Madras High Court
Mr.S.Soundarapandian vs R.Srinivasan on 18 December, 2015
Author: R.Subbiah
Bench: R.Subbiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18.12.2015 CORAM THE HONOURABLE MR. JUSTICE R.SUBBIAH Crl.O.P.Nos.14129 & 14142 of 2014 and M.P.Nos.1 and 2 of 2014 Reserved on: 14.12.2015 Mr.S.Soundarapandian ... Petitioner in both the petitions Vs R.Srinivasan ... Respondent in Crl.O.P.No.14129 of 2014 R.Kaliannan ... Respondent in Crl.O.P.No.14142 of 2014 Prayer: These petitions are filed under Section 482 Cr.P.C., praying to quash the proceedings in Criminal Complaint Nos.132 and 134 of 2014 pending on the file of the Judicial Magistrate No.II, Hosur. For Petitioner : Mr.C.Manohar Gupta for M/s.Gupa and Ravi For Respondents : Mr.V.R.Annagandhi COMMON ORDER
The respondents herein were working as the Operators in a factory, called 'Carborandum Universal Ltd.' located at Hosur, wherein, the petitioner is working as Deputy General Manager (Human Resources). The respondents have moved private complaints before the learned Judicial Magistrate No.II, Hosur under Section 200 Cr.P.C. against the petitioner, for punishing him for the offence of criminal defamation under Sections 499 and 500 IPC.
2. The brief facts narrated by the respondents/workmen in their complaints, are as follows:
a) The respondents were working as Operators for the past 26 years in the above said factory. There are two trade unions in the said factory. One Union, by name 'Carborandum Universal Employees Union' was formed 30 years back for the welfare of the workers at large, for which, the petitioners were working as Vice President and General Secretary respectively. In the year 2012, existing settlement came to an end and hence, the Union gave general demands pertaining to the next long term wage settlement, which turned out to be a failure. A dispute was raised with the Conciliation officer envisaged under the Industrial Disputes Act, which also ended in failure and the Assistant Commissioner of Labour has sent failure report to the Government and the same is pending before the Secretary to the Government, Labour and Employment for referring it to the Industrial Tribunal for adjudication.
b) While so, pursuant to the orders of this Court in W.P.No.16438 of 2008, on 13.03.2014, the Contract Labour Board and its representatives came for inspection to the factory premises to probe into the illegal activities of the Management by way of engaging the contract workers for direct production works against the norms envisaged under the Contract Labour Abolition and Regulation Act and the petitioners being the Vice President and General Secretary of the Union, assisted the Board at the time of such investigation. The management got angry over the legal assistance of the union and from that day, it started to give all kinds of obstacles and hindrance to the office bearers of the union.
c) It is stated that the petitioner had issued suspension order to three workers belonging to their union, issued charge sheet to two other workers of the union and transferred three office bearers, including the respondents and Treasurer to various places in northern states. According to the respondents, such act of the management amounts to victimization and unfair labour practice and the Union is challenging the same before the appropriate forums.
d) While so, on 22.3.2014, the petitoiner issued an order of transfer to the respondents with four allegations mentioned therein, of which, the third allegation would state that as if the respondents threatened and tortured the workers belonging to the other union and induced other members of their union to do such act. According to the respondents, the terminology and words used by the petitioner is highly defamatory and used so with a clear intention of degrading the status of the respondents. Further, before handing over the transfer orders to the respondents, the petitioner had placed the same on the office table, visible to all the staff and workers of the factory, read out the same to the managerial staff and to all the workers, who gathered at large in the factory premises. The intention of the petitioner is to impose threat on other workers and to make them to nod their heads to his tune or else the same action will be initiated against them also. By all his acts, deeds and words, the petitioner wantonly and legibly defamed the reputation of the respondents on all aspects. The clear intention of the petitioner is to degrade the value of the respondents, who are the Vice President and the General Secretary of the Union to the worst level of humilation and thereby, their reputation was totally tarnished by the acts, words and deeds of the petitioner. With these allegations, the respondents have moved complaints under Section 200 Cr.P.C. before the learned Judicial Magistrate No.II, Hosur, which were taken on file vide C.C.Nos.132 and 134 of 2014.
3. Aggrieved over the same, the petitioner has come forward with the present petitions, seeking to quash the above said proceedings.
4. Since the issue involved in these petitions as well as the parties are one and the same, these petitions are taken up together for disposal.
5. According to the petitioner, he is working as a Deputy General Manager (HR) of the factory and in order to maintain a calm working atmosphere, it is his duty to take necessary action and all precautionary measures such as initiating disciplinary action by issuing transfer order as and when required according to the needs and the welfare of the organization. There is no statutory law preventing the administrative action of the management by transferring the employees from one place to another place. Hence, the petitioner is having every right and authority to issue transfer orders to the workers as per the Standing Orders of the company. Though the petitioner is having power to inflict immediate suspension or dismissal from job against the charged workman as per the Standing Orders of the company, however, despite the authority vested with him, he issued only a temporary transfer order to the workmen/respondents transferring them from one place to another place, which would not attract criminal liability under the provisioins of Sections 499 and 500 IPC. In order to maintain industrial harmony and peaceful working atmosphere, the petitioner has issued transfer orders in his official capacity as Deputy General Manager (HR) and there is no criminal intimidation or malafide motive on the part of the petitioner. The respondents/workmen have filed the present proceedings only to humiliate and harass the petitioner with baseless grounds. Hence, the petitioner sought for quashment of the proceedings.
6. Mr.C.Manohar Gupta, learned counsel appearing for the petitioner, would contend with all vehemence and force that in an offence under Section 499 IPC punishable under Section 500 IPC, the petitioner cannot be made vicariously liable for the alleged acts commited by him in his capacity as Deputy General Manager (HR) of the company, who is the authority to lookafter the affairs of the company including initiation of disciplinary action against the erring workmen. He would draw the attention of this Court to the alleged imputations made by the respondents/workmen against the petitioner, viz., issuing transfer order to the respondents in a threatening manner and placing the same on the office table visible to all the staff, who gathered in the factory premises and reading out the contents of the transfer order giving threat to other workers to be submissive and nod their heads to his tune, etc., would not amount to defamation to impute or harm the reputation of the respondents directly or indirectly. He would further contend that issuing transfer orders to the respondents/workmen is only in order to maintain industrial peace and harmony among the workmen of the factory and the acts committed by the petitioner would squarely be covered by Exceptions 7 to 9 to Section 499 IPC. Therefore, the learned counsel would submit that being an authority over his workers, as per the Standing Orders of the company, the petitioner is entitled to take such actions as are necessary for preventing disturbance of industrial peace and harmony in the factory premises and the same cannot be construed as defamatory so as to implicate the petitioner as an accused of Section 499 IPC. In support of his submissions, the learned counsel relied upon the decisions, viz., (1999) 3 SCC 134 (Rajendra Kumar Sitaram Pande and others versus Uttam and another), Factory Journal Report Vol.100 page 826 (Empee Distilleries Ltd., versus State), Orders of this Court made in Crl.O.P.Nos.30736 to 30744 of 2006, dated 06.08.2009; and in Crl.M.C.No.4993 of 2005, dated 22.11.2006.
7. On the other hand, Mr.V.R.Anna Gandhi, learned counsel appearing for the respondents would contend that the petitioner, with a clear intention to degrade the status of the respondents before all the workers, issued the transfer orders mentioning four allegations in a threatening manner and placing the orders on the table visible to all the staff and workers of the factory, reading out the same to managerial staff and the workers gathered in the factory premises, all of which would amount to defamation and considering the fact that the respondents prima facie made out the ingredients for constituting the offence under Sections 499 IPC, the Court below has rightly taken cognizance and the petitioner cannot invoke the jurisdiction of this Court under Section 482 Cr.P.C. since remedy of filing a petition for discharge from the proceedings is available to him before the Court below. He also contended that whether the alleged acts of the petitioner would amout to defamation, is a matter of consideration by the Court below on an appreciation of the facts coupled with the evidence to be let in by the parties and hence, at this stage, the present petitions are not maintainable. Hence, the learned counsel sought for dismissal of the petitions.
8. I have given my thoughtful consideration to the submissions made by the learned counsel on either side and perused the entire materials available on record.
9. The petitioner has issued the so-called transfer order, dated 22.3.2014 against the respondents/workmen, which is the core basis to raise the issue, reads as follows:
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ck;kPJ fPH; Fwpg;gplg;gl;Ls;s rpy fLikahd Fw;wr; rhl;Lr;rhl;Lfs; Twg;gl;Ls;sjhy; mJ gw;wp cz;ik fz;lwpa Kjw;fl;l tprhuiz (Preliminary Enquiry) eilbgw ,Ug;ghjhy; mt;tprhuiz RKfkhf elj;Jtjw;F VJthf mt;tprhuiz Koa[k; tiu ck;ik jw;fhypf gzp ,lkhw;wk; bra;fpnwhk;/ 1/ nkyhsupd; vGj;J Kykhf Kd; mDkjpapd;wp fk;bgdpapd; vy;iyf;Fs; Tl;lk; elj;JtJ.
