Management Of Hotel Connaught vs Om Parkash & Anr.
2011 Latest Caselaw 624 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         Date of decision: 3rd February, 2011

+                           W.P.(C) No.12218/2004

%        MANAGEMENT OF HOTEL CONNAUGHT .... Petitioner
                    Through: Mr. Amit Seth, Advocate

                                   Versus

    OM PARKASH & ANR.                     ..... Respondents
                 Through: Mr. Gulshan Chawla, Advocate
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                    No

2.       To be referred to the reporter or not?             No

3.       Whether the judgment should be reported            No
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner employer by this writ petition impugns the order

dated 18th August, 2003 of the Industrial Tribunal holding the domestic

inquiry into the misconduct of the respondent No.1 workman to be

violative of the principles of natural justice and the order dated 28th May,

2004 holding the petitioner employer to have failed to, on the basis of the

evidence led before the Industrial Tribunal, establish misconduct against

the respondent No.1 workman and consequently dismissing the application

under Section 33(2)(b) of the Industrial Disputes Act, 1947 preferred by

the petitioner employer.

2. Notice of the petition was issued and operation of the orders stayed

on deposit of `5,000/- by the petitioner employer as litigation expenses.

An application under Section 17B of the I.D. Act was filed by the

respondent No.1 workman which was allowed vide order dated 31 st

October, 2006. Rule was issued in the writ petition on 8 th December, 2006.

The petitioner employer preferred an intra court appeal being LPA

No.11/2007 against the order under Section 17B of the I.D. Act. The same

was dismissed. The petitioner employer preferred SLP(C) No.18512/2007

which was also dismissed on 13th August, 2010 with a direction for

expeditious disposal of the writ petition. The counsels for the parties have

been heard.

3. It was at the outset enquired as to what was the pending proceeding

owing whereto the application under Section 33(2)(b) was necessitated -

whether it was between the petitioner employer and the respondent No.1

workman only or a general dispute between the petitioner employer and all

its workmen; it was also enquired as to how many workmen the petitioner

employer employs. It is informed that the petitioner employer employs

over 200 workmen; that the pending dispute necessitating application

under Section 33(2)(b) was not with the respondent No.1 workman only

but a general dispute between the petitioner employer and all its workmen.

It is also informed that the said dispute has since been decided in favour of

the petitioner employer owing to the workmen having failed to lead any

evidence. It was next enquired as to whether the respondent No.1

workman was / is any office bearer in the Union. The answer is again in

the negative. The said questions are found to be relevant considering the

nature of inquiry under Section 33(2)(b). The Industrial Adjudicator under

Section 33(2)(b) is only to oversee the dismissal to ensure that no unfair

labour practice or victimization has been practiced. If the procedure of

hearing has been observed and a prima facie case of dismissal is made out,

approval has to be granted. The jurisdiction of the Industrial Adjudicator

under Section 33(2)(b) cannot be wider than this. The proceeding under

Section 33(2)(b) is not a substitute for an industrial dispute under Section

10 of the Act. I have recently in Delhi Transport Corporation Vs. Shyam

Lal ILR (2010) V Delhi 431 dealt in detail with the said aspect and need is

thus not felt to discuss the same in detail herein.

4. The Industrial Tribunal in order dated 18 th August, 2003 held the

domestic inquiry to be violative of the principles of natural justice for the

reason that on 5th March, 1999 the inquiry was adjourned to 6th March,

1999 and the respondent No.1 workman asked to come prepared for cross

examination and was warned that no further date shall be given; the

respondent No.1 workman failed to appear on 6th March, 1999 and was

proceeded against ex parte and the inquiry officer also proceeded to record

the statement of two other witnesses for whose cross examination the

inquiry was adjourned to 6th March, 1999; the Industrial Tribunal held that

the action of the inquiry officer of recording the entire evidence on the

same day without further waiting for the respondent No.1 workman who

had earlier been regularly appearing in the inquiry, to be violative of

principles of natural justice. Accordingly, it was held that the inquiry

officer had acted in haste, inquiry proceedings vitiated and the report

perverse.

