1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 81 of 2009 Mr. Laru Toraskar .. Petitioner Versus M/s. Taj Holiday Village and anr. .. Respondents. Mr. Arun Nigalye, Advocate for the petitioner. Mr. M. S. Sonak, Advocate for the respondents. CORAM :- SMT. R. S. DALVI, J. DATE : 29 th April, 2009 . ORAL ORDER : Rule. By consent heard forthwith. 2. The petitioner has challenged the order/ award of the Tribunal under this petition after following the process of enquiry. The petitioner has issued show cause notice and enquiry was held. Certain charges were proved against the petitioner. The punishment was recommended. The show cause notice was again issued. 3. It is the petitioner's contention that this enquiry was 2 held under the Model Standing Rules of the respondent in respect of the Industrial Employment (Standing Orders) Act which are statutory service rules of the respondent. This seminal case of the petitioner is required to be seen under those service rules. The Industrial Employment (Standing Orders) Act is made applicable to industrial establishment. The petitioner contends that the respondent is an Industrial Establishment. The respondent contends that it is not an Industrial establishment under Section 2(c) of the Industrial Employment (Standing Orders) Act and is inter alia an industrial establishment defined under clause (ii) of Section 2 of the Payment of Wages Act 1936. 4. Clause 2(ii)of Payment of Wages Act shows several industrial establishments. None of which is even remotely a residential hotel that the respondent is. On this basis the Tribunal has held that the respondent is not industrial establishment and accordingly, the Industrial Employment (Standing Orders) Act 1946 does not apply to it. 5. To show that that is an incorrect decision, the petitioner's Advocate relied upon a notification issued under the above Act. It extended the provisions of Act to other 3 industrial establishments within inter alia Goa wherein 20 or more workmen were employed. The Act earlier applied to all industrial establishments which employed 100 or more workers. Under the notification the extent of the Act was expanded to industrial establishments with 20 workmen. Since the respondent is not industrial establishment and the same was to be said under Section 2(ii) of the Act, this notification does not matter. 6. The petitioner relied upon another notification issued under Payment of Wages Act. That notification dated 27.5.1992 extends the provisions of the Act to payment of wages to the persons employed in establishment under that Act. 7. The establishment under the Payment of Wages Act is defined under Section 2(ii) of the Act. Even that does not apply to the respondent which is a resident hotel. 8. The respondent's Advocate rightly contended that the notification is under exercise of powers under Section 1(5) of the Payment of Wages Act. Under that subsection, the power to issue notification is to extend the provisions of the 4 Act to class of persons employed in any establishment. The notification, therefore, is immaterial. 9. Even upon placing reliance on the aforesaid two notifications dated 16.1.75 and 27.5.1992, the respondent is not seen to be an industrial establishment governed by the provisions of the Industrial Employment (Standing Orders) Act 1946. It cannot be said that its model standing rules would not apply to the respondent. 10. On the facts of the case, it is argued on behalf of the petitioner that the show cause notice issued on 20.6.1996 Exh.P6 of the petition is the show cause notice issued to show cause why the punishment of dismissal should not be awarded to the petitioner and hence, is not a show cause notice upon the findings of the Enquiry Officer. The petitioner's Advocate has relied upon the case of Managing Director ECIL V. B. Karunakar reported in AIR 1994 SC 1074. At page 1090, the learned Advocate for the petitioner has shown that the judgment specifies two stages of the enquiry in which the show cause notice has to be given as and by way of proof of natural justice to be followed to give the delinquent/ workman an opportunity to put forth his case. 5 It is held in that judgment that the two notices are required to be sent to show cause for two stages of the enquiry. The first stage is when the disciplinary authority arrives at its conclusion on the basis of the evidence, Enquiry Officer's report and the delinquent's reply. The Second stage is when the disciplinary authority decides to impose penalty on the basis of its own conclusion arrived at on the basis of the aforesaid three aspects. The judgment, therefore, holds that the employees/ workman/ delinquent is entitled to receive the Enquiry Officer's report. Receiving that report is a part of the reasonable opportunity granted to him to defend himself. It has to be seen whether in the given case, the notice dated 20.6.96 Exh.P6 gave the petitioner the right to defend himself at the stage when the disciplinary authority arrived at its conclusion on the basis of