Mohan Lal vs Hotel Marina
2013 Latest Caselaw 4883 Del

$~16

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      W.P.(C) 2939/2008
                                             Decided on 24th October, 2013


       MOHAN LAL                                         ..... Petitioner

                         Through      : Mr. Anuj Sharma, Adv.

                         Versus

       HOTEL MARINA                                      ..... Respondent

                         Through      : Mr. Alok Bhasin, Adv.



CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK

A.K. PATHAK, J. (ORAL)

1 Petitioner was working with the respondent as a "Waiter". One

foreign guest Mr. Mathew stayed in the hotel in Room No. 224 on 3 rd and 4th

January, 1994. When he was checking out, Front Office Manager Mr. R.K.

Dhar asked him to clear his bills regarding tea and drinks along with the

room tariff at which Mr. Mathew became angry and said that he had already

paid cash in respect of bills to the Waiter, who had served him tea and

drinks. Executive Manager Ms. Nalini Malhotra was informed and she also

came there. Mr. Mathew told her same version. He stuck to his stand that

he had paid money to the Waiter(petitioner).

2. Charge-sheet was served on the petitioner regarding this incident as

he was on duty of room service. Respondent held a domestic enquiry

thereafter. Petitioner participated in the enquiry conducted by the Enquiry

Officer. Respondent examined Ms. Nalini Malhotra, Executive Manager as

MW1, Mr. R.K. Dhar, Front Office Manager as MW2 and Mr. S.K. Panda,

Assistant Manager (F & B) as MW3. MW3 deposed that petitioner was on

room service duty on that day and had served tea and drinks in Room No.

224. MW1 and MW2 categorically deposed that foreign guest had

complained to them that he had already paid the bill to the Waiter besides

signing the same. Petitioner had obtained his signature on the bill.

Witnesses were cross-examined by the Authorised Representative of the

petitioner but their statements remained unshattered. Upon scrutiny of

evidence adduced by the parties, Enquiry Officer concluded that charge

against the petitioner was duly proved. On the basis of enquiry report

management - respondent discharged the petitioner from service vide letter

dated 12th December, 1995 Ex. WW1/M6, relevant portion whereof reads as

under:

"The charges found proved against you are extremely grave and the same merit your dismissal from service as the management has lost confidence in you. In the event of your dismissal from service you will also forfeit your right to receive gratuity and payment of bonus due, if any.

As a very special case, but without creating any precedent, the management has decided not to inflict the extreme punishment of dismissal and instead is taking a lenient view of the matter in order to soften the rigorous of your termination of service, you are hereby discharged from service. You will be paid one month's salary in lieu of one month's notice and 15 days wages as retrenchment compensation for each completed year of service in addition to the legal dues payable to you. Enclosed please find our two cheques bearing nos.051992 and 051993 both dated 12.12.95drawn on Allahabad Bank, Industrial Finance Branch, New Delhi for `8716/- and `13090/85+Total `21,806.85 (Rupees twenty one thousand eight hundred six and paise eighty five only) as per details given below:

              Date of joining           27.07.1987

              HRA                       `117.00

              Conv.                     `94.00



                                        Total `211.00



               1.    Suspension allowance @75% for     `792.30
                     12 days of December
               2.    Encashment of 18 days Un-         `1637.40
                     availed P.L.upto 5.1.94 `2729
               3.    One month salary in lieu of       `2729.00
                     notice pay
               4.    Retrenchment compensation @       `8187.00
                     15 days for 6 total completed
                     years service                     `13,345.70

                                                   `254.85
                     Less: ESI on 1 `11.88 above @
                     1.5%                          `13,090.85

                     Less: EPF on 1&2 `243.00
                     above
               5.    Gratuity for 6 years 5 months & `8,716/-
                     10 days say 6 years @ `2518/-
                     per month                       `21,806.85

                     `2729/-(-)HRA
                     `117/- & Conv.
                     `94
                     `211
                     `2513/-x6x25

3. Petitioner raised an industrial dispute regarding his termination which

was referred to Labour Court No. XXI, Delhi for adjudication in the

following terms:

"1. Whether the enquiry was not conducted according to the principles of natural justice? If so, its effect?

2. As per terms of reference."

4. Parties were afforded opportunity to lead evidence. Upon scrutiny of

evidence adduced by the parties, Industrial Adjudicator vide order dated 23 rd

February, 2004 has concluded that enquiry was held in a fair and proper

manner, subsequently, vide Award dated 27th November, 2007 issue no. 2

has been decided in favour of management. Industrial Adjudicator has held

that misappropriation of amount by the petitioner is a serious misconduct on

his part as such the punishment was not disproportionate to his misconduct.

5. That is how, petitioner is before this Court by way of present writ

petition under Article 226 of the Constitution of India.

