I.T.D.C. Ltd. vs Sh. S.K. Roy And Ors. on 12 March, 2007

Delhi High Court
I.T.D.C. Ltd. vs Sh. S.K. Roy And Ors. on 12 March, 2007
Author: H Kohli
Bench: H Kohli


JUDGMENT

Hima Kohli, J.

1. By this writ petition, the petitioner/management seeks to challenge the award dated 1st July, 1999, passed by the Presiding Officer, Industrial Tribunal, respondent No. 2 herein, wherein it was held that the termination of the respondent No. 1 workman was illegal and/or unjustified and he was held entitled to be reinstated in service with all consequential benefits.

2. Facts necessary for disposing of the present petition are as follows:

The petitioner is engaged in Hotel Business and the respondent No. 1 was employed with the petitioner as Front Office Assistant (Grade V), with effect from 2nd September, 1983. It is alleged by the petitioner that on 27th May, 1986, when the respondent No. 1. was in the morning shift duty, one of the guests staying at the petitioner’s hotel asked him to arrange an Ashoka Travels and Tours car for him. The respondent No. 1 took Rs. 450/- from the customer and arranged a car from M/s. H.C. taxi Service, and paid to the driver only Rs. 400/-, and the driver of the said car asked for the remaining Rs.50 /- from the customer. Allegedly, the customer got very upset with the abovementioned conduct of the respondent No. 1 and filed a written complaint against him with the petitioner. The petitioner alleged that the remaining Rs. 50/- were pocketed by the respondent No. 1 and in view of the said misconduct, the respondent No. 1 was put under suspension vide letter dated 29th May, 1986. Thereafter, the respondent No. 1 was issued a charge-sheet dated 12th June, 1986, wherein he was charged for various misconducts including fraud, misappropriation, dishonesty, corrupt practices and indiscipline. This was followed by an inquiry, wherein the respondent No. 1 was found guilty of all the charges leveled against him and a second show-cause notice was issued to him calling upon him to explain as to why his services be not terminated. After considering the reply to the show-cause, his services were terminated vide letter dated 3rd August, 1987.

3. Subsequent to this, the respondent No. 1 raised an industrial dispute. The appropriate Government made the following reference for adjudication to the Presiding Officer, Industrial Tribunal:

Whether the termination of the services of Sh.S.K.Roy and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?

4. Vide order dated 24th March, 1994, following preliminary issue was framed:

Whether fair and just enquiry was held?

5. After recording evidence, and hearing both the parties, the learned Presiding Officer, Industrial Tribunal held that the termination of the respondent No. 1. was illegal and/or unjustified and granted to the respondent No. 1. the relief of reinstatement in service with all consequential benefits. The said award has been assailed by the petitioner in the present proceedings.

6. During the course of arguments, the learned Counsel for the petitioner sought to point out various anomalies in the impugned award. It was submitted that the findings of the Industrial Adjudicator to the effect that failure on the part of the petitioner to examine the guest/complainant and the taxi driver was perverse. He submitted that the whereabouts of the said taxi-driver were not known to the petitioner, as it was the guest who himself got the taxi booked, and the said booking was not made through the petitioner. In support of this contention, reliance was placed on a letter dated 28th May, 1986 addressed to the General Manager of the petitioner’s hotel by the concerned official of H.C. Taxi Services. With regard to non-examination of the complainant, it was submitted that in domestic enquiry, there is no allergy to hearsay evidence, and in the circumstances of the present case, it was not pragmatic to ensure the presence of the complainant. Reliance in this regard, was placed on the following judgments:

(i) State of Haryana v.Rattan Singh .

(ii) DTC v. N.L. Kakkar 110 (2004) DLT 493.

7. Learned Counsel for the petitioner stated that the award could not be made in favor of the respondent No. 1. merely on technical grounds such as non-issuance of charge sheet to the respondent No. 1 within one week from the date of suspension, in terms of Clause 16(IV) (b) of the Certified Standing Orders of the petitioner management. In the present case, the respondent No. 1 was suspended on 28th May, 1986 and a charge sheet was issued on 12th June, 1986. It was submitted that this alone, did not lead to any violation of the principles of natural justice or cause any prejudice to the respondent No. 1, nor did it defeat his right to a fair hearing. In this regard reliance was sought to be placed on the judgment of the Supreme Court in the case of State Bank of Patiala and Ors. v. S.K. Sharma reported as 1996 II CLR 29.