the evidence, enquiry officer's report and the petitioner's reply thereto. The notice shows that the enquiry is conducted pursuant to the chargesheet dated 25.3.1995. It shows three charges proved. It shows that the disciplinary authority went through the enquiry proceedings and findings of the Enquiry Officer, it concurred with the findings and that it had gone through past record of the petitioner. It further shows that misconduct of the petitioner which are of gross and serious 6 nature have been proved and that the disciplinary authority proposes to award the punishment of dismissal from service. The letter is a notice issued to the petitioner to show cause within 7 days why the punishment of the dismissal should not be awarded to the petitioner. It encloses a copy of the findings of the Enquiry Officer dated 10.6.1996. It calls upon the petitioner to show cause “very seriously”. 11. It is an admitted position that the petitioner showed cause. What was the cause shown in the reply of the petitioner is not annexed. The respondents' Advocate has drawn my attention to disciplinary authorities' dismissal order dated 10.7.96 setting out the facts of the enquiry and punishment recommended, the aforesaid show cause notice dated 20.6.1996 issued. The findings of the Enquiry Officer annexed and the comments of the petitioner on such findings by the petitioner's letter dated 20.6.96 does show that the the petitioner had been provided a copy of the findings. The disciplinary authority concluded after considering the reply of the petitioner and the “fullest opportunity to defend” given to the petitioner. It records agreement of the disciplinary authority with the findings of the Enquiry Officer. It sets out that the comments of the petitioner have 7 no substance, the charges are conclusively proved against the petitioner in the enquiry and that the Enquiry Officer has not traversed beyond the charge. It also sets out the past conduct. Upon the appreciation of the facts as available emanating from the enquiry and the aforesaid comments of the petitioner he has been dismissed from service with effect from 10.7.96. 12. It has to be seen whether the show cause notice to be issued as held in the aforesaid judgment was issued and whether the stages contemplated in the judgment have been substantially complied. 13. The judgment, which is upon a reference, lays down various incidental questions raised in the reference. The answers to those questions at page No.1091 of the judgment inter alia shows in item No.(iv) that the delinquent has a right to make a representation to the disciplinary authority against the findings recorded in the enquiry report. The judgment records that the delinquent must have the benefit of the report of the Enquiry Officer before the disciplinary authority records his findings on the charges levelled against him. The show cause notice shows that the 8 copy of the findings of the Enquiry Officer dated 10.6.1996 is annexed to the notice dated 20.6.96. The said judgment is essentially upon the report of the Enquiry Officer being furnished to the delinquent / employee / workman. That aspect is complied. Hence, the show cause notice to be issued to the petitioner after the enquiry proceedings are complete has been complied. 14. Further the question answered under item (v) is the aspect of prejudice which would be caused to the delinquent/ employee/ workman if the report is not furnished and if the punishment as recommended by the Enquiry Officer is awarded to the workman by the disciplinary authority. It shows that it would not make any difference to the employee if the show cause notice is not issued. The employee must show prejudice by non-issuance of the notice, if any. The observations of the Supreme Court by way of conclusion in the para shows that in all cases even where the Enquiry Officer's report is not furnished to the delinquent/ employee/ workman, if any prejudice is caused thereby it would not make any difference to the ultimate findings and the punishment given. The Court should not interfere with the order of punishment. 9 15. In the instant case, rules of natural justice are amptly complied. The copy of the findings of the Enquiry Officer is furnished. The petitioner has shown cause. The cause has been considered. The Enquiry Officer's report also has been considered. The punishment has been awarded. It is not for the Court to interfere with the punishment awarded. 16. It is argued that the punishment of dismissal is disproportionate. The employee was a securityman. He was shown to have assaulted a senior officer. Eye-witness account was furnished. The employee's defence has been disbelieved. Specially in his position, the petitioner's conduct would be completely at variance with his duty and his role as a securityman. His services were, therefore, considered to be dispensed with. The order is not so grossly disproportionate as would require interference. Hence, the writ petition is dismissed. Rule discharged. SMT. R. S. DALVI, J. SMA