Management Of Centaur Hotel vs P.S.Mohan Nair & Anr
2012 Latest Caselaw 5577 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


+    W.P. (C) No. 115/1999

%                                          Reserved on: 23rd August, 2012
                                           Decided on: 17th September, 2012


MANAGEMENT OF CENTAUR HOTEL          ..... Petitioner
                Through Ms. Meenakshi Sood, Mr. Mukesh
                        Kumar, Advs.

                   versus

P.S.MOHAN NAIR & ANR                               ..... Respondents

                  Through              Mr. K.K. Rai, Sr. Adv. with Mr. Atul
                                       T.N., Adv.

Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA

1. By the present petition the Petitioner impugns the order dated 10th September, 1998 passed by the learned Industrial Tribunal dismissing the application of the Petitioner under Section 33(2)(b) of the Industrial Disputes Act, 1947 (in short the ID Act) thereby declining to grant approval for dismissal of the Respondent.

2. Learned counsel for the Petitioner contends that Respondent No.1 was charged for two misconducts i.e. bigamy and furnishing of false certificates in relation to his date of birth. Valid enquiry was conducted and after conducting the enquiry, application was filed before the Industrial Tribunal under Section 33(2)(b) of the ID Act for its approval. The learned Tribunal entered into the arena of adjudicating merits in the said application. It is

contended that the scope of decision in the application under Section 33(2)(b) ID Act before the Industrial Tribunal is only whether the enquiry is valid and legal. The Tribunal cannot adjudicate upon the merits or demerits of the enquiry and return a finding thereon. Reliance in this regard is placed on Shyam Singh Vs. D.T.C. MANU/DE/8791/2007. It is further contended that the charges against Respondent No.1 were quashed primarily on four grounds i.e. there was delay in issuing the charge-sheet, secondly that there was violation of principles of natural justice for which no reasoning was given, thirdly that the Respondent No.1 was not given an opportunity to be represented by a lawyer and fourthly that there was no evidence whatsoever with the enquiry officer to return the findings as arrived at. Reliance is placed on Bharat Petroleum Corporation Ltd. Vs. Maharashtra General Kamgar Union & Ors. (1999) 1 SCC 626 to contend that the right of representation by a counsel in the enquiry proceedings is not a vested right and is only available to the delinquent officer if the standing rules so provide. Reliance is also placed on Central Bank of India Ltd. Vs. Prakash Chand Jain AIR 1969 SC 983, Swatantra Bharat Mills, New Delhi Vs. Ratan Lal (Civil appeal No. 392/ 1959 decided by Hon'ble Supreme Court on 28th March, 1980), Cholan Roadways Ltd. Vs. G. Thirugnanasambandam (2005) 3 SCC 241 and Cominco Binani Zinc Limited Vs. K.N. Mohanan & Anr. ILR 1993 (3) Kerala 170. Relying upon Additional Superintendent of Police Vs. T. Natrajan JT 1998 (9) SC 257 it is contended that unless it is prejudicial, delay cannot be a ground to quash the charge-sheet.

3. Learned counsel for the Respondent No.1 on the other hands contends that the charge-sheet was issued on the basis of intimation supplied by the

Respondent about his second marriage and about the incorrect recording of his date of birth. Respondent No.1 did not conceal any fact and in order to teach a lesson to Respondent No.1 who was involved in trade union activities after a lapse of 8/9 years the charge-sheet was issued. The Hon'ble Supreme Court in Lalla Ram Vs. D.C.M. Chemical Works Ltd. & Anr. (1998) 3 SCC 1 has dealt with the scope of enquiry and it was held that the same was not limited to seeing that the enquiry proceedings were fair and followed the principles of natural justice. In State of Madhya Pradesh Vs. Bani Singh & Anr. 1990 (supp) SCC 738 and P.V. Mahadevan Vs. MD, T.N. Housing Board 2005 SCC (L&S) 861 their Lordships quashed the charge-sheet when it was issued after a delay of around 10-12 years. Admittedly the defence has no right to ask for a lawyer or defence assistant of his choice unless permitted by the rules. However, in a case where the Petitioner/ management is represented by a legally trained person then a right accrues to the workman to be represented by a lawyer or a legally trained defence assistant. In the present case the management was represented by a legally trained person who was a law graduate and thus the workman could not defend himself. Reference is made to Board of Trustees of the Port of Bombay Vs. Dilipkumar Raghavendranath Nadkarni & Ors. (1983) 1 SCC

124. The prejudice is inherent in case a belated charge-sheet is issued as it is difficult for the delinquent to bring forward his defence. Since Respondent No.1 has reached the age of superannuation, hence the only issue remaining is with regard to entitlement towards his back wages, as on declining to grant approval it is deemed that no dismissal of Respondent No.1 took place.

