V.K. Bagga vs O.P. Arora
2006 Latest Caselaw 2108 Del

JUDGMENT

A.K. Sikri, J.

1. The petition seeks quashing of the criminal complaint under Sections 499 and 500 of the Indian Penal Code in which petitioner has been summoned to stand trial for an offence under Sections 499 and 500 of the Indian Penal Code.

2. The complainant (respondent herein) was employee of M/s Killick Nixon Limited, employed at clerical level at its New Delhi Branch office. Petitioner is working in this very company as Branch Manager. The respondent had allegedly committed certain acts of gross disobedience and, therefore, a charge-sheet dated 29th September, 1994 was issued to him. He was also suspended from work on 6th January, 1995. Thereafter, an inquiry was held into the charges levelled in the said charge-sheet. The Inquiry Officer, after conclusion of inquiry, submitted his inquiry report on 1st February, 2002, as per which charges against the respondent stood proved.

3. Principles of natural justice mandate serving of a copy of the inquiry report to the delinquent employee so that he is given an opportunity to make his submissions on the findings recorded by the Inquiry Officer. The Disciplinary Authority is supposed to take final decision in the matter on consideration of the response of the charge-sheeted employee along with the inquiry report.

4. According to the petitioner, since the respondent was to collect the inquiry report and the inquiry report was sent to the respondent by Registered Post as well as U.P.C on 28th February, 2002. However, it could not be served upon the respondent as the envelopes came back with the postal remarks "Addressee not available." The company also tried to serve a copy of the inquiry report to the respondent personally and for this purpose, on 4th April, 2002, the office Peon was deputed to deliver the report to the respondent. However, when the said Peon tended the inquiry report to the wife of the respondent, she refused to accept the same stating that she had no instructions to receive any communication from the company. In these circumstances, the company decided to serve the inquiry report to the respondent when he would come to collect his cheque for suspension allowance.

5. According to the averment made in the petition on 2nd April, 2002, the respondent quietly visited the company's office and met the cashier and rushed out after collecting the cheque. Having no other option, it was decided by the company to inform the respondent about the inquiry report through public notice. Accordingly, a notice dated 9th April, 2002 was issued by the company through petitioner, as 'Manager' of Delhi office, asking the respondent to collect his inquiry report dated 1st January, 2002 within 7 days from the said notice. Since the cause of grievance for the respondent is publication of this notice, which, according to him, is libellous in nature, it would be appropriate to reproduce this public notice verbatim at this stage. It reads as under:

Please take notice that an inquiry in respect of Charge-sheet dated 29.9.94 issued to you was completed on 14.1.2002 and the findings report of the Inquiry Officer dated 1.2.2002 was sought to be served on your local Delhi address available with the company vide our letter dated 28.2.2002 through Registered A.D. under Certificate of Posting, Courier Service and Hand Delivery. Since you were not available at your residence, it was not possible to deliver the said findings report to obtain your say on the said findings report. Subsequently, these letters are returned to the company as undelivered letter by Postal Authority/Courier Service Agency since you have not collected the above letter from Post Office, after several reminders and intimation to you by Postal Authority/Courier Service Agency. You are further hereby informed to collect a copy of the said findings report from the Office of the Killick Nixon Ltd., 10 Zamrudpur Community Centre, Kailash Colony Extension, New Delhi within 7 days from the publication of this notice and submit your say, if any within 7 days from the date you collect the finding report. If you do not collect the same, the management will proceed in the matter as it deems necessary.

6. The respondent perceived this notice as defamatory in nature. He, therefore, filed the complaint alleging inter alia that he was suspended from work by the management of M/s Killick Nixon Ltd. on the basis of a charge-sheet issued to him on account of inexistent and frivolous allegations, and for having issued a public notice in Statesman dated 9th April, 2002 (late city Edition) in respect to the whereabouts of complainant, despite his presence in the Branch Office at regular intervals, and that the language of the notice is defamatory. The complainant, therefore, prayed that criminal proceedings be initiated against the four accused persons and they be summoned to stand trial for the offence under Sections 499 and 500 of the Indian Penal Code. By the Order dated 4th January, 2005, the Metropolitan Magistrate of Delhi observed that there was sufficient ground to summon the petitioner (Accused No. 4) and not any other accused under Sections 499 and 500 of the Indian Penal Code and, therefore, ordered issue of summons.

7. According to the petitioner, the publication of this notice does not amount to defaming the respondent in any manner and language of this notice does not suggest so. Therefore, this petition is filed seeking quashing of the complaint and summoning notice.

8. Section 499 of the Indian Penal Code defines the offence of defamation and Section 500 provides the punishment for such offence. As to what constitutes defamation under Section 499 of the Indian Penal Code has come up for discussion in various cases, over a period of time, before the Apex Court, this Court and various other High Courts.

9. This Court in the case of P. Sharma v. P.S. Popli 2001 (94) DLT 913 observed that the offence of defamation consists of three essential ingredients, namely, (i) making or publishing any imputation concerning any person; (ii) such imputation must have been made by words either written or spoken or by visible representation; and (iii) such imputation must be made with the intention, to cause harm or with the knowledge or having reasons to believe that it will harm reputation of the person concerned. Therefore, the intention or knowledge to cause harm are the essential ingredients to constitute the offence under Section 499 of the Indian Penal Code.