6. Learned counsel for the petitioner has vehemently contended that Mr.

Mathew was not examined during the enquiry, thus, enquiry is vitiated. In

absence of his statement coupled with the fact that Mr. Mathew had not

made a written complaint incident remained unproved. In nutshell, his case

is that report of Enquiry Officer is based on no evidence and is perverse.

Reliance has been placed on Commissioner of Police, Delhi & Ors. vs. Jai

Bhagwan, 179 (2011) DLT 578 SC. His next contention is that petitioner

was retrenched by way of punishment, which is invalid in view of Section

2(oo) of the Industrial Disputes Act, 1947 ("the Act" for short).

7. Per contra, learned counsel for the respondent has vehemently

contended that it was not necessary to examine the complainant in respect of

the enquiry being conducted against the petitioner regarding

misappropriation of only `153/-. No law mandates that a written complaint

is mandatory. He further contends that three witnesses were examined by

the respondent. MW1 and MW2 are the senior Officers of the respondent

and have deposed against the petitioner. Mr. Mathew had made a complaint

to them. Non-examination of Mr. Mathew, thus, was not fatal, inasmuch as

it cannot be said that enquiry report was based on no evidence. Findings of

fact were returned by the Enquiry Officer on the basis of statements of MW1

to MW3, whose testimony had remained unshattered in their cross-

examinations. Labour Court or Industrial Tribunal otherwise has no power

to sift and weigh the evidence recorded during the enquiry threadbare

independently to take a different view than what has been taken by the

Enquiry Officer as if hearing an appeal. Evidence cannot be re-appreciated

by the Industrial Adjudicator or Labour Court and for that matter even by

this Court in exercise of its power of judicial review under Article 226 of the

Constitution of India. What was required to be seen by the Industrial

Adjudicator as to whether enquiry was conducted in a fair and proper

manner and by following the principles of natural justice. As regards

second contention is concerned, he has contended that petitioner was

discharged from service and not retrenched. Management took a lenient

view and paid him amounts equivalent to retrenchment compensation but

that by itself would not make much difference. He has placed reliance on

State of Haryana and Another vs. Rattan Singh, 1982 1 LLJ 46, J.D. Jain vs.

Management of State Bank of India, 1982 (1) LLJ 54 and I.T.D.C. (Ashoka

Hotel Unit) vs. Ram Kumar, 2002 (97) DLT 184.

8. I have considered the rival contentions of the parties and perused the

judgments relied upon by the learned counsels. In Ashoka Hotel (supra) a

Single Judge of this Court has held that non-examination of the guest, a

foreign national, during the enquiry cannot, in any manner, be either fatal to

the enquiry or said to dilute the same. It would almost be impossible and

impractical to expect that the guest a foreign national who suffered a theft of

a sum of `150/- should be summoned or produced during the enquiry. In

Rattan Singh (supra) it has been held that non-recording of statements of

passengers would not be fatal. In J.D. Jain (supra) it has been held that no

rule of law enjoins that the complaint has to be in writing. The judgment

relied upon by the petitioner is in the context of different facts, inasmuch as

in the said case even the person to whom the complainant had made

complaint regarding payment of bribe was not produced in the witness box.

Cumulative effect of shortcomings in the entire investigation and enquiry

was considered to disbelieve the department's version. It was not a case of

mere non-production of complainant. In this case, MW1 and MW2 had

been produced during the enquiry. MW1 Ms. Nalini Malhotra, Executive

Manager and MW2 Mr. R.K. Dhar, Front Office Manager had categorically

deposed that foreign guest had emphatically told that he had paid cash to the

petitioner to clear the bill who had also taken his signature on the bill.

Persons, to whom Mr. Mathew had made the complaint, had been produced

during the enquiry. Thus, non-examination of Mr. Mathew is not fatal in the

facts of this case. It cannot be said that enquiry report is based on no

evidence. As regards contention of petitioner that statement of Mr. Mathew

was not recorded, the same also has no force. There is no law that such a

complaint has to be taken in writing, more particularly in the facts of this

case, when Mr. Mathew was checking out the hotel to leave Delhi. There is

no gainsaying that Labour court or Industrial Tribunal has not to evaluate

the evidence recorded during the enquiry to take an independent view. If the

view taken by the Enquiry Officer is based on some evidence it cannot be

interfered by re-appreciating such evidence. If there is violation of

principles of natural justice and conclusions are based on no evidence only

then interference is warranted.

9. Now coming to second contention, a perusal of order makes it clear

that it is an order of discharge by way of punishment. A wholistic reading

of order shows that it is an order of discharge and not of retrenchment. A

lenient and humanitarian view was taken by the respondent in order to

accord monetary benefits equivalent to retrenchment compensation and

notice pay to petitioner at the time of his discharge which act of respondent

by itself would not attract the Section 2(oo) of the Act.

10. For the foregoing reasons, writ petition is dismissed.

A.K. PATHAK, J.

OCTOBER 24, 2013 rb