R ANTONY v. RENUSAGAR POWER COMPANY LTD — 1995 DIGILAW 949 (ALL)

V. N. MEHROTRA, J. This revision has been filed against the judgment dated 23-8-1994 by Shri O. P. Garg, District Judge, Allahabad dismissing the appeal filed by the present applicant against the judgment dated 4-6-1994 passed by Shri R. A. Kaushik. Special Chief Judicial Magistrate, Allahabad in complaint case No. 7s1 of 1991. 2. The brief facts of the case are that Renusagar Power Company Limited filed a complaint against the accused R. Antony under Section 630 of the Companies Act, 1956 alleging that on the basis of the appointment letter dated 12-3-1970 the accused started working as an employee of the Company since 19-3-1970. It was further alleged that quarter No. 1-13/6 which was owned by the Company was allotted to the accused by order dated 15-6-1983 and declaration dated 20-8-1983. The quarter was allotted to the accused in accordance with the terms and conditions of his service. The services of the accused were terminated by an order dated 15-12-1990. He was served several notices requiring him to vacate the quarter and the last notice was given on 24-12-1990 but he has not vacated the same, hence the complaint. 3. The accused in his statement before the trial Court said that the order dismissing him from service was illegal and against that order proceed ings are pending before the Industrial Court. The accused admitted that the quarter belonged to the Company and was allotted to him. In his statement under Section 313, Cr. P. C. the accused further stated that the quarter owned by the Company but was constructed after taking loan. 4. The complainant examined witness and produced documents in support of its case. While the complaint was still pending Renusagar Power Company Limited was amalgamated with Hindalco Industries Limited by order of this Court passed on 31-3-1992. That order provided that the successor Company could continue the legal proceedings initiated by the prede cessor Company. The learned Special Chief Judicial Magistrate, Allahabad convicted the accused under Section 630 (1 ) (b) of the Companies Act, 1956 and directed the accused to hand over the possession of the quarter to the com plainant by 19-7-1994. The learned Magistrate also directed the accused to pay compensation at the rate of Rs. 500 per month from 1-1-1991 to the date of vacation of the quarter. The learned Magistrate also directed the accused to pay compensation at the rate of Rs. 500 per month from 1-1-1991 to the date of vacation of the quarter. It also provided that in case the quarter was not vacated within the time allowed the accused will undergo rigorous imprison ment for a period of one year. 5. The accused filed appeal against this judgment which was dismissed by the Sessions Judge, Allahabad by order dated 23-8-1994. The accused then filed the present revision. It came up for hearing before Honble C. A. Rahim, J. , who allowed it by order dated 31-8-1994 an the preliminary ground that after amalgamation of the complainant Company with the Hidalgo Industries Limited it was necessary for the successor Company to step into the shoes of the complainant Company by filing a petition seeking permission to continue the proceedings under Section 302, Cr. P. C. otherwise it will fall under the mischief of Section 256, Cr. P. C. It was further observed that where such permission was not taken the case become non because of the want of com plainant and it must have been terminated under Section 256, Cr. P. C. With these observations the revision was allowed and the judgments by both the courts below were set aside and the accused was acquitted under Section 256, Cr. P. C. Against this order, the complainant filed S. L. P. before the Honble Supreme Court of India. That S. L. P. was allowed by order dated 2-5-1995 with the following observations : "while issuing notice to the respondent in this matter, we had required of the appellant-Company to impaled the successor Company as a co-appellant. The same has been done. We have heard learned counsel for the parties on such impalement. We take the view that a successor Company is a necessary and proper party to this kind of a proceeding. We, therefore, allow impalement. Thus, we have now before us two appellants-the predecessor and the successor Company. Now, there is no impediment in the pursuit of the complaint and for maintenance of the conviction if merited in accordance with law, As a sequence we have no difficulty now in upsetting the impugned order of the High Court and remitting the matter back to it for re-consideration of the matter on its own merit. We order accordingly. " 6. We order accordingly. " 6. The matter has now been heard by me, as directed by the Honble Supreme Court. Shri Tejpal, who has appeared on behalf of the accused-applicant has raised several points during his arguments in support of his contention that the judgments by the courts below were liable to be dismissed. I will first take up