UMESH KUMAR TIWARI Vs. HYATT REGENCY HOTEL

JUDGEMENT

(1.) THESE writ petitions are filed under Articles 226 and 227 of the Constitution of India by both the parties challenging the award dated 05.06.2010. The National Capital Territory of Delhi through its Secretary (Labour) vide reference number F -24 (92) /04/Lab./2874 - 78 dated 17.05.2004 referred the dispute for adjudication between the Management - M/s. Hyatt Regency Hotel and its workman - Shri Umesh Kumar Tiwari in the following terms of reference.

(2.) AFTER the notice of reference was issued to both the parties, the workman - Umesh Kumar Tiwari appeared and filed statement of claim alleging therein that he joined the establishment of the management on 21.07.1986 and later on he was promoted to the post of Fire Safety Coordinator. On 26.11.1993, the management selected him as 'the employee of the month'. He was congratulated by the management on his achievement of earning 'the employee of month award for November, 1993'. In June, 1999, 'News Flash', issued by the management, it was published by the management that "the workman is an asset to the organization and his team mates appreciate him for his friendly and helping nature". He was promoted as Fire Safety Coordinator in 1997 due to his diligence and outstanding work performance. On 26.03.1999, Asian Hotel Employees' Union was formed by the employees of M/s. Asia Hotel Ltd. and the said union was registered on 24.04.1999. He also got himself enrolled as a member of the said union. The General Secretary of employees' union in its meeting held on 23.06.1999 decided to raise the demand with the management to set aside the settlement of 1998. Since the management failed to respond to the demand, a dispute was raised before the competent authorities. In the meantime, the said union started adopting all legitimate means, including dharnas and strikes for settling the demand / dispute with the management. On 29.04.1999, the management filed a Civil Suit No. 917/99 in this Court against the union. This Court restrained the union, their employees and office bearers from holding any demonstration / dharnas within the radius of 250 meters from the boundary wall of Hyatt Regency. Later on this order was modified vide order dated 08.10.1999 and the union was permitted for staging any demonstration / dharna beyond 80 meters from the boundary wall of the management. As a result of agitations, dharnas and strikes, the office bearers and some active members of the union were dismissed / suspended and some of them forcibly made to resign from the office of the union and the union membership. In the aforesaid background, the workman was compelled to go back from Hotel gate on 12.08.1999 on special leave from 12th to 16th August, 1999 and when he reported on 16.08.1999 for duty in the management office, he was served with charge - sheet -cum -suspension order dated 16.08.1999. Vide his reply dated 18.08.1999 to the charge -sheet - cum suspension order, the workman denied all the allegations levelled against him in the charge -sheet. Vide letter dated 04.09.1999, the management informed the workman that his explanation has been found to be unsatisfactory and an enquiry notice was given and the charges levelled against the workman were of major misconduct and called for severe punishment. Mr. Alok Bhasin was appointed as the Enquiry Officer. His appointment was objected by the workman on the ground that Mr. Alok Bhasin was working with Bhasin & Bhasin company, who was legal advisor of the management and Bhasin & Bhasin company had filed the aforesaid suit representing the management and they were also representing the management in some other criminal and industrial disputes cases. The workman also requested the management to allow him the assistance of a person in the departmental enquiry to defend him which request was declined. A detailed narration was made that thereafter the enquiry was conducted by Ms. Jyotika Bhasin, Advocate and the enquiry was abruptly closed on 28.02.2002. On 01.04.2002, the management passed the order without affording opportunity of hearing to the workman on the punishment. It was indicated in the dismissal order that the workman's conduct during enquiry was most arrogant and has been grossly misbehaving with the Enquiry Officer. The said observations in the dismissal order are without any justification because the Enquiry Officer has not submitted enquiry report. Secondly, false accusations were levelled against the workman and he was not granted opportunity to explain the allegation levelled in the dismissal order which was in grave violation of principles of natural justice. The management also served one more charge -sheet dated 13.11.1999 on the allegations that he had participated in the dharna outside Hyatt Hotel on 02.11.1999. The said charge -sheet when replied by the workman, the management closed the issue and no further enquiry was conducted. It was alleged by the workman that the dismissal order dated 01.04.2002 passed by the management is illegal, arbitrary and based on malafide considerations.

(3.) AFTER completion of pleadings, the following issues were framed on 28.01.2005: