY 11 , 2013 'gsr' LPA No.842/2012 Page 11 of 11