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Judgment
M. Jeyapaul, J.—The petitioner joined service as Time Keeper cum Typist-Clerk on 8.10.1991 in Hotel Pondicherry Ashok, a Joint
Venture of Indian Tourism and Development Corporation Limited. Subsequently, he was designated as Front Office Assistant with effect from
1.3.1997. The first respondent issued a charge memo to the petitioner S. Ramany and one Prakash Kumar on 17.8.1998 alleging that they
attempted to defraud the organization by not recording the arrival of the guest and also by allotting room No. 101 without registration. It is further
alleged that they collected less charges from one Ms. Beatrice and thus caused loss to the first respondent Corporation and also cheated the guest
to the tune of Rs. 5695/=. The Enquiry Officer found that the second charge alone was established as against the petitioner.
The petitioner would contend as follows:
The disciplinary authority, without any application of mind, accepted the report of the Enquiry Officer and terminated the services of the petitioner.
The Enquiry Officer as well as the disciplinary authority overlooked the fact that the bill forwarding note and the original bill were prepared and
signed by Prakash Kumar and not by the petitioner. The charge slip was not admittedly written by the petitioner though the charge would read that
it was only the petitioner who prepared the charge slip. The petitioner was not given opportunity to cross-examine the complainant. The
disciplinary authority failed to independently consider the report of the Enquiry Officer. He chose to mechanically accept the report of the Enquiry
Officer. The enquiry is vitiated for violation of principles of natural justice.
The first respondent contended as follows in the counter filed by it:
The petitioner, Balaji and Prakash Kumar, the Front Office Assistants dealt with the guest who came to the Hotel. They also did the billing. Only
on verification, it was noticed that they defrauded the Corporation. All the three Front Office Assistants were issued with charge memo dated
17.8.1998. Only on arriving at a conclusion that the explanation submitted by the petitioner was totally unsatisfactory, domestic enquiry was
initiated against all the three. The workmen were given all opportunities in accordance with the principles of natural justice. The petitioner and
Prakash Kumar were dismissed for the proven misconduct by the disciplinary authority based on the report submitted by the Enquiry Officer. The
appellate authority also confirmed the order passed by the disciplinary authority. It is a case where the workman chose to challenge the conduct of
the domestic enquiry. The petitioner should have raised an Industrial Dispute before the Conciliation Officer and thereafter before the Labour
Court. The Labour Court is competent to decide whether the domestic enquiry was conducted violating the principles of natural justice. The writ
petition is not maintainable as adequate remedy has been provided under the Industrial Disputes Act, 1947. The translated English version of the
complaint was made available to the petitioner to cross-examine the witnesses effectively. Therefore, the writ petition deserves to be dismissed.
The petitioner alongwith his two other colleagues viz., Prakash Kumar and Balaji was slapped with three charges. But, the second charge alone
stood established against the petitioner as per the enquiry report submitted by the second respondent herein. The disciplinary authority accepted
the enquiry report submitted by the second respondent as against the petitioner. Having given final opportunity to the petitioner, the disciplinary
authority terminated the services of the petitioner. The appeal preferred by the petitioner before the appellate authority, viz., the Managing
Director, Hotel Pondicherry Ashok Hotel was dismissed.
The sum and substance of the second charge is that the petitioner, as Front Office Assistant, while on duty on 26.8.1997 from 3.00 pm to
11.00 pm, collected charges from the guest Ms.Beatrice Mancel upto 12.00 noon on 26.8.1997 but, there was undercharging for the stay of the
guest on 26.8.1997 to the tune of Rs. 1800/=. There was an attempt to cheat the guest by submitting bill forwarding note in lieu of regular bill for a
sum of Rs. 14,745/=. The room rent of Rs. 2395/= was charged as against the normal room tariff of Rs. 1800/= per day for room No. 103
occupied by the said guest and thereby they claimed a sum of Rs. 3570/= extra from the guest. A sum of Rs. 375/= was also claimed extra from
the guest when the entire amount due from the guest was settled separately. Though the bill forwarding note and the original bill were prepared and
signed by Prakash Kumar and another Front Office Assistant, the charge slip was written by the petitioner herein.