5. The counsel for the petitioner employer has with respect to the order

dated 18th August, 2003 contended that the finding of the inquiry officer

having acted in haste is not made out. The order records that the inquiry

commenced on 29th June, 1998 and subsequent proceedings held on 9th

July, 1998, 18th July, 1998, 20th July, 1998, 23rd July, 1998, 27th July, 1998,

3rd August, 1998, 20th August, 1998, 4th September, 1998, 10th September,

1998, 5th October, 1998, 15th October, 1998, 24th November, 1998, 7th

December, 1998, 25th January, 1999, 11th February, 1999, 22nd February,

1999 & 5th March, 1999.

6. From the inquiry report, the proceedings on different dates and the

latitude given to the respondent No.1 workman is demonstrated. It is

shown that the statement of the first witness of the petitioner employer was

recorded on 24th November, 1998 when the respondent No.1 workman

refused to cross examine the said witness and sought time; the matter was

adjourned to 7th December, 1998; on 7th December, 1998, the respondent

No.1 workman neither appeared nor sent any request but the proceedings

were adjourned to 25th January, 1999 when the respondent No.1 workman

again failed to appear; the proceedings were again adjourned to 11th

February, 1999 when the respondent No.1 workman appeared but the

proceedings were adjourned for other reasons to 22 nd February, 1999 and

thereafter to 5th March, 1999. It is thus contended that latitude for cross

examination was being given to the respondent No.1 workman since 24th

November, 1998 and thus it was not as if on non appearance of the

respondent No.1 workman on one date only, the respondent No.1 workman

was proceeded against ex parte.

7. It is also forcibly argued that it is not the case of the respondent No.1

workman that he at any time after 6th March, 1999 and till the date of

submission of the report on 5th April, 1999 or even thereafter approached

for participation in the inquiry. It is urged that the same shows that the

respondent No.1 workman had intentionally stopped participating in the

inquiry and thus the reasoning given by the Industrial Tribunal of the

inquiry officer having acted hastily or the inquiry being vitiated cannot be

sustained. Reliance in this regard is placed on:

(i) Biecco Lawrie Ltd. Vs. State of West Bengal AIR 2010 SC

142 observing that where the inquiry officer had sent due

notice and postponed the date of hearing various times with an

intention to allow the workman to present his case and the

workman nevertheless did not present himself and ultimately

the inquiry conducted ex parte, it could not be said that the

workman was not afforded a chance. It was held that in these

circumstances, it seemed to be a case where the workman has

waived his right to cross examine by absenting himself from

the inquiry. This judgment is also cited on the aspect of bias.

(ii) State Bank of Patiala Vs. S.K. Sharma (1996) 3 SCC 364 on

the objective being to ensure a fair hearing and a fair deal to

the person whose rights are going to be affected and the

requirement of violation of the principles of natural justice

being of a substantive rather than a procedural character.

(iii) ITDC Vs. S.K. Roy 140 (2007) DLT 336 on the scope of

interference in the findings of the Domestic Tribunal and

being called for only when the material placed on record and

evaluated by the inquiry officer is found to be scanty,

irrelevant or extraneous.

(iv) Pepsu Road Transport Corporation Vs. Rawel Singh (2008)

4 SCC 42 where the action of the inquiry officer of

proceeding ex parte on a single default by the delinquent

employee was upheld by the Apex Court and the inquiry

report held not liable to be quashed on the said ground.

(v) Cholan Roadways Ltd. Vs. G. Thirugnanasambandam

(2005) 3 SCC 241 on the scope of inquiry under Section

33(2)(b) being only to see whether a prima facie case has been

made out as regards the validity or otherwise of the domestic

inquiry keeping in view the fact that if the permission or

approval is granted, the order of dismissal which may be

passed against the delinquent employee would be liable to be

challenged in an appropriate proceeding before the Industrial

Tribunal.

(vi) Tata Oil Mills Co. Ltd. Vs. Its Workmen AIR 1965 SC 155

laying down that it is unreasonable to suggest that in a

domestic inquiry, it is the right of the charge-sheeted

employee to ask for as many adjournments as he likes.

(vii) The Punjab National Bank Ltd. Vs. Its Workmen 1960 (1)

SCR 806 laying down that if the employer has held a proper

inquiry into the alleged misconduct of the employee and if it

does not appear that the proposed dismissal of the employee

amounts to victimization or unfair labour practice, the

Industrial Tribunal has to limit its inquiry only to the question

as to whether a prima facie case has been made out or not and

it is not open to the Tribunal in proceedings under Section

33(2)(b) to consider whether the order proposed to be passed

by the employer is proper or adequate or whether it errs on the

side of excessive severity.

8. The respondent No.1 workman was employed with the petitioner

employer as Assistant Steward. He was charged with being rude, uncivil,

impertinent and abusive to his department head Mr. Rajiv Issar when asked

about his absence from duty and sleeping in the Locker Room and having

left the place of work without authorization and having also manhandled

the department head and having lodged a false complaint against the

department head with the Police. The inquiry officer on the basis of the

statements of the department head Mr. Rajiv Issar and two other witnesses

viz. Mr. Ajay Ridla and Mr. Albert Tookey and the documents produced

by them held all the charges to have been fully established against the

respondent No.1 workman.

9. The Industrial Tribunal vide order dated 18th August, 2003 (supra)

having held the domestic inquiry to be vitiated, the petitioner opted to lead

evidence of misconduct before the Industrial Tribunal and examined

Mr. Albert Tookey aforesaid and Mr. Pradeep Khanna before the Industrial

Tribunal. The respondent No.1 workman examined himself. The

Industrial Tribunal in the order dated 28th May, 2004 found inconsistency

in the statements of Mr. Albert Tookey and Mr. Pradeep Khanna inasmuch

as one gave the time of incident as 9:00 a.m., the other gave it as 9:30 a.m.;

it was also held that the petitioner employer had failed to examine Mr.

Rajiv Issar; accordingly, it was held that the petitioner employer had failed

to establish misconduct and the application under Section 33(2)(b) was

dismissed. It was however held that the petitioner employer had remitted

full one month's wages to the respondent No.1 workman at the time of

dismissal.

10. From the aforesaid, it would appear that though the application

under Section 33(2)(b) was dismissed but without a finding or even a

whisper of the dismissal being by way of victimization or by way of unfair

labour practices. In my view, the orders of the Industrial Tribunal are

liable to be set aside on this ground alone.

11. I am also in agreement with the counsel for the petitioner that the

order dated 18th August, 2003 holding the inquiry to be vitiated is

untenable in law. The inquiry proceedings were held on as many as 17

dates and sufficient opportunity is found to have been granted to the

respondent No.1 workman. There is also merit in the contention of the

counsel for the petitioner employer that the conduct of the respondent No.1

workman, even if for any reason being not able to appear before the

inquiry officer on 6th March, 1999, in not making any application or

appearing subsequently at any time shows that the respondent No.1

workman after 17 hearings did not intend to participate in the inquiry. If

that be so, then the question of the respondent No.1 workman having been

deprived of hearing does not arise. Moreover, after having granted so

many hearings, the inquiry officer cannot be said to have acted in haste.

The inquiry officer is not expected to wait indefinitely for the employee. If

the principles were to be so understood, it would allow any delinquent

employee to frustrate the inquiry by absenting therefrom.

12. The counsel for the respondent No.1 workman has contended that

the inquiry is vitiated for the reason of the inquiry officer being the

prosecutor. The principle that Judge cannot be the prosecutor is sought to

be invoked. Attention is invited to the cross examination before the

Industrial Tribunal of the inquiry officer where he has admitted that he was

practicing in Labour Laws and had been representing the petitioner

employer before Labour Courts and had charged his professional fee for

acting as the inquiry officer in the present case also.

13. The Supreme Court in Saran Motors Private Ltd. Vs. Vishwanath

(1964) 2 LLJ 139 rejected the argument that just because a person is

sometimes employed by the employer as a lawyer he becomes incompetent

to hold a domestic inquiry and reiterated that the requirement only was that

the inquiry must be fairly conducted and if not found to have been fairly

conducted is liable to be set aside and an inquiry is not bad just because it

is conducted by an officer of the employer. It was further held that if the

inquiry held by an officer of the employer was not bad, an inquiry by a

lawyer of such employer also could not be bad.

