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2013 Supreme(Del) 1396
IN THE HIGH COURT OF DELHI AT NEW DELHI
A.K. PATHAK, J.
MOHAN LAL
Versus
HOTEL MARINA
W.P.(C) 2939/2008
Decided on: 24th October, 2013
For the Petitioner: Mr. Anuj Sharma, Adv.
For the Respondent: Mr. Alok Bhasin, Adv.
The court clarified the principles of natural justice and the distinction between discharge and retrenchment under the Industrial Disputes Act, 1947.
Headnote:
Enquiry - Termination of Service - Industrial Disputes Act, 1947 - Section 2(oo)
Fact of the Case:
The petitioner, a waiter, was discharged from service by the respondent hotel after a foreign guest accused him of not clearing his bills. The petitioner raised an industrial dispute regarding his termination, which was referred to the Labour Court for adjudication.
Finding of the Court:
The court found that the enquiry was conducted in a fair and proper manner and that the petitioner's discharge was not disproportionate to his misconduct. The court also held that the petitioner's discharge was not a retrenchment but a discharge by way of punishment.
Issues: The issues involved the fairness of the enquiry, the necessity of examining the complainant, and the nature of the petitioner's discharge.
Ratio Decidendi: The court emphasized that non-examination of the complainant and the absence of a written complaint did not invalidate the enquiry. It also clarified that the discharge was not retrenchment but a lenient act by the management.
Final Decision: The writ petition was dismissed by the court.
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 3rd 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 Rs.8716/-and Rs.13090/85+Total Rs.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 Rs.117.00
Conv. Rs.94.00
Total Rs. 211.00
1. Suspension allowance @75% for 12 days of December Rs.792.30
2. Encashment of 18 days Un-availed P.L.upto 5.1.94 Rs.2729 Rs.1637.40
3. One month salary in lieu of notice pay Rs.2729.00
4. Retrenchment compensation @ 15 days for 6 total completed years service
Less: ESI on 1 Rs.11.88 above @ 1.5%
Less: EPF on 1&2 Rs.243.00 above Rs.8187.00
Rs.13,345.70
Rs.254.85 Rs.13,090.85
5. Gratuity for 6 years 5 months & 10 days say 6 years @ Rs.2518/-per month Rs.8,716/-
Rs.21,806.85
Rs.2729/-(-)HRA
Rs.117/-& Conv.
Rs.94
Rs.211
Rs.2513/-x6x25
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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 23rd February, 2004 has concluded that enquiry was held in a fair and proper manner, subsequentl
