1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5628 OF 2009 Shri Rajendra Joseph ...Petitioner vs. Welcome Group Sea Rock Hotel & Ors...Respondents Mr.R.F. Shaikh for the Petitioner. CORAM : V.M. KANADE, J. DATED : JULY 13, 2009 P.C. :- 1 Heard Counsel for the petitioner. 2 The petitioner is challenging orders passed by the Labour Court dated 16.7.2002 and 16.9.2004 dismissing the complaint filed by the petitioner against the order of dismissal and also an order passed by the revisional court dated 30.3.2008. Brief facts are as under :- 3 The petitioner was working in the 2 respondent hotel. He had joined as Kitchen Helper in 1984 and was made permanent in 1988. He was, however, suspended by order dated 2.3.2000 after a complaint was filed by a lady staff against him in which it was alleged that he had misbehaved with her and had used filthy language. A charge-sheet was issued to him and following charges were framed against him :- a. theft, fraud, dishonesty, disapprobation or mischief in connection with Hotel s or Hotel Guests business or property of another workman within the premises of the establishment (Clause 24(4)), b. drunkenness, riotous, disorderly or indecent behaviour on the premises of the establishment (Clause 24 (11)), c. Commission of any act subversive of discipline or good behaviour on the premises of the establishment (Clause 24(2)), d. Intimation or coercion of guests or workmen for reason whatsoever (Clause 24 (27)), 3 e. Indulging in any act by word, posture, deed or gesture which is detrimental to the interest or reputation of the Hotel (Clause 24 (28)), f. Acts of immorality within the premises of the Hotel or outside or any act of bringing the Hotel or company into disrepute, e.g. Pimping, prostitution, foreign exchange, control violations, impoliteness to or assault of guests, carrying on any side business related to Hotel guests or tourism (Clause 24 (33)). 4. An enquiry was held and in para 13, the Enquiry Officer found him guilty of the charges levelled against him at Issue nos.(c),(f) and (g) and to the extent mentioned in para 13. In para 13, the Enquiry Officer has stated as under :- Thus I have gone through the entire evidence on record and the following issues arise for my consideration. a. Since the incident has taken place in the coach, whether the said coach can be called as premises of the establishment? 4 b. Whether CSW committed a misconduct of theft, fraud, honestly, misappropriation or mischief in connection with hotel s or hotel guests business or property of another workman within the premises of the establishment? c. Whether CSW committed a misconduct of drunkness, riotous, disorderly or indecent behaviour on the premises of the establishment? d. Whether CSW committed a misconduct of commission of any act subversive of discipline or good behaviour on the premises of the establishment? e. Whether CSW committed misconduct of intimidation or coercion of guests or workmen for reason whatsoever? f. Whether CSW committed a misconduct of indulging in any act by word, posture, deed or gesture which is detrimental to the interest or reputation of the hotel? g. Whether CSW committed a misconduct of acts or immorality within the premises of the hotel or outside or any act of bringing the hotel or company into disrepute, 5 e.g., pimping, to or assault of guests, carrying on any side business related to hotel guests or tourism? My answers to the above issues are as under :- a. Yes b. Yes, to the extent of mischief in connection with property of another workman within the premises of the establishment. c. Yes, to the extent of indecent behaviour on the premises of the establishment. d. Yes. e. Yes; to the extent of intimidation of workmen for reason whatsoever. f. Yes; to the extent of indulging in any act by work or gesture which is detrimental to the reputation of the hotel. g. Yes; to the extent of act of immorality within the premises of the hotel or outside. 5 On the basis of the said finding, the Enquiry Officer held him guilty for the aforesaid charges. The petitioner thereafter, on account of 6 the said finding, was dismissed by the respondent management. The petitioner, therefore, filed the complaint before the Labour Court. The Labour Court also confirmed the finding which was given by the Enquiry Officer. The petitioner, therefore, preferred revision application before the Industrial Court which also was dismissed. 6 Shri Shaikh, learned Counsel for the petitioner submitted that the Enquiry Officer had permitted the complainant Ms.Fehmida Khan to produce a letter which she had written to the management for the first time during the course of enquiry and the copy of the said letter was not given to the petitioner herein. He submitted that the enquiry was not properly held. He further submitted that in the said enquiry, though Fehmida Khan was examined as witness by the management, the petitioner had also examined two other witnesses who had stated that no unusual incident had taken place in the bus as alleged by the Fehmida Khan. He submitted that the 7 Enquiry Officer, therefore, clearly erred in relying on the sole testimony of the complainant since it was not accepted by the two other independent witnesses. He submitted, therefore, that the finding of the Enquiry Officer was perverse and was liable to be set aside. He submitted that the Labour Court as also the Industrial Court has clearly overlooked the said issue and therefore, the finding of both the courts below were perverse. It was further submitted that even if it was held that the charges had been proved, the punishment which was given was clearly disproportionate to the alleged misconduct. He submitted that in the said complaint, Fehmida Khan had alleged that the petitioner had made one abusive remark. He submitted that the petitioner had worked for more than 20 years and he had unblemished record and therefore, in the order of termination, alone a single remark was disproportionate to the alleged misconduct. 7 It is not possible to accept the submission 8 made by the learned Counsel for the petitioner. Perusal of the statement of Fehmida Khan clearly shows that she had narrated the entire incident and the misbehaviour by the petitioner against her and on the day of the incident as also at other times during the course of employment. The other two witnesses who are examined by the petitioner herein merely stated that no untoward incident took place on that day. These two witnesses have not denied that Fehmida Khan was travelling on the said coach or that the incident as alleged by her in her statement, did not take place. The Enquiry Officer, therefore, under these circumstances, in my view, was justified in holding that the petitioner guilty of the alleged misconduct. The Enquiry Officer has given cogent reasons while recording the said finding which has been accepted by the Labour Court as also the Industrial Court. Both the Courts, therefore, have rightly confirmed the finding of the Enquiry Officer. 9 8 So far as the submission of the learned Counsel for the petitioner regarding disproportionate punishment is concerned, in my view, it cannot be said that the said punishment is disproportionate. The Enquiry Officer has held that the charges levelled against him at Issues (b), (c) and (g) had been established. He has given reasons. The Apex Cort in Vishaka and others vs. State of Rajasthan and others, reported in (1997) 6 SCC 241 has severely criticized and deprecated the growing practice of gender discrimination and injustice and has given several directions to the Government. Taking into consideration the said allegations which are made against the petitioner, therefore, in my view, it cannot be said that the punishment was disproportionate. There is no merit in the submission made by the petitioner. 9 The writ petition is dismissed. (V.M. KANADE, J.)