Shafali R. Chopra vs Ifci Infrastructure Development ...
2019 Latest Caselaw 1588 Del

$~1
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Reserved on:       06.02.2019
                                       Pronounced on:     19.03.2019

+      W.P.(C) 4495/2016 & CM APPLN. 10462/2017
       SHAFALI R. CHOPRA                                  ..... Petitioner
                          Through:     Mr. Arunabh Chowdhury, Mr.Karma
                                       Dorjee, Mr. Vaibhav Tomar,
                                       Mr.Abhishek Roy and Ms.Shruti
                                       Choudhry, Advocates

                          versus

       IFCI INFRASTRUCTURE DEVELOPMENT LIMITED (IIDL) &
       ORS                                      ..... Respondents
                     Through: Mr. Rahul Narayanan, Adv. for R-1
                              Mr. Moazzam Khan, Mohammad
                              Kamran and Mr.Brijesh Kumar,
                              Advocates for R-2

       CORAM:
       HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                                   JUDGMENT

1. Vide the present petition, petitioner seeks direction thereby to quash

the orders dated 29.12.2016 and 05.02.2016 passed by the respondent No. 3.

Consequently, restrained the said respondent for taking any further steps in

terms of the orders mentioned above.

2. The brief facts of the case are that the petitioner is a widow and has

been in the business of hospitality for the past 29 years and has worked in

various capacities for reputable luxury business Hotels like the Oberois and

the Radisson. The Petitioner has been associated with Frasers Hospitality

Pvt. Ltd., a joint venture between Frasers Hospitality Pvt. Ltd. and IFCI

Infrastructure Development Limited (IIDL) since 03.11.2011, where she

joined as a Resident Manager for Fraser Suites New Delhi. The Respondent

No. 1 is a Government Company incorporated under Section 617 of the

Companies Act, 1956. The Respondent No. 2 is a company incorporated

under the laws of Singapore. The said Respondent is operating and

managing the Serviced Apartments Called "Frasers Suites, New Delhi"

commissioned by the Respondent No. 1 under the Management Agreement

dated 17.07.2009. Under the said Agreement, the Respondent No. 2 is the

sole and exclusive operator of the Serviced Apartments and has been

conferred uninterrupted and exclusive control of the operation, management,

direction and supervision of the said Serviced Apartments for an initial

period of 10 years commencing from the operation date i.e. 01.10.2011. The

terms and conditions of the Management Agreement dated 17.07.2009 is in

the nature of a joint venture between the Respondent No. 1 and the

Respondent No. 2 Company for operating and managing the Serviced

Apartments mentioned above. The Respondent No. 3 is Managing Director,

IFCI Infrastructure Development Limited and is mastermind of the whole

conspiracy hatched against the Petitioner in connivance and in complicity

with Respondent No. 4 and other officials of IIDL, with the sole purpose of

humiliating, defaming and removing the Petitioner from her position as the

General Manager of FSND. The Respondent No. 5 is the AVP (Legal) of the

Respondent No. 1 Company who was appointed as the Enquiry Officer to

conduct the proceedings against the Petitioner. The Respondent No. 5

directly reports to the Respondent No. 3 in her capacity as AVP (Legal). The

said Respondent No. 5 was privy to the allegations levelled against the

Petitioner from the very beginning and her advice was sought even before

filing of the Charge-Sheet. The said Respondent has conducted a sham

enquiry and acted under the dictates of the Respondent No. 3 and her

conduct was unbecoming of an Enquiry Officer. There are serious

allegations of malafide and abuse of the office by the Respondent Nos. 3, 4

& 5 and, therefore, the said respondents have been arraigned as party

Respondents in the present Petition.

3. Learned counsel on behalf of the petitioner submits that the terms and

conditions of the Management Agreement dated 17.07.2009 and particularly

Clause 5.1 thereof evidences that the Respondent No. 1 has engaged the

Respondent No. 2 as the sole and exclusive provider of the services during

the term and the sole and exclusive operator of the Serviced Apartments in

accordance with the terms of the Agreement. By virtue of Clause 5.3, the

Respondent No. 1 has conferred on the Respondent No. 2 herein "the

uninterrupted and exclusive control of the operation, direction, management

and supervision of the Serviced Apartments." Clause 5.5.1 confers the right

on the operator to manage and operate the Serviced Apartments in

accordance with the approved Annual Plan and "make decisions on matters

relating to personnel, including matters relating to Key Personnel, in

consultation with the owner." Under Clause 5.8, it is the Respondent No. 2

who has been conferred the right of selection, recommendation, nomination

and change in the General Manager of the Serviced Apartments. Clause 5.8

& 5.9 of the Management Agreement which are of some relevance are

extracted herein below:

"5.8 The Operator shall recommend the appointment of key employees in managerial and executive positions including the financial controller (" Key Personnel") to operate and manage the Serviced Apartments, and the

Parties shall mutually consult and agree on such appointments, provided that Operator shall have the right of selection, recommendation, nomination and change in the general manager of the Serviced Apartments, and the appointment and change of the general manager shall not be without taking the Owner into confidence. Any objections raised by the Owner in regard to any key personnel or their appointment shall be given complete weightage and consideration by the Operator. 5.9 All employees including Key Personnel shall be employed by the owner on terms as proposed by the Operator in consultation with the owner. The operator is entitled, but not obliged, to second any of its executive personnel to the Owner as the Key Personnel."

4. It is further submitted that in accordance with the Management

Agreement dated 17.07.2009, the Respondent No. 2 started its operations.

On 16.11.2011, the Petitioner was appointed as the Resident Manager

assigned to Frasers Suites, New Delhi w.e.f. 03.11.2011. The Petitioner was

appointed by the Respondent No.2 with the approval of the Respondent

No.1. vide "offer of Employment" dated 16.11.2011 which is annexed as

Annexure P-2. On 01.05.2012, the performance of the Petitioner was

reviewed by IIDL and as the Petitioner was working tirelessly to bring

FSND to new heights, she was awarded ₹1,50,000/- as Performance Linked

Incentive. On 22.05.2014, the Petitioner was promoted from her original

position as the Resident Manager to the post of General Manger, FSND with

an increase in her salary and others increments. However, there were other

certain disputes regarding the day to day operations and management of

FSND between the Respondent No.1 and the Respondent No.2, more

specifically with regard to the completion of FSND, which was delayed for

nearly 2 years. Moreover, there was some disagreement with regard to the

pay management and trademark license fees between IIDL and Frasers

Hospitality. Amongst many other daily disagreements between Frasers and

IIDL, IIDL had insisted that FSND increase the room tariffs by 10% but

Frasers Hospitality Pvt. Ltd. was not comfortable with the increase as they

felt that any increase would result in drop in the market share. Therefore,

when the Petitioner on the instruction of Frasers Hospitality refused to

increase the room rates, the Petitioner was humiliated by the Board of IIDL

and was even thrown out of the Board room by Mr. Anchal Kumar Gupta,

Vice Chairman, IFCI and the Respondent No.3. Accordingly, on 29.06.2015

a written complaint was filed by one Ms. Poonam Saini, an Employee of

FSND against Ms. Erum Khan (respondent no.4) for misbehaviour and for

abusing Ms. Poonam Saini. The petitioner in her capacity as the General

Manager and the overall incharge of FSND had intervened on receipt of the

said complaint against the respondent no.4. The petitioner had also

reprimanded her on numerous previous occasions too, whenever found

guilty of misbehaviour and for dereliction of her assigned duty. The

petitioner has been in hospitality service for more than 3 decades and has an

unblemished illustrious career. She had never used any unparliamentarily

language or displayed any unprofessional conduct while intervening and

action on the said complaint of Ms. Poonam Saini. The respondent no.4

instead of amending her unprofessional conduct, in criminal complicity with

Mr. Samik Das Gupta (respondent no.3) and other officials of IIDL used this

incident as a catalyst to illegally out the petitioner from her position as the

General Manager of FSND by levelling all sorts of false, slanderous,

malicious and unsubstantial charges against the petitioner. On 30.06.2015

and other dates, the respondent no.4 with a malicious intent and in

connivance and complicity with other employees of IIDL including the

respondent no.3 addressed numerous emails to the Shri Jayant Sinha,

Minister of Finance, MoS, Government of India levelling all kinds of

false/reckless allegations against the petitioner, including that of the

petitioner being a racist, with the sole purpose to illegally remove her from

her position. The true malicious intent of the respondent no.4 was got clear

when on 02.07.2015, she communicated a list of demands to the

Management through Mr. Sumit Tiwari, Assistant Manager, Reservation

Department. The demands therefore, in unequivocal terms demonstrate the

true nature of the conspiracy that has been masterminded and orchestrated

by the respondent no.3. On 10.07.2015, the petitioner was suspended from

her position as the General Manager, without affording her any opportunity

whatsoever to put forth her case. Along with the petitioner, four other

officials of FSND were also suspended and subsequently removed from

their positions.