14. A single Judge of this Court in Narendra Pratap Vs. Jagmohan

Bharti FLR 1976 (32) 218, in the absence of any proof of personal ill will

or of a conspiracy between the management and the inquiry officer,

reversed the order of the Tribunal holding the inquiry to be vitiated. It was

further held that merely because the inquiry officer was connected with the

Law Firm which was the legal advisor to the management could not lead to

the conclusion that the inquiry officer has deliberately and willfully held

against the workmen. It was further held that bias has to be personal to the

inquiry officer and must be clearly proved.

15. A Division Bench of this Court in Indian Refrigeration Industries

Vs. Ram Rattan Sharma 128 (2006) DLT 503 though holding that there is

no absolute bar to an Advocate or an officer of the company being an

inquiry officer, in the facts of that case finding the inquiry officer to be the

advocate in the proceedings against the same employee under Section

33(2)(b) as well as the industrial dispute, set aside the inquiry report.

16. I may notice that even in Biecco Lawrie Ltd. (supra) the enquiry

officer was also the company lawyer and the enquiry report was upheld.

17. I have also in judgment dated 14th May, 2010 in W.P.(C)

No.2221/2000 titled Taj Mahal Hotel Vs. Industrial Tribunal-I dealt with

the said aspect. In that case, it was found that the law firm to which the

inquiry officer belonged was also representing the employer in the

domestic inquiry as well as before the Industrial Tribunal. In these facts, it

was held that the inquiry officer as part of the law firm under whose advice

action was initiated against the workman would be interested in supporting

the advice given to the employer of successfully terminating the services of

the workman and thus the enquiry was set aside.

18. However, in the present case, it is not shown that the inquiry officer

though advising the petitioner employer in labour matters had advised the

petitioner employer in the matter of termination of employment of the

respondent No.1 workman or was also part of the proceedings against the

respondent No.1 workman. In the absence thereof, the judgments aforesaid

would apply and no case of bias on the said ground can be said to have

been made out.

19. The counsel for the respondent No.1 workman has next contended

that the inquiry officer erred in not giving any opportunity to the

respondent No.1 workman to cross examine the other two witnesses. It is

argued that on 5th March, 1999, the proceedings were adjourned for 6th

March, 1999 only for cross examination of Mr. Rajiv Issar whose

statement only had been recorded till then. It is urged that the respondent

No.1 workman ought to have been notified of the statements of the other

two witnesses having been recorded and given an opportunity to cross

examine them and without the same their statements could not have been

relied upon.

20. I am unable to agree. Once a party chooses to be proceeded against

ex parte, it cannot be repeatedly given notice of each subsequent date in

the proceeding or date of hearing. If that were to be so, it would virtually

stall the proceedings. It is not the case of the respondent workman that he

was not in the know that the other two witnesses were to be examined.

Rather from the proceedings before the inquiry officer, it transpires that the

respondent workman at one stage insisted that statements of all the

witnesses be recorded before he was called upon to cross examine any of

them.

21. The respondent workman was thus aware that upon his being ex

parte the statements of the other witnesses would also be recorded.

22. Though the counsel for the respondent No.1 workman has also

drawn attention to para 14 of Jaipur Zila Sahakari Bhoomi Bank Ltd.

Vikas Vs. Shri Ram Gopal Sharma JT 2002 (1) SC 182 but the reference

thereto is not apposite in the aforesaid facts. The counsel for the petitioner

employer in rejoinder has also informed that Mr. Rajiv Issar had left the

employment of the petitioner employer by the time the matter matured for

evidence and his whereabouts were not known to the petitioner employer

and thus he could not be examined before the Industrial Tribunal. I may

also notice that the Industrial Tribunal has not returned any finding of bias

of the inquiry officer against the respondent No.1 workman.

23. On the basis of the report of the inquiry officer, a prima facie case of

misconduct on the part of the respondent No.1 workman is made out. As

aforesaid, the question of proportionality of the punishment is not to be

gone into at this stage. No case of victimization or unfair labour practice

has been pleaded or proved. The petition therefore succeeds. The

petitioner employer is found entitled to the approval under Section 33(2)(b)

of the I.D. Act. The same is granted / allowed to the petitioner employer.

It is however clarified that the respondent No.1 workman shall be entitled

to raise an industrial dispute and none of the observations made

hereinabove shall come in the way of adjudication of the said dispute.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) FEBRUARY 03, 2011 'gsr'