IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21/03/2003
CORAM
THE HON'BLE MR. JUSTICE K. SAMPATH
W.P.No.1276 of 2003
and
W.P.M.P.No.1586 of 2003
P. Natarajan,
S/o P. Perumal,
S.No.47, Sunitha Nagar,
Dunkrik Post,
Wadagaoncheri,
Pune 411 014. ... Petitioner
-Vs-
1. The commissioner of Labour,
DMS Campus, Teynampet,
Chennai 600 006.
2. The Deputy Commissioner of
Labour, 5, Shivaji Nagar,
Pune 411 005.
3. T.V.S. Motor Company Ltd.
- Rep. by its Vice President
(I.R.) Thiru S. Rajagopaln,
Harita, Hosur,
Dharmapuri District 635 109.
4. Shri M.R. Mande,
Labour Law Consultant/
Enquiry Officer,
Prem Mohan Multipurpose
Security & Allied Services
(P.) Ltd., C-6, Shangrilla
Garden, II Floor,
31, Bund Garden Road,
Pune 411 001. ... Respondents
For Petitioner :: Mr.M.K. Hidayathullah
For Respondents 1 & 2 :: Mr.S.V. Durai Solaimalai,
Government Advocate.
For Respondent 3: ... Mr. Karthick for
M/s T. Gopalan & Co.
This writ petition is filed under Article 226 of the
Constitution of India for a writ of mandamus as stated therein.
:ORDER
The prayer is for a mandamus to direct the respondents to
consider and pass orders on the petitioner’s latest representation dated 10-12
-2002 and conduct de novo enquiry in regard to the allegations against the
petitioner at Hosur in Tamil Nadu or in any other place at Tamil Nadu in the
petitioner’s mother tongue Tamil.
2. The facts as set out in the affidavit in support of the
writ petition are as follows:
The petitioner had completed X Standard. He was appointed as
Operator L-1 in the third respondent company on 22-9-1995 at Hosur. He had
been serving in his capacity as Operator with unblemished record. There was
Section 18(1) Settlement under I.D. Act between the Management and the Trade
Union at Hosur Factory. The petitioner is one of the beneficiaries. He is
continuously paying the subscription to the Trade Union INTUC, TVS Employees
Union, Hosur, every quarter in a year since 22-9-1995. He is well-versed only
in Tamil. Though he can speak Hindi, he does not know to read and write. His
knowledge in English is also not fluent. He is restricted only to sign in
English. The Union placed charges of demand for the enhancement of salary at
Hosur. The petitioner’s salary is based upon Madras Price Index. By
communication dated 5-11-2001 the management has reiterated that his original
terms and conditions of appointment stand unaltered. The petitioner
contributed his signature in the Union, which is not to the liking of the
Management. The Management purported to transfer him from Hosur, Tamil Nadu,
to Pune, vide Ref.PER/392, dated 4-4-1998. He joined the Pune Ware-House on
18-4-1998. Though his original appointment was as Operator L.1, he was made
to work without any designation, assigned odd jobs like Telephone Attender,
Despatch Clerk, attending to drawing of moneys from Bank and deposits of
cheques, filing of correspondence in the office and other menial works.
Ignoring the petitioner’s experience as Operator L-1, his transfer to Pune to
attend odd jobs is more by way of punishment. It was not a routine transfer.