The petitioner submitted his explanation with respect to the second charge as follows:
He was on duty from 3.00 pm to 11.00 pm on 26.8.1997. Ms. Beatrice, who stayed in the hotel for five days came to the Front Office at about
4.30 pm and informed the Front Office that she was checking out. She requested the Front Office to give a bill showing the room rent at Rs.
2500/- per day. The Front Office Assistant could not comply with her request as the maximum tariff charged by the Hotel was Rs. 2395/-. For the
purpose of facilitating the guest to reimburse the bill, bill forwarding note was prepared for the maximum tariff of Rs. 2395/-. The original bill also
was handed over to Beatrice Mancel. The charge slip alone was prepared by him while the original bill was prepared by his colleague Prakash
Kumar. Alleging that there was no intention on his part to defraud the Corporation, he prayed for dropping of the charges.
The Enquiry Officer gave full opportunity to the petitioner to defend himself during the course of enquiry proceedings. Six witnesses were
examined on the side of the management. Two witnesses were examined on the side of the petitioner and other charge-sheeted employees. The
management marked 29 documents and the charge-sheeted employees marked 4 documents.
The Enquiry Officer, having thoroughly perused the materials on record in the background of the oral version of the witnesses, arrived at a
conclusion that the second charge stood established.
Learned Counsel appearing for the petitioner would contend that the petitioner is entitled to file a writ petition challenging the order passed by
the appellate authority confirming the order passed by the disciplinary authority, even though the petitioner has the right to raise Industrial Dispute
before the Conciliation Officer and thereafter before the Labour Court. Availability of alternative remedy cannot be a sound ground to dismiss the
writ petition at this distance of time.
Per contra, learned Counsel appearing for the respondent would submit that when effective alternative remedy is available to the petitioner, he
should not have approached the court with the writ petition challenging the order passed by the appellate authority confirming the order passed by
the disciplinary authority. The first respondent would have established having availed the second opportunity before the Labour Court that it did
follow the principles of natural justice while conducting the enquiry through the second respondent. Therefore, he would submit that the petitioner is
not entitled to maintain the writ petition filed by-passing the effective remedy available under the Industrial Disputes Act, 1947.
In The Cooper Engineering Limited Vs. Shri P.P. Mundhe, the Supreme Court has held as follows:
We are, therefore, clearly of opinion that when a case of dismissal or discharge of an employee is referred for industrial adjudication the Labour
Court should first decide as a preliminary issue whether the domestic enquiry has violated the principles of natural justice. When there is no
domestic enquiry or defective enquiry as admitted by the employer there will be no difficulty. But when the matter is in controversy between the
parties that question must be decided as a preliminary issue. On that decision being pronounced it will be for the management to decide whether it
will adduce any evidence before the Labour Court. If it chooses not to adduce any evidence, it will not be thereafter permissible in any proceeding
to raise the issue.
As per the aforesaid dictum, whenever an Industrial Dispute is raised in the background of the dismissal of an employee, the Labour Court
shall first decide, as a preliminary issue, as to whether the principles of natural justice were followed in the domestic enquiry conducted as against
the employee. Therefore, the Labour Court is competent to decide whether the enquiry was defective on account of non-adherence to the
principles of natural justice while the domestic enquiry was conducted by the management.
The Supreme Court in Karnataka State Road Transport Corpn. Vs. Smt. Lakshmidevamma and Another, has held as follows:
Before we proceed to examine this question any further, it will be useful to bear in mind that the right of a management to lead evidence before the
Labour Court or the Industrial Tribunal in justification of its decision under consideration by such tribunal or court is not a statutory right. This is
actually a procedure laid down by this Court to avoid delay and multiplicity of proceedings in the disposal of disputes between the management
and the workman. The genesis of this procedure can be traced by noticing the following observations of this Court in Workmen v. Motipur Sugar
Factory (P) Ltd. SCR pp.597 G-H and 598A
It it is held that in cases where the employer dismisses his employee without holding an enquiry, the dismissal must be set aside by the Industrial
Tribunal only on that ground, it would inevitably mean that the employer will immediately proceed to hold the enquiry and pass an order dismissing
the employee once again. In that case, another industrial dispute would arise and the employer would be entitled to rely upon the enquiry which he
had held in the meantime. This course would mean delay and on the second occasion it will entitle the employer to claim the benefit of the domestic
enquiry given. On the other hand, if in such cases the employer is given an opportunity to justify the impugned dismissal on the merits, the employee
has the advantage of having the merits of his case being considered by the Tribunal for itself and that clearly would be to the benefit of the
employee. That is why this Court has consistently held that if the domestic enquiry is irregular, invalid or improper, the Tribunal may give an
opportunity to the employer to prove his case and in doing so the Tribunal tries the merits itself.