the points which were initially pleaded on behalf of the accused applicant during the trial or before the appellate court. The first point relates to the non-impleadment of the successor Company before the trial court even after the amalgamation of the complainant Company with the successor Company. The learned counsel for the revisionist has argued that due to this non-impleadment the complaint was liable to be dismissed under Section 256, Cr. P. C. as it must be held that the predecessor company ceased to exist and there was no complainant to pursue the complaint after the com plainant Company so ceased to exist. Shri Gopal Chaturvedi, who has appeared on behalf of the opposite party- complainant has argued that this question has been finally decided by the Supreme Court alter the successor Company was impkaded as a party before that court. It has also been argued that as the successor Company was entitled to continue the proceedings initia ted by the predecessor Company in accordance with the scheme of amalgama tion approved by this court, the complaint could not have been dismissed under Section 256, Cr. P. C. 7. It is not disputed that under the scheme of amalgamation, as approved by this court, the successor Company could continue all the legal proceedings initiated by the predecessor Company which were pending at that time. So the right of the successor Company to continue the present proceed ings could not be challenged. However, the difficulty was that as the successor Company did not get itself impkaded whether in such circumstances the complainant should have been dismissed and the accused acquitted. As mentioned earlier, Honble C. A. Rahim, J. accepted the contention by the accused on this point. But against that the complainant filed S. L. P. and impaled the successor Company with the permission of the Honble Supreme Court. After such impalement the above mentioned observations were made by the Honble Supreme Court. As mentioned earlier, Honble C. A. Rahim, J. accepted the contention by the accused on this point. But against that the complainant filed S. L. P. and impaled the successor Company with the permission of the Honble Supreme Court. After such impalement the above mentioned observations were made by the Honble Supreme Court. According to these observations made by the Honble Supreme Court it is obvious that now there was no impediment in the pursuit of the complaint and for maintenance of the conviction if merited to accordance with law. After these observations the Supreme Court set aside the order earlier passed by this Court. So after this decision by the Honble Supreme Court the revisionist cannot be permitted to raise the plea of non impalement of the successor Company again. The learned counsel for the revisionist has argued that the judgment by the Honble Supreme Court was Hot in accordance with the provisions of Section 256, Cr. P. C. and so it should be held to be per incurium. I am, however, unable to accept this contention. The judgment by the Honble Supreme Court is binding on this Court and this Court has no jurisdiction to consider the validity of the judgment and the directions contained in the same. 8. On a consideration of these facts I am of the view that now it cannot be asserted that the complaint was liable to be dismissed for non-impalement of the successor Company at the stage of trial. 9. The second point which had been raised by the accused during the trial was that the order dismissing him from service was illegal and the same was challanged before the Industrial Court where the matter was still pending. It is argued that due to the pendency of the proceedings before the Industrial Court the applicant-accused was still a workman and he could not be evicted from the quarter in question under Section 630 of the Companies Act. It has not been disputed before me that the accused was dismissed from service but against that order he had initiated proceedings before the Industrial Court and those proceedings were pending. In such circumstances can it be said that the complaint under Section 630 of the Companies Act, 1956 was not maintainable. 10. It has not been disputed before me that the accused was dismissed from service but against that order he had initiated proceedings before the Industrial Court and those proceedings were pending. In such circumstances can it be said that the complaint under Section 630 of the Companies Act, 1956 was not maintainable. 10. The learned counsel for the applicant has referred to clause (z) of Section 2 of the U. P. Industrial Disputes Act, 1947, in support of his argu ment that the definition of "workman" includes an employee who has been dismissed, discharged or retrenched and in respect of whom an industrial dispute was pending. 11. It is true that the definition of workman includes any such person who has been dismissed, discharged or retrenched in respect of which an indus trial dispute was pending, but he is so included in the definition of workman only for the purposes of any proceedings under the Industrial Disputes Act, as has been mentioned in this clause. This clause does not mention that such a person will continue to be a workman for the purposes of any proceeding under the Companies Act also. 12. The learned counsel for the applicant has also referred to Section 6-E of the Industrial Disputes Act, in support of his argument that during the pendency of proceedings before a Labour Court or Tribunal in respect of an industrial dispute no employer could alter to the prejudice of the workman concerned in such dispute the conditions of service applicable to him before the commencement of such proceedings. This section also does not refer to the right of the Company to get the employee evicted from the quarter allotted to him as a term of his service after he has been dismissed or his services have otherwise come to an end. Such a tight has been provided under Section 630 of the Companies Act. 13. It is true that au industrial dispute relating to the dismissal of the accused was pending before the industrial Court, but the order of dismissal has neither been set aside nor suspended. That order is still in force and will remain in force till it is set aside by the competent authority. 13. It is true that au industrial dispute relating to the dismissal of the accused was pending before the industrial Court, but the order of dismissal has neither been set aside nor suspended. That order is still in force and will remain in force till it is set aside by the competent authority. In the circum stances it cannot be said that merely because an industrial dispute relating to the dismissal of the applicant was pending, the Company could not file a complaint under Section 630 of the Companies Act. This question also came up for decision before the Madras High Court in the case P. V. George v. Jay Engineering Company Private Limited, (1990) 2 Comp LJ 62 (Mad ). It was held that the proceedings initiated by the employee challenging his dismissal from service were altogether distinct and different from prosecution launched by the Company under Section 630 of the Companies Act. It was also observed that different considerations would prevail regarding the decision in respective cases and that pendency of proceedings challenging the order of dismissal can, by no of imagination, be construed as a bar against the institution of criminal proceedings under Section 630 of the Companies Act. 14. In view of above discussion, it is held that the complaint under Section 630 of the Companies Act was not barred due to the pendency of the industrial dispute before the Industrial Court. 15. The learned counsel for the applicant has then contended that the quarter in question was not the property of the Company but was cons tructed after taking loan from the State Government and was mortgaged to it and so the Company could not initiate the proceedings under Section 630 of the Companies Act but the proceedings could be initiated by the autho rity concerned under the U. P. Industrial Housing Act. 16. Shri Chaturvedi arguing on behalf of the opposite party stated that the question which is now sought to be raised on behalf o; the applicant was never raised before the trial court or the appellate court and should not be permitted to be raised in revision. The learned counsel has referred to the decision in the case State of U. f. v. Prakash Chand, 1986 ACC 588 and also to the decision in the case Gurdit Singh v. State, 1970 Cr LJ 1205 in support of his contention. 17. The learned counsel has referred to the decision in the case State of U. f. v. Prakash Chand, 1986 ACC 588 and also to the decision in the case Gurdit Singh v. State, 1970 Cr LJ 1205 in support of his contention. 17. In my view the contention which the learned counsel for the applicant has now sought to raise in this revision should not be permitted to be raised at the stage of revision when no such assertion was made before the courts below. Apart from this, there is nothing to show that the quainter in question is not owned by the Company. On the contrary, the accused had in his statements in the trial court clearly admitted that the quarter was owned by the Company and was allotted to him ; and in his second statement he only Subsequently another notification dated 7-8-1987, published in the Gazette of the same date, was issued by which another Special Court of special Judicial Magistrate 1st Class was created at Kanpur. Jurisdiction in inspect of some of the districts was conferred on the Special Court created at lanpur while the jurisdiction in respect of other districts mentioned in the notification remained with the Special Court at Allahabad. As will be clear ram this notification it has specifically mentioned that it was passed in continuation and partial modification of notification dated 16-9-1982. " Thus is earlier notification was not superseded by the subsequent notification but continued and was only partially modified by the subsequent notification, hen this notification was issued the territory now forming part of district onbhadra was included in district Mirzapur in respect of which the Special Court at Allahabad had jurisdiction. The contention by the learned counsel the applicant is that after the notification dated 7-8-1987 was enforced onbhadra was carved out in respect of certain areas of district Mirzapur and s there was subsequent notification conferring jurisdiction in respect of district Socbhadra on Special Court at Allahabad, that court could not decide the is arising out of district Socbhadra. 