Darshan Singh vs Lemeridian, Janpath, New Delhi
2010 Latest Caselaw 3641 Del

*            HIGH COURT OF DELHI : NEW DELHI

                       WP (C) No.902/2007
+
Darshan Singh                                       ......Petitioner
                       Through: Mr. Kunwar Arish Ali, Adv.

                       Versus

LeMeridian, Janpath, New Delhi                      .....Respondent
                     Through: Mr. Kailash Vasdev, Sr. Adv.
                               with Mr. Sanjay K. Shandilya,
                               and Mrs. Ekta Mehta Advs.

Judgment pronounced on: 06.08.2010

Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                      No

2. To be referred to Reporter or not?                   Yes

3. Whether the judgment should be reported              Yes
   in the Digest?

MANMOHAN SINGH, J.

1. The present writ petition has been filed by the petitioner

under Articles 226 and 227 of the Constitution of India praying for

order/directions to set the order dated 13.10.2006 passed by the Learned

Labour Court and to direct the management to pay the salary w.e.f.

11.04.1996 till today, the balance bonus amount w.e.f. 19.07.1989 till

today and the holidays fund since 1989 till today.

2. The brief facts of the case are that in 1989 the petitioner was

appointed as a driver in the Hotel Le Meridian initially on the pay of Rs.

850/- per month and in 1992 and 1993 he got increments in his salary.

He was also issued a letter of appreciation on behalf of the management

of Hotel Le Meridian with one week's basic pay extra as a reward.

3. In March 1996 the petitioner was suspended by the

management of the Hotel Le Meridian and a chargesheet was issued

against him according to which on 25.03.1996 at about 12:05 PM, the

petitioner had indulged in a fight with Mr. Kartar Singh and used filthy

language against him. On 11.05.1996 a domestic enquiry was initiated

against the petitioner and a person who was earlier associated with the

management was appointed as the Enquiry Officer. On 25.03.1997 on

the basis of the said enquiry in which the complainant was not even

produced by the management, the petitioner was dismissed from the

service.

4. The petitioner has stated in the writ petition that during the

domestic enquiry only two witness were examined by the Enquiry

Officer as management witnesses and the complainant on whose oral

complaint the whole enquiry was conducted was neither examined nor

called by the management.

5. The petitioner preferred an industrial dispute in which the

order dated 13.10.2006 was issued and being aggrieved by the said

order petitioner has filed the present writ petition.

6. In the counter affidavit on behalf of the respondent it has

been submitted that the respondent is not a State within the meaning of

Article 12 of the Constitution of India and the petition filed is not

maintainable in as much as the necessary parties have not been

impleaded. It is further stated that the petitioner was chargesheeted in

1995 also on the ground of having indulged in a heated argument with

Mr. Avtar Singh and consequently he was suspended but after he

tendered a written unqualified apology his suspension was withdrawn.

7. On 25.03.1996 the petitioner indulged in a physical fight

using filthy language with Mr. Kartar Singh and two days later he was

suspended by the hotel. After the petitioner was chargesheeted he and

Mr. Kartar Singh, both were directed to submit their written

explanations and failure to submit the written explanation was to be

taken as acceptance of all the charges. The explanation given by Mr.

Kartar Singh was found to be unsatisfactory therefore an enquiry was

conducted against him but in the inquiry report submitted by the

Enquiry Officer it was held that the charges against Mr. Kartar Singh

could not be proved. The petitioner also submitted his reply to the

chargesheet denying the charges against him hence the respondent

appointed Mr. G.C. Welesha as the Enquiry Officer and started a

domestic enquiry which was conducted in accordance with principles of

natural justice. During the said enquiry the petitioner at his request was

permitted to be represented by one Mr. Iqbal Ahmed, Advocate.

8. In the cross-examination, the petitioner has admitted that the

enquiry proceedings were conducted in his presence and he participated

in the same. He also admitted that the said proceedings bore his

signature on all the pages i.e. Ex.WW1/M2 (running into 56 pages). He

has also admitted in his cross-examination that during the enquiry

proceedings he was represented by an Advocate. As far as his objection

of the biasness of the Enquiry Officer is concerned, in cross-

examination he has only explained that since Enquiry Officer was

appointed by the management, so he could say that he was favouring the

management. No other reason could be assigned by him. He has also

admitted that the enquiry proceedings were conducted in Hindi as per

his prayer. Further as the petitioner failed to summon Kartar Singh and

at the instance of the workman the matter was fixed for final arguments,

the grievance of the petitioner in the present petition cannot accepted.

9. The Enquiry Officer after considering all the documents and

depositions on record held that all the charges against the petitioner

have been proved. The respondent, after getting the Enquiry Report

issued a show cause notice to the petitioner and after receiving its reply

discharged the petitioner from his services.

10. The operative portion of the finding of the Enquiry Officer

reads as under:

"In the present case, the workman was given full opportunity to defend himself. He was allowed to be represented by an advocate during enquiry proceedings. The workman claimed that he had stated the enquiry officer to be biased because he was appointed by the management. This is true about every enquiry. The enquiry officer is always appointed by the management and this fact cannot label the enquiry officer as biased. The workman has failed to prove specifically as to in what manner the enquiry officer was biased and therefore it cannot be said that the enquiry conducted against the workman was not fair. The workman even did not specify as to what principle of natural justice was not followed during enquiry proceedings."

