The Management Of Ashok Hotel vs Mohinder Singh
2011 Latest Caselaw 2489 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                              Date of decision: 10th May, 2011

+                           W.P.(C) 12391/2006

         THE MANAGEMENT OF ASHOK HOTEL ..... PETITIONER
                    Through: Mr. V.K. Rao, Sr. Advocate with
                             Mr. Vaibhav Kalra, Advocate

                                     Versus
         MOHINDER SINGH                                   ..... RESPONDENT
                     Through:             Mr. J.S. Bhasin, 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 award

dated 25th October, 2005 of the Industrial Adjudicator on the following

reference:

"Whether the punishment of stoppage of three annual increments with cumulative effect imposed on Sh. Mohinder Singh is illegal and / or unjustified and if so, to what relief is he entitled and what direction are necessary in this respect?

2. Though during the proceedings before the Industrial Adjudicator a

preliminary issue was framed as to the legality and validity of the

departmental enquiry held by the petitioner employer prior to meeting out

the punishment to the respondent workman but the petitioner employer on

25th September, 2004 consented to the issue as to the legality and validity

of the departmental enquiry being decided against it and opted to prove

before the Industrial Adjudicator misconduct leading to punishment.

3. The petitioner employer examined two witnesses before the

Industrial Adjudicator. One of them viz. Smt. G.R. Ranglani merely

produced the record of the inquiry proceedings. It is inexplicable as to

why the same was done when the petitioner employer had already

consented to the issue as to the department inquiry being decided against it.

4. The relevant portion of the deposition of only other witness, namely

Sh. Ashok Lamba by way of examination in chief is set out in the award.

The Industrial Adjudicator on the basis thereof has held that the

misconduct of the respondent workman is not proved and the evidence of

Sh. Ashok Lamba to be hearsay and the concerned person viz. Sh. H.S.

Bhatia having not been examined by the petitioner employer. In the

circumstances, the Industrial Adjudicator held that the petitioner employer

had failed to lead any evidence to prove the charge against the respondent

workman and thus the basis of the punishment imparted to the respondent

workman became illegal. Accordingly, the reference was decided against

the petitioner employer and in favour of the respondent workman and the

petitioner employer was directed to make payment of all financial benefits

to the respondent workman within three months.

5. This Court while issuing notice of the petition stayed the operation

of the award and which has continued till now.

6. The respondent workman was charged with while posted as a

Security Guard, having facilitated the theft from the Hotel of the petitioner

of two empty gas cylinders in excess and of 26 filled gas cylinders on 19th

March, 1988. The Industrial Adjudicator on appreciation of the evidence

of Mr. Ashok Lamba aforesaid held the same to be hearsay.

7. I have perused the affidavit of Sh. Ashok Lamba. The same

nowhere deposes about the role of the respondent workman. The only

statement with respect to the respondent workman is that he was not

present at the supply gate when the cylinders were being taken out. The

senior counsel for the petitioner has invited attention to the affidavit by

way of examination in chief of the respondent workman where he has

deposed that on the relevant date, he was on duty on supply gate and was

also looking after the car parking area. In my opinion, the same does not

advance the case of the petitioner employer. It was for the petitioner

employer to examine witnesses to depose as to how the respondent

workman was responsible for segregating the filled up and empty cylinders

and for loading of the filled up instead of empty gas cylinders in the truck.

Without any such evidence having been shown, the finding of fact arrived

at by the Industrial Adjudicator of the petitioner employer having failed to

prove the misconduct cannot be the subject of judicial review.

8. It is even otherwise the settled position in law that a finding of fact

even if erroneous cannot be interfered with under Article 226 of the

Constitution of India. In this regard, reference can be made to Kirloskar

Brothers Ltd. Vs. The Presiding Officer, Labour Court ILR (1976) I Del.

565, Jawahar Singh Vs. Financial Commissioner MANU/DE/8396/2007

and Kishan Chand Bhatia Vs. Union of India MANU/DE/0265/2005. It

is further the settled position as laid down by the Apex Court and this

Court in Govt. of A.P. Vs. Mohd. Narsullah Khan (2006) 2 SCC 373,

B.C. Chaturvedi Vs. UOI (1996) I LLJ 1231 SC, Suresh Kumar Vs. The

Management of Monsanto Enterprises Pvt. Ltd. MANU/DE/8303/2007,

MCD Vs. Satish Kumar (2005) 81 DRJ 344 & Poorna Singh Kain Vs.

UOI MANU/DE/1292/2008 that this Court is not entitled to while

exercising the power of judicial review re-appreciate the evidence. The

only test to be satisfied is that the findings should not be perverse and / or

based on no evidence at all or unreasonable. In the present case, a perusal

of the deposition of the sole witness examined by the petitioner employer

to prove the misconduct does not show any misconduct of the respondent

workman to have been proved and no error is found in the findings arrived

at by the Industrial Adjudicator.

9. There is no merit in the petition. The same is dismissed.

10. The Supreme Court in Abhimanyoo Ram Vs. State of U.P. (2008)

17 SCC 73 and in Ramesh Chandra Sankla Vs. Vikram Cement (2008)

14 SCC 58 has held that the Court while finally disposing of the matter has

to balance the equity emanating from the interim order and to ensure that

the same does not cause prejudice to the party against whom it was

granted. In the present case, owing to the order in the present petition of

stay of the operation of the award, the dues which the respondent workman

was entitled to in terms of the award have not been paid for the last nearly

five years. Accordingly, the petitioner employer is now directed to pay the

said dues within six weeks of today together with interest thereon at the

rate of 8% per annum from the date of the award till the date of payment.

Costs of litigation have already been paid.

RAJIV SAHAI ENDLAW (JUDGE) MAY 10, 2011 'gsr'