24. I have considered the argument by the learned counsel for the applicant. I am, however, unable to accept the same. A mentioned earlier, le second notification was passed in continuation and partial modification of 10 earlier notification. The earlier notification continued and was only partially modified by the second notification. 24. I have considered the argument by the learned counsel for the applicant. I am, however, unable to accept the same. A mentioned earlier, le second notification was passed in continuation and partial modification of 10 earlier notification. The earlier notification continued and was only partially modified by the second notification. The Special Court at Allahabad had jurisdiction in respect of all the local areas within the State of U. P. under the rst notification. In respect of some of the local areas a Special Court was reacted at Kanpur. Even after the creation of district of Sonbhadra by taking to some area from Mirzapur it cannot be said that the Special Court at Allahabad ceased to have jurisdiction in respect of that area. Further, assum-3g that the second notification did not apply to district Sonbhadra as it was related after the second notification was issued, we can revert back to the first notification under which all the local areas within the State of U. P. lay within 10 jurisdiction of Special Court at Allahabad. It is difficult to accept that be newly created district of Sonbhadra will not lie within the jurisdiction of the Special Courts mentioned in the second notification. Further, even it is for a moment accepted that the Special Court at Allahabad had no prediction to try the complaint in question as the cause of action arose in district Sonbhadra even then unless the applicant is able to plead and establish hat the trial by the Special Court at Allahabad had in fact occasioned failure f justice. The trial by the Special Court at Allahabad cannot be said to be legal nor the finding recorded by it can be set aside merely on the ground of territorial jurisdiction. Reference may be made to the provisions of section 462, Cr. P. C. in this regard. 25. In the present case the applicant did not even raise the plea of lack of territorial jurisdiction before the trial court or lower appellate court but has aisled it before this court for the first time. The applicant has not even alleged hat there was any failure of justice or he was in any way prejudiced by tolling the trial at a wrong place. The applicant has not even alleged hat there was any failure of justice or he was in any way prejudiced by tolling the trial at a wrong place. Reference may be made in this regard to he decision in the case Smt. Raj Kumari v. Dev Raj, AIR 1977 SC 1101 where t was observed that where a Magistrate has the power to try a particular case and the controversy relates solely to its territorial jurisdiction then the provisions of Section 531, Cr. P. C. (corresponding to Section 462 of the new Cr. P. C.) will be applicable. 26. The learned counsel for the applicant has argued that the question s not one of lack of territorial jurisdiction but is that of lack of inherent jurisdiction. I am, however, unable to accept this argument. As mentioned earlier, the complaint in question could be tried by a Magistrate 1st Class and as the court created at Allahabad is presided over by a Magistrate 1st Class there cannot be any question of lack of inherent jurisdiction. The objection could be as regards the lack of territorial jurisdiction and in case the Special Court lacked the territorial jurisdiction to try this complain-, the error or irregularity would be cure able under Section 462, Cr. P. C. unless it is asserted and proved that it had occasioned failure of justice. In view of the above discussion, it is held that the Special Court which tried this matter had jurisdiction to entertain and decide the complaint under Section 630 of the Companies Act, 1956 filed by the complainant. It is further held that even if that court lacked territorial jurisdiction even then the judgment passed by it cannot be set aside as it was neither alleged nor proved by the applicant that it had resulted in failure of justice. 27. On a consideration of the arguments advanced by the learned counsel for the parties, I am of the view that this revision has no force and is accordingly dismissed. Petition dismissed. .