Mahabir Singh vs M/S Bharat Hotels Ltd.
2010 Latest Caselaw 616 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      W.P.(C) No. 3775/2008

%                               Judgment delivered on: 04.02.2010

Mahabir Singh                   ...... Petitioner
                                Through: Mr. S.C. Luthra, Advocate
                       versus

M/s Bharat Hotels Ltd.                        ..... Respondents
                                     Through: Mr. Amit Bhasin,
                                     Advocate

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.      Whether the Reporters of local papers may        Yes
        be allowed to see the judgment?

2.      To be referred to Reporter or not?                Yes

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

KAILASH GAMBHIR, J. Oral:
*

1. By this petition filed under Article 227 of the

Constitution of India the petitioner seeks quashing of the

enquiry Reports dated 18.03.1994 and 08.03.1994, termination

Letter dated 07.04.1994 and order dated 03.11.2006 as well as

Award dated 16.04.2007. Petitioner further seeks his

reinstatement with consequential benefits of arrears of salary

with interest.

2. Brief facts relevant for deciding the present petition

are that:-

The petitioner was appointed by the respondent

management as Security Guard on 16.08.1990 and was

confirmed on 18.08.1991. As per the petitioner, there was a

self adopted procedure in the respondent Management to force

its employees to resign from their respective posts after a

period of two or three years. It was further asserted that the

workman was forced to accept the termination w.e.f.

11.04.1994 followed by a termination letter dated 15.04.1994

which was accepted at the residence of the petitioner/workman.

As per the petitioner, before terminating him, the respondent

management leveled baseless and concocted charges and

served him with a chargesheet letter dated 25.01.1994. In

response to the same, the petitioner filed a reply dated

29.01.1994 denying all the allegations in toto. After perusing

the reply of the petitioner workman, the respondent

management unilaterally changed the contents of the

chargesheet whereafter the petitioner was forced to submit his

second reply dated 2.2.1994 wherein also he denied all the

allegations leveled against him. Not satisfied with both the

replies, the management appointed an Enquiry Officer vide

letter dated 3.2.1994. The enquiry culminated with the

termination order dated 7.4.1994 against the petitioner

workman which was received by the petitioner at his residence

on 15.04.1994 despite the fact that he was working in the Hotel

upto 10.04.1994. The workman filed the statement of claim

before Conciliation Officer which was referred to the Labour

Court. The Labour Court vide its order dated 3.11.2008 held

that enquiry proceedings were conducted in accordance with

principles of natural justice and that his dismissal from service

cannot be said to be disproportionate to the charges proved

against him and further that he is not entitled to any relief

against the management. Feeling aggrieved with the said

order, the present petition has been preferred.

3. Counsel for the petitioner submits that the enquiry

was vitiated as the petitioner was not supplied with the

statement of the complainant. Counsel further submits that the

extraneous considerations prevailed on the management for

terminating the services of the petitioner as the management

has taken the past record into consideration which in fact was

never a part of the chargesheet against the petitioner. Counsel

further submits that even the time of the incident was changed

by the management when objection to this effect was taken by

the petitioner. Counsel further submits that even the incident

was reported by the complainant on the next day and not on

the same day. Counsel thus submits that these circumstances

are good enough to hold that the said enquiry was vitiated.

4. Counsel for the respondent, on the other hand,

submits that there is no irregularity in the enquiry proceedings

and the petitioner had fully participated in the enquiry

proceedings. Counsel further submits that the past record of the

petitioner was considered just to examine as to whether the

petitioner deserved any leniency or not. Counsel further

submits that in the enquiry proceedings strict rules of evidence

are not applicable.

5. I have heard learned counsel for the parties at

considerable length and gone through the records.

6. It is a settled legal position of law that unlike any

criminal case, charges leveled against the workman in a

domestic enquiry are not to be proved beyond reasonable

doubt. It is on preponderance of probabilities that if the Labour

Court finds that there is some evidence which justifies the

findings of the enquiry officer then the same cannot be

interfered with in a challenge made to such an enquiry report. It

would be pertinent to refer to the judgment of the Apex Court in

Ajit Kumar Nag vs. General Manager (PJ), Indian Oil

Corpn. Ltd.,Haldia & Ors. (2005)7 SCC 764 where it was

observed that:

"The two proceedings - criminal and departmental - are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with service Rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of

evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused 'beyond reasonable doubt', he cannot be convicted by a court of law. In departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of 'preponderance of probability'."

7. This court would not ordinarily interfere with the

findings of the Labour Court and this has been reiterated by the

Apex Court in a number of decisions. It would be relevant to

reproduce the relevant para in the judgment of ONGC vs.

ONGC Contractual Workers Union (2008)12SCC275:

"8. We have examined the arguments advanced by the learned Counsel. This Court has held time and again that the High Court had the authority to enquire as to whether a finding arrived at by the Tribunal was based on evidence and to correct an error apparent on the face of the record. The observations in Trambak Rubber Industries Ltd.'s case (supra) are to this effect and it has been highlighted that the High Court would be fully justified in interfering with an Award of an Industrial Court on account of a patent illegality. In Seema Ghosh's case (Supra), this Court observed that the High Court's interference under Articles 226 and 227 of the Constitution with an Award of the Labour Court was justified as the Award had been rendered contrary to the law laid down by this Court and as a measure of "misplaced sympathy", and was thus perverse. The other judgments cited by Mr. Dave lay down similar principles and need not be dealt with

individually. It will be seen therefore that the interference would be limited to a few cases and as already noted above, in the case of a patent illegality or perversity. On the contrary, Mr. Sanyal's reliance on Sadhu Ram's case (supra) is more appropriate to the circumstances herein. It has been observed as under:

The jurisdiction under Article 226 of the Constitution of India is truly wide but, for that very reason, it has to be exercised with great circumspection. It is not for the High Court to constitute itself into an appellate court over tribunals constituted under special legislations to resolve disputes of a kind qualitatively different from ordinary civil disputes and to re- adjudicate upon questions of fact decided by those tribunals. That the questions decided pertain to jurisdictional facts does not entitle the High Court to interfere with the findings on jurisdictional facts which the Tribunal is well competent to decide. Where the circumstances indicate that the Tribunal has snatched at jurisdiction, the High Court may be justified in interfering. But where the tribunal gets jurisdiction only if a reference is made and it is therefore impossible ever to say that the Tribunal has clutched at jurisdiction, we do not think that it was proper for the High Court to substitute its judgment for that of the Labour Court and hold that the workman had raised no demand with the management.

9. We are therefore of the opinion that in the light of the facts that have come on record we find no perversity or patent illegality in the Award of the Industrial Tribunal and on the contrary must appreciate that it has minutely examined the evidence in arriving at its decision. In this view of the matter, it was inappropriate for the Learned Single Judge to have re- appraised the evidence and come to a different conclusion."

Hence in the present case applying the aforesaid observations

of the Apex Court it cannot be lost sight of the fact that the

learned Labour Court has threadbare examined the contentions

raised by the petitioner and the same does not call for

reappreciation as counsel for the petitioner has not been able to

satisfy this Court as to how and in what manner the findings of

the learned Labour Court are illegal, perverse or untenable in

the eyes of law.

8. The fact that simply because in the show cause

notice time was corrected from 2.40 p.m. to 2.20 p.m. it would

not lead to an inference that no incident had taken place as was

reported by the complainant. In any case, the correction in

timing was carried out immediately before the commencement

of the enquiry proceedings. The pleas raised by the petitioner

that he was not supplied copy of the statement of the

complainant, non-supply of the chargesheet in Hindi, recording

of enquiry proceedings in English, denial to the petitioner to be

represented through legal practitioner or any other agent of his

choice before the enquiry officer, non-lodging of a complaint to

the police station, non-supply of the copy of the standing order

to the petitioner to properly defend himself, denial of principles

of natural justice and grant of disproportionate punishment do

not cut any ice in the face of the detailed discussion by the

labour Court while deciding issue No. 1 on the question of

enquiry and also in the final award. It is not the case of the

petitioner workman that he was not granted full opportunity to

defend his case before the enquiry officer. It is on record that

the workman gave his own evidence. The workman had even

cross-examined the witnesses produced by the management.

The workman was given a copy of the enquiry report by the

enquiry officer and the workman submitted his own comments

on the said enquiry report. Learned Labour Court also found

that it could not be established on record that the representing

officer representing the management was a legally trained

person. Once having fully participated in the enquiry

proceedings the petitioner cannot be heard to complain that the

principles of natural justice were violated by the enquiry officer

or reasonable opportunity was not granted to the petitioner

workman. Counsel for the petitioner has not been able to satisfy

this Court as to how and in what manner the principles of

natural justice were violated during the course of the enquiry

proceedings. It would be useful to refer to the judgment of the

Apex Court in P.D. Agrawal V. State Bank of India (2006) 8

SCC 776 wherein it analyzed a number of authorities and dealt

with the issue in detail. The relevant paras are reproduced as

under:-

"The Principles of natural justice cannot be put in a straight jacket formula. It must be seen in circumstantial flexibility. It has separate facets. It has in recent time also undergone a sea change.

..................

16. Decision of this Court in S.L. Kapoor v. Jagmohan and Ors. : [1981]1SCR746 , whereupon Mr. Rao placed strong reliance to contend that non- observance of principle of natural justice itself causes prejudice or the same should not be read "as it causes difficulty of prejudice", cannot be said to be applicable in the instant case. The principles of natural justice, as noticed hereinbefore, has undergone a sea change. In view of the decision of this Court in State Bank of Patiala and Ors. v. S.K. Sharma : (1996)IILLJ296SC and Rajendra Singh v. State of M.P. :

AIR1996SC2736 , the principle of law is that some real prejudice must have been caused to the complainant. The Court has shifted from its earlier concept that even a small violation shall result in the order being rendered a nullity. To the principal doctrine of audi alterem partem, a clear distinction has been laid down between the cases where there was no hearing at all and the cases where there was mere technical infringement of the principal. The Court applies the principles of natural justice having regard to the fact situation obtaining in each case. It is not applied in a

vacuum without reference to the relevant facts and circumstances of the case. It is no unruly horse. It cannot be put in a straightjacket formula. [See Viveka Nand Sethi v. Chairman, J. & K. Bank Ltd. and Ors : (2005)IILLJ1034SC and State of U.P. v. Neeraj Awasthi and Ors : (2006)ILLJ721SC . See also Mohd. Sartaj v. State of U.P. : AIR2006SC3492 .]"

9. On the question of disproportionate punishment, I do

not find the reasoning given by the learned Labour Court either

illegal or erroneous. The alleged utterances made by the

petitioner against his superior no doubt constitutes serious

misconduct and I fully concur with the findings of the labour

Court wherein it has observed that in the hotel industry the

employees should maintain a special level of temperamental

discipline and should have a tolerance level and sophisticated

behavioural pattern irrespective of the position and cadre he

works in.

10. Hence in the light of the aforesaid discussion, I do no find

any merit in the present petition and the same is hereby

dismissed.

February 04, 2010                                 KAILASH GAMBHIR,J
pkv