10. It is, thus, clear that to constitute defamation under Section 499, the first essential thing is an imputation. However, in Amrit Lal Batra v. Divakar 2005, it was observed that the imputation by itself is not enough. There has to be an intention to harm the reputation of such person against whom the imputation is made. In Paras Dass v. Paras Dass 1969 (5) DLT 241, it was observed that essence of offence consists in its tendency to cause that description of pain which is felt by a person who knows himself to be the object of unfavorable sentiments of his fellow creatures.

11. I have already reproduced the language of the public notice. On reading thereof, I am of the opinion that there is no clear imputation of any kind. The notice was issued simply stating and requesting the respondent to collect the copy of the inquiry report. The respondent, who appeared in person, argued that the word 'Charge-sheet' occurring in the said notice was defamatory in nature inasmuch as the world at large was informed that he had committed misconduct for which he was charge-sheeted by the company and, therefore, in the estimation, among his acquaintances, namely, family members and friends, etc., his image had been lowered. This plea is far-fetched.

12. In the first instance, no charges which were levelled against the respondent in the charge-sheet are spelled out in the public notice. There is no mention of any "misconduct" on the part of the complainant nor is there any observation of any kind touching the character or affecting the reputation of the complainant. No doubt, when the word 'Charge-sheet' occurs in the public notice, one may infer that some disciplinary action is taken against the respondent. However, what kind of disciplinary action is taken and what kind of imputations were levelled against the respondent in the chargesheet dated 29.9.2004 is not mentioned in the public notice. A person who is unaware of these imputations and reads this public notice would only come to know that there is a charge-sheet served upon the respondent but what are the imputations would be anybody's guess. Therefore, it cannot be said that any harm has been caused to the respondent.

13. Secondly, it is not in dispute that charge-sheet dated 29.9.2004 was, in fact, served upon the respondent and an inquiry was also held. Therefore, what is stated in the public notice is a statement of fact. It is not the case of the respondent herein that he was not served with any charge-sheet and there is a false statement in this behalf. When this aspect is considered along with the legal requirement for taking disciplinary action, which mandates procedural requirement of issuing public notice of this nature, bona fides of the petitioner would be apparent on the face of record.

14. As pointed out above, law mandates, as a pre-requisite of taking any disciplinary action on the basis of inquiry report, to serve a copy of this report on the delinquent employee and give him an opportunity to elicit his response thereto. (Managing Director, E.C.I.L., Hyderabad v. B. Karunakar 1994 (Supp-2) SCC 391)

15. The report of the inquiry officer is dated 1.2.2002. As per the inquiry officer charges against the petitioner had been proved. The management, under these circumstances, would not delay the proceedings and would make an endeavor to serve the copy of the charge-sheet immediately on the charge-sheeted employee so that final decision in the matter is taken at the earliest.

16. According to the petitioners, possible steps were taken to serve the copy of the inquiry report which has been denied by the respondent. Even if we ignore the same, fact remains that public notice was issued more than 2 months after the submission of the inquiry report. Therefore, when it was a legal necessity and without which the action of the company against the respondent would have been vitiated, mode of service through public notice is an accepted mode. In fact, it has been held by Courts in a number of cases that the delinquent employee should be served by public notice (Bata Shoe Company Pvt. Ltd. v. D.N. Ganguly AIR 61 SC 1158).

17. Therefore, if it is a legal requirement without which the company could not have completed departmental action, publication of the notice to fulfill such legal requirement will not be treated as defamatory.

18. Thirdly, when the imputation, if any, is of truth and if a particular person has committed some misconduct, even a public notice thereof is published, it may not be defamatory as public good requires that such imputation be made or published. No doubt, first exception to Section 499 states that whether or not imputation made is for the public good is a question of fact. However, on the basis of admitted facts, in the instant case, it can safely be concluded that the case would be covered by the first exception. That apart, even seventh exception to Section 499 would be attracted in this case which reads as under:

Seventh Exception.-- Censure passed in good faith by person having lawful authority over another.--It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates.

The two essential conditions for the application of this exception are : (1) that the censure must be on the conduct of the person within the scope of the critic's authority;

(2) the censure must be passed in good faith.

19. In A.D.M. Stubbings v. Sheela Muthu 1972 Crl.J 968 (Ker) the complainant was dismissed from service on the allegation of theft of his master's property against a full domestic inquiry in which the complainant was given an opportunity to defend himself, the finding of such a domestic inquiry saying that the allegation was true could not form the basis of a defamation case as it is fully protected by Exception 7 and 8 of Section 499 IPC. To hold otherwise would amount to paralysing the administration of justice.

20. The aforesaid judgment applies to this case squarely.

21. The Supreme Court in the case of State of Haryana and Ors. v. Ch. Bhajan Lal and Ors. considered in detail the ambit and scope of Section 482 of the Code of Criminal Procedure and power of the High Court to quash the investigation/FIR/complaints. It laid down 7 categories/circumstances in which such a power could be exercised. The present case would clearly fall in category 1 and 4 enumerated therein which were described as under:

(1) Where the allegations made in the First Information Report or the complaint 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 accused xx.

(3) Where the uncontroverter allegations made in the FIR/complaint and the evidence collected in support of the same do not disclose the commission of any offence or make out a case against the accused.

22. In the instant case, in view of the aforesaid discussion, I am of the view that giving of the public notice would not prima facie constitute any offence under Section 499 IPC or make out a case against the petitioner herein. The summoning orders are accordingly quashed and the complaint of the respondent herein is dismissed.

23. There shall, however, be no order as to cost.