8. With respect to the adverse inference drawn in the award against the petitioner for the reason that the evidence of respondent No. 1 was recorded on the same day on which he was handed over the relevant documents, the learned Counsel for the petitioner pointed out that the statement of respondent No. 1 in the enquiry report which clearly recorded that he had already received the documents and was fully prepared and that evidence could be recorded immediately. Another alleged inconsistency pointed out in the award by the learned Counsel for the petitioner was that while the statement of the witness of the Management, MW-1 as recorded in the enquiry report stated that the complaint was lodged by the said guest at 7.30 hours, by which he meant 7.30 p.m., the same has been wrongly recorded by the learned Presiding Officer as 7.30 a.m., and on the said ground, the entire evidence of MW-1 was found to be unreliable. He also stated that the observation of the learned Presiding Officer as to why no other employee of the petitioner called for a taxi from Ashoka Tours and Travels, was misplaced since it was only the respondent No. 1 who was attending to the guests at the relevant time, and therefore, the question of any other staff member attending to the said guest, did not arise. He contended that the Tribunal overlooked the fact that the very act of the respondent No. 1 in not recording the receipt of cash in the logbook or the cash book, was a clear indication towards his malafide intentions of pocketing the money.

9. Learned Counsel for the petitioner submitted that the enquiry officer arrived at the correct conclusion in holding the petitioner guilty of misconduct and stated that the Tribunal ought not to have interfered with the findings of the enquiry officer. It was submitted that the Tribunal was required to test the fairness of a domestic enquiry on the touchstone of ‘preponderance of probabilities’ and strict principles of the Evidence Act have no application in a domestic enquiry. In support of this contention, he sought to place reliance on the following judgments of the Supreme Court:

(i) Martin Burn Ltd. v. R.N. Banerjee 1958 SCR 514.

(ii) Cholan Roadways Ltd. v. G. Thirugnanasambandam .

(iii) Divisional Controller, KSRTC (NWKRTC) v. A.T. Mane .

(iv) Hombe Gowda Educational Trust and Anr. v. State of Karnataka and Ors. .

(v) L.K. Verma v. H.M.T. Ltd and Anr. .

10. In support of his contention that the scope of interference with the findings of a domestic tribunal is very limited, reliance was placed on the judgment of the Supreme Court rendered in the cases of State of Haryana (supra) and Martin Burn (supra). While the Court can look into absence of any evidence, it certainly cannot review the sufficiency of evidence and that if two views are possible and the enquiry officer took one view, then such view cannot be dislodged only on the ground that another view is also possible.

11. On the question of back wages, it was stated by the counsel for the petitioner that in absence of any such specific averment in the statement of claim by respondent No. 1 and in the absence of any specific issue framed in this regard, back wages could not have been granted, as granted in the award. In support of the said contention, reliance was placed on the following judgments rendered by the Supreme Court:

(i) Durg District Metal And Engineering Works’ Union v. Managing Partner, Bhilai Construction Company, Industrial Estate, Bhilai District Durg, Madhya Pradesh and Ors. .

(ii) U.P. state Brassware Corporation v. Uday Narain Pandey .

12. The abovementioned arguments as advanced on behalf of the petitioner were vehemently opposed by the learned Counsel for the respondent. At the very outset he urged that this Court while acting under its extraordinary jurisdiction, is not entitled to act as an appellate court and ought not to re-appreciate evidence, neither should it attempt to correct any error of fact, unless the same is extremely grave or perverse. In support of his contentions, reliance was placed on the following judgments of the Supreme Court:

(i) Syed Yakoob v. K.S. Radhakrishnan and Ors. .

(ii) Mangt.of Madurantakam Co-op., Sugar Mills Ltd. v. S. Viswanathan2005 III A.D. (SC) 153.

(ii) R.M. Yellatti v. Asst. Executive Engineer .

13. Learned Counsel for the respondent submitted that there is no such blatant perversity in the award of the Tribunal, so as to justify any interference by this Court in judicial review. It was argued that the Industrial Adjudicator rightly arrived at the conclusion that the charge-sheet was issued in violation of the provisions of Clause 16 (iv)(b) of the Certified Standing Orders, which stipulates that the charge-sheet was to be issued to the concerned employee within one week of suspension whereas in the present case, the respondent was served with the charge sheet. Learned Counsel for the respondent added that the evidence of the petitioner stood vitiated on the ground that though the guest, Mr.Khurana, was arrayed in the list of witnesses and his contact addresses of the guests were available in the guest register, they failed to summon him, much less examine him and that even the concerned taxi driver who belonged to the stand situated right at the gate of the hotel, was a material witness, was not examined by the petitioner.

14. Counsel for the respondent further stated that the Tribunal correctly appreciated the evidence of the respondent No. 1’s witness, Mr. Suresh Kumar, partner of M/s. H.C. Taxi Service who had admitted that the respondent No. 1 collected an amount of Rs. 450/- from the guest and paid Rs.400/- to the driver and the balance amount of Rs. 50/- was paid to the owner of Ms. H.C. Taxi Service. Therefore there was no contradiction or inconsistency in the statement of the respondent No. 1.

15. Learned Counsel for the respondent No. 1 contended that it was rightly observed by the learned Presiding Officer that the testimony of MW-1 would show that the guest had checked out from the hotel at 11.00 a.m., and thus his deposition about the occurrence being prior to 7.30 a.m was contradictory. He stated that MW-4, Mr.V.K.Gupta, Manager of the Hotel on the other hand, deposed that he was called in the afternoon to be informed about the incident, and that the guest was there when he went to the hotel. It was submitted that such an inconsistency in the whole story as set up by the petitioner shows that the same was cooked up and concocted.

16. As regards the claim of the petitioner that no entry whatsoever was made by the respondent in the log book of the hotel regarding the amount received by him from the guest, counsel for the respondent No. 1 submitted that the cross-examination of the respondent No. 1 clearly establishes the fact that the logbook is meant for communication between the shifts and not within the same shift and that no entry was made in the logbook, as the cash was to be handed over within the same shift, in a few minutes. Learned Counsel for the respondent No. 1 also relied upon the admission of Ms. Sangeeta, Management Witness to the effect that it was factually incorrect that she had seen the said guest talking to the respondent No. 1 for arranging a car from Ashok Tours and Travels. It was submitted that the learned Presiding Officer rightly arrived at the conclusion that the termination of the services of the respondent No. 1 was illegal and unjustified, only after perusing all the relevant materials and after due appreciation of all the evidence.

17. On the question of back wages, learned Counsel for the respondent raised an objection that no such issue was raised in the writ petition by the petitioner, and it was only during the course of oral submissions, that this plea was taken by the petitioner for the first time. While admitting that though an application was filed by respondent No. 1 for amending the statement of claim to incorporate the fact that respondent No. 1 was not gainfully employed anywhere else after termination of his services, and the same was not allowed by the Industrial Tribunal vide order dated 1st September, 1992, it was submitted that the necessary amendment was not carried out by filing an amended statement of claim. However, counsel for respondent No. 1 argued that back wages could still be granted if a workman is able to show that he is ready to work and it is only on the ground of an illegal act of the employer, that he is kept out of work. Following judgments were referred to by the counsel for the respondent No. 1 in support of the aforesaid contention:

i) Gammon India Limited v. Niarnjan Dass 1984 SCC L&S 144

(ii) V.S.Ambelkar v. M.R.Bhope, Presiding Officer and Anr. 1987(55) FLR 612

(iii) P.G.I. of M.E. and Research, Chandigarh v. Raj Kumar etc. .

(iv) Hindustan Motors Ltd. v. Tapan Kumar Bhattacharya and Anr. .

18. Learned Counsel for the respondent No. 1 further submitted that the Tribunal can interfere with the findings of the enquiry officer if the same are perverse or are based on no evidence or the management is guilty of victimization, unfair labour practice or malafide, or the punishment is harsh and oppressive and that since all the above-mentioned conditions were satisfied in the present case, therefore the Tribunal rightly re-appreciated the whole evidence to reject the report of the enquiry officer. Reliance was placed on the following judgments rendered by the Supreme Court:

(i) The Workmen of M/s. Firestone Tyre & Rubber Co. of India P. Ltd. v. The Management and Ors. .

(ii) The East India Hotels v. Their Workmen and Ors. .

(iii) Rajinder Kumar Kindra v. Delhi Administration through Secretary (Labour) and Ors. AIR 1984 SC 1804.

19. I have heard both the parties at length and have carefully perused the documents placed on record, including the enquiry report and the impugned award. I have also given my thoughtful consideration to the arguments put forward by both the sides.

20. Before venturing to examine the arguments advanced by the counsels for the parties in the light of the impugned award, as also the report of the enquiry officer, it would be appropriate to appreciate the law on the scope of interference by the Tribunal in a case where punishment has been imposed after holding an enquiry. It is trite that once a domestic tribunal comes to a particular conclusion based on evidence, in normal circumstances it is not open to the Appellate Tribunals and the courts to substitute their subjective opinion in the place of the one arrived at by the domestic tribunal. While determining whether a case for interference in the findings of the domestic tribunal is made out, it is necessary to examine whether on the evidence led, it was possible to arrive at the conclusion that was arrived at, and not whether that was the only conclusion that could be arrived at on that evidence. It is not for the Tribunal to substitute its own judgment for the judgment in question but to examine whether the view taken is a possible view based on the evidence on the record. If an enquiry is properly conducted, the departmental authorities are held to be the sole judges of the facts and if there be some legal evidence on which the findings can be based, the adequacy or reliability of that evidence is not a matter which can be argued upon or disputed before the tribunal. If the findings of the enquiry officer prima facie make out a case of misdemeanour, then unless the enquiry suffers from a violation of the rules of natural justice or arbitrariness or utter perversity, the Tribunal ought not to interfere with the findings of the enquiry officer or the competent authority. If an enquiry is consistent with the rules and in accordance with the principles of natural justice and the misconduct is proved, then the nature and quantum of penalty to be imposed to meet the ends of justice is a matter that is exclusively within the realm of the jurisdiction of the competent authority, and the Tribunal has no power to substitute its own discretion for that of the said authority unless it is mala fide.

21. Thus, the common thread that runs through various decisions rendered on the aforesaid issue is that, the industrial courts shall not sit in appeal over the decision of the employer unless there exists a statutory provision in this behalf and until the decision of the disciplinary authority or the appellate authority is so illogical, or suffers from such procedural impropriety or is so shocking to the conscience of the court/tribunal, or such decision is arrived at in complete defiance of logic or moral standards, the Court/Tribunal would not go into the correctness of the choice made by the disciplinary authority or the appellate authority, as may be open to it in law. In this regard, reference may be made to the following judgments of the Supreme Court:

(i) Martin Burn Ltd. v. R.N. Banerjee 1958 SCR 514.

(ii) State of Orissa v. Bidyabhushan Mohapatra .

(iii) State of A.P. v. S.Sree Rama Rao .

(iv) State Bank of India and Ors. v. Samarendra Kishore Endow and Anr. .

(v) Regional Manager, Rajasthan SRTC v. Sohan Lal .

(vi) Bharat Forge Co.Ltd.V.Uttam Manohar Nakate .

(vii) Divisional Controller, KSRTC (NWKRTC) v. A.T. Mane .

(viii) Muriadih Colliery V. Bihar Colliery Kamgar Union .

(ix) V.Ramana V. AP.SRTC .

(x) Hombe Gowda Educational Trust and Anr. v. State of Karnataka and Ors. .

(xi) L.K. Verma v. H.M.T. Ltd and Anr. .

22. The impugned award is now to be put to test on the touchstone of the aforesaid guiding principles laid down by the Supreme Court on the question that once a domestic enquiry based on evidence comes to a particular conclusion, should it be open to the appellate tribunals and the courts to substitute their subjective opinion in place of the one arrived at by the domestic tribunal.

23. The basis of setting aside the enquiry held by the petitioner management, as observed by the tribunal is threefold. It has been held that failure on the part of the petitioner management to produce the guest who was the complainant in this case, as also its failure to examine the taxi driver or any person from the taxi agency to show that the taxi driver had in fact received an amount of Rs.400/- instead of Rs.450/- by the workman, was fatal to the case of the petitioner. It was further held that failure on the part of the petitioner management to supply the list of documents and witnesses to the respondent workman and not putting the said documents to any admission or denial by the workman, resulted in violation of the rules of natural justice and thus the enquiry officer was held not to be an impartial person. Lastly, it was held that there were glaring contradictions in the testimony of the witnesses produced by the workman which were fatal in nature. In support of the said conclusion, the Tribunal went through the records and the evidence and observed that neither the driver had been examined during the enquiry nor was his statement recorded. Similarly, the guest/complainant was not examined during the enquiry. Loopholes were pointed out with regard to the timing of the occurrence, as to whether the same took place on the relevant date at 7.30AM or in the afternoon or for that matter at 7.30PM, so as to bring out the inconsistencies in the depositions of the witnesses produced by the petitioner management. It was further held that the evidence of two of the witnesses produced by the petitioner management i.e. MW-2, Ms.Sangeeta and MW-3 , an officer from the Ashoka Tours and Travels, go against the petitioner management and this casts ample doubt upon the case of the management. With these findings, the issue as to whether the enquiry was just and fair was held against the petitioner management and in favor of the workman. Consequent thereto, it was held that the termination of the services of respondent No. 1 was illegal and unjustified and he was entitled to reinstatement in service with all consequential benefits.

24. For examining the aforesaid conclusions arrived at by the Tribunal, this Court will also have to advert to the domestic enquiry held by the petitioner management to decide as to whether the same fell within the parameters of law as laid down in the various judgments as referred to hereinabove.

25. The report of the enquiry officer shows that he had called upon both the parties to prove their respective case on the basis of the charges made against respondent No. 1. Respondent No. 1 was given ample opportunity to defend his case. Copies of relevant documents relied on by both the parties were furnished to respondent No. 1 and both the parties were permitted to adduce necessary evidence in support of their respective case. The evidence in question has been duly examined and appreciated by the enquiry officer, including the documentary evidence placed on record and thereafter, the same have been duly evaluated to give the finding that there was no reason to disbelieve the complaint made by the guest, merely because the guest was not brought by the management for deposition, as the said complaint was supported by other documentary and oral evidence.

26. The deposition of respondent No. 1(CSE) was also considered and findings were given to the effect that there were material contradictions between the depositions of respondent No. 1 and the taxi driver (DW-1) and the same was sufficient to hold that the deposition of the said witness was contrary to the documents filed by him and that DW-1 was an interested party as it was his car that was engaged and as per the evidence brought on record, respondent No. 1 was found to be interested in the sum of Rs.50/-, so as to pocket the same as commission.

27. It was also observed that respondent No. 1 did not make any logbook entry of Rs.450/- taken in advance from the guest, which was contrary to the normal practice. Thus it was held that the petitioner management had proved its case beyond reasonable doubt and that the respondent No. 1 was guilty of misconduct as mentioned in the charge sheet. It was observed that the preponderance of probabilities was that the respondent No. 1 arranged a car from a private agency instead of Ashoka Tours and Travels, an agency attached with the hotel, of which the guest in question, Mr.Khurana, was a member and took an advance of Rs.450/- from the said guest under the garb of handing over the same amount to the taxi driver on engaging the taxi, but instead he handed over a sum of Rs.400/- to the taxi driver and pocketed rest of Rs. 50/- as commission, thus putting the guest to a loss on account of which a complaint was lodged with the petitioner management which resulted in the charge sheet being issued to respondent No. 1.

