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2010 DIGILAW 847 (KAR)

P. K. Goel v. Labour Enforcement Office

2010-07-29

B.SREENIVASE GOWDA

body2010
Judgment B. Sreenivase Gowda, Judge: 1. Petitioners in the above petition have sought for quashing of the impugned order dated 14.06.2007 passed by the VI Addl. C.M.M, Bangalore in C.C.No.14246/07 in taking cognizance of the complaint (Annexure-D) and issuing process against them. 2. Te facts leading to the case are: That the respondent filed a complaint against the petitioners before the Trail Court under Section 10 (1) (a) of Equal Remuneration Act, 1976 complaining that the petitioners have committed breach of Section 8 of Remuneration Act, 1976 and Rule 6 of The Equal Remuneration Rules, 1976 herein after referred to as Act and Rules for short. 3. In paras 4 and 5 of the complaint it is stated as under: “That the accused are the managing Director and Chief Regional Manager of M/s IRCTC Ltd., engaged in Railway Catering and Tourism at Regional Office, Near Parcel Office Complex, City Railway Station, Bangalore. Thus, the accused is an ‘Employer’ as per Section 2 (c) of the Act and as such, he is required to comply with the provisions of the said Act and Rules made thereunder. That the Complainant inspected the above establishment of the Accused on 03.03.2007 at 15.00 hours under the Equal Remuneration Act 1976 and Rules. During the course of inspection observed the following contravention: “Breach of Rule 6 of The Equal Remuneration Rules, 1976 read with Section 8 of the Act.” and the accused have failed to maintain the register in Form D appended to Equal Remuneration Rules, 1976.” With the above allegation, the complainant prays the Trail Court to take action against the petitioners and punish them in accordance with law. 4. The Trail Court registering the complaint and taking cognizance of the offence ordered process against the petitioners. Aggrieved by the same, petitioners have preferred this petition for quashing of further proceedings of the criminal case. 5. Learned Counsel appearing for the petitioners submits, that petitioners are Gazetted Officers of Government of India and they are deputed to function as Managing Director and Chief Regional Manager of Indian Railway Catering and Tourism Corporation Limited (‘IRCTC’, for short) which is solely owned by Government of India. 5. Learned Counsel appearing for the petitioners submits, that petitioners are Gazetted Officers of Government of India and they are deputed to function as Managing Director and Chief Regional Manager of Indian Railway Catering and Tourism Corporation Limited (‘IRCTC’, for short) which is solely owned by Government of India. The respondent filed a private complaint under Rule 10(1)(a) of Equal Remuneration Act, 1976 against the petitioners in their individual capacity alleging that the petitioners have committed breach of Section 8 of the Act and Rule 6 of the Rules without making the company as party to the complaint and the Trail Court has committed an error in taking cognizance of the offence and ordering process against the petitioners and therefore he prays for allowing the petition by quashing of further proceedings of the criminal case. 6. Learned Counsel appearing for the respondent submits that ‘IRCTC’ has committed breach of Section 8 of the Act and Rule 6 of the Rules. Therefore the complaint is filed against the petitioners as they are the Managing Director and the Regional Manager of ‘IRCTC’ and petitioners are not made as accused to the complaint in their individual capacity. Therefore he prays for dismissal of the petition. 7. The short point that arises for consideration in this petition is: Whether the Trail Court is justified in taking cognizance and issuing process against the petitioners on the complaint filed by the respondent complaint? After hearing the learned Counsel appearing for the parties, it is held that the Trail Court has committed an error in taking cognizance of the offence and ordering process against the petitioners who are Managing Director and Chief Regional Manager of ‘IRCTC’ in a private complaint where IRCTC is not arrayed as accused. After hearing the learned Counsel appearing for the parties, it is held that the Trail Court has committed an error in taking cognizance of the offence and ordering process against the petitioners who are Managing Director and Chief Regional Manager of ‘IRCTC’ in a private complaint where IRCTC is not arrayed as accused. Section 11 of Equal Remuneration Act reads as under: Offences by companies.- (1) Where an offence under this Act has been committed by a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company, for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence. 8. Admittedly IRCTC is a public sector undertaking solely owned by the Government of India and it is a legal entity represented by it Managing Director. 9. By reading of Section 11 of the Act, it is clear where an offence has been committed by a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company, for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. So the company and every person who at the time the offence was committed was in charge of, and was responsible to the company, shall be arrayed as accused to the complaint. 10. In the instant case petitioners are arrayed as accused to the complaint in the following manner: “1. Sri. P.K.Goel, Managing Director, IRCTC Ltd., H.O., 9th Floor, Bank of Baroda Building, 16, Parliament Street, New Delhi-110001. 2. Shri S. Gegarin, Chief Regional Manager, IRCTC Ltd., H.O, Near Parcel Office Complex. Bangalore City Railway Station, Bangalore – 560 023.” IRCTC is not arrayed as accused to the complaint. Sri. P.K.Goel, Managing Director, IRCTC Ltd., H.O., 9th Floor, Bank of Baroda Building, 16, Parliament Street, New Delhi-110001. 2. Shri S. Gegarin, Chief Regional Manager, IRCTC Ltd., H.O, Near Parcel Office Complex. Bangalore City Railway Station, Bangalore – 560 023.” IRCTC is not arrayed as accused to the complaint. If the petitioners while working as Managing Director and Chief Regional Manager of IRCTC had committed the offence alleged in the complaint that has to be clearly averred in the complaint. When an offence is alleged to have been committed by a company, every person who at the time the offence was