4. I have heard learned counsel for the parties and perused the record. Respondent No.1 who was employed with the Petitioner as Room Service Order Taker, was charge-sheeted for misconduct. The allegations in the charge-sheet were two-fold, i.e. he committed bigamy and secondly he gave his date of birth incorrectly. These allegations of misconduct were based on the intimation sent by Respondent No.1. It was alleged in the charge-sheet that in the attestation form dated 24th May, 1982 Respondent No.1 had declared the name of his wife as Mrs. Prasana Kumari and on 11th November, 1985 he had confirmed to the management that his marital status has changed and he has married Smt. Thankamani on 16 th September, 1985. The birth certificate of the child was also sent along with the letter dated 30th April, 1987 communicating that Thankamani had given birth to a female child on 4th July, 1986. It is alleged in the charge-sheet that Respondent No.1 had never communicated the status of his marriage with Mrs. Prasana Kumari and Respondent No.1 had violated the service Regulation No. 73 which provided that no employee having a spouse living shall marry any other person. The other charge of misconduct was that Respondent No.1 declared incorrect date of birth in the attestation form at the time of his appointment in the hotel. Respondent No.1 declared in the attestation form dated 24th May, 1982 that he has passed SSLC from Kerala in March, 1968 whereas in the photocopy of the school admission register it was mentioned that he has passed SSLC in 1967. Further, it is alleged that though the date of birth of Respondent No.1 was recorded as 26th April, 1956 he intimated on 9th January, 1984 that the same was wrongly recorded and his date of birth was 26th April, 1951. Thus the two intimations were given in the years 1985 and 1984 respectively. On 5th January, 1993 i.e. after a period of 8

years and 7 years respectively a charge-sheet was served on Respondent No.1.

5. During the proceedings the learned Tribunal considered the enquiry report in detail and relying upon a decision of this Court in M.S. Mann Vs. Union of India and Ors. 1976 (1) SLR 350 held that the enquiry officer had no jurisdiction to go into the matters affecting civil rights and thus the enquiry officer was not competent to decide the validity of the subsistence of the first marriage of Respondent No.1. The management could not have initiated the enquiry against Respondent No.1 as far as the charge of bigamy is concerned. The learned Tribunal also came to the conclusion that there was no evidence whatsoever before the enquiry officer on the basis of which he could not have held that the first marriage of Respondent No.1 was subsisting when he had contracted the second marriage with Thankamani and thus even on this count the findings of the enquiry officer were perverse. It further held that the initiation of the disciplinary proceedings against Respondent No.1 were delayed and there was no explanation of this delay and thus the disciplinary proceedings against Respondent No.1 initiated in 1993 belatedly for his act of misconduct was required to be quashed. It was further held that there was violation of principle of natural justice and denial of a proper opportunity to Respondent No.1 to defend himself, as Respondent No.1 was admittedly denied the opportunity of engaging an Advocate for enquiry. The enquiry officer was not justified in rejecting this request as the management was represented by a law graduate. In view of the violation of the principles of natural justice also the enquiry was vitiated.

Accordingly, the application of the Petitioner seeking approval for dismissal of Respondent No.1 from services was rejected.

6. As regards the scope of consideration in an application under Section 33(2)(b) of the ID Act their Lordships in Lalla Ram Vs. D.C.M. Chemical Works Ltd. and Another (1978) 3 SCC 1 held:

"12. The position that emerges from the abovequoted decisions of this Court may be stated thus: In proceedings under Section 33(2)(b) of the Act, the jurisdiction of the Industrial Tribunal is confined to the enquiry as to (i) whether a proper domestic enquiry in accordance with the relevant rules/Standing Orders and principles of natural justice has been held; (ii) whether a prima facie case for dismissal based on legal evidence adduced before the domestic tribunal is made out; (iii) whether the employer had come to a bona fide conclusion that the employee was guilty and the dismissal did not amount to unfair labour practice and was not intended to victimise the employee regard being had to the position settled by the decisions of this Court in Bengal Bhatdee Coal Co. v. Ram Prabesh Singh [ AIR 1964 SC 486 : (1964) 1 SCR 709 : (1963) 1 LLJ 291 : 24 FJR 406] , Titaghur Paper Mills Co. Ltd. v. Ram Naresh Kumar [ (1961) 1 LLJ 511 : (1960-61) 19 FJR 15] , Hind Construction & Engineering Co. Ltd. v. Their Workmen [ AIR 1965 SC 917 : (1965) 2 SCR 85 : (1965) 1 LLJ 462 : 27 FJR 232] , Workmen of Messrs Firestone Tyre & Rubber Company of India (P) Ltd. v. Management [(1973) 1 SCC 813 : 1973 SCC (L&S) 341 : AIR 1973 SC 1227 : (1973) 3 SCR 587] and Eastern Electric & Trading Co. v. Baldev Lal [(1975) 4 SCC 684 : 1975 SCC (L&S) 382 : 1975 Lab IC 1435] that though generally speaking the award of punishment for misconduct under the Standing Orders is a matter for the management to decide and the Tribunal is not required to consider the propriety or adequacy of the punishment or whether it is excessive or too severe yet an inference of mala fides may in certain cases be drawn from the imposition of unduly harsh, severe, unconscionable or

shockingly disproportionate punishment; (iv) whether the employer has paid or offered to pay wages for one month to the employee and (v) whether the employer has simultaneously or within such reasonably short time as to form part of the same transaction applied to the authority before which the main industrial dispute is pending for approval of the action taken by him. If these conditions are satisfied, the Industrial Tribunal would grant the approval which would relate back to the date from which the employer had ordered the dismissal. If however, the domestic enquiry suffers from any defect or infirmity, the labour authority will have to find out on its own assessment of the evidence adduced before it whether there was justification for dismissal and if it so finds it will grant approval of the order of dismissal which would also relate back to the date when the order was passed provided the employer had paid or offered to pay wages for one month to the employee and the employer had within the time indicated above applied to the authority before which the main industrial dispute is pending for approval of the action taken by him."

7. It is thus evident that the scope of proceedings under Section 33(2)(b) ID Act is to ensure that there is prima facie evidence before the enquiry officer, whether the employer had come to a bonafide conclusion that the employee was guilty, whether principles of natural justice and standing orders were followed or not and the dismissal did not amount to unfair labour practice and was not intended to victimize the employee. Thus, in the facts of the present case, the learned Tribunal did not exceed his jurisdiction in examining the enquiry proceedings besides looking into the violation of principles of natural justice to see whether it was a case of no evidence or if Respondent No.1was victimized.

8. Admittedly Respondent No.1 was denied the opportunity to be represented by a lawyer and the Petitioner/management was represented by a legal assistant. This denial of a lawyer/legal assistant to Respondent No.1 in the facts of the present case amounted to violation of the principles of natural justice. In Board of Trustees of the Port of Bombay Vs. Dilipkumar Raghavendranath Nadkarni & Ors. (supra) their Lordships held:

"9. We concern ourselves in this case with a narrow question whether where in such a disciplinary enquiry by a domestic tribunal, the employer appoints Presenting-cum-Prosecuting Officer to represent the employer by persons who are legally trained, the delinquent employee, if he seeks permission to appear and defend himself by a legal practitioner, a denial of such a request would vitiate the enquiry on the ground that the delinquent employee had not been afforded a reasonable opportunity to defend himself, thereby vitiating one of the essential principles of natural justice."

9. As regards the delay in issuance of the charge-sheet it may be noted that the charge-sheet was based on the letters addressed by Respondent No.1 to the Petitioner which were given around 7/8 years back. The explanation of the Petitioner is that it acted on an anonymous complaint received thereafter. This is no explanation in the eyes of the law as Respondent No.1 had himself intimated about these facts. In State of Madhya Pradesh Vs. Bani Singh and Anr. 1990 (supp) SCC 738 and P.V. Mahadevan Vs. MD, T.N. Housing Board 2005 SCC (L&S) 861 their Lordships upheld the order of the Tribunal quashing the charge-sheet on the ground that the inordinate delay in issuing charge memo has not been satisfactorily explained. In regard to delay learned counsel for the Petitioner has further contended that

the disciplinary proceedings are vitiated on account of delay in its initiation only if the delay results in prejudice to the delinquent officer and Respondent No.1 has shown no such prejudice. I find no merit in this contention. A delay of 8/9 years when the material evidences are not available with Respondent No.1 is sufficient to infer a prejudice to him. It is thus apparent that the Tribunal passed the impugned order within the framework of the law settled by the Hon'ble Supreme Court and this Court and thus committed no illegality.

10. Petition is dismissed.

(MUKTA GUPTA) JUDGE SEPTEMBER 17, 2012 'ga'