28. Looking at the entire evidence as culled out from the record, the documents placed on the record during the course of the enquiry proceedings and the evidence adduced by both the parties, it is not found to be a case where the material placed on record, as evaluated by the enquiry officer was so scanty, irrelevant or extraneous that the conclusion arrived at by the enquiry officer, pursuant to the findings was completely erroneous, perverse, improbable, impermissible or arbitrary. It has been repeatedly held that the standard of proof to be imposed in the case of a domestic enquiry cannot to be of such a level as to prove the case to the hilt, but sufficient to establish the case on the basis of evidence led in support of the same. It has also been held that in a domestic enquiry, all the strict and sophisticated rules of the Evidence Act may not apply. Adequacy and reliability of the evidence is held to be sufficient for the findings given by the enquiry officer.

29. Sufficiency of evidence before the enquiry officer is beyond the scrutiny of the tribunal. So long as there is no absence of any evidence and as long as there is some evidence in support of the findings, a decision rendered on the said findings cannot be held to be erroneous and in case it has been so held, then the court can interfere with the award of the tribunal and set it aside. It is not for the Tribunals or the Courts to consider as to what weighed with the enquiry officer in giving the findings that he did, if prima facie, the findings are such as to make out a case of misdemeanour for which punishment can be lawfully imposed. Nor is it the duty of the Tribunal, much less this Court, to sift the evidence with a toothcomb and scrutinize the same minutely under a magnifying glass so as to come upon some chips, cracks or frayed edges to dislodge the entire edifice painstakingly pieced together by the enquiry officer on the basis of the evidence adduced before him, even assuming that the parties concerned failed to prove their case to the hilt.

30. In the present case, the findings of the enquiry officer were sufficient for arriving at the conclusion he did and the said findings cannot be held to be based on no evidence or exclusion of material evidence or inclusion of extraneous evidence. In fact, there was sufficient evidence on record to support the findings given by the enquiry officer. In view of the sufficiency of evidence in proof of the findings by the enquiry officer and in view of the fact that the enquiry was otherwise properly held inasmuch as the rules of natural justice were observed, no interference therein was called for. The enquiry officer was not influenced by irrelevant considerations and the conclusions arrived at by him on the face of it were neither so arbitrary nor so perverse, that no reasonable person could ever have arrived at the said conclusion. In the instant case, there is some evidence on record to establish that respondent No. 1 took an advance of Rs.450/- from the guest and instead of handing over the entire amount for engaging the taxi, retained Rs.50/- as commission, thus putting the guest of the petitioner management to a loss, which led to a complaint being lodged against respondent No. 1, based on which a charge sheet was served upon him. The disciplinary authority after considering the findings of the enquiry officer to the effect that the misconduct had been established against respondent No. 1, passed an order of dismissal from service upon respondent No. 1.

31. The Tribunal erred in rejecting the said findings and set aside the punishment imposed mainly on the ground that the evidence of the guest concerned and the taxi driver were not adduced and their statements were not recorded before the enquiry officer. It has been held by the Supreme Court in a series of judgments, including the following that summoning such witnesses is not a condition precedent and that sufficiency of evidence in proof of the findings by the domestic tribunal are beyond scrutiny. It is also well settled that in a domestic enquiry, all the strict and sophisticated rules of evidence may not apply. Reference in this regard, may be made to the following judgments:

(i) State of Haryana v.Rattan Singh .

(ii) DTC v. N.L. Kakkar 110 (2004) DLT 493.

(iii) Divisional Controller, KSRTC (NWKRTC) v. A.T. Mane .

32. In Rattan Singh (supra), the Supreme Court held as under:

In a domestic enquiry all the strict and sophisticated rules of the Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible, though 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 Evidence Act. The essence of judicial approach is objectivity, exclusion of extraneous materials or considerations, and observance of rules of natural justice. Fair play is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment, vitiate the conclusion reached, such a finding, even of a domestic tribunal, cannot be held to be good. The simple point in all these cases is, was there some evidence or was there no evidence – not in the sense of the technical rules governing court proceedings but in a fair common-sense way as men of understanding and worldly wisdom will accept. Sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny by court, while absence of any evidence in support of the finding is an error of law apparent on the record and the court can interfere with the finding.

In the present case, the evidence of the inspector is some evidence which has relevance to the charge and the courts below had misdirected themselves in insisting on the evidence of the ticketless passengers. Also, merely because their statements were not recorded, the order for termination cannot be invalid. In fact, the inspector tried to get their statements but the passengers declined. Further, it was not for the court but for the Tribunal to assess the evidence of the co-conductor.

