High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :: 27-07-2007CORAMTHE HONOURABLE MR.JUSTICE ELIPE DHARMA RAOANDTHE HONOURABLE MR.JUSTICE S.PALANIVELUWRIT APPEAL No.1528 OF 2001K.Balakrishnan...Appellant-vs-1.Hotel Tamilnadu, a Unit of the Tamilnadu Tourism Development Corporation Ltd., Ootacamund, Nilgiris, rep.by its Regional Manager.2.The Labour Officer, Ootacamund (Authority under the Tamilnadu Catering Establishments Act), Ootacamund....RespondentsAppeal against the order, dated 17.08.2000, made inW.P.No.17494 of 1993 the file of this Court. This petitionpresented to this Court under Article 226 of constitution of Indiato issue a writ of certiorari calling for the records of the firstrespondent order No.Pa.Mu.9331 of 1992 dated 9.3.1993 and quashthe same.For appellant : Mr.V.Ajoy KhoseFor respondent 1 : Mr.Mr.M.Vijayan,for M/s.King & PartridgeFor respondent 2 : Mr.K.Balakrishnan,Addl.Govt.Plealder. https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N TS.PALANIVELU,J.Appellant was working as a Cook in the first respondenthotel from 1984. On 22.06.1988, the first respondent managementshot a show cause notice, requiring the appellant to submit hisexplanation, for an irregularity, which he committed on21.06.1988, during the course of his duty. It was stated thereinthat without kitchen order token (KOT), he prepared and sent somefood items through one Vijayan, who was a casual labourer, to theBar Room, where certain individuals were consuming alcohol. OneK.Shanmugasundaram was the Bar In-charge at the relevant time.The items, said to have been pilfered, were : (i) Chicken Fry - 4plates – Rs.52/-; (ii) Chicken Biryani – 4 plates – Rs.60/- and(iii) Vegetable Biryani - 2 plates - Rs.20/-, costing Rs.132/-.It was further stated that even after collecting Rs.132/- from thecustomer, the above said staff had not remitted the amount bypreparing a bill and the appellant herein misappropriated theamount. On the same day, the management issued anotherproceedings, suspending the appellant from service with effectfrom 24.06.1988, as the appellant had misappropriated Rs.132/-. Itwas mentioned in the proceedings that since there was no KOT orbill, one Sesil Kumar, Assistant Manager, who was in-charge of thecatering department, complained the matter to the Chief Manager,who, along with one Thimmiah, who came from Head Office to imparttraining to the hotel staff, enquired the appellant and oneShanmugasundaram. At that time, both of them admitted theirregularity they committed. Further, after the said inquiry, on22.06.1988, at about 04.00 p.m., the appellant paid Rs.60/- aloneand prepared a bill. It was also ordered to conduct adepartmental enquiry. For the show cause notice, the appellantsubmitted an explanation, stating that Vijayan came to him and, asper his direction, he prepared four plates of chicken biryaniimmediately for some VIPs, who were consuming liquor in the Bar,and entrusted to the said Vijayan, under the impression that thepersons, who consumed liquor, might become aggressive. It wasfurther explained that while he was handing over the food items toVijayan, he asked him to obtain KOT or bill, for which heresponded in the affirmative and he was also under the impressionthat Vijayan might have obtained KOT or bill properly; but, onlyon 22.06.1988, in the afternoon, while the manager enquired him,he came to know of the facts; it was the existing practice thateven without KOT, while the restaurant staff requested to supplythe food items, he used to prepare and give them and subsequently https://hcservices.ecourts.gov.in/hcservices/ the value of the food items would be brought to bill and, on thatpremise alone, he handed over four plates of chicken biryani toVijayan; non-payment of the value of the food items was only onthe part of Vijayan and that he had not misappropriated theamount, by supplying chicken fry and vegetable biryani. 2. Not content with the explanation of the appellant,the management issued a charge sheet, by proceedings, dated04.07.1988, for which the appellant submitted an explanation,reiterating the averments, which he mentioned in his explanationto the show cause notice. The officer in-charge of thedisciplinary proceedings conducted a domestic inquiry andsubmitted a report to the management on 19.08.1988, holding thatall the charges were proved against the delinquent/appellant.Thereupon, on 05.09.1988, the management issued a second showcause notice to the appellant, calling for explanation, proposingto dismiss him from service. After the submission of arepresentation, the appellant was dismissed from service on30.09.1988.3. Thereafter, the appellant raised an industrialdispute before the Labour Officer, Ooty, requesting forreinstatement with back wages and continuity of service. The saidLabour Officer, not accepting the decision arrived at by themanagement on the strength of the domestic inquiry report, by hisproceedings dated 09.03.1993, directed the management to reinstatethe workman in service. Hence, the management preferred a writpetition before this Court, which ended in its favour, leading tothe filing of this Writ Appeal, at the instance of the workman.4. Learned counsel for the appellant/workman very muchstresses that the action of the management is vindictive againsta poor cook, who was in the habit of handing over food items tothe customers even without KOT and his previous service recordswere clean.5. Conversely, learned counsel for therespondent/management would strenuously contend that it is atypical misconduct on the part of the workman, in involvingmisappropriation of the amount equal to the value of the fooditems, which he passed on from the kitchen to the Bar Room,without adhering to the regulated procedure of the management. 6. At the outset, it is to be seen, whether there wasany practice for taking food items outside the kitchen, without abill or KOT. The answer would be in the negative. There is https://hcservices.ecourts.gov.in/hcservices/ nothing on record to show that there was such a practice. Sincethe transactions involve fetching of revenue to the management,which is a public institution, every pie should be accounted bythe person, who is dealing with the same. In case such happeningsare allowed to continue, the management would definitely incurhuge loss. 7. In order to appreciate the contentions of both sides,it is necessary to highlight certain salient features in theinquiry report and to reach an appropriate conclusion in thismatter. 8. Sasil Kumar, Assistant Manager, stated that while thecasual labourer, namely, Vijayan was carrying the food items, heasked him whether KOT was prepared for it, for which he respondedotherwise. While he was subjected to cross-examination by thedelinquent, he responded that it was an important duty to prepareKOT as per the requirements of the customers and to send it to thekitchen room. Vijayan stated before the enquiry officer thatwhenever customers order food items, only after preparing KOT, hewould supply them. While he was crossexamined by the delinquent,he stated in definite terms that without KOT he would not supplyanything. One Thimmappa, a lecturer in catering department, whocame to Udagamandalam, for imparting training to the staff of themanagement with regard to the preparation of food items and theprocedure to be adopted while taking the food items outside thekitchen, stated that he instructed the staff that no food itemsshould go out from the kitchen without KOT. The Chief Manager ofthe hotel also stated before the enquiry officer that even if VIPsvisit the hotel, food items would not be supplied to them withoutKOT. 9. The above said features would go a long way to showthat without preparation of KOT or bill specifying the food items,the food items would not come out from the kitchen. When that beso, it is not at all acceptable that the appellant sent the fooditems without KOT. By means of statements of witnesses before theenquiry officer, it comes to light that it is the procedure beingfollowed in the management that food items would be supplied onlyon KOT and bill. However, it is an admitted case of the appellantthat he supplied food items without getting KOT or bill and, onlyon the next day, he remitted a sum of Rs.60/-, being the value offour plates of chicken biryani, that too after he was enquired bythe Manager. Till then i.e., 22.06.1988, he had not informed thematter either to the Assistant Manager or the Chief Manager. This https://hcservices.ecourts.gov.in/hcservices/ shows the dereliction of duty on the part of the appellant. Eventhough he had been working there for about four years, he did notfollow the settled procedure.10. When an institution is run, adopting the regulatedprocedure, any deviation, violation or attempt to violate suchprocedure would certainly constitute misconduct on the part of theindividuals concerned. It is the bounden duty of the staff toabide by the rules and regulations of the establishment, for itssmooth functioning. The carelessness on the part of the workman,which would be prejudicial or detrimental to the administration ofthe institution, has to be viewed seriously. Any deviation ofprocedure, adopted for usual course of business, will pave way forrevenue loss to the institution. If such staffers, indulging inthe like misconduct, are allowed to continue in service, therewould be a total deterioration in the conduct of the business.11. The main thrust of the appellant that there was nomala fide intention on his part and the sending of food itemswithout KOT or bill would not constitute any kind of misconduct,in our standpoint, is not acceptable. The learned single Judge,after considering the rival submissions, arrived at an appropriateconclusion that the claim of the workman was not tenable, whichcannot be found fault with. Therefore, the order of the learnedsingle Judge stands confirmed.12. Writ Appeal fails and is dismissed. No costs. Sd/Asst.Registrar/true copy/Sub Asst.Registrardixit https://hcservices.ecourts.gov.in/hcservices/ To1.The Labour Officer,Ootacamund (Authority under the Tamilnadu Catering Establishments Act),Ootacamund.2.Regional ManagerHotel Tamilnadu,a Unit of the Tamilnadu Tourism DevelopmentCorporation Ltd.,Ootacamund,Nilgiris,+1cc to M/s. King & Partridge, SR 47144+1cc to Mr.D.Hariparantham, Advocate Sr 46632AKR (CO)km/14.8. W.A.No.1528 OF 2001