Delhi High Court

Mahendra Pal Verma vs The Taj Mahal Hotel on 11 January, 2013

Author: Rajiv Sahai Endlaw

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of decision: 11th January, 2013

+                                  LPA No.842/2012

      MAHENDRA PAL VERMA                      ..... Appellant
                 Through: Mr. R.A. Mishra, Adv. with Mr. R.P.
                          Bansal & Mr. Jagannath Jha, Advs.

                                      Versus

    THE TAJ MAHAL HOTEL                                         ..... Respondent

Through: None.

CORAM :-

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. This intra-court appeal impugns the order dated 17.10.2012 of the

learned Single Judge of dismissal of W.P.(C) No.18/2008 preferred by the

appellant. The said writ petition was preferred by the appellant impugning

the Award dated 17.03.2007 of the Industrial Adjudicator on the following

reference:

"Whether the termination of services of Sh. Mohinder Pal Verma by the management is illegal and / or unjustified, and if so, to what relief is he entitled and what directions are necessary in this respect?"

2. The appellant was employed for Housekeeping in the respondent

Hotel since the year 1981. He was on 12.05.1998 charged with having on

08.05.1998 stolen the Timex watch of a guest / patron of the respondent

Hotel from the room of the said guest / patron. The departmental inquiry

conducted found the appellant guilty and the Disciplinary Authority of the

respondent Hotel inflicted the punishment of dismissal from service on the

appellant. The appellant raised an industrial dispute and on which the

reference aforesaid was made.

3. The Industrial Adjudicator framed a preliminary issue as to the

fairness and propriety of the departmental inquiry and on which preliminary

issue evidence was led. The Industrial Adjudicator vide order dated

06.03.2007, on the basis of evidence led before him, held, that the appellant

in his cross examination had admitted that he had full opportunity to put his

evidence in the inquiry and that he was also represented by an advocate in

the inquiry and that the statements of all the witnesses were recorded in his

presence and full opportunity had been granted to him to cross examine

them; the appellant in the said cross examination further admitted that the

Enquiry Officer was impartial. The Industrial Adjudicator held that the

vague pleas taken by the appellant of having been denied opportunity to

defend and / or of the principles of natural justice having been violated in the

inquiry had remained unsubstantiated. The Industrial Adjudicator

accordingly vide order dated 06.03.2007 (supra) held the departmental

inquiry to have been conducted fairly and properly and accordingly decided

the preliminary issue in favour of the respondent employer.

4. The Industrial Adjudicator having done so, in the Award dated

17.03.2007 proceeded to consider whether the punishment of dismissal from

employment was harsh and disproportionate. It was the plea of the appellant

before the Industrial Adjudicator as is also before us that the appellant prior

to his dismissal had 17 years of unblemished service and the punishment of

dismissal was thus harsh. The Industrial Adjudicator relying on Life

Insurance Corporation of India Vs. R. Dhandapani 2006 1 LLJ SC 329

held that the powers under Section 11A of the Industrial Disputes Act, 1947

could be exercised only in accordance with law, judiciously and for valid

reasons; further relying on State Bank of India Vs. G.D. Sharma 2007 III

AD (Delhi) 65, it was held that misconduct by the appellant of theft of a

watch of a guest of a hotel was a serious one and could not be condoned and

thus punishment meted out of dismissal could not be said to be

disproportionate requiring interference.

5. The learned Single Judge in challenge by the appellant to the

aforesaid Award, went through the records and found evidence to the effect

that the appellant while doing housekeeping of the said room, from which

the guest / patron of the Hotel had not checked out, picked up a watch but on

hue and cry being raised placed the watch again in the room. The learned

Single Judge further found the evidence on record to the effect that the

appellant had initially made a confession before the Assistant Manager

(F&B) of the Hotel. The appellant before the learned Single Judge also

sought to challenge the departmental inquiry but the learned Single Judge

relying on Cholan Roadways Ltd. Vs. G. Thirugnanasambandam AIR

2005 SC 570 held that the evidence in the departmental inquiry was

sufficient and the findings of the Inquiry Officer and the Disciplinary

Authority could not be said to be perverse.

6. The counsel for the appellant has before us also sought to challenge

the finding of the departmental inquiry. This is not the stage for the same.

Upon dispute being raised by the appellant, the Industrial Adjudicator went

through the record of the departmental inquiry and did not find any

perversity in the findings arrived at. On challenge by the appellant, the

learned Single Judge also undertook the said exercise. We have however, to

satisfy our conscience, again gone through the records and are unable to

arrive at a different conclusion.