33. In Divisional Controller, KSRTC (NWKRTC) (supra), it is held as below:

Para 9: From the above it is clear that once a domestic tribunal based on evidence comes to a particular conclusion, normally it is not open to the Appellate Tribunals and courts to substitute their subjective opinion in the place of the one arrived at by the domestic tribunal. In the present case, there is evidence of the inspector who checked the bus which establishes the misconduct of the respondent. The domestic tribunal accepted that evidence and found the respondent guilty. But the courts below misdirected themselves in insisting on the evidence of the ticketless passengers to reject the said finding which, in our opinion, as held by this Court in the case of State of Haryana v. Rattan Singh is not a condition precedent. We may herein note that the judgment of this Court in State of Haryana V.Rattan Singh has since been followed by this Court in Devendra Swamy v. Karnataka SRTC .

34. The observations made in the impugned award to the effect that the documents were not put in admission or denial from respondent No. 1 and were accepted outright to the detriment of respondent No. 1, is not borne out from the records. The proceedings conducted by the enquiry officer reflect that the said documents were handed over to respondent No. 1 on 16th July, 1988 and immediately thereupon, respondent No. 1 stated that he was fully prepared and the evidence could be led by the petitioner management right away. The order sheet dated 16th July, 1998 of the enquiry proceedings enclosed as Annexure-P to the writ petition, make the said position abundantly clear and demolishes the basis of arriving at a finding that principles of natural justice were not followed by the enquiry officer or that the enquiry was not conducted in an objective and impartial manner.

35. On the issue of procedural irregularities, the ultimate test is the test of prejudice or the test of fair hearing. In the present case, it cannot be said that respondent No. 1 was not granted a fair hearing. In fact, substantial compliance of the procedure were done by the petitioner management and thus there was no cause to arrive a conclusion that there was failure of justice so as to vitiate the enquiry report.

36. Coming to the findings in the impugned award to the effect that there were clear contradictions in the enquiry report, it seems a case of missing the wood for the trees. It is neither the case of the petitioner management nor the case of respondent No. 1 that no complaint was made by a guest of the hotel with regard to the incident that occurred on 27th May, 1986. Fact is that a complaint was actually made by one of the guests staying in the petitioner hotel; that the complaint pertained to misappropriation of Rs.50/- out of Rs.450/- taken by respondent No. 1 for engaging a taxi for the guest; that at the relevant time when the incident occurred, the reception desk was manned by respondent No. 1 who received the call from the guest and that the petitioner management charge sheeted respondent No. 1 and initiated the enquiry proceedings in respect of the said incident. Now, whether the incident in question occurred early in the morning and was reported to the Manager, or in the afternoon followed by personal visit of the guest of the hotel in the evening or whether the said incident occurred in the morning and was reported only in the late evening of the same day would amount to splitting hair as not much would turn on the timing of the incident. At the end of the day, admittedly such an incident occurred pursuant to which a complaint was made by the guest and respondent No. 1 also did not deny the factum of receiving the money for onward payment. Thus assuming that there was some inconsistency or error in recording the time of the incident in the enquiry proceedings, the same could not be taken to be a primary factor which ought to have been made a basis for holding the entire enquiry proceedings as vitiated and unreliable and liable to be set aside.

37. On the issue of non-summoning of the taxi driver by the petitioner management, the plea of the petitioner that the whereabouts of the driver were not known to the petitioner as the said taxi was booked for the guest directly, is a plausible explanation in the light of the letter dated 28th May, 1986 issued by the partner of M/s H.C.Taxi Services who also appeared in the witness box on behalf of respondent No. 1. In the said letter addressed to the petitioner hotel, the partner of M/s H.C.Taxi Services tried to justify the fact that taxi was in fact booked by the guest directly and the payment of Rs.450/- was taken by the taxi owner directly on the spot and Rs.171/- balance amount was received by the driver. Contrary to the contents of the said letter, in the witness box, the partner of said taxi service who appeared as DW-1 claimed that he told respondent No. 1 to collect an advance of Rs.450/- from the guest and hand over Rs.400/- to the driver. He further deposed that he collected the balance Rs.50/- from respondent No. 1 personally. Thus there is a direct contradiction in the deposition of DW-1 and what was stated in the letter dated 28th May, 1986 issued on behalf of H.C.Taxi Services.

