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SUPREME COURT OF INDIA
P. JAGANMOHAN REDDY, S.N. DWIVEDI AND P.K. GOSWAMI, JJ.
The East India Hotel, Appellant
Versus
Their Workmen and others, Repondents.
Civil Appeal No. 311 of 1973, D/- 12-12-1973.
Industrial Disputes Act, 1947 – Section 10 and 11-A - Workman - Pouring Whisky Bottle into an Empty Gingerale Bottle - Whether he wanted to ask each of witnesses any questions as and when their evidence was recorded, but he did not do so - Whether he poured whiskey in gingerale bottle his reply was in negative - Whether he would still say that he could not distinguish colour of squash or whisky, brandy etc. and his answer was still in negative - Whether dismissal of Janab Suleman, Bar Cooly, Ticket No. is justified To what relief is any, if he entitled - Whether Enquiry Officer was justified in finding workman guilty under clauses 17 (2) and 17 (19) of Standing Orders of Hotel - Whether employer before imposing punishment had conducted a proper enquiry in accordance with provisions of Standing Order - Whether enquiry is vitiated by any of grounds referred to by Court – Held, Once misconduct is proved, either in enquiry conducted by employer or by evidence placed before Tribunal for first time, punishment imposed cannot be interfered with by Tribunal except in cases where punishment is harsh and oppressive - This is not a case where no enquiry has been held nor is it a case where either side had not adduced evidence before Tribunal - Admittedly, no such grounds exist in this case - Nothing was stated as to in what respects enquiry was defective - On other hand, Tribunal proceeded on basis that enquiry was not vitiated, but it had power under S. 11A to arrive at a different conclusion and award a different punishment - That apart, even evidence justified conclusion arrived at by Enquiry Officer - It is not necessary that Sethi should have given evidence - His absence may be due to fact that it was now for employer to take action on his complaint and to protect theri prestige and reputation which was mainly their affair - It is, however, apparent from evidence that Sethi had complained to Pyare Lal and Pyare Lal speaks to what respondent did and what happened in his presence - He said even when he asked respondent what was in bottle respondent replied that it contained Nimboo Pani and that he was pouring contents in tub - Bakshi also found whisky in gingerale bottle - He says that Agrawal was tasting something when he came - Bottle was sealed by him in presence of Sethi, Agrawal and Pyare Lal. Agrawal also gave evidence and so did Lal Singh - Respondent did not challenge this statement also - As enquiry and dismissal do not suffer from any defect and there is evidence from which impugned conclusions can be drawn, Court set aside award of Tribunal and subsitute instead finding that dismissal of respondent was justified - Appeal allowed.
Judgment
JAGANMOHAN REDDY, J.:- The Hindustan Motors Ltd. hosted a cocktail pary on November 24, 1969, for about fifty or sixty member in the small Banquet Room of the Oberoi Grand Hotel at Calcutta. Janab Suleman one of the workmen employed as Bar Cooly by the Hotel was deputed to look after the work of Barman to attend on the party. At about 9-35 P.M. it appears one B. S. Sethi of the Hindustan Motors Ltd. one of the hosts of the party found the workman concerned pouring whisky bottle into an empty gingerale bottle. Sethi asked him as to why he was pouring the whisky into the gingerale bottle, whereupon the workman started pouring down the whisky into the tub for cooling sodas. When he poured half the bottle into the tub, Sethi took the bottle in his hand and called one Pyare Lal Steward who was on duty and complained to him. Even as he was complaining the respondent workman took the bottle from Sethi in the presence of Pyare Lal and started pouring down the contents again into the tub. One seeing this Sethi was annoyed and asked Pyare Lal to call the Manager. As the Manager Mital was not to be found, Pyare Lal called Agarwal who came there accompanied by Bakshi. Sethi then informed him of the facts which were also confirmed by Pyare Lal. The bottle was taken into custody and was sealed in the presence of the workman concerned who when asked to sign the sealed bottle refused to sign it. The bottle was sent to the Chemical Analyser who found the contents to be whisky. Again the bottle was sealed, Sethi then made a written complaint to the management of the Hotel as under:
"This is to bring to your notice that the Barman on duty during the Cocktail Party on 28-11-1969 in Small Banquet Room was caught by me for pouring whisky in a gingerale bottle. When I saw it I asked him why he was doing it, so he immediatgely poured out more than half the gingerale bottle in the tub, saying it was only gingerale.
This was not expected of Oberoi Grand Hotel and we have reported the matter to Mr. Agrawal. We hope some action will be taken against the workman concerned. His number is 386."
2. On receipt of this complaint the appellant Hotel served the workman with a charge-sheet dated November 29, 1969 for major misconduct as per clause 17 (2) and (19) of the Standing Orders and Service Rules of the Hotel. In reply to the above charge-sheet the workman concerned submitted his explanation on December 1, 1969, denying the charges made against him. The relevant portion of his explanatiion is as follows:
"That I am a Bar Cooly having been deputed to look after the work of Barman for attending a party consisting of 50/60 members. I was rather responsible to bring the drinks from downstairs and to supply them in the party at small Banquet Room. It is also common practice to pour down the drops of remnents of drinks while taking back the empty bottles. Accordingly, after returning from downstairs, I found the empty bottles and poured down the remaining drops to take them down as I did not like being drenched with liquors during Roza period .
Being not conversant with the incidents for which I am blamed of, I did not feel any justification of signing in the sealed bottle."
3. The Enquiry officer conducted the enquiry in the presence of the workman. It appears that the Enquiry Officer read over the charge-sheet to the workman, recorded his plea of denial and examined Agrawal, Bakshi, Pyare Lal and Lal Singh on behalf of the employers in the presence of the workman. The workman was asked whether he wanted to ask each of the witnesses any questions as and when their evidence was recorded, but he did not do so. After the witnesses were examined the respondent workman was questioned and his answer was that he was all alone to look after the service in the Bar. He was deputed to bring drinks, ice, cigarettes etc. from Embassy Bar, and that he was not present in the Bar all the time when the party was going on. He admitted that he was asked by Sethi what was there
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