11. It appears from the charge sheet issued by the respondent that

the abusive language used by the petitioner is so offensive and filthy for

which I feel it not proper to reproduce in my order.

12. The petitioner after being dismissed from the services made a

reference before the Labour Court for adjudication. Following issues

were framed before the Labour Court:

            (I)        Whether the enquiry held by the
                       management was not fair and proper?

            (II)       Whether services of the workman
                       were terminated illegally and/or
                       unjustifiably?

            (III)      Relief.

13. After considering the settled law on the subject and rival

submissions of the parties, the Labour Court refused to accept the relief

claimed by the petitioner/workman. The main finding given by the

Labour Court reads as under:

"17. It is the established law, that imposing punishment for a proved act of misconduct is a matter for the punishing authority to decide and normally it should not be interfered with by industrial tribunals as the tribunal is not required to consider the propriety or adequacy of punishment but in Hind Construction and Engineering Co. Ltd. Vs. Their Workman (1965 1 LLJ462) it was held by Hon'ble Supreme Court that "but where the punishment is shockingly disproportionate, regard being had to the particular conduct and the past record, or is such as no reasonable employer would ever impose in like circumstances, the tribunal may treat the imposition of such punishment as itself showing victimization or unfair labour practice.

18. ..........

19. ..........

20. In the present case the management is running a Five Star Hotel. It is required from all its employees that they should be well behaved and courteous so that the customers do not feel averse to using the facilities provided by the management. The workman was working as a Driver wit the management.

He not only indulged in physical fight with one co-worker in the cafeteria but also used filthy language which cannot be tolerated by even uneducated man. The charge sheet shows that on earlier occasions also the workman had indulged in fighting and quarreling with co-employees and he even had tendered apologies earlier. The conduct of the workman, in the present case is certainly act of indiscipline and his misconduct is such for which no sympathy can be shown to him, because of his incorrigible behavior. I am of the opinion that the penalty imposed by the management is proper."

14. During the course of arguments of this petition, the learned

counsel for the petitioner has made only single submission that Kartar

Singh was the crucial witness in the matter who was working with the

management and was not produced by the management as a witness

which was necessary in this case in order to decide the real controversy

between the parties. It appears from the record that the petitioner filed

an application before the trial court to summon Shri Kartar Singh as a

witness. The application of the petitioner was allowed vide order dated

6.11.2004 as the court felt that his evidence was relevant for the purpose

of deciding the correctness and fairness of the controversy between the

parties. The matter was thereafter adjourned from time to time to

summon him, lastly when the matter was listed on 7.10.2005 it was

recorded that the petitioner/workman has not served Kartar Singh

properly. It was submitted by the petitioner workman that Kartar Singh

was still in the employment of the management, so the management

should be directed to produce the witness. The same request of the

petitioner/workman was refused. At the same time at the instance of

the workman, the matter was fixed for arguments on the issue of enquiry

on 6.1.2006. Admittedly, the order dated 7.10.2005 was not challenged

by the workman/petitioner rather on his request the matter was fixed

for final disposal. Hence, it appears from the circumstances that he had

actually given up his right to summon Kartar Singh as his witness. I am

of the view that now he cannot raise his same grievance in the present

proceedings. Thus, the submission of the petitioner is rejected. No

other submission has been made by the petitioner.

15. Learned counsel for the respondent has referred the decision

of the Apex Court reported in (2005) 3 SCC 134; Mahindra and

Mahindra Ltd. vs. N.B. Narawade, wherein in paras 11 and 12 it was

observed:

"11. The learned counsel then pointed out that the Labour Court under a misconception in regard to its jurisdiction under Section 11-A of the Act without properly considering the decision of this Court in the case of U.P. SRTC v. Subhash Chandra Sharma, (2000) 3 SCC 324 which according to the learned counsel clearly laid down the parameters within which the Labour Court or any other court could operate while considering the question of proportionality of punishment erroneously proceeded to pass the impugned order. He placed special emphasis on the following paragraph of the above judgment of this Court:

"6. Whether it is open to the Industrial Tribunal or the Labour Court or the High Court to interfere with the quantum of punishment is, no longer, res integra, as the question has been answered by this Court several times in its various decisions. In B.C. Chaturvedi v. Union of India a three-Judge Bench of this Court has held that Section 11-A of the Industrial Disputes Act, 1947 confers

power on the Industrial Tribunal/Labour Court to apply its mind on the question of proportion of punishment or penalty. ... that this power is also available to the High Court under Article 226 of the Constitution, though it was qualified with a limitation that while seized with this question as a writ court, interference is permissible only when the punishment/penalty is shockingly disproportionate."

12. Relying upon the ratio laid down by this Court in the said case B.C. Chaturvedi vs. Union of India the learned counsel submitted that unless the courts below come to a definite conclusion that the punishment awarded by the management is shockingly disproportionate to the misconduct as proved, it is not open to the Court to substitute such punishment merely because some power to alter the punishment is vested in it."

16. In view of the above said facts and circumstances, I am of the

considered view that the petitioner has failed to make out any case in his

favour hence, no interference is required in the impugned order passed by

the trial court. The writ petition is therefore dismissed. No orders as to

cost.

MANMOHAN SINGH, J.

August 06, 2010 Jk/dp