It has been categorically held by the Supreme Court that if the domestic enquiry was improperly conducted, Industrial Tribunal would offer an
opportunity to the employer to establish his case to enable it to pass an order on the merit of the case.
The Supreme Court in Uttar Pradesh State Bridge Corporation Limited and Anr. v. Uttar Pradesh Rajya Setu Nigam S. Karamchari Sangh
2004 (2) LLN 93 has held as follows:
We are of the firm opinion that the High Court erred in entertaining the writ petition of the respondent-union at all. The dispute was an industrial
dispute both within the meaning of the Industrial Disputes Act, 1947 as well the UPIDA, 1947. The rights and obligations sought to be enforced by
the respondent-union in the writ petition are those created by the Industrial Disputes Act. In Premier Automobiles Ltd. v. Kamlakar Shantaram
Wadke 1976(1) LLN), it was held that when the dispute relates to the enforcement of a right or an obligation created under the Act, then the only
remedy available to the claimant is to get adjudication under the Act.
The learned Counsel appearing for the respondent would submit that the petitioner is entitled to raise an Industrial Dispute in the aftermath of
the order of dismissal passed by the disciplinary authority and confirmed by the appellate authority. The petitioner cannot approach the High Court
directly without exhausting the effective alternative remedy available under the Industrial Disputes Act, he would further contend. In the aforesaid
case decided by the Supreme Court, it appears that 168 Muster Roll employees engaged in Bridge Construction Unit of the Government
Company, responding to the call given by the Union, did not attend their jobs and as a result of which they were discharged from duty in
accordance with the Standing Orders of the Uttar Pradesh State Bridge Corporation Limited. Under such circumstances, a writ petition was filed
by the Union and the same was entertained by the High Court. The aforesaid decision was rendered by the High Court in the above background of
the case. Considering the nature of industrial dispute arisen between the Government Company and the respondent Union, the Supreme Court
observed that the High Court should not have entertained the writ petition under Article 226 of the Constitution of India.
In the instant case, an employee was terminated from services based on the enquiry conducted by the disciplinary authority. The employee
knocked at the doors of the appellate authority and the latter also confirmed the order passed by the disciplinary authority. If an industrial dispute
has arisen between the Management and the Union, the best forum available for adjudication of such Industrial Dispute is only the Labour Court or
the Industrial Tribunal as the case may be.
A Division Bench of this Court in M.S. Munivenkatappa Vs. State Bank of India, has held as follows:
In the light of the above decisions, we are of the view, at this stage, petitioner cannot be directed to go before the Labour Court to vindicate his
grievance particularly when the facts are not in dispute. It is well settled in law that availability of alternate remedy is not always a bar to entertain a
Writ Petition and it is the discretionary jurisdiction given to the High Court under Article 226 of Constitution of India even to admit a Writ Petition
where alternate remedy is also provided. Hence the contention of the learned Counsel for the respondents made on this ground is also rejected.
That was a case where a request emanated from the employee seeking voluntary retirement was unilaterally treated as a letter of resignation.
The employee, having objected to the unilateral decision of the authority, approached the court without resorting to the alternative remedy available
before the Labour Court challenging the said order of the Management. This Court observed that availability of alternative remedy is not always a
bar to entertain a writ petition. Further, the employee cannot be directed to go before the Labour Court to redress his grievance when the facts
were not in dispute.
This Court in T.E. Vijayaraghavan v. The Joint Commissioner, HR & CE Administration Department 2010 (1) CWC 11 made an observation
as follows:
Moreover, the Writ Petitions were admitted way back in the year 2003, the pleadings are complete and arguments were heard at length, in the
final hearing of the Writ Petitions. It is well settled that at the stage of final hearing, parties need not be driven out of Court, to take recourse to
alternative remedies.
In the light of the above, I hold that it is unjust to drive away the party from the jurisdiction of this Court after a lapse of about eight long years
to seek the alternative remedy available under the Industrial Disputes Act.
The Supreme Court in Harbanslal Sahnia v. Indian Oil Corporation Ltd. 2003 (1) CTC 189 has held as follows:
So far as the view taken by the High Court that the remedy by way of recourse to arbitration clause was available to the appellants and therefore
the writ petition filed by the appellants was liable to be dismissed, suffice it to observe that the rule of execution of writ jurisdiction by availability of
an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the
High Court may still exercise its writ jurisdiction in at least three contingencies; (i) where the writ petition seeks enforcement of any of the
Fundamental Rights; (ii) where there is failure of principles of natural justice or, (iii) where the orders or proceedings are wholly without jurisdiction
or the vires of an Act and is challenged.
Despite the fact that there is an alternative remedy available for the litigant, he can very well invoke the writ jurisdiction of this Court on the
ground that there was failure on the part of the respondent in adhering to the principles of natural justice. In this case, there is an allegation that the
principles of natural justice were not adhered to by the respondent-Management. In view of the above, I conclude that though there is an
alternative remedy available under the Industrial Disputes Act, the petitioner cannot be directed to go before the Conciliation Officer and thereafter
before the Labour Court at this distance of time when there is an allegation of violation of principles of natural justice.
The learned Counsel appearing for the petitioner would further submit that the entire explanation given by the petitioner was not properly
understood by the Management beforeever passing the impugned order. The charge slip was admittedly prepared by the other charge-sheeted
Officer Prakash Kumar, but, unfortunately, the admission of the petitioner in the explanation submitted by him beforeever the relevant records were
supplied to him was relied upon by the Enquiry Officer and the disciplinary authority as well as the appellate authority accepted the findings of the
Enquiry Officer.
Per contra, the learned Counsel appearing for the Management would submit that the petitioner had admitted unambiguously his association in
the process of preparing the bills. The fact that the charge slip was signed by Prakash Kumar does not materially alter the situation.
The petitioner has categorically admitted that he was on duty from 3.00 pm to 11.00 pm on 26.8.1997. It is his admission that Ms. Beatrice
Mancel approached the Front Office Assistants including himself and sought for escalated bill at the rate of Rs. 2500/- for the purpose of
reimbursement in France. But, the Front Office Assistants including himself obliged her by issuing a Bill Forwarding Note for the maximum tariff of
Rs. 2395/-. Though the petitioner admitted that he prepared the charge slip, it is found that his colleague Prakash Kumar alone prepared the
charge slip.
The question is not as to who actually prepared the charge slip. The charge as against the petitioner is that he also played a role in the
defrauding act committed by the Front Office Assistants. His admission would go to show that he was also a part of the scheme to defraud the
respondent-Management as well as the valuable customer from a foreign country. In addition to the admission made by the petitioner in the
explanation submitted by him, the witnesses examined on the side of the Management also spoke to the role of the petitioner.
It is not as if the Enquiry Officer approached the charges levelled against the petitioner in a prejudicial manner. In fact, charges 1 and 2 slapped
on the petitioner were found not proved by the Enquiry Officer. It is only the second charge framed against the petitioner that was established as
per the report submitted by the Enquiry Officer.
It is further submitted by the learned Counsel appearing for the petitioner that the complainant was not examined nor was the original complaint
marked during the course of enquiry.
The learned Counsel appearing for the Management would submit that the petitioner was pleased to peruse the English Translation of the
complaint which was in French language and thereafter he subjected the witnesses to cross-examination.
