P NATARAJAN Vs. COMMISSIONER OF LABOUR

JUDGEMENT

(1.) 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 unparliamentaryword 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 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. 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 25-11-2002 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 10-12-2002 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.