IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.03.2010 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.8331 of 2001 T.Balaguru ... Petitioner Vs 1.The Deputy Commissionser of Labour-I, (The Appellate Authority under Tamil Nadu Shops and Establishments Act,1947) D.M.S.Compound, Teynampet, Chennai – 600 006. 2.The Management of M/s.Dollar Company Private Limited, No.156, Thambu Chetty Street, Chennai – 600 001. ... Respondents PRAYER:-Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of certiorarified mandamus, calling for the concerned records from the respondents, quash the order of the first respondent dated 08.03.2001 in T.S.E.No.9 of 1999 and consequently direct the second respondent to reinstate the petitioner with full backwages, continuity of service and all other attendant benefits from the date of illegal termination viz. 16.03.1999. For petitioner : Mr.Balan Haridas For Respondents : Mr.P.Subramanian,A.G.P. for R1 Mr.J.Narayana Moorthy for Mr.D.Meenakshi Sundaram for R2 O R D E R The petitioner is an employee under the second respondent/Management. He has filed the present writ petition seeking to challenge the order of the first respondent in T.S.E.No.9 of 1999 dated 08.03.2001 and after setting aside the same seeking for a direction to the second respondent to reinstate him with full backwages. 2. The writ petition was admitted on 25.04.2001. https://hcservices.ecourts.gov.in/hcservices/ 3. The petitioner had entered the services of the second respondent/Management as an Accountant on 27.01.1997 on a monthly salary of Rs.4,500/-. He was kept under probation for six months. On successful completion of his probation, his services were confirmed by an order dated 22.07.1997 as Accounts Executive with effect from 01.07.1997. At the time of joining, the second respondent insisted the petitioner to shift his family from Madurai to Chennai. Accordingly, he shifted his family to Chennai. On account of his shifting, he incurred huge expenditure, besides he had struggled to get admission in various schools to his three daughters. Therefore, he represented to the Managing Director to grant financial assistance for meeting the educational expenses of his daughters. Instead of considering his request sympathetically, the petitioner's services were orally terminated without assigning reasons on 30.08.1997. 4. Questioning the order of termination, the petitioner preferred an appeal under Section 41 of the Tamil Nadu Shops and Establishments Act, 1947 (for short Shops Act) before the first respondent. The first respondent took up the case as T.S.E.No.22 of 1998. Simultaneously, the petitioner also raised an Industrial Dispute before the Labour Officer. A contention was taken that the petitioner was not a workman and not covered by the Industrial Disputes Act, 1947. After the Shops Act was filed, the Management sent a letter dated 02.09.1998 and asked him to report for duty within three days and stated that certain charges have been framed against him. The petitioner reported for work on 05.09.1998 and gave his explanation to the charges. In the charge sheet, it was stated that he had made the statement in Tamil to the following effect: "ahU tr;r jPnah. ,g;g tPL bte;J nghr;R" ,e;j Ch; gr';fs ek;gp vjpYk; mjpfk; bryt[ bra;ahnj/ mth;fs; el;lhj;jpy; cd;id tpl;L tpl;L ntof;if ghh;j;J rphpg;ghh;fs;/" After getting his explanation, the petitioner was kept under suspension by an order dated 26.09.1998. Thereafter, an enquiry was sought to be conducted with the help of an Advocate. The petitioner was not even paid subsistence allowance. 5. In the enquiry, they had examined one Kasthuri, who herself was the presenting officer in the enquiry. The Enquiry Officer on his own recorded the chief examination of the said witness. Subsequently, when they said there were no further evidence, the petitioner had asked for time. But without granting any time, the enquiry was closed. Despite the petitioner seeking for further opportunity, the enquiry was not reopened. On the basis of the enquiry, the petitioner was terminated from service on 16.03.1999. 6. The petitioner once again filed further appeal before the Shops Act Authority. His appeal was taken on file as T.S.E.No.9 of 1999. Before the Appellate Authority, 15 documents were filed by the petitioner and they were marked as Exs.A1 to A15. On the side of the second respondent, no documents were filed. https://hcservices.ecourts.gov.in/hcservices/ 7. The Appellate Authority held that the petitioner had used derogatory remarks against the Managing Director and his family members. His termination came to be made after a full fledged enquiry. Since the misconduct against the petitioner was proved, his appeal is not maintainable and hence, dismissed the appeal. 