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2000 DIGILAW 396 (PAT)

Bennett & Coleman Co. Ltd. v. State Of Bihar

2000-03-09

S.N.MISHRA

body2000
Judgment 1. M/s Bennett Coleman & Co. Ltd and its Chief Manager are the petitioners in these two applications. They have prayed for quashing the order dated 8.12.1995 and 20.12.95 taking cognizance of an offence punishable under section 25 R (1) of the Industrial Disputes Act (hereinafter referred to as the Act). O.P. no. 2 Labour Commissioner, Patna filed a complaint petition for violation of section 25 O (1) of the Act. The Patna establishment of the company is alleged to be an independant establishment and presently publishes the reputed news paper namely the Times of India. Earlier one Hindi daily news paper namely Nav Bharat Times was being published but subsequently it was discontinued with effect from 31st March 1995. The petitioner no. 2 is the Chief Manager of the establishment who is managing day to day affairs of the company at Patna. The learned counsel for the petitioners submits that the order of cognizance of the alleged offence has already been taken in complaint case no. 1495 (M) 95 by the same Judicial Magistrate vide his order dated 8.12.1995 for the alleged violation of section 25 O (1) of the Act due to illegal closure of the establishment. The order taking cognizance of the same offence is an abuse of the process of the Court. It is further submitted that the allegation against the petitioner for violation of the provisions of section 25 O (1) of the Act are wholly baseless, unjustified and absolutely uncalled for in, as much as, the Patna Establishment of Nav Bharat Times was being published till 21st of March 1995 but it was compelled to close it down after March 1995 as the performance of Nav Bharat Times had become very unsatisfactory for quite some time and the circular (siccirculation ?) as well as the advertisement has gone down resulting in huge monetary loses to the Patna establishment. It is submitted that the publication of the Nav Bharat Times would have been discontinued long before but it was continued to publish in the hope of its revival but because of all sincere efforts its performance could not improve and the establishment has to suffer a huge loses compelling the petitioner to discontinue the publication. It is submitted that the publication of the Nav Bharat Times would have been discontinued long before but it was continued to publish in the hope of its revival but because of all sincere efforts its performance could not improve and the establishment has to suffer a huge loses compelling the petitioner to discontinue the publication. According to the learned counsel the establishment as a whole has not been closed but simply discontinued one of its publication due to the reason beyond its control which has not been denied by the complainant O.P. Admittedly the Patna establishment is still publishing "The Times of India". While developing argument learned counsel for the petitioner submits that out of 32 concerned retrenched workmen, 27 workmen has already accepted their retrenchment compensation and settled their financial matters with the petitioners after having signed individual memorandum of settlement in form H as envisaged under rule 61 of the Bihar Industrial Disputes Rules thereby declaring no dues and dispute regarding their retrenchment as the consequence of discontinuation of publication of Nav Bharat Times. The employees have also agreed while signing the said form that the dispute cannot be raised on baseless allegation and information, to that effect was sent to the Labour Department, Government of Bihar. A copy of the memorandum of settlement in form H is made an annexure 24 to this application. 2. Heard the learned counsel for the parties and perused the materials on record including the order under challenge in these two applications. It is well settled principle of law by now that right to carry out business includes the right to close it down as well. It appears from the materials on record that due to recurring loses incurred by the establishment and also due to other reasons beyond its control one of the publication has to be discontinued and in that view of the matter one cannot compell to publish the paper even though the employer is to suffer recurring loses. In course of argument it is submitted that though permission to discontinue of one of its publication namely Nav Bharat Times was sought for yet the same has neither been rejected nor communicated till date. Meanwhile the cognizance of the alleged offence was taken which was the subject matter of the complaint case No. 1495/95. In course of argument it is submitted that though permission to discontinue of one of its publication namely Nav Bharat Times was sought for yet the same has neither been rejected nor communicated till date. Meanwhile the cognizance of the alleged offence was taken which was the subject matter of the complaint case No. 1495/95. Admittedly in this case Government order has not been communicated (sicto ?) the employers though the permission was sought in this regard from the Government. In the premises, therefore, it is to be held that the employer cannot be prosecuted criminally for stopping one of its publication namely Nav Bharat Times though it may be a civil liability which can be adjudicated by the competent civil court. Having regard to the fact that the Patna establishment is still publishing one of its daily newspaper The Times of India and as such it is to be held that discontinuation of publication of one Hindi Daily shall not amount to closure of the entire establishment particularly when other of its daily namely The Times of India, at Patna is being published. In the premises therefore, the employer cannot be prosecuted for stopping one of its publication as there is no violation of section 25 O (1) of the Act. Section 25 O (1) of the Act has been brought on the statute in order to safeguard the interest of the employee but in this case, as stated above, the retrenched employees have already settled their dispute and accepted the final payment, it would not be desirable to allow the criminal proceeding to continue against the petitioners for the alleged offence. Accordingly the orders taking cognizance of the alleged offence against these two petitioners are hereby quashed and the application are thus allowed.