2/ bjhHpw;rhyapd; nkyhsuplk; (Factory Manager) fLikahd kw;Wk; mr;RWj;Jk; tifapy; ele;Jf; bfhs;tJ.
3/ khw;W r';fj;ijr; rhh;e;j bjhHpyhsu;fisa[k; r';f eph;thfpfisa[k; Jd;g[Wj;JtJ kw;Wk; kpul;LtJ kw;Wk; kw;wth;fisa[k; ,r;bray;fis bra;a Jd;LtJ.
4/ epWtdj;ijg;gw;wp mtJhwhd jfty;fis gug;g[k; bray;fspy; <LgLtJ/
10. A reading of the above, it is clear that the respondents/workmen were transferred for the reasons, viz., i) without prior permission of the Manager, conducting the meetings in the premises of the factory; ii) behaving with the Factory Manager in a threatening manner; iii) threatening members of other union and inducing them to do such act and iv) spreading over the defamatory statements about the company. It appears that in order to maintain industrial peace and harmony in the factory premises, the management thought it fit to transfer the respondents/workmen and being the Deputy General Manager, the petitioner having lawful authority over the respondents and as per the Standing Orders of the company, has passed the transfer order narrating the alleged misconduct done by the delinquent employees. Only if there is any personal allegation or defamatory slander or libelous allegation made against the respondents/employees, the question of attracting Section 499 IPC would arise. Merely narrating the misconduct said to have been committed by the respondents/employees during the course of employment will not be considered as an offence of defamation within the meaning of Section 499 IPC. Further, the misconducts naratted in the transfer order said to have arisen during the course of employment and they are not personal in nature. Therefore, the acts committed by the petitioner as alleged by the respondents, in my opinion, purport to be performed by him in the interest of orderly administration and maintenance of discipline among the workers in the factory premises. It is settled law that in order to constitute defamation under Section 499 IPC, mere presence of imputation is not enough, but there should be an intention to harm the reputation of such person against whom the imputation is made. In the present case, the petitoiner, during the course of employment, inflicted transfer orders against the workmen, who were alleged to have committed misconduct and such act cannot be construed as an imputation of defamatory character so as to attract the offence under Section 499 IPC, but his intention is only to avoid anti-establishment activities of the respondents . If at all the respondents feel that the acts of the petitioner would amount to victimization and lead to unfair labour practice, they could very well agitate the same by raising an industrial dispute before the Tribunal.
11. In this regard, it is worthwhile to refer the decision of this Court made in Crl.O.P.Nos.30736 to 30744 of 2006, dated 06.08.2009, wherein, it has been observed as under in para 21:
21. On going through the details and the particulars mentioned in the notice in question and the private complaint filed by the respondent, there can be no doubt that the steps taken by the Management was in the interest of the management and the workmen and if the management had not taken such steps, it would meet utter failure in management of its affairs and would loose the disciplinary control over the workmen. The narration made in the notice are based on the information received by the management and as a result of the proceedings initiated in the civil forum and also before the Assistant Commissioner of Labour. In my view, the management has acted in a justified manner both in its interest and the workmen who may act detrimental to the company in order to warn the workmen to maintain discipline and smooth working of the factory. Therefore, the petitioners were within their rights to prevent the improper conduct of the respondent and the petitioners had lawful authority to deal with the subject matter of the complaint and take proceedings against th epersons in their own interest, even if it is said that the said action of the managment directly or by its consequences be injurious or painful to the persons against whom such action has been taken.
12. In view of the foregoing discussion, I am of the view that the allegations made in the complaints by the respondents, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the petitioner.
Accordingly, these Criminal Original Petitions are allowed and the proceedings in C.C.Nos.132 and 134 of 2014 pending on the file of the Judicial Magistrate No.II, Hosur, are hereby quashed.
18-12-2015 suk/ssv Index: Yes/No Internet: Yes/No R.SUBBIAH, J suk Pre delivery common order in Crl.O.P.Nos.
14129 & 14142 of 2014 18-12-2015