5. Learned counsel for the petitioner further submits that the role of the

respondent no.3 being the master mind of the whole conspiracy hatched

against the petitioner is evident from the fact that on 11.07.2015, the

respondent nos. 3 and 4 with the purpose of intimidating and harassing the

petitioner sent unknown persons to the residence of the petitioner and on

failing to find her at residence, the said persons threatened petitioner‟s house

maid and thereafter, forcibly took photographs and videos of petitioner‟s

residence. The petitioner was compelled to file a complaint of the aforesaid

incident before the Nizamuddin Police Station. However respondent no.3 on

24.08.2015 issued a chargesheet against the petitioner, levelling nine

charges which are as under:

i. "As per the statement received from FSND, you and your family members have used salon services worth

₹1.25 lac without any payment. (As per the details attached.) ii. As per the statement received from front office department and other staff members, your family members like son, daughter-in-law, grandson, maid and daughter have stayed in the property last year in Room no. 109 and 110 from May 2014 to January 2015 without any payment.

iii. As per the statements received form HR, FSND you had deployed FSND staff at your residence for renovation works particularly Mr. Sanjay, Mr. Nasim, Mr. Suman, Ms. Monika Dagur and outsourced staff of Kintre contractor.

iv. As per the statement received form HR, FSND you had advised them to misrepresent the staff salary detail by showing 15% hike in the departmental report sought by IIDL.

v. As per the statement received form staff, you were receiving unaccounted cash generated from property services like rooms (particularly Mr. Sachin Chikkara and Mr. Javed), banquets (receipt of cash on Birthday party of Mr. Syed‟s son) and F&B services (cash generated from the biker group visiting the property for morning breakfast).

vi. Handing over unaccounted cash worth ₹2,38,410/-

to Mr. Kunal Agarwal, Deputy Manager-F&A.

vii. Scrap and discarded material from the property has been removed without any gate pass and sold on your behest without accounting for the proceeds.

viii. You were informed by Frasers Hospitality in the month of May 2014 about your promotion to General Manager post with a raise of ₹75,000/- pm. You instructed accounts department to enhance your

salary in the next month without the knowledge or consent of Head Office. The amount of increment was later returned by you due to lack of approval form head office. However, you started drawing ₹ 75,000/- in cash every month from unaccounted receipts.

ix. You had directed F&A department to reimburse your personal expenses using company‟s funds."

6. Further submitted, the chargesheet issued by the respondent no. 3

acting as the disciplinary authority on behalf of the respondent no.1 is ex

facie without jurisdiction as the petitioner was admittedly the employee of

the respondent no.2 herein and therefore, no chargesheet could have been

issued by the respondent no.1 unilaterally. That apart, the chargesheet

wrongly refers to the petitioner as Resident Manager whereas she was

promoted as the General Manager w.e.f. 01.01.2014. Along with the said

chargesheet, a two page document was annexed which purportedly shows

the facilities/services availed by the petitioner and her family members on

various dates ranging from 12.01.2013 to 23.06.2015. On 15.09.2015, the

petitioner submitted a detailed reply refuting and countering each and every

allegation levelled by the respondent no.3. The petitioner in her reply had

levelled serious allegations against the respondent no.3 of being the

mastermind of the entire episode against her and had caste her doubts

against the Departmental proceedings of being a farce, as the respondent

no.3 was at the helm of the said proceedings thereby, acting as the Judge,

Jury and Executioner. Therefore, requested the respondent no.3 to rescue

himself from the said Enquiry proceeding and thereafter, to constitute a fair,

independent and impartial enquiry commission. On 29.09.2015, Ms. Neha

Malik, Senior Manager, IIDL addressed a letter to the petitioner stating that

the reply had been placed before the disciplinary authority and the same was

not accepted. Moreover, it was disclosed that Ms. Neha Kapur, AVP-Legal

(respondent no.5) had been appointed as the enquiry officer and Ms. Mala

Sharma, Executive Assistant as the presenting officer. On the very next day

when respondent no.5 was appointed as the enquiry officer, the respondent

no.1 issued an advertisement in a leading newspaper namely The Times of

India for filing up the post of the General Manager, FSND. The respondent

no.5 on her appointment as the Enquiry officer sent a letter dated 07.10.2015

calling upon the petitioner to attend the enquiry proceedings on 16.10.2015.

The petitioner sent a reply dated 14.10.2015 stating her strong objections to

the appointment of Ms. Mala Sharma as the presenting officer and of the

respondent no.5 as the enquiry officer, as these officials report directly to the

respondent no.3, the mastermind of the whole conspiracy. The petitioner

vide the same letter requested the respondent no.5 to provide her with all the

necessary and relevant documents that were sought to be relied during the

enquiry proceedings. The petitioner on a later date came to know that a

police complaint was filed by the respondent no.3 against the petitioner

before the Mayur Vihar Police Station which was registered as FIR No.

0671/2015 on 13.10.2015, alleging all kinds of reckless and baseless

allegations against the petitioner. The respondent no.5 in her reply dated

29.09.2015 to the letter of the petitioner dated 14.10.2015 stated that the list

of documents have already been supplied to the petitioner and the

documents would be shown at the time of the enquiry proceedings which

was scheduled to be held on 16.10.2015 at 10 am. The petitioner in her letter

dated 15.10.2015 again reiterated her stand for constitution of an

independent impartial enquiry committee as the petitioner had strong

reasonable apprehension of bias against the respondent no.5.

7. Learned counsel for the petitioner further submits that the manner in

which the enquiry was being conducted gave rise to justifiable doubts in the

minds of the petitioner and she therefore, sought assistance of an Advocate

to appear in the enquiry proceedings. However, the respondent no.5 denied

her assistance of an advocate from attending the enquiry proceedings. As the

documents provided by the presenting officer were incomplete, the

petitioner on 27.10.2015 sent an email to the respondent no.5 drawing her

attention to the documents and evidences alongwith the CCTV footages

which were not provided to her and for the supply of the same at the earliest.

The respondent no.5 vide her email dated 02.11.2015 replied to the request

of the petitioner by stating that the petitioner may see the CCTV footage at

their office during the enquiry proceedings and that the other documents

cannot be provided. The respondent no.3 in his capacity as the Disciplinary

authority issued a letter dated 03.11.2015 to the petitioner directing her to

appear before the enquiry officer on 19.11.2015, failing which the

disciplinary authority would take Ex-parte decision against the petitioner.

The petitioner in her reply to the letter dated 03.11.2015 issued by the

respondent no.3 again requested the respondents to provide the petitioner

with the complete set of documents/statement of witnesses before the next

date of enquiry and also calling upon the respondent no.3 to rescue himself

from being at the helm of the enquiry proceedings and to thereof, constitute

an independent and impartial enquiry committee consisting of members with

impeccable and unblemished reputation and character.

8. Further submitted, on 19.11.2015, the petitioner attended the enquiry

proceedings wherein she again categorically requested the respondent no.5

to provide her with all the documents, CCTV footages, log books, rules and

regulations and other documents. On 22.11.2015 also, the petitioner

addressed a letter to the respondent no.5 and the presenting officer,

requesting to provide with all the documents mentioned above. The said

letter was replied by respondent no.3 vide letter dated 23.11.2015 stating

that all the necessary documents have already been provided and further

directed the petitioner to appear for enquiry on 24.11.2015, failing which ex-

parte order would be passed. Thereafter, nothing was heard from the

respondent no.5. The petitioner was not informed as to whether any enquiry

report was submitted nor was the petitioner furnished with any such enquiry

report by the respondents. However, on 29.12.2015, respondent no.3 passed

an ex parte order against the petitioner which is annexed as Annexure P-28.

The respondent no.3 at paragraph 4 had stated that he has gone through the

reports of investigation conducted by FSND and also the forensic auditors

and have found irregularities in the operations in which the petitioner was

involved. Furthermore, the respondent no.3 on the basis of such findings has

imposed a cash penalty of ₹18,00,000/- being 12 months of the petitioner‟s

salary in addition to termination from service. The order also called upon

the petitioner to appear in person before the respondent no.3 on 04.01.2016

to submit comments in her defence, failing which, a final view of the

charges would be taken. Thereafter vide letter dated 01.01.2016 addressed to

the petitioner postponed the date from 04.01.2016 to 07.01.2016 for

appearance. The petitioner vide letter dated 07.01.2016 communicated her

displeasure as to how the whole enquiry proceedings has been conducted in

a biased and prejudicial manner. The petitioner in her reply also highlighted

all the instances to prove as to how the inquiry proceedings was a sham and

was being conducted under the guidance and supervision of Mr.Samik Das

Gupta. On 05.02.2016, respondent no.3 vide his final order confirmed his

findings dated 29.12.2015 thereby terminating the services of the petitioner

and further imposing a cash penalty of ₹18,00,000 being petitioner‟s 12

months‟ salary.

9. Learned counsel for the petitioner while concluding his arguments

submitted that there was a bias attitude of the respondents by not furnishing

complete set of documents, the inquiry reports, CCTV footages and not

giving her proper time to make representation against the inquiry report;

thus, the respondents have violated the principles of natural justice and fair

chance to defend in the departmental inquiry. Thus, the present petition is

liable to be allowed.

10. On the other hand, learned counsel appearing on behalf of respondent

No.1 submits that at the relevant time the Petitioner was General Manager at

the Serviced Apartments, was suspended from her position with the

Respondent No.1 Company on the 10.07.2015 with immediate effect. On

investigation, certain records maintained by the staff at the hotel such as

handover register from May 2014 to June 2015 maintained by Room

Services personnel, computer records for the period June 2015, and night car

register from 24.02.2015 to 09.07.2015, were collected which showed that

the rooms which were to be rented out for cash payment were shown vacant

in the system, however, the room service staff was asked to clean these

rooms and they noted these rooms in their register as "physically occupied".

Similarly the night car register maintains a record of all vehicles entering

and leaving the Hotel and it shows frequent visit by the petitioner‟s son &

daughter-in-law in their car with the car staying overnight. The son of the

Petitioner stayed in Room No. 110 for several months and without paying

any rent, as testified by several employees, however, Room No. 110 was

shown „out of service‟ for that period. Thus, the Petitioner has misused the

hotel facilities, services, vehicles, rooms and staff. Further, no bills were

raised for Food & Beverages consumption of her family. The Petitioner and

her family had used salon and spa services worth ₹1.25 lacs without any

payment and the same was testified by the Spa Manager, FSND who

confirmed that the Petitioner‟s family have used the spa facility and bills

were never raised. The CCTV footage clearly shows them entering and

leaving the spa an hour and a half later. As per her contract, the Petitioner

was entitled to stay in a studio room but her family was not entitled to any

complimentary stays unless such stay was in the unit allotted to the

Petitioner. However, it was also found that Unit 109 & 110 were being used

by the Petitioner‟s family for more than one year and these rooms were at

times placed out of order but occupied by the Petitioner‟s family. During

investigation it was disclosed that when food & beverages was consumed by

the Petitioner and her family, no bill was ever raised.

11. It is further submitted by the counsel of respondent No.1 that in the

month of May, 2014, the Petitioner instructed the Accounts Department to

enhance her salary in the next month without the knowledge and consent of

the Respondent No.1. The Respondent No.2 was informed by the

Respondent No.1 that they were not made aware of the Petitioner‟s

promotion & salary increment that took place in 2014 and had not received

the letter sent by Respondent No. 2 stating the change in the title from

Resident Manager to General Manager and salary increment of ₹75,000/-.

However, later the petitioner herself told the department concerned that the

Respondent No. 1 had not approved her promotion & salary increment and

therefore requested to reverse the amount in her July salary. However, she

kept on receiving the salary amounting to ₹75,000/- in cash from July, 2014

onwards. Respondent No. 1 also sent an email requesting an explanation

from the Petitioner as to why she was using General Manager title when

IIDL records showed her title as Resident Manager to which the Petitioner

replied that her promotion was approved by Respondent No. 2 in June 2014.

On 13.07.2015, an amount of ₹2,38,410/- which was part of unaccounted

proceeds of hotel rooms and banquets was handed over to the Respondent

No. 1. As per the statement of the employees the said amount in cash has

come from the rental amount received for banquets and rooms without

entering into the system which was kept with the Finance Controller on the

instructions of the Petitioner. The Petitioner has played huge fraud on

Respondent No. 1 and has misused her position and was involved in the

illegal and unethical activities in the hotel which has adversely affected the

image of the organization and thereby caused huge financial loss &

reputational losses to Respondent No. 1. Accordingly, the disciplinary

proceedings were initiated against the Petitioner. The Petitioner was

terminated from her employment by a letter dated 05.02.2016. It is further

submitted that independent investigation reports confirmed that the

Petitioner was indeed guilty of several offences. The Enquiry report itself

takes note of the Investigation Report undertaken by the Respondent No. 2

from the 12th to the 17th July, 2015. It can be clearly seen that the

independent investigations of Respondent No.2, as submitted to Respondent

No. 1 also confirm that the Petitioner has been guilty of several acts of

omission and commission for which disciplinary proceedings were initiated.

The Enquiry Report and all documents relating to the enquiry were provided

to her on 16.10.2015 and 28.10.2015. Further, the Petitioner was also

provided the option of viewing certain CCTV footage regarding the charges

against her at the enquiry, and was also offered the assistance of any other

co-employee during the hearing.

12. Learned counsel further submits that the petitioner‟s guilt with regard

to various acts of embezzlement and malfeasance had stood independently

established by atleast two independent organisations, i.e. the Respondent

No. 2 herein and the independent auditor. Even after the Enquiry report as

well as the independent auditor‟s report was submitted, on the 07.01.2016,

the Petitioner was given a further opportunity to rebut the charges against

her. However, on baseless pretexts, the Petitioner has not actually replied to

any of the charges levelled against her.

13. Learned counsel appearing on behalf of respondent No. 1 further

submitted that the relevant findings of the investigation conducted by the

respondent No. 3 are as under:-

"During our investigation, we asked Erum about the list of demands she had apparently made via Sumit Tiwari (Asst. Reservation Manager) in regards to promotion, incentive for making bookings, and written apology from a staff (Poonam Saini) for an issue they had.

Erum stated that Sumit had approached her and wanted to discuss what her misgivings were and help to address them. Sumit had taken notes of the conversation. The notes were shown to Kamlesh and Shafali but it was misinterpreted to be demands made. Copies of the notes taken by Sumit are kept on file.

When asked about this incident, Shafali stated that Sumit came to her and said these are Erum‟s demands and if they are not met, she will make further allegations against Shafali to the IIDL MD. Shafali right away sent an email with the demands to Fabien and IIDL. We were informed that Erum‟s employee file was tampered with under instruction of Shafali. After investigation further we found that backdated verbal warning letters were created and filed in Erum‟s personal folder. Sumit, Erum‟s superior mentioned that he had

been approached by Syed to proceed to Tanpreet‟s office where he was asked to write down the verbal warning letters against Erum. Sumit printed out all the guest complaints about Erum and proceeded to prepare the backdated verbal warning letters in Tanpreet‟s office. Syed was present during this time."

14. Learned counsel for the respondent No. 2 submits that the petitioner

has filed the present petition against respondent Nos. 1 to 5 for seeking relief

in the nature of mandamus inter alia, (1) quash and set aside the orders

passed by respondent No. 3 dated 29.12.2015 and 02.02.2016, (2) restrain

respondent No. 1, its officers/ agent from acting upon the disciplinary orders

and (3) imposed explanatory damages upon respondents for mental

harassment and humiliation caused to petitioner.

15. He further submits that scope of writ of mandamus is limited to

enforcement of a public duty. It is the nature of duty to be enforced which

determines whether the writ of mandamus would lie against a particular

authority/person/ entity. The duty cast on the authority/person/entity may

either be statutory or otherwise but nevertheless, there must be the public

law element in such action. In the case of K. K. Saksena v. International

Commission on Irrigation and Drainage & Ors.: (2015) 4 SCC 670 the

Hon‟ble Supreme Court has held as under:-

"43. What follows from a minute and careful reading of

the aforesaid judgments of this Court is that if a person or authority is a „State‟ within the meaning of Article 12 of the Constitution, admittedly a writ petition Under Article 226 would lie against such a person or body. However, we may add that even in such cases writ would not lie to enforce private law rights. There are catena of judgments on this aspect and it is not necessary to refer to those judgements as that is the basic principle of judicial review of an action under the administrative law. Reason is obvious. Private law is that part of a legal system which is a part of Common Law that involves relationships between individuals, such as law of contract or torts. Therefore, even if writ petition would be maintainable against an authority, which is „State‟ Under Article 12 of the Constitution, before issuing any writ, particularly writ of mandamus, the Court has to satisfy that action of such an authority, which is challenged, is in the domain of public law as distinguished from private law."

16. The Hon‟ble Supreme Court, in K.K. Saksena Case further held:

"There is yet another very significant aspect which needs to be highlighted at this juncture. Even if a body performing public duty is amenable to writ jurisdiction, all its decision are not subject to judicial review, as already pointed out above. Only those decisions which have public element therein can be judicially reviewed under writ jurisdiction. In the Praga Tools Corporation v. Shri C.A. Imanual and Ors. (1969) 1 SCC 585, as already discussed above, this Court held that the action challenged did not have public element and writ of mandamus could not be issued as the action was essentially of a private character. That was a case where the concerned employee was seeking reinstatement to an office."

17. Counsel further submitted that in order to obtain a relief in the nature

of writ of mandamus the Petitioner has to satisfy that it is invoking the

jurisdiction of this Court to enforce a public duty. The Petitioner is an

employee of Respondent No.1. The relationship of Petitioner with

Respondent No. 1 is that of an employer-employee which is governed by

the terms of the Offer Letter dated 16.11.2011. The dispute agitated by the

Petitioner against Respondents falls, strictly within the purview of the

aforesaid offer Letter. The present dispute is private in nature and hence

outside the purview of Article 226 of the Constitution of India. In the case

of Joshi Technologies International Inc. V. Union of India: (2015) 7

SCC 728, the Hon‟ble Supreme Court has, inter-alia observed:

"If the contract between private party and the State/instrumentality and/or agency of State is under the realm of a private law and there is no element of public law, the normal course for the aggrieved party, is to invoke the remedies provided under ordinary civil law rather than approaching the High Court Under Article 226 of the Constitutional of India and invoking its extraordinary jurisdiction."

18. The dispute agitated by the Petitioner in the present case is with

respect to her termination from employment. It is submitted that such

disputes fall purely within the domain of private law as held in case of

Praga Tools Corporation v. Shri C.A. Imanual and Ors.: (1969) 1 SCC

585, the Hon‟ble Supreme Court has held:

"In our view the High Court was correct in holding that the writ petition filed under Article 226 claiming against the company mandamus or an order in the nature of mandamus was misconceived and not maintainable. The writ obviously was claimed against the company and not against the conciliation officer in respect of any public or statutory duty imposed on him by the Act as it was not be but the company who sought to implement the impugned agreement. No doubt, Article 226 provides that every High Court shall have power to issue to any person or authority orders and writs including writs in the nature of habeas corpus, mandamus etc., or any of them for the enforcement of any of the rights conferred by Part III of the Constitution and for any other purpose. But it is well understood that a mandamus lies to secure the performance of a public or statutory duty in the performance of which the one who applies for it has a sufficient legal interest. Thus, an application for mandamus will not lie for an order of restatement to an office which is essentially of a private character nor can such an application be maintained to secure performance of obligations owed by a company towards its workmen or to resolve any private dispute...""

19. It is further submitted that Respondent No. 2 is a private company

registered under the laws of Singapore. It has no public duty and discharges

no public function. It is not set up by the Centre or State Government,

therefore, it is not answerable for its activities to the Centre or State

Government. Though, Respondent No.2, cannot be regarded as an

"authority" or a "person" for the purpose of Article 226 and therefore, is

not amenable to the writ jurisdiction of this Court. Since Respondent No.2,

is not amenable to the writ jurisdiction under Article 226, no relief against

respondent No. 2 can be granted by this Court, thus, the respondent No. 2

has been wrongly impleaded as a party by the petitioner. Respondent No. 2

is neither a "necessary" nor a "proper" party. Moreover, there is no relief

claimed against Respondent No. 2 in the present proceedings. The

Petitioner has challenged the Disciplinary Proceedings Orders passed by

Respondent No. 1. Enquiry proceedings were conducted by officials of

Respondent No. 1. All communications regarding the suspension /

termination of employment of the Petitioner was sent by Respondent No. 1

and its officials. Furthermore, Respondent No. 2 was not involved in

disciplinary proceedings. Moreover, there is no allegations of any wrong-

doing on part of Respondent No. 2 in the present Petition. None of the

documents placed on record by the Petitioner demonstrate any wrong-doing

by Respondent No. 2 in process of Petitioner‟s suspension / termination

from the employment. It is established from the record, no official of

Respondent No. 2 was involved in the enquiry proceedings of the Petitioner

which resulted in her suspensions and ultimately, termination. The

petitioner, therefore, does not have any right to relief against Respondent

No. 2 in the present proceedings. The Petitioner has sought reliefs in the

nature of writ effectively against Respondent No. 1, its officers / agents

including Respondent Nos. 3 to 5. Thus, the present petition deserves to be

dismissed against respondent no.2.

20. I have heard learned counsel for the parties.

21. The petitioner was appointed by respondent no.1 and continued in

employment of the said respondent even after amendment agreement dated

17.07.2009. If any promotion or salary has been increased by respondent

no.2, that will not change the service conditions of the petitioner.

22. In the present petition, respondent no.2 is a private company

registered under the laws of Singapore. It has no public duty and discharges

no public function. The said respondent is not set up by the Centre or State

Government. The chargesheet was issued by respondent no.1, inquiry was

directed to be conducted by respondent no.1 and accordingly, punishment

imposed by disciplinary authority of respondent no.1, therefore, respondent

no.2 is neither a necessary party nor a proper party. Moreover, there is no

relief claim against the respondent no.2 in the present proceedings. The

petitioner has challenged the disciplinary proceedings order passed by

respondent no.1. All communications regarding suspension/termination of

employment of the petitioner was sent by respondent no. 1 and its officials.

Furthermore, Respondent No. 2 was not involved in the disciplinary

proceedings. There are no allegations of any wrong-doing on part of

Respondent No. 2 in the present Petition. No official of Respondent No. 2

was involved in the enquiry proceedings which resulted in her suspensions

and ultimately, termination.

23. Accordingly, the present petition is dismissed qua respondent no.2 in

view of above discussion and settled position of law.

24. In case of Sub-Divisional Officer, Konch vs. Maharaj Singh: 2003

(9) SCC 191 whereby the Supreme Court has held that the Court would not

be justified in reappreciating the evidence adduced in a disciplinary

proceedings to alter the findings of the enquiring authority.

25. In case of State of UP vs. Sheo Shanker Lal Srivastava & Ors: 2006

(3) SCC 276 whereby the Hon‟ble Supreme Court has held that the doctrine

of proportionality can be invoked only under certain situations. The Court

shall be very slow in interfering with the quantum of punishment, unless it is

found to be shocking to one‟s conscious.

26. In B.C. Chaturvedi vs. Union of India & Ors.: (1995) 6 SCC

whereby it is held that a judicial review is not an appeal from a decision but

a review of the manner in which the decision is made. The power of

judicial review is meant to ensure that the individual receives fair treatment

and not to ensure that the conclusion which the authority reaches is

necessarily correct in the eye of the Court. The Court/Tribunal may

interfere where the authority held the proceedings against the delinquent

officer in a manner inconsistent with the rules prescribing the mode of

inquiry or where the conclusion or finding reached by the disciplinary

authority is based on no evidence.

27. From the record of the file, it reveals that the inquiry report records

were provided to the petitioner on 16.10.2015 and 28.10.2015. The

petitioner was also provided the option of viewing certain CCTV footage

regarding the charges against her at the enquiry, and was also offered the

assistance of any other co-employee during the hearing.

28. The petitioner has also been provided with all documentation relevant

to the charges against her. Even the Enquiry report as well as the

independent auditor‟s report was submitted on 07.01.2016 and the petitioner

was given a further opportunity to rebut the charges against her. However,

the petitioner has not actually replied to any of the charges levelled against

her.

29. The disciplinary authority not only dismissed the petitioner from

service but also imposed a cash penalty of ₹ 18 lacs being 12 months of the

petitioner‟s salary. The allegations against the petitioner are that certain

records maintained by the staff at the hotel such as handover registers from

May 2014 to June 2015 maintained by Room Services personnel, computer

records for the period June 2015, and night car register from 24.02.2015 to

09.07.2015, showed that the rooms which were to be rented out for cash

payment were shown vacant in the system, however, the room service staff

was asked to clean these rooms and they noted these rooms in their register

as "physically occupied". Similarly, the night car register maintains a

record of all vehicles entering and leaving the Hotel and it shows frequent

visit by the petitioner‟s son & daughter-in-law in their car with the car

staying overnight. The son of the petitioner stayed in Room No. 110 for

several months and without paying any rent, as testified by several

employees, however, Room No. 110 was shown „out of service‟ for that

period. In addition to above, no bills were raised for Food & Beverages

consumed by the family of the petitioner. The petitioner and her family had

used salon and spa services worth ₹ 1.25 lacs without any payment. As per

her contract, the petitioner was entitled to stay in a studio room but her

family was not entitled to any complimentary stays unless such stay was in

the unit allotted to the petitioner. However, it is also found that Unit 109 &

110 were being used by the petitioner‟s family for more than one year and

these rooms were at times placed out of order but occupied by the

petitioner‟s family.

30. Accordingly, by calculating the loss damages accrued to the

respondent nos.1 & 2, the disciplinary authority of respondent no.1 has

slapped with an amount of ₹ 18 lacs as cash penalty being 12 months of

petitioner‟s salary.

31. It is pertinent to mention here that during the arguments of the

present case, I for my satisfaction played CD which is on record, on the

desktop of the court and found that no activities were there. As per the

record of the respondent nos.1 & 2 is concerned, it is not properly

quantified that to what amount the petitioner has caused loss and to what

extent. Moreover, no such charge was there upon the petitioner, therefore,

she has no opportunity to defend the same during inquiry. Even otherwise,

if any loss is caused to the respondent no.2 by the petitioner who is an

employee of respondent no.1, the respondents may avail a proper remedy

under the civil law where evidence can be led from both sides.

32. In departmental proceedings, strict proof is not required. It is based

on the probability. There are allegations against the petitioner, accordingly,

departmental proceedings were initiated. Proper opportunity to defend has

been given and thereafter, the order of termination was passed. There is no

violation of natural justice. Therefore, no interference is required as the

termination order is concerned.

33. In view of above discussion and settled law, I hereby while

maintaining order of termination, set aside the impugned order to the extent

of cash penalty and accordingly, the present petition is partly allowed.

CM APPL. No. 10462/2017

34. In view of the order passed in the present writ petition, the application

has been rendered infructuous and is accordingly, disposed of.

(SURESH KUMAR KAIT) JUDGE MARCH 19, 2019 ab/rd