38. Lastly, the observations made in the award with respect to the witnesses examined by the petitioner management and the fact that certain witnesses had turned hostile thus leading the Tribunal to arrive at a conclusion that there was ample doubt cast on the case as set up by the petitioner management, may be dealt with. It may be observed that Ms. Sangeeta, one of the witnesses produced by the petitioner management, did not deny the correctness of the statement made by her in her handwriting with regard to the factual position as occurred on the relevant date. Therefore, even assuming that the said witness had turned hostile, the case as set up by the petitioner management remained unshakable. The observations in the impugned award to the effect that other witness MW-3 from Ashoka Travels and Tours has also gone against the petitioner management, is not borne out from the record as the said witness only deposed that on the relevant date, he was on duty as a counter clerk and he did not receive any telephone call for a booking from the hotel so as to arrange a taxi. This statement cannot be read in isolation and looking at the entire factual background, it cannot be denied the petitioner or its representatives should have telephoned for a taxi from the said taxi agency attached to the hotel if they followed the procedure for hiring taxis from the said agency on a regular basis, more so when the guest in question was a member of the Agency.

39. Without going further into the nitty gritty of the matter, suffice it is to state that in the instant case, there was cogent material on the record to establish that the enquiry officer could have arrived at the finding at which he arrived. The links provided by the evidence and the documents placed in the enquiry proceedings were neither so weak or broken that the enquiry officer could not have chained them together to arrive at the conclusion that he did.

40. The main grounds on which the findings of the domestic tribunal have been set aside, to the effect that the guest in question and the taxi driver concerned were not examined or their statements were not recorded, could not have been held to be fatal to the case of the petitioner. Notwithstanding the above, there was sufficient material on the record for the enquiry officer to have connected the chain of events and draw an adverse inference against respondent No. 1 to establish his misconduct. In these circumstances, it is held that the Tribunal erred in rejecting the report of the enquiry officer and setting aside the punishment imposed on respondent No. 1 of termination of his services.

41. A corollary to the conclusion that the enquiry was conducted in a fair, proper and objective manner, is that in such a case, the punishment imposed by the petitioner management on the respondent No. 1 on the basis of such a report ought not to be interfered with. It has been observed by the Supreme Court time and again, that the Court can modify the punishment in exercise of its discretion under Article 226 of the Constitution of India only when it finds that the punishment imposed is shockingly disproportionate to the charges proved. (Refer: Depot Manager, A.P.S.R.T.C. v. Raghuda Siva Sankar Prasad ).

42. It has also been held in a catena of judgments that loss of confidence is a primary factor and not the amount of money involved and that sympathy and generosity cannot be a factor for interfering with the quantum of punishment. In the present case, the petitioner management cannot be faulted for losing confidence in respondent No. 1. The question therefore is not of loss of Rs.50/-or Rs.5/- that may have been caused to the guest of the hotel. The question is that the petitioner management is running a Hotel which is a service industry where interface with the guests is the maximum and any complaint by a guest against the staff of the Hotel cannot be taken lightly by the petitioner management. Having suffered loss of face in view of the allegations made by a guest of the hotel, followed by a domestic enquiry wherein it was held that respondent No. 1 was guilty of misconduct, loss of faith in respondent No. 1 was a natural consequence. In these circumstances, it is not a fit case where this Court ought to interfere in the quantum of punishment imposed by the petitioner management on respondent No. 1.

43. Thus it is held that the Tribunal ought not to have interfered with the punishment of termination of service imposed on respondent No. 1 as the same was based on sufficient evidence. For the reasons stated above, the writ petition succeeds. The impugned award dated 1st July, 1999, passed by the Presiding Officer, Industrial Tribunal is set aside and the order of dismissal of respondent No. 1 passed by the petitioner management on the basis of the report of the enquiry officer is restored.

44. There shall be no order as to costs.

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