8. Mr.Balan Haridas, learned counsel for the petitioner contended that the enquiry was not conducted in a fair and proper manner and even the charges levelled against the petitioner was inappropriate since the petitioner had not used any derogatory language. Normally, this Court is entitled to re-appreciate the evidence. But in the present case, the only question that arises for consideration is whether the petitioner had used any abusive language. The petitioner's utterings even as per the recorded evidence that if accepted to be true, it does not become an abusive language. 9. The Enquiry Officer in his enquiry report dated 02.03.1999 had recorded as follows: "In the light of the domestic proceedings the delinquent employee failed to prove his innocence and at the same the management proves the charges levelled against him dated 02.09.98 by producing MD1 to MD5 documents. At the same time the delinquent employee denied the charges and tried at cross examination of the preenting officer to show his innocence. Unfortunately in any point of time at the domestic enquiry the delinquent employee unable to prove his innocence. The delinquent employee did not give evidence himself at the domestic enquiry and he initially waived his right of giving evidence but as after thought he stated to reopen the domestic enquiry for his evidence. Since already the domestic enquiry was closed and his request was rejected." 10. The Enquiry Officer had not stated as to how the words attributed are abusive in nature. He presumed they are abusive in nature and that the Managing Director was hurt by those statement. The Managing Director may have presumed that they were abusive in nature. If the words as found in the charge memo is taken to be true and freely translated it will read as follows: "I remember one of my Managers saying frequently "whoever set fire, now the house has burnt to ashes" Also I remember my Brother-in-law's advise "don't spend money believing the fellows in this place. They will leave you in the mid stream and will be laughing as spectators." It is not clear as to how these words can be said to be of any abusive language. https://hcservices.ecourts.gov.in/hcservices/ 11. On the contrary given the background of the case, it will be seen that the petitioner was disappointed in not getting some extra allowance for having shifted his family and for putting his daughters in schools. It is more of a self-pity than of an abuse against any superiors. Neither the Enquiry Officer nor the Appellate Authority, viz., the first respondent appreciated these issues. 12. In this context, it it necessary to refer to the judgment of this Court in The Management of English Electric Company of India Ltd., Madras v. The Presiding Officer, Labour Court, Madras and another reported in 1975 II L.L.J. 430. In that case, the charge against the petitioner as said in paragraph 7, which is as follows:- "The second respondent was alleged to have told one P.V.Ganesan, "rhp jhd; ngha;ah. cd;dhy; Mdijg; ghh;j;Jf;nfh" ("Sarithan Poya, Unnal Anathai Parthuko"). The witness in support of this charge was one R.(Sic) Gopalakrishnan, who stated that on 7th April, around 10 a.m., he heard argument between Mr.P.V.Ganesan and C.S.Meenakshisundaram telling Ganesan: "rhp jhd; ngha;ah. cd;dhy; Mdijg; ghh;j;Jf;nfh. Consequently all that was held proved before the enquiry officer was that the second respondent uttered those words to P.V.Ganesan." 13. In dealing with the charge, this Court in the same paragraph of the said judgment held as follows: "As a matter of fact, the Labour Court itself has pointed out that having regard to the language generally used by labourers in Madras, the language employed by the second respondent namely "rhp jhd; ngha;ah. cd;dhy; Mdijg; ghh;j;Jf;nfh "cannot be said to be a rude or disrespectful language but a normal language." 14. If seen in the proper context, no exception can be taken to the words attributable to the petitioner. The charges levelled against the petitioner do not constitute any misconduct warranting his dismissal. Further the Appellate Authority failed to exercise his statutory duty in not rendering a correct finding on the issue. This obliged this Court to interfere with the impugned order. Hence, the writ petition stands allowed; the impugned order passed by the first respondent confirming the order of dismissal stands set aside and the petitioner is entitled for all consequential benefits. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ svki To The Deputy Commissionser of Labour-I, (The Appellate Authority under Tamil Nadu Shops and Establishments Act,1947) D.M.S.Compound, Teynampet, Chennai – 600 006. W.P.No.8331 of 2001 BVN(CO) sra 07/04/2010 https://hcservices.ecourts.gov.in/hcservices/