However, he continued in the transferred place at Pune. Ever since his
transfer to Pune, the petitioner has been making repeated written requests for
retransfer to Hosur. There has been no response to his requests. However, on
19.9.2002 the third respondent issued show cause notice levelling certain
charges inter alia stating that he used an unparliamentary word in Hindi
against one contract labour by name Sachin at Pune. Show cause notice had
been issued from Hosur, Tamil Nadu, to the petitioner’s Pune address. He
submitted his explanation on 21-8-2002. The third respondent appointed the
fourth respondent as Enquiry Officer to conduct a domestic enquiry into the
charges levelled against the petitioner. The petitioner has been making
repeated requests to conduct the enquiry in Tamil, in which he is well-versed
since he is not able to follow the proceedings in English having very limited
knowledge. Further, some of the communications were sent by the Enquiry
Officer in Marati, which the petitioner does not know. His request has not at
all been considered. He was subjected to great hardship and trouble. He has
to spend money to have the assistance of English knowing persons to read the
communications and even to send reply. Since he is not fully conversant in
English, he is not in a position to ascertain himself whether what he wanted
to convey had been properly translated into English. The petitioner is
undergoing mental agony, anguish and irreparable injury by such proceedings
conducted in English and communication sent in Marati. The petitioner is
denied a fair enquiry. Principles of natural justice are not applied in the
proceedings. During the proceedings, except the petitioner, everybody was
conversing only in Marati and the petitioner has to watch the proceedings like
a deaf and dumb person. Due to the communication gap, he is not able to
effectively represent himself. He is also denied to engage an Advocate in the
domestic enquiry. The petitioner, therefore, sent a communication dated
10-12-2002 highlighting the denial of principles of natural justice to him
requiring the authorities to issue direction to stop further enquiry
proceedings by the fourth respondent and further seeking direction to the
management to conduct the enquiry de novo in Tamil Nadu and also furnish the
documents to him to make his representation effectively. There is no positive
response. In these circumstances, the present writ petition has been filed.
3. Notice was ordered on 14-1-2003. Respondents 1 to 3
entered appearance through Counsel and the third respondent filed a counter,
which is to the following effect:
On 28-7-1995 the petitioner submitted a printed application
for employment in which he declared that he could speak, read and write Tamil,
English and Hindi. The petitioner has been working in the third respondent
office in Pune from 20-4-1998. In July-August, 2002 there were reports from
the Area Office, Pune, that on 3-7-2002 the petitioner had unauthorisedly
taken an important and confidential office document from the representative of
the Courier, before it was delivered to the addressee and when the addressee
complained about the nonreceipt of the said document, the area office came to
know that the petitioner had unauthorisedly collected the cover from the
Courier, opened the same, took out the confidential document and kept it in
his drawer. It was further reported that on 8-7-2002 at about 10.30 a.m.
when the errand boy of a contractor was packing some of the personal
belongings of Shri B.V. Sridhar, General Manager (Service), as per the
direction of the Area Manager, the petitioner needlessly interfered and
threatened the errand boy that how he could send that without his permission.
The petitioner also hit him on his face.
On 19-8-2002 a show cause notice was issued to him pointing
out the misconduct on the part of the petitioner and calling upon him to show
cause why disciplinary action should not be taken against him. The petitioner
gave a reply on 21-8-2002. The petitioner had not addressed to the acts of
misconduct levelled against him. Therefore, he was asked to appear for an
enquiry. The domestic enquiry was held by an independent outsider. The
petitioner did not participate in the enquiry. He used to participate on some
days, avoid enquiry on some other days and he used to raise trivial issues
solely with a view to frustrate the enquiry. At that stage, he addressed a
letter dated 25-1 1-2002 to the second respondent purporting to be a petition
under Section 2-A of the Industrial Disputes Act, challenging his transfer
from Hosur to Pune made in April, 1998 and also making imaginary grievances in
the matter of conduct of the enquiry into the charges levelled against him on
19-8-2002. On 10.12.2002 he made a further representation making imaginary
grievances against the enquiry to the second respondent at Pune with a copy to
the first and the third respondents. The representation has been addressed to
the second respondent, who is not amenable to the jurisdiction of this Court.
The writ petition is therefore not maintainable.
As regards the prayer for de novo enquiry in some other place
in Tamil Nadu, it is stated that the petitioner is working in Pune and he
could not be allowed to say that the enquiry should be conducted away from his
working place. In any event, only the third respondent had ordered the
enquiry to be held at Pune. The forth respondent is a private person and is
not amenable to the writ jurisdiction. Since no relief has been claimed
against the first and the fourth respondents, the writ petition against them
is not sustainable.
The petitioner is a workman within the meaning of Section 2-A
of the Industrial Disputes Act. If the disciplinary action initiated against
the petitioner results in imposition of any punishment, it is always open to
him to move the machinery under the Industrial Disputes Act and seek remedy.