It is not a criminal case where the prosecution is bound to establish the charges beyond reasonable doubt. If the Management could establish in
a departmental proceedings that there is preponderance of materials to establish that the workman committed fraud as alleged, a finding can be
rendered as against the workman and the disciplinary authority, based on such a finding, can award appropriate punishment. To give a finding as
against the workman in the charge framed as against him, there should be sufficient materials and not evidence as required under the Evidence Act.
A domestic enquiry is not vitiated just because the complaint as against the employee was not marked in the disciplinary proceedings. The fact
remains that the complaint was given by a French citizen who stayed in the hotel. As the complaint was in French language, a translated English
version was shown to the petitioner for perusal. As the original complaint in French language could not be marked, the same was not exhibited
during the course of enquiry. There is nothing wrong in charge-sheeting the employee based on the information received by the Management.
It is argued by the learned Counsel appearing for the petitioner that the complainant was not examined during the course of enquiry. A
foreigner hailing from France stayed for few days in the hotel owned by the respondent Corporation and thereafter proceeded to her mother land,
of course, after lodging a complaint with the Management. The Management cannot trace the complainant, who had gone over to foreign country,
for the purpose of marking the complaint through her in a domestic enquiry.
The learned Counsel appearing for the petitioner would submit that the order of punishment does not refer to the explanation given by the
petitioner having received the final notice.
The learned Counsel appearing for the petitioner cited a decision of the Punjab and Haryana High Court in H.K. Dogra v. Chief General
Manager, State Bank of India 1989 (2) SLR 122 wherein it has been held that the various factual and procedural pleas raised by the petitioner in
reply to the final show cause notice issued by the disciplinary authority should have been considered by him.
Though the disciplinary authority had not adverted to each and every part of the explanation given by the petitioner, it is found that the
disciplinary authority has passed the order only after thoroughly perusing the explanation submitted by the petitioner.
Of course, the Supreme Court has held in Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank Vs. Jagdish Sharan
Varshney and Others, that the appellate authority is also required to give reasons for approval while confirming the order of the lower authority.
The order passed by the appellate authority should reflect the application of mind as the same is the essential requirement of the law.
In the case on hand, though the order passed by the appellate authority is very brief, it is found that the appellate authority, having applied his
mind, confirmed the order passed by the disciplinary authority. Therefore, the aforesaid ratio will not come to the rescue of the petitioner.
Lastly, the learned Counsel appearing for the petitioner submitted a decision of the Supreme Court in B.C. Chaturvedi Vs. Union of India and
others, wherein it has been held that the High Court has the power under Article 226 to modify the punishment/penalty wherever the
punishment/penalty imposed by the disciplinary authority/appellate authority in departmental enquiry held as against the public servant was
disproportionately excessive so as to shock the judicial conscience.
The High Court under Article 226 of the Constitution of India cannot interfere with the findings of fact recorded by the disciplinary authority
based on evidence and substitute its own independent findings. The question of re-appreciation of evidence and substitution of its findings wherein
the findings of the disciplinary/appellate authority are based on some evidence is alien to the scope of judicial review.
Here is a case where the disciplinary authority has found, based on the evidence available on record, that the respondent Corporation was
defrauded by the petitioner and another Front Office Assistant and thereby they caused not only financial loss to the Corporation but also loss of
reputation to the respondent. If a foreign guest is treated like this by the respondent Corporation through its employees, the respondent
Corporation will have to close its business as they would lose patronage from valuable customers from foreign countries. Therefore, stringent
punishment is very much required in cases where there is a loss to the reputation coupled with financial loss. Therefore, the punishment awarded by
the disciplinary authority and confirmed by the appellate authority is found not disproportionate.
The court finds that the Enquiry Officer, having given sufficient opportunity to the petitioner, gave her finding to the disciplinary authority. The
disciplinary authority also passed the order of punishment only after adverting to the explanation submitted by the petitioner responding to the final
show cause notice. As such, there was no violation of principles of notice in the domestic enquiry conducted by the disciplinary authority.
In view of the above, I find that there is no merit in the writ petition and therefore, the writ petition stands dismissed. There is no order as to
costs.