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2001 DIGILAW 963 (PNJ)

Anil Kumar Mohindroo v. State

2001-08-31

K.S.KUMARAN

body2001
Judgment K.S.Kumaran, J. 1. Labour Inspector Grade II, Union Territory, Chandigarh lodged a complaint (Annexure P-12) on 3.5.1996 under Section 25T and 25U of the Industrial Disputes Act, 1947 before the learned Chief Judicial Magistrate, Chandigarh against petitioner - Anil Kumar Mohindroo and two others of Geoffery Manners and Company Ltd., alleging that the petitioner and the co-accused have violated the provisions of Section 25T of the Industrial Disputes Act, 1947 in the case of Mr. M.G. Sharma, an employee of M/s. Geoffery Manners and Company Ltd. (hereinafter referred to as the Company). The complainant has also referred to the authorisation given to him to launch the prosecution (Annexure P-13) by the Home Department of Chandigarh Administration dated 29.3.1996 wherein it has been mentioned that Mr. M.G. Sharma, who was working with Geoffery Manners and Company Ltd., was transferred to Delhi in the year 1992, and that is an unfair labour practice prohibited under Section 25T of the Industrial Disputes Act. It has also been mentioned that the petitioner and the two other co-accused have violated the said provision and, therefore, they have to be prosecuted. 2. The petitioner, who has been summoned has approached this Court under Section 482 Cr.P.C. for quashing the complaint and all the consequential proceeding before the learned Chief Judicial Magistrate, Chandigarh. 3. The case of the petitioner is as follows :- A memorandum of settlement dated 22.7.1989 was entered into between the Company and the workman under Section 18 of the Industrial Disputes Act, with regard to the enhancement of the scales of pay, allowances and other monetary benefits of the workmen. The settlement also provided that the settlement would remain in force upto 31.3.1992 and shall continue to remain in force even thereafter until terminated by either party under Section 19 of the Industrial Disputes Act (hereinafter referred to as the Act). The settlement also provided that the settlement would remain in force upto 31.3.1992 and shall continue to remain in force even thereafter until terminated by either party under Section 19 of the Industrial Disputes Act (hereinafter referred to as the Act). Though, it was agreed that the workman would not agitate or raise any demand involving any financial burden upon the management during the period when settlement would remain in force, a demand notice was served upon the Company and proceedings before the Assistant Labour Commissioner for conciliation were also taken, but the conciliation proceedings failed, and the matter was referred to the Labour Court under Section 10(1)(c) of the Act, as to whether demands in the demand notice dated 26.12.1991 were genuine and justified and if so, as to what relief the workers are entitled. The Company filled Civil Writ Petition No. 9722 of 1992 challenging the reference and this Court stayed the passing of the final order by order dated 9.10.1992. 4. But prior to the institution of the writ petition, on 13.6.1992 the second respondent-M.G. Sharma, was transfered to the Zonal Office, New Delhi, on which the second respondent filed an application under Section 33A of the Act. The Labour Court stayed the order of transfer by order dated 16.6.1992. 5. The Company entered into a fresh settlement with workers on 26.2.1993 in the presence of the Labour authorities. An application was also filed before this Court in the above said writ petition stating that in view of the fresh settlement, the reference before the Labour Court was no longer maintainable and has become infructuous. On this application, this Court directed the Labour Court to decide the reference within a fortnight. The second respondent pleaded before the Labour Court that the reference should not be disposed of in terms of the settlement atleast qua him as he was not a signatory to the settlement. But, the Labour Court came to the conclusion that the settlement was binding on the second respondent and disposed of the reference. Since the main reference itself was disposed of, the application under Section 33A of the Act was also dismissed by the Labour Court, as having become infructuous by order dated 7.6.1993. 6. Therefore, the Company issued fresh orders dated 30.6.1993 reviving the earlier order of transfer dated 13.6.1992. Since the main reference itself was disposed of, the application under Section 33A of the Act was also dismissed by the Labour Court, as having become infructuous by order dated 7.6.1993. 6. Therefore, the Company issued fresh orders dated 30.6.1993 reviving the earlier order of transfer dated 13.6.1992. The second respondent challenged this order of transfer as well as the order of the Labour Court passed on the application under Section 33A in Civil Writ petition No. 7963 of 1993, but this Court dismissed the same by order annexure P-9 dated 7.7.1993. Consequently, the second respondent joined at New Delhi. 7. The wife of the second respondent addressed a representation to the Honble Labour Minister, Government of India, against the transfer of the second respondent. A communication was addressed to the petitioner by the Assistant Labour Commissioner, Union Territory, Chandigarh requiring the petitioner to appear before him in connection with the alleged victimization of the second respondent, for which the petitioner had submitted his written comments. 8. Therefore, the petitioner claims that the complaint and the further proceedings have to be quashed. According to the petitioner, the punishment for the offence under Section 25T of the Act is six months or fine and therefore, the limitation provided under Section 468 Cr.P.C. for launching the prosecution is one year. The petitioner claims that the Chief Judicial Magistrate, could not have, therefore, taken cognizance of the complaint inasmuch as it has become barred by limitation. The petitioner also claims that the transfer would be unfair labour practice if it was actuated by mala fides, whereas, even the appointment letter issued to the second respondent indicates that he is liable to be transferred to any office in India. The petitioner also claims that the Civil Writ Petition No. 7963 of 1993 filed by the second respondent was dismissed. Petitioner also claims that the order passed by the Home Department, Chandigarh Administration, is non-speaking and shows non-application of mind. 9. The first respondent namely, Union Territory, has filed a reply opposing this petition. According to the first respondent the grounds alleged by the petitioner for quashing the complaint are grounds of defence which might be available to the petitioner before the trial Court and, therefore, on those grounds the complaint cannot be quashed by this Court. 9. The first respondent namely, Union Territory, has filed a reply opposing this petition. According to the first respondent the grounds alleged by the petitioner for quashing the complaint are grounds of defence which might be available to the petitioner before the trial Court and, therefore, on those grounds the complaint cannot be quashed by this Court. The first respondent has also alleged that a person junior to the second respondent was retained at Chandigarh whereas the second respondent was transferred to Delhi on the pretext that he was surplus at Chandigarh. According to the first respondent the proceedings revealed that prima facie the action of the management is mala fide and amounted to an unfair labour practice, punishable under Section 25U of the Act. The first respondent has also alleged that the offence committed by the Company is a continuing offence and, therefore, the bar on prosecution as contained in Section 468 Cr.P.C. is not applicable to the same. The first respondent has also alleged that the learned Chief Judicial Magistrate has also taken cognizance of the matter and, therefore, this petition is not maintainable. 10. The second respondent has also filed a reply and has alleged that the petitioner has sought to challenge the order of summoning on the basis of disputed facts which can be adjudicated upon by the trial Court only after the parties have led evidence. The second respondent has denied that his transfer was purely on administrative exigency. He claims that he was a protected workman as he was the General Secretary of the Union. According to him his juniors P.C. Rana and K.K. Kundal had been retained at Chandigarh, while he was transferred to Delhi. According to the second respondent the allegation regarding unfair labour practice was not the subject-matter of the C.W.P. No. 7963 of 1993. The second respondent also claims that he was transferred on 30.6.1993 whereas the complaint was lodged on 3.2.1994 i.e. within the period of limitation. 11. I have heard the counsel for both the sides and perused the allegations. 12. It is not necessary to repeat the rival pleadings in detail. But it is necessary to refer to certain important aspects before taking up for discussion the issues involved in this petition. 13. 11. I have heard the counsel for both the sides and perused the allegations. 12. It is not necessary to repeat the rival pleadings in detail. But it is necessary to refer to certain important aspects before taking up for discussion the issues involved in this petition. 13. The workmen served a demand notice on the company on which the matter was referred to the Labour Court as to whether the demands made in the above said notice dated 26.12.1991 are genuine and justified. The Company filed C.W.P. No. 9722 of 1992 challenging the above said reference. Before filing of the said writ petition, the Company transferred the second respondent-herein from Chandigarh to New Delhi by order dated 13.6.1992 which the second respondent questioned by filing an application under Section 33A of the Act. While that being so, the Company and the workmen entered into a fresh settlement on 26.2.1993 in the presence of the Assistant Labour-cum-Conciliation Officer under Section 12(3) of the Act and then moved an application before this Court for disposing of the above said writ petition No. 9722 of 1992 since a settlement had been arrived at. This Court by order dated 23.4.1993 directed the Labour Court to decide the reference. The Labour Court disposed of the reference by order dated 7.6.1993 (Annexure P-6) holding that the no industrial dispute survived in view of the settlement. Inasmuch as the main reference itself was disposed of. The application filed by the 2nd respondent-workman under Section 33A of the Act was also disposed of on 7.6.1993 as having become infructuous. The Company passed an order dated 30.6.1993 reviving the order of transfer of the petitioner dated 13.6.1992. Therefore, the petitioner filed Civil Writ Petition No. 7963 of 1993, challenging the order dated 7.6.1993 passed by the Labour Court, disposing of the application under Section 33A of the Act as having become infructuous, as also the order dated 30.6.1993 passed by the Company reviving the order of transfer. This Court dismissed the writ petition filed by the second- respondent by order Annexure P-9 dated 7.7.1993. It is in this background that we have to consider the rival contentions of the parties. 14. This Court dismissed the writ petition filed by the second- respondent by order Annexure P-9 dated 7.7.1993. It is in this background that we have to consider the rival contentions of the parties. 14. The learned Counsel for the petitioner contends that after the disposal of the reference and the complaint under Section 33A of the Industrial Disputes Act by the Labour Court as also the dismissal of C.W.P. No. 7963 of 1993 filed by the second - respondent challenging the order dismissing the application filed by him under Section 33A of the Industrial Disputes Act, before the Labour Court and also challenging the transfer order dated 30.6.1993 reviving the earlier order of transfer, the complaint is not maintainable at all. But, the learned Counsel for the second respondent on the other hand contends that the question whether the petitioner is guilty of unfair labour practice was not in issue in those proceedings at all and, therefore, the decisions rendered in those proceedings will not affect the complaint, which has been filed to punish the petitioner under Section 25U of the Industrial Disputes Act, for the offence committed under Section 25T of the Industrial Disputes Act. I agree with the learned Counsel for the second respondent in this respect. The reference before the Labour Court was with reference to certain demands made by the workmen. The contention of the second respondent was that during the pendency of the said reference, he was transferred from Chandigarh to New Delhi. Therefore, evidently it was an alleged violation of the provisions of the Section 33 of the Industrial Disputes Act. It is on this basis the second respondent had lodged the complaint under Section 33A before the Labour Court challenging his transfer. The petitioner-Company had filed C.W.P. No. 9722 of 1992 before this Court challenging the reference itself. Subsequently, the petitioner-Company and the workmen arrived at the settlement under Section 12(3) of the Industrial Disputes Act and brought it to the notice of this Court. This Court by its order dated 23.4.1993 gave a direction to the Labour Court to dispose of the said reference pending before it. The Labour Court disposed of the reference by order dated 7.6.1993 in view of the settlement between the petitioner- Company and the workmen by observing that there was no industrial dispute surviving. This Court by its order dated 23.4.1993 gave a direction to the Labour Court to dispose of the said reference pending before it. The Labour Court disposed of the reference by order dated 7.6.1993 in view of the settlement between the petitioner- Company and the workmen by observing that there was no industrial dispute surviving. The Labour Court also dismissed, as having become infructuous, the complaint under Section 33A of the Industrial Disputes Act, filed by the second respondent since the main reference itself had been decided. Therefore, we find that the second respondent had filed the complaint under Section 33A of the Industrial Disputes Act, in view of the alleged alteration of condition of his services during the pendency of reference before the Labour Court. The Labour Court in those proceedings was not concerned with the punishment for the alleged unfair labour practice, committed by the petitioner. Similarly, the High Court in the writ proceedings was also not concerned about this question. Therefore, in view of the dismissal of the complaint under Section 33A of the Industrial Disputes Act filed by the second respondent or the dismissal of the writ petition filed by the 2nd respondent it cannot be stated that the complaint-annexure P-12 filed before the Chief Judicial Magistrate is not maintainable. 15. Section 2(ra) of the Industrial Disputes Act defines unfair labour practice as any of the practices specified in the Fifth Schedule. Item 7 of the Fifth Schedule to the Industrial Disputes Act specifies that transfer of a workman mala fide from one place to another under the guise of following management policy is unfair labour practice. Section 25T of the Industrial Disputes Act provides that no employer or workman or trade union shall commit any unfair labour practice. Section 25U of the said Act provides that the person who commits unfair labour practice shall be punishable with imprisonment for a term which may extend to six months or with fine upto Rs. 100/- or with both. Therefore, on a complaint under Section 25T read with Section 25U of the Industrial Disputes Act, the Chief Judicial Magistrate has to see whether the accused had committed unfair labour practice as alleged. 100/- or with both. Therefore, on a complaint under Section 25T read with Section 25U of the Industrial Disputes Act, the Chief Judicial Magistrate has to see whether the accused had committed unfair labour practice as alleged. Hence, the contention of the learned Counsel for the petitioner that in view of the disposal of the proceedings before the Labour Court or before the High Court, the complaint before the Chief Judicial Magistrate is not maintainable cannot be accepted. 16. The learned Counsel for the petitioner next contends that a reading of the complaint Annexure P-12 dated 3.5.1996 filed before the Chief Judicial Magistrate Chandigarh, shows that it is vague and without any details as to what was done by the accused, and as to how that is an offence under Section 25T punishable under Section 25U of the Industrial Disputes Act. A perusal of annexure P-12 shows that along with the petitioner there are two other accused. The complaint annexure P-12 gives the names, their designation/position in the petitioner-Company, and then it merely states that the accused have violated the provisions of Section 25T (Item No. 7 of Fifth Schedule to the Industrial Disputes Act) in the case of the second respondent, who has been working with the petitioner. Then the complaint proceeds to say that the complainant has been authorised to lodge the prosecution, and that the accused who have committed the offence under Section 25T, punishable under Section 25U of the Industrial Disputes Act be dealt with according to law. Therefore, as rightly contended by the learned Counsel for the petitioner what is it that the petitioner has done, and how his action amounted to an offence punishable under Section 25U of the Act has not at all been mentioned. It is not mentioned that the transfer of the second respondent, is mala fide made by or at the instance of the petitioner. The mere transfer of an employee may not amount to an Unfair labour practice as contemplated under item No. 7 of the Fifth Schedule to the Industrial Disputes Act. It must also be shown that the transfer was the result of the mala fide exercise of the power to transfer. I find that there is no such specific allegation against the petitioner in the complaint annexure P-12 filed before the Chief Judicial Magistrate. It must also be shown that the transfer was the result of the mala fide exercise of the power to transfer. I find that there is no such specific allegation against the petitioner in the complaint annexure P-12 filed before the Chief Judicial Magistrate. In the absence of any such allegation against the petitioner specifically I have to hold that a reading of the complaint does not make out a prima facie case against the petitioner for being proceeded under Section 25T read with Section 25U of the Industrial Disputes Act. Therefore, on this ground the complaint annexure P-12 has to be quashed. 17. Of course, annexure P-13 the order of the Home Secretary, Chandigarh Administration, authorises the Labour Inspector, Union Territory to lodge the complaint before the Court. Annexure P-13 dated 29.3.1996 mentions that the transfer of the second respondent has been proved to the satisfaction of the Administration as an unfair labour practice prohibited under Section 25T of the Industrial Disputes Act. It also mentions that the petitioner-herein and two others have violated the provisions of Section 25T of the Industrial Disputes Act. But, as pointed out already, the allegation that the transfer of the second respondent was mala fide and, therefore, an unfair labour practice committed either by the Company or by the individuals, does not find mention in the complaint. This defect cannot be cured by what is mentioned in Annexure P-13, the authorisation. Even otherwise, the learned Counsel for the petitioner contends that even the authorisation does not mention as to what was done by the petitioner herein in the matter of transferring the second respondent, and as to how it amounted to an offence under Section 25T punishable under Section 25U of the Industrial Disputes Act. The learned Counsel for the petitioner contends that there has been total non-application of the mind on the part of the Chandigarh Administration as also the learned Chief Judicial Magistrate, who summoned the petitioner to face trial. The petitioner has placed on record Annexure `A along with Crl. Misc. No. 21809 and Crl. Misc. No. 21810 of 1999. It is the copy of the appointment letter dated 9.10.1992 issued to the petitioner by the company. The petitioner has placed on record Annexure `A along with Crl. Misc. No. 21809 and Crl. Misc. No. 21810 of 1999. It is the copy of the appointment letter dated 9.10.1992 issued to the petitioner by the company. The learned Counsel for the petitioner, therefore, contends that when the petitioner himself was appointed on 9.10.1992 only, he could not be held guilty of having committed an offence under Section 25T of the Industrial Disputes Act, which regard to the transfer made by order dated 13.6.1992 i.e. long prior to his appointment in the company. Of course, this order of transfer dated 13.6.1992 was revived by the subsequent order dated 30.6.1993, but, the complaint annexure P-12 does not specifically say as to what is the role of the petitioner in passing the order dated 13.6.1992 or in the subsequent order dated 30.6.1993. Obviously, he could not have played any role with regard to the order dated 13.6.1992 as he was not even in the services of the company at that time. In the absence of any allegation in the complaint annexure P-12 as to what is his role with regard to the order dated 30.6.1993 reviving earlier order, it cannot be stated that any case is made out against the petitioner for being proceeded against under this complaint annexure P-12. The letter of authorisation annexure P-13 and the complaint annexure P-12 are silent on there aspects. Therefore, in my view, the contention of the learned Counsel for the petitioner that there has been total non-application of mind on the part of the learned Magistrate in summoning the petitioner is worthy of acceptance. In the absence of any allegation as to the role of the petitioner in the matter of the transfer of the second respondent, the petitioner has become summoned to face trial. Further there is also nothing before the Court, not even an allegation that the transfer was mala fide amounting to as an unfair labour practice. Even the learned Counsel appearing for the respondents conceded that the complaint is bereft of