M/S Centaur Hotel Ltd. vs P.O. Industrial Tribunal & Anr
2013 Latest Caselaw 601 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+                      W.P.(C) 2934/1997
%                                          Reserved on: 13th December, 2012
                                           Decided on: 7th February, 2013
M/S CENTAUR HOTEL LTD.                              ..... Petitioner
                 Through:              Ms. Tanu Priya Gupta, Advocate.
                       versus
P.O. INDUSTRIAL TRIBUNAL & ANR             ..... Respondents

Through: Mr. Vivek Singh Bishnoi, Advocate for Respondent No.2.

Coram:

HON'BLE MS. JUSTICE MUKTA GUPTA

1. By the present petition the Petitioner impugns the award dated 9th May, 1997 whereby the order of termination of Respondent No. 2 was set aside and he was directed to be reinstated with full back wages.

2. Learned counsel for the Petitioner contends that the jurisdiction of the Tribunal at best was to see whether the principles of natural justice had been followed or not, whether a proper departmental inquiry was held, whether Respondent No. 2 was given a fair chance to place his defence and whether there was any mala fide exercise of power. However, the learned Trial Court re-appreciated the entire evidence which was beyond its jurisdiction and came to the conclusion that the misconduct of Respondent No. 2 was not proved. There is no finding of the learned Trial Court that the principles of natural justice were violated or that there was any illegality in the inquiry proceedings. Eight witnesses were examined during the inquiry and Respondent No. 2 was given an opportunity to cross-examine all these eight witnesses. Though FIR lodged by Mahesh Yadav, the Complainant could

not be produced however, the FIR lodged by Ms. G.K. Sethi was produced and proved during the inquiry proceedings which substantiated the allegations against Respondent No. 2 clearly. Ms. G.K. Sethi also appeared in the witness box and was thoroughly cross-examined. She stated that the Respondent No. 2 along with P.K. Bose and Venu Nambiar came to her when she was on duty at reception in drunken state and abused her. When P.K. Bose assaulted her Mahesh Yadav intervened. The three of them then took Mahesh Yadav outside to the Porch and later when he came he had injuries. The entire correspondences to the Security Manager both by Ms. G.K. Sethi and Mr. Mahesh Yadav were placed and exhibited during the inquiry along with the injury sheet of Mr. Mahesh Yadav which showed that he had suffered fracture and injury. Merely because there was one more complaint registered against Mr. Mahesh Yadav for the same day, the learned Trial Court exonerated the Respondent. Reliance is placed on State of Haryana and another vs. Rattan Singh, AIR 1977 SC 1512 to contend that strict and sophisticated rules of evidence do not apply to the disciplinary proceedings and the Industrial Tribunal cannot go into the sufficiency of evidence.

3. Learned counsel for Respondent No. 2 on the other hand contends that the Industrial Tribunal was fully authorized under law to pass a final award in an industrial dispute referred to it by the Government especially in view of the unfair labour practice followed by the Petitioner in terminating the services of Respondent No. 2. The learned Trial Court after sifting the evidence produced by the Petitioner before the Inquiry Officer came to the conclusion that the Inquiry Officer erred in coming to the conclusion and thus set aside the termination of Respondent No. 2. The Trial Court held that

there was no evidence regarding the drunkenness of Respondent No. 2 which charge was also not proved before the Inquiry Officer. It was further held that none of the witnesses, who were said to have witnessed the beating of Mahesh Yadav at Pan Shop on the night of 17 th June, 1987, were produced. The Trial Court rightly came to the conclusion that the finding of the Inquiry Officer was based on uncorroborated material and set aside the same. No FIR of the alleged incident was filed by Mahesh Yadav whereas the FIR was registered against Mahesh Yadav on the same date for throwing a knife which fact was also admitted by Mahesh Yadav in his cross-examination. Respondent No. 2 has been made a scapegoat on the basis of uncorroborated and unreliable evidence. The report of the Inquiry Officer was an abuse of the process of law which was corrected by the impugned award. Hence there is no merit in the present petition and the same be dismissed.

4. I have heard learned counsel for the parties.

5. The facts briefly are that Respondent No. 2 was appointed with the Petitioner on 16th August, 1985. A charge sheet was issued to Respondent No. 2 on 22nd July, 1987 alleging that on 17th June, 1987 Respondent No. 2 reported for duty late and at about 2300 hours, though not on duty he unauthorisedly entered the hotel lobby in drunken state along with Venu Nambiar, P.K. Bose and two others. It was further alleged that five of them took Mahesh Yadav outside at Pan Shop located in the parking area in a friendly manner and their Mahesh Yadav was abused, pushed and assaulted resulting in fracture on his right forearm and wrist. When Mahesh Yadav went towards the lobby to save himself from further beating he was followed by P.K. Bose, Venu Nambiar and one outsider however Mahesh Yadav was saved by the Security Staff. Thus the acts of Respondent No.2 not only

caused commotion, breach of peace and nuisance in the hotel but also terrorized the guests in the hotel resulting in loss of reputation and business of the hotel. It was stated that the acts of Respondent No. 2 were in violation of Regulation 73 (i) (xi) (xviii). Respondent No. 2 gave his explanation which was not satisfactory and an inquiry was conducted. In the inquiry Ms. G.K. Sethi was also examined, who also exhibited the FIR lodged by her on the same day being FIR No. 22/1987, PS Mahipal Pur. In the FIR it was alleged that she was posted at the Reception. At about 11.45 p.m. Respondent No. 2 P.K. Bose and Venu Nambiar came in a drunken state and P.K. Bose started addressing her in filthy language. When she rushed towards the security via balcony P.K. Bose held her hand and molested her. On this Mahesh Yadav came there and intervened. P.K. Bose warned Mahesh Yadav and thereafter Respondent No. 2, Venu Nambiar and S. Dagar took Mahesh Yadav outside at the main porch where they gave him beatings. The incident was also witnessed by Navneet and Kude Ram Yadav. After inquiry, the services of Respondent No. 2 were terminated and hence Respondent No. 2 filed a complaint under Section 33A of the ID Act alleging that the termination was in contravention of the provisions of Section 33 of the ID Act. Respondent No. 2 alleged that he was a protected workman being the President of the Centaur Hotel Employees Union and a false complaint had been foisted on him resulting in issuance of charge sheet. A farcical inquiry was conducted resulting in dismissal of Respondent No.2 by the management. The appeal filed by Respondent No. 2 was also rejected. The Petitioner Management took a preliminary objection regarding the maintainability of the complaint that Respondent No.2 had joined the services of the Management on 16th August, 1985 whereas the pending

industrial dispute was for payment of bonus for the years 1984-85 and service charges and therefore he was not directly concerned with the dispute. The Management denied that Respondent No. 2 was a protected workman or that they had any information in this regard. The falsity of the case or any illegality in the inquiry proceedings was also denied. On the basis of the pleadings of parties the following issues were framed:

"1. Is this complaint maintainable in view of the preliminary objection filed in the reply? (OPC)

2. Did the respondent commit contravention of the provisions of section 33 of the ID Act? (OPC)

3. To what relief, if any, is the complainant entitled? (OPC)"

6. Respondent No. 2 examined himself and the Petitioner Management examined the two witnesses, that is, the Management‟s representative before the Inquiry Officer and the Inquiry Officer. The entire inquiry proceedings were exhibited before the learned Trial Court. Issues Nos. 1 and 2 were held against the Petitioner on the basis that the Management itself recognized Respondent No.2 as protected workman vide letter marked Ex. CW1/6 and the dispute pending was related to the service charges, that is, the tips and the distribution thereof, thus Respondent No. 2 was concerned with the dispute pending adjudication and hence there was violation of Section 33 (3) of the ID Act. On the Issue No.3 the learned Trial Court held that even though there was contravention of Section 33 (3) ID Act the Petitioner still had a right to justify the impugned action and prove the misconduct of Respondent No.2. The learned Trial Court observed that the Inquiry Officer came to the conclusion that the charge of drunkenness leveled against

Respondent No. 2 had not been established and as far as charge of beating of Mahesh Yadav is concerned. none of the seven witnesses examined by the Management, had corroborated the evidence of Mahesh Yadav regarding the assault. However, there was circumstantial evidence to support this charge. The learned Trial Court observed that though Mahesh Yadav claimed that he had lodged a complaint to the police about the incident and Respondent No. 2 was named therein however, the said FIR was never produced hence an adverse inference was required to be drawn. Further the Management having not produced this best evidence, the only available evidence was that of the Complainant Mahesh Yadav himself. The learned Trial Court observed that Ms. G.K. Sethi did not support the Management case as regards the beatings by Respondent No. 2 is concerned as she stated that she had no knowledge as to who had beaten Mahesh Yadav. Further though the statements of Baljeet and M.M. Srivastava were produced by the Management which stated about the incident however, when they appeared in the witness box, they stated that on 17th June, 1987 at about 11 p.m. they had seen Mahesh Yadav and I.S. Rana going to the pan shop where they had a fight and thereafter Mahesh Yadav and Respondent No. 2 had gone out. Thus according to the learned Trial Court these two witnesses in the inquiry did not state that they saw Mahesh Yadav injured when they returned to the lobby from the pan shop. Further in their cross-examination they denied having witnessed the alleged assault on Mahesh Yadav. The learned Trial Court further observed that there was no material before the Inquiry Officer to come to the conclusion that there was rivalry between Rana Group and Mahesh Yadav group and admittedly as per the Management there was another incident on 17th June, 1987 in which Mahesh Yadav was himself

accused of throwing knife at someone and thus the findings of the Inquiry Officer holding that Respondent No. 2 was guilty were unsustainable and the inquiry was set aside. Consequently the termination of the services of Respondent No. 2 was set aside and he was directed to be reinstated with full back wages.

7. The legal position is well settled. The scope of interference by the tribunal in domestic inquiry is limited. In State of Haryana and another vs. Rattan Singh (supra) it was held:

"4. It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case-law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. However, the courts below misdirected themselves, perhaps, in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The „residuum‟ rule to which counsel for the respondent referred, based upon certain passages from American Jurisprudence does not go to that extent nor does the passage from Halsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence -- not in the sense of the technical rules governing

regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record. We find, in this case, that the evidence of Chamanlal, Inspector of the Flying Squad, is some evidence which has relevance to the charge levelled against the respondent. Therefore, we are unable to hold that the order is invalid on that ground."

8. Admittedly even as per the learned Trial Court there was evidence in the form of statement of the injured Mahesh Yadav that he was beaten by Respondent No. 2 and others and his injury sheet showing fracture and other injuries was duly exhibited. The Inquiry Officer took into consideration the other circumstantial evidence to corroborate the version of the Mahesh Yadav. Thus even as per the learned Trial Court this was not the case where there was no evidence but a case where there was no eye witness to corroborate the version of Mahesh Yadav. Thus the present case did not fall in the category of no evidence and sufficiency of evidence could not have been gone into by the learned Trial Court. A perusal of the statement of Ms. G.S. Sethi before the Inquiry Officer shows that she supported the entire version as reproduced above in the FIR except that she saw Mahesh Yadav being beaten by Respondent No. 2 and other persons but she stated that on the same day after some time she saw Mahesh Yadav coming to the lobby in an injured condition though she had no knowledge who had beaten him. Ms. Sethi had also clearly stated that when she was being abused and assaulted by Respondent No.2 and others, Mahesh Yadav intervened, where after these people took Mahesh Yadav outside and when he returned in the lobby, he

was injured. Merely because the evidence of the injured witness is not corroborated by any other eye witness on the point of actual assault but on all other material aspects, his testimony cannot be ignored. In the cross- examination Mahesh Yadav clearly stated that this being the police case, the x-ray report was kept by police and he had no x-ray report. There is no doubt that this witness admits that he was suspended thereafter and an inquiry was instituted against him also on the allegation that he threw knife at someone in the night shift but that does not absolve Respondent No. 2 of the misconduct committed by him. The learned Trial Court on the basis of assumptions that these injuries might have arisen in the other incident has held in favour of Respondent No. 2. A perusal of the cross-examination of Mahesh Yadav shows that not even a suggestion has been given to him that he received injury while he had scuffle with someone else when he threw knife thus the learned Trial Court clearly erred in interfering with the findings of the Inquiry Officer on the basis of conjectures and surmises.

9. The impugned award is consequently set aside. Petition is disposed off.

(MUKTA GUPTA) JUDGE FEBRUARY 07, 2013 'vn'