Oberoi Flight Services vs Sudesh Yadav
2013 Latest Caselaw 1074 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Judgment reserved on :01.03.2013
                                 Judgment pronounced on :05.03.2013
+      LPA No.293/2012
       OBEROI FLIGHT SERVICES                          ..... Appellant
                            Through :   Mr.Parag P. Tripathi, Sr. Adv. with
                                        Mr. Jayant Kumar Mehta, Mr.
                                        Sukant Vikram and Mr. Kunal
                                        Bahri Advs.
                   versus

         SUDESH YADAV                                     .... Respondent
                            Through:    Ms. Anita Sharoha, Adv. with
                                        respondent in person
       CORAM:
        HON'BLE THE CHIEF JUSTICE
        HON'BLE MR. JUSTICE V.K. JAIN

V.K. JAIN, J.

The respondent before this Court was engaged in preparation and

packaging of food for the various airlines, for being served to the flyers.

One of the airlines for which packed food used to be prepared by the

appellant was British Airways. The preparation and packaging of the

food was undertaken in a bonded warehouse at the Airport. The case of

the appellant is that on 19th July, 2000, when the respondent was leaving

the premises after completing her duty, her hand bag was checked by a

security guard. On checking the bag, some chocolates were found hidden

in the umbrella which had been kept in a plastic bag. The chocolate

found in the bag were meant for British Airways. The charges served

upon the respondent having been denied by her, an inquiry into those

charges was instituted by the appellant. The Inquiry Officer held the

charges to be proved. The report of the Inquiry Officer was accepted by

the Disciplinary Authority which imposed punishment of dismissal from

her services upon the respondent. An industrial dispute having been

raised by the respondent, a reference was made to the Labour Court to

examine the dismissal of the respondent from service. The Labour Court,

vide award dated 18th July, 2006, held that the charges against the

respondent had been proved. The Labour Court, however, was of the

view that to dismiss an employee for having committed theft of this

nature was shockingly disproportionate and was not justified. He

accordingly directed the appellant to impose another punishment short of

dismissal of service, proportionate to the misconduct committed by the

respondent, which may not necessarily mean taking her bag on duty. In

compliance of the aforesaid order, the appellant vide order dated 5th

March, 2007 imposed penalty of discharge with notice upon the

respondent and paid her one month salary as notice pay. The revised

penalty, however, was not challenged by the respondent.

2. Aggrieved from the award of the Labour Court, the respondent

filed W.P.(C) 4433/2007, the learned Single Judge vide impugned order

dated 5th March, 2012 set aside the award and directed reinstatement of

the respondent with 40% backwages. Being aggrieved from the said

order dated 5th March, 2012, the appellant is before us by way of this

appeal.

3. In Syed Yakoob v. K.S. Radhakrishnan AIR (1964) SC

477, Supreme Court identified the limitations of Certiorari jurisdiction of

the High Court under Article 226 of the Constitution in the following

terms:-

"The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or Tribunals; these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or in excess of it, or as a result of failure to exercise jurisdictions. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an

opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised."

In Swaran Singh v. State of Punjab (1976) 2 SCC 868, Supreme

Court, inter alia, held as under:-

"In regard to a finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal has acted on evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law. The writ jurisdiction extends only to cases where orders are passed by inferior courts or tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice."

4. During the course of the inquiry, the appellant examined three

witnesses namely, the Security Guard Shri Vinay Kumar Sharma,

Security Supervisor Shri R.S.Yadav and Chief Secretary Officer Shri

L.K.Mathew. The Security Guard Mr. Vinay Kumar Sharma stated in his

deposition that when he asked the petitioner to show her bag to him, she

told him that she was having chocolates in her bag, which she was taking

home for her children. According to him when he insisted upon checking

the bag, the respondent stated that this would result in her insult in the

presence of others. According to him, when he searched the bag, the

chocolates of British Airways were found hidden inside the umbrella

which had been kept in the bag. The respondent examined herself as a

witness and refuted the charges against her.

5. In view of the emphatic deposition of Shri Vinay Kumar Sharma, it

cannot be said that there was no evidence against the respondent or that

the findings recorded by the Disciplinary Authority was perverse in the

sense that no reasonable person, considering the evidence produced

during the inquiry could have held the respondent guilty of the charge

against her. The learned counsel for the respondent contended that there

was no FIR or complaint alleging theft of chocolates of British Airways

and since the respondent was posted in the Packing Department whereas

the eatables such as chocolates are stored in another department, she

could not have committed theft of the chocolates. The chocolates

recovered from the possession of the respondent were not the chocolates

available in the market, they being meant only for British Airways which

was to serve them to the passengers flying on its aircrafts. Also, this is not

the case of the respondent that though the chocolates were found in her

bag, those were not chocolates meant for British Airways, but were

otherwise purchased by her or were gifted to her. The case of the

respondent is that no chocolate at all were recovered from her bag. In

fact, as per the deposition of the security guard, the respondent was aware

of chocolates being kept in her bag and felt that she would be insulted, if

the bag was opened in the presence of others. In these circumstances, no

fault can be found with the findings that the chocolates meant for British

Airways were recovered from the possession of the respondent. This is

not the case of the respondent that some employee of British Airways or

some passenger travelling on British Airways had gifted the aforesaid

chocolates to her. In fact, she gave no explanation as to from where these

chocolates were received by her. It can therefore hardly be disputed that

either the respondent committed theft of these chocolates or she received

and retained them despite knowing fully well that the chocolates being

meant for British Airways were stolen property having been stolen by the

person who had provided those chocolates to her. In these circumstances,

the learned Tribunal rightly found no ground to interfere with the findings

recorded by the Disciplinary Authority.

6. Considering the limited scope for interference by the Tribunal or

the Court in the cases of such domestic inquiries, the learned Single

Judge certainly committed error in taking it upon himself to go into a

disputed question of facts and rendered a finding contrary to the view

taken by the Disciplinary Authority, which had also found favour with the

Labour Court. A perusal of the impugned order would show that the

learned counsel for the respondent contended that the only thing

established during the inquiry was that the respondent was found in

possession of some chocolates at the time her bag was checked by the

security guard. He, however, took the view that mere possession of

chocolates by the respondent did not mean that those chocolates were

stolen by her. In this regard, the learned Single Judge placed reliance

upon the deposition of the Security Guard who stated, during the course

of inquiry that when he asked the respondent to show the bag to him, she

stated that she was having chocolates in her bag. The learned Single

Judge in view of this statement accepted the contention of the learned

counsel for the respondent that when she herself had told the Security

Guard that she was having chocolates in her bag, it became necessary for

the Management to led further evidence to show that there was a theft of

the chocolates from the store where they were being stored. In our view,

the learned Single Judge has gone totally wrong in taking such a view. He

did not take into consideration the fact that while replying to the charge-

sheet as well as during the course of inquiry, the stand taken by the

respondent was that no chocolates were recovered from her bag.

Therefore, the submission made by her counsel, before the learned Single

Judge, was contrary to the stand taken by the respondent and, therefore,

shoud not have been accepted. Moreover, as noted earlier, these were not

the chocolates which the respondent could have purchased or which an

outsider gifted to her, they being the chocolates meant for British

Airways and this was not the case of the respondent that the chocolates

were gifted to her by some employee of British Airways or a passenger

who had travelled on British Airways. Considering the stand taken by the

respondent, denying recovery of chocolates from her and in the absence

of her claiming that the chocolates were gifted to her by some one or

were purchased by her from the market, there was no requirement of

leading further evidence to prove theft of the chocolates recovered from

the bag of the respondent. In any case, the learned Single Judge,

exercising power under Article 226 of the Constitution of India could not

have gone into such disputed question of facts and taken it upon himself

to reappreciate the evidence, so as to exornerate the respondent.

7. The Labour Court, vide the impugned award dated 19.12.2006 had

directed the appellant to reconsider the penalty awarded to the respondent

and impose some penalty short of dismissal from service which might not

mean taking her back on duty. In compliance of the said award, the

appellant revised the penalty awarded to the respondent and substituted

the penalty of dismissal from service by penalty of discharging from

service with notice and paid one month's salary to the respondent in lieu

of notice. Since the penalty awarded by the appellant in compliance of

the award dated 19.12.2006 was not under challenge by the respondent in

appropriate proceedings, we cannot examine the legality or otherwise of

the said revised penalty.

8. For the reasons stated hereinabove, we are of the view that the

impugned order dated 5.3.2012 cannot be sustained. The appeal is,

therefore, allowed and the impugned order dated 5.3.2012 is hereby set

aside. In the facts and circumstances of the case, there shall be no orders

as to costs.

9. During the course of arguments, considering the fact that the

respondent had put in about 19 years of service and there was no other

previous charge of theft against her, we suggested that the appellant may

make a lump sum payment to the respondent in full and final satisfaction

of all her claims. The learned Senior Counsel appearing for the appellant

took instructions on the suggestion given by us and agreed to pay upto

Rs.5,00,000/- to the respondent in full and final settlement of all her

claims. However, this was not acceptable to the respondent. We,

therefore, while disposing of the appeal, direct that if the respondent so

decides, she can accept a sum of Rs.5,00,000/- from the appellant, in full

and final settlement of all her claims, within four weeks from today.

V.K.JAIN, J

CHIEF JUSTICE

MARCH 05, 2013 sn/rd/ks