details, and made a request that the matter may be remanded to the concerned Magistrate. But, I am of the view that this request cannot be accepted, because, this is not a case of mere want of some prima facie evidence only with regard to the mala fides. But, I am of the view that this request cannot be accepted, because, this is not a case of mere want of some prima facie evidence only with regard to the mala fides. This is a case where there is no allegation at all in the complaint-Annexure P-12 that the transfer is result of the mala fide exercise of the power by any of the accused, much less the petitioner herein. Therefore, without any allegation in the complaint in this behalf against the petitioner, remanding the matter back to the trial Court would not serve any purpose. The respondent cannot be allowed to fill up the lacunae. As pointed out by me already, the complaint, which is bereft of any details as to what was done by the petitioner and as to what is the offence committed by him, has to be quashed in view of the fact that a prima facie reading of the complaint does not make out an offence against the petitioner. 18. Another point raised by the learned Counsel for the petitioner is that a person who commits unfair labour practice is punishable under Section 25U of the Industrial Disputes Act, with imprisonment which may extend to six months or fine which may extend to Rs. 1000/- or with both. He contends that the offence was allegedly committed on 13.6.1992 when the second - respondent was transferred from Chandigarh to New Delhi. He points out that the period of limitation prescribed under Section 468(2)(b) Cr.P.C. for lodging the complaint is one year in respect of an offence punishable with imprisonment for a term not exceeding one year. He also points out that under Section 468(1) Cr.P.C. no court is entitled to take cognizance of any offence of the category specified in sub-section (2) after the expiry of the period of limitation. Relying upon these provisions the learned Counsel for the petitioner contends that the complaint presented on 3.5.1996 has been lodged after a period of nearly three years from the alleged commission of the offence namely, 16.3.1992 and, therefore, the Court was not entitled to take cognizance of the alleged offence inasmuch as the complaint is barred by limitation. Relying upon these provisions the learned Counsel for the petitioner contends that the complaint presented on 3.5.1996 has been lodged after a period of nearly three years from the alleged commission of the offence namely, 16.3.1992 and, therefore, the Court was not entitled to take cognizance of the alleged offence inasmuch as the complaint is barred by limitation. But, the learned Counsel for the respondents on the other hand contend that the offence is a continuing one and, therefore, a fresh period of limitation will begin to run at every moment of the time during which the offence continues and, therefore, the complaint is not barred by limitation. But, this contention put forward by the learned Counsel for the respondents cannot be accepted. It may be that by the act of transfers, the second - respondent was to go from Chandigarh to Delhi and would have gone and continued there but for the stay granted by the Labour Court. But, it cannot be stated that every moment of the period of his stay in Delhi would give him a fresh cause of action or give rise to a fresh period of limitation. Because, the act complained of is the order of transfer. Once the order of transfer is passed, the offence is completed. It is not required that the person transferred should, in obedience of the order of transfer, have joined the new place of posting for attracting the provisions of Section 25T read with item 7 of the Fifth Schedule to the Industrial Disputes Act. Because, Section 25U of the Industrial Disputes Act, punishes the unfair labour practice. The alleged unfair labour practice of which the second respondent is aggrieved is the order of his transfer. Item No. 7 of Fifth Schedule to the Industrial Disputes Act makes the mere transfer of workman mala fide from one place to another an unfair labour practice. It does not also require that in pursuance of the order, the workman should have shifted to the new place, for the purposes of making it an unfair labour practice. Therefore, once the order of transfer is made mala fide, the offence is complete. It does not also require that in pursuance of the order, the workman should have shifted to the new place, for the purposes of making it an unfair labour practice. Therefore, once the order of transfer is made mala fide, the offence is complete. It may be that in pursuance thereof workman could have gone to the new place of posting, continued there, but his continuation as such will not make the offence as a continuing one or give rise to the fresh period of limitation from every moment of his stay at the new place of posting. Therefore, this contention of the learned Counsel for the respondents cannot be accepted. 19. Even from the second order dated 30.6.1993 reviving the earlier order of transfer, the complaint is not in time inasmuch as it has been lodged only on 3.5.1996. Therefore, I find that the complaint is also barred by the provisions of Section 468 of the Code of Criminal Procedure. 20. In view of what I have pointed out above, the impugned complaint-annexure P-12 and the order summoning the petitioner to face trial have to be quashed. 21. Accordingly, this petition is allowed quashing the impugned complaint- annexure P-12 and the summoning order in so far as they relate to the petitioner.