When such remedy is sought before the adjudicating authority under the
Industrial Disputes Act, even if for any reason, the complaint of the
petitioner against the enquiry is countenanced, the third respondent will have
the opportunity of justifying its action by leading evidence. Therefore, no
case is made out to injunct the enquiry at this stage. It is for the
petitioner to decide whether or not he should participate in the enquiry. It
is open to the petitioner to raise whatever objections he has against the
enquiry and without prejudice to those objections, he could participate in the
enquiry and avail of the opportunities given to him to defend his case. It is
not open to him to seek direction to injunct the enquiry at this stage,
particularly when the enquiry is in progress and witnesses are being examined.
In the first sitting of the enqiry held on 23.9.2002, the
petitioner accepted that he had studied up to S.S.L.C., that he could
understand English, that the proceedings could be recorded in English and that
he had no objection to the fourth respondent conducting the enquiry. It is
not open to the petitioner to challenge his transfer from Hosur to Pune made
in April, 1998. If, as alleged by the petitioner, any communication had been
sent by the Enquiry Officer in Marati, this respondent would take steps to
furnish the petitioner with English translation. Hindi is generally spoken
and understood in Maharashtra including Pune. The petitioner knows Hindi and
it will not be difficult for him to understand Hindi. He claims to be an
Ex-serviceman and therefore, he would be conversant with Hindi, which fact he
accepted at the time of joining the employment. The enquiry is being
conducted only in English, with which the petitioner is quite familiar. When
non-English speaking witness is examined, the deposition is translated into
English and recorded in English and hence no prejudice would be caused to the
petitioner. It is not admitted that the petitioner is not conversant with
English. He has been corresponding with the third respondent in English. He
does not have a right to demand or dictate about the place where the enquiry
should be held in respect of the charges levelled against him and in any
event, he is working in Pune and enquiry can be held only in Pune. He cannot
demand shifting the place of enquiry from Pune to any other place in Tamil
Nadu. Not only his demand is unreasonable, but also has no basis in law.
Neither the first respondent nor the second respondent has any power under any
Enactment to give any direction about the conduct of the enquiry. The points
raised in the petitioner’s representation dated 10-1 2-2002 do not fall within
the powers of jurisdiction of the first or the second respondent under any
law. The petition is gross abuse of process of law and is liable to be
dismissed.
4. By consent the main writ petition was taken up and
arguments were heard.
5. The appointment order dated 22-9-1995 clearly provides
that during the period of training, the appointee should accept transfer to
any place in the organisation or to any other division or associates of the
company existing or to be formed in future or to any of the group of companies
in any place, if required. If the trainee completed one year training to the
satisfaction of the management, he would be considered for appointment on the
regular rolls of the company on probation in a suitable post based on the
progress the trainee had shown during the training period. On 4-4-1998,
effective 6.4.1998, the petitioner was transferred to the Marketing Department
on the same designation and salary in terms of the appointment order dated
22-9-1995 and also in terms of Clause 4 of the Certified Standing Orders of
the Company applicable to the petitioner. He was posted to Pune. He was
relieved from his duties in the Factory Production Department, effective close
to his shift 4-4-1998 to enable him to make arrangements for his journey. By
order dated 5.12.1998, effective 22-9-1998, the petitioner was confirmed as
Operator L.1 in Group-A. His basic salary was also revised. It was further
revised on 22-9-200 as Rs.1479/- per month. Periodical revisions were being
made. However, on 19-8-2 002 the petitioner was issued with a show cause
notice. He submitted his explanation, which was perused and found to be not
satisfactory. The fourth respondent was asked to conduct a domestic enquiry
against him.
6. The notice of enquiry provides, among other things, as
follows:
“The management will be represented by Shri Suresh B. Patil, Senior Manager
(Personnel), M/s Harita Grammer Limited, Pune, sister concern of TVS Motor
Company Limited.
The enquiry procedure will be explained to you by the Enquiry Officer.
The enquiry will be conducted based on the “Principles of Natural
Justice” and based on the provisions of the Model Standing Orders contained in
the Bombay Industrial Employment (Standing Orders) Rules, 195 9.
If you are interested, you can bring a co-employee to assist you in
the enquiry. However, please note that no outsider will be permitted to
assist you in the enquiry.
Please note that if you do not appear for the enquiry on the above
date and time or refuse to participate, the enquiry will be conducted ex parte
and disposed of on merits.”
7. On 23-9-2002, the petitioner made an objection in writing
that,
“recording of proceedings are being gone with manual hand written in English.
But, I have studied only up to X Standard and I am unable to understand
English properly. So I request you to take enquiry proceedings in Tamil, i.e.
my mother tongue and I have strong verbal objection to handwritten script made
available to me is in poor state. The average eye sight person cannot read
the said script, which affect the defence of me.
The procedure of conducting domestic enquiry was not brought to my
notice by the Presiding Officer conducting the domestic enquiry.
…….
I was not furnished with the copy of the charge sheet till date.
…….
Notice, order communication or information handed over to me have not
been read out and explained to me.
…….
The order for issue of some important documents to me for preparing my
defence should be allowed.
I may kindly be allowed to represent my case through Advocate.
Procedure of conducting domestic enquiry should be explained to me.”
8. This is followed by another letter dated 26.11.2002. The
petitioner objected to the fourth respondent conducting the enquiry, that he
has no faith in him and that the enquiry is not in accordance with principles
of natural justice. He wanted change of Enquiry officer. This is followed by
another letter dated 27.11.2002 stating that the Enquiry Officer is
co-operative with the Management and that he allowed one Suresh Patil,
Manager of Harita Grammer Company unofficially. He shouted at the petitioner
in loud voice and threatened him. The petitioner was harassed at the time of
enquiry. One Ranganath Pund was allowed as the defence counsel. The said
Ranganath Pund is the President of Poona Zilla Mazoor Sabha and he is not the
petitioner’ s union leader. He knows only Marati and he could not explain
anything to the petitioner. Then only the petitioner dispensed with his
services and asked for assistance of another counsel. This was refused. So
he wanted the enquiry to be conducted in Tamil by following the principles of
natural justice, the Enquiry Officer to be changed and necessary documents and
Certified Standing O rders have to be furnished to him. 9.
Thereafter, he sent a letter on 10-12-2002 to the Deputy Commissioner of
Labour, Mumbai, that if the enquiry proceedings were to be conducted in Pune,
it would not be fair and “the petitioner would risk his life if the enquiry
was conducted out side the Ware House Complex; an outsider has been appointed
as Enquiry Officer, which is violative of the principles of the Standing
Orders; the cause of action for conducting enquiry as per the management’s
documents and files will be within the State of Tamil Nadu and not at Pune; he
prayed for stoppage of all enquiry by the fourth respondent and conduct of de
novo enquiry by appointing a fresh Enquiry Officer; the enquiry is to be held
within the State of Tamil Nadu. Not having been successful in stalling the
proceedings, the petitioner has come to this Court.
10. The respective contentions have already been set out. On
behalf of the third respondent, two documents have been produced. The first
one is the application dated 28-7-1995 submitted by the petitioner for his
employment. In Column 11 of the application, under languages known, the
petitioner has said that he knows to speak, read and write Tamil, English and
Hindi. In Column 14 it is shown that he joined on 2nd November, 1983 in the
Light Air Defence of the Indian Air Force as Wireless Operator and was
discharged in January, 1992 on medical ground. The other document is the
minutes of the enquiry conducted on 23-9-2002. The petitioner has given a
statement as follows:
“My name is P. Natarajan. I am working as an Operator L-1 at TVS Motor
Company’s Warehouse and Marketing Office at Wagholi since last about four and
half years. …. I have studied up to S.S.L.C. I, understand English. The
proceedings of the enquiry may please be recorded in English. I have no
objections for the authority of the signatory to Exs.P-1 to P-4 as well as for
Mr.M.R. Mande conducting this enquiry as the Enquiry Officer.y However, I
have objections for Mr.S.B. Patil appearing in this enquiry as the Company
Representative, because he is an employee of Harita Grammer Ltd. and not from
TVS Motor Company of which I am an employee. ….. I am also producing in
the enquiry, the copy of my letter dated 14-9-2002 (four pages in English)
sent to the Vice President (Operations) Mr.S. Rajagopalan at Hosur, regarding
the charges against me mentioned in Ex.P-4. …. I say that I have not been
charge sheeted. ….. Advocate P.M. Behera may please be allowed to defend
my case in this enquiry.” [Emphasis supplied]
The petitioner has also signed the minutes.
11. Thus, the petitioner himself had in the application for
employment indicated that he knew to read, write and speak English, Hindi and
Tamil and on 23-9-2002 had specifically stated that the enquiry could be
conducted in English and that he had no objection to the fourth respondent
being the Enquiry Officer. As rightly pointed out by the learned Counsel for
the third respondent, it is not open to the petitioner to change track and ask
for enquiry being conducted in his mother tongue Tamil. The charge against
him is that he had unauthorisedly taken an important and confidential office
document from the representative of the Courier before it was delivered to the
addressee and when the addressee complained about the non-receipt of the said
document, the area office came to know that the petitioner had unauthorisedly
collected the cover from the Courier, opened the same, took out the
confidential document and kept it in his drawer and again, when the errand boy
of a contractor was packing some of the personal belongings of Shri B.V.
Sridhar, General Manager (Service) as per the direction of the Area Manager,
the petitioner needlessly interfered and threatened the errand boy as to how
he could send this without his permission; the petitioner also hit him on his
face.
12. These things were alleged to have happened in Pune. It
is absolutely meaningless for the petitioner to ask for an enquiry in Tamil
Nadu. Again, as pointed out on behalf of the third respondent, if the
disciplinary action initiated against him results in imposition of any
punishment, it is always open to him to move the machinery under the
Industrial Disputes Act and seek remedy and if before the authority under the
Industrial Disputes Act the complaint of the petitioner is entertained, it
would be open to the third respondent to justify his action by leading
evidence. It is, therefore, totally unnecessary to stall the proceedings at
this stage. Further, if objections are available to the petitioner, he can
raise them at the enqiry and without prejudice to those objections, he can
participate in the enquiry and avail of the opportunities given to him to
defend his case. I do not wish to say anything further. The demand of the
petitioner to have the enquiry at some place in Tamil Nadu and for conducting
of the proceedings in Tamil appears to be rather unreasonable. His demand for
assistance of a lawyer also does not appear to be justified. But, it is
always open to the petitioner, as pointed out on behalf of the third
respondent that he could raise all objections available to him and without
prejudice to those objections, choose to either participate in the enquiry or
remain ex parte and take the matter for adjudication under the Industrial
Disputes Act before the proper authority.
13. It is also pointed out that enquiry had been proceeded
with and witnesses are being examined. The main object of the petitioner
appears to be to abort the proceedings by some means. This cannot be allowed.
In my view, the writ petition is premature and is misconceived. It is liable
to be dismissed and accordingly it is dismissed. The connected miscellaneous
petition is also dismissed. However, there will be no order as to costs.
14. It is, however, expected that in the conduct of the
enquiry, the principles of natural justice will be followed and the petitioner
would be afforded proper opportunity to defend himself.
21-3-2002
Index: Yes
Internet: Yes
IGP
To
1. The commissioner of Labour,
DMS Campus, Teynampet,
Chennai 600 006.
2. The Deputy Commissioner of
Labour, 5, Shivaji Nagar,
Pune 411 005.
3. T.V.S. Motor Company Ltd.
– Rep. by its Vice President
(I.R.) Thiru S. Rajagopaln,
Harita, Hosur,
Dharmapuri District 635 109.
4. Shri M.R. Mande,
Labour Law Consultant/
Enquiry Officer,
Prem Mohan Multipurpose
Security & Allied Services
(P.) Ltd., C-6, Shangrilla
Garden, II Floor,
31, Bund Garden Road,
Pune 411 001.