7. The counsel for the appellant next sought to impugn before us the

findings of the Industrial Adjudicator of the departmental inquiry having

been conducted fairly and properly and in accordance with the principles of

natural justice. No averment as to the impartiality of the Inquiry Officer was

however found in the Statement of Claim made by the appellant before the

Industrial Adjudicator. Admittedly, no challenge to the impartiality of the

Inquiry Officer was made during the inquiry proceedings also. The counsel

for the appellant during the hearing however handed over a copy of the

replication filed to the written statement of the respondent employer before

the Industrial Adjudicator but the only plea taken therein also is of the

Inquiry Officer being under the influence of the management and no further.

The counsel for the appellant is also unable to show any basis having been

laid for such argument in the evidence recorded before the Industrial

Adjudicator. We thus do not find any merit in the said plea.

8. We are of the opinion that once the inquiry is found to have been

conducted in accordance with the applicable rules and the principles of

natural justice, in any case it is not open to the Industrial Adjudicator to

revisit the factual findings arrived at therein. As far as the refusal of the

Industrial Adjudicator to exercise powers under Section 11A of the I.D. Act

to vary the punishment is concerned, though Industrial Adjudicator has in

that regard given cogent reasons, we may add the following case law in

support thereof:

(a) Uttar Pradesh State Road Transport Corporation Vs.

Nanhe Lal Kushwaha (2009) 8 SCC 772 reiterating that if the

charged employee holds a position of trust where honesty and

integrity are inbuilt requirements of functioning, it would not be

proper to deal with the matter leniently and misconduct in such

cases has to be dealt with iron hands;

(b) Employers, Management, Colliery, M/s. Bharat Coking

Coal Ltd. Vs. Bihar Colliery Kamgar Union 2005 Lab.I.C. 1341

(SC) where the order of the Tribunal substituting the punishment of

dismissal with that of reinstatement without back wages and

stoppage of one increment for the misconduct of assault was held

to be unjustified;

(c) Madhya Pradesh Electricity Board Vs. Jagdish Chandra

Sharma AIR 2005 SC 1924, where also interference with the

punishment for misconduct of hitting superior officer and

subsequent unauthorized absence was held to be not justified;

(d) South Indian Bank Ltd. Vs. V.G. Krishnakumar 2006 LLR

415 (Kerala), where interference with the punishment of dismissal

for misconduct of abusing Branch Manager and customers was

held to be not justified;

(e) Elder Pharmaceuticals Ltd. Vs. Krishna Vithal Bendre

2006 LLR 1226 (Bombay), where punishment of dismissal for the

misconduct of assault was held to be not disproportionate;

(f) G. Vijayan Vs. Presiding Officer, Labour Court, Salem

(Madras), 2008 LLR 48 (Madras) where interference with the

punishment of dismissal for the misconduct of habitual absence

was held to be a case of misplaced sympathy;

(g) The Branch manager, Central Bank of India, Amreli Vs.

Hasanbhai Nazbuddin Vankar 2006 LLR 425 (Gujarat), holding that

merely characterizing the misconduct as minor lapse of negligence not

warranting dismissal is not permissible.

9. We may further note:

i. the Supreme Court in Bharat Heavy Electricals Ltd. Vs. M.

Chandrasekhar Reddy AIR 2005 SC 2769 held that when an

employer loses confidence in his employee particularly in

respect of a person who is discharging a function of

trust/confidence, there cannot be any justification for

directing his reinstatement;

ii. the Supreme Court in Apparel Export Promotion Council

Vs. A.K. Chopra (1999) 1 SCC 759 reiterated that the

jurisdiction to interfere with the disciplinary matters of

punishment cannot be equated with appellate jurisdiction and

that it is appropriate to remember that the power to impose

penalty on a delinquent officer is conferred on the

Competent Authority and if there has been an inquiry

consistent with the Rules and in accordance with the

principles of natural justice, what punishment would meet

the ends of justice is a matter within the jurisdiction of the

Competent Authority and it is only when the punishment

imposed shocks the conscience, should the power to mould

the punishment be exercised;

iii. the same principles were reiterated recently in State Bank of

Bikaner and Jaipur Vs. Nemi Chand Nalwaya (2011) 4

SCC 584;

iv. reference in this regard may also be made to State of

Meghalaya v. Mecken Singh N. Marak (2008) 7 SCC 580

laying down that it would not be proper to deal with the

matter leniently where the charged employee holds the

position of trust and misconduct in such cases has to be dealt

with iron hands.

v. the Supreme Court in Mahindra and Mahindra Ltd. v. N.B.

Naravade AIR 2005 SC 1993 held that the discretion vested

in the Industrial Adjudicator under Section 11A of the

Industrial Disputes Act to interfere with the quantum of

punishment awarded by the management is to be exercised

only on the existence of certain factors like punishment

being disproportionate to the gravity of misconduct so as to

disturb the conscience of the Court, or the existence of any

mitigating circumstances which require the reduction of the

sentence, or the past conduct of the workman and in the

absence of any such factor, the Industrial Adjudicator

cannot, by way of sympathy alone exercise the power under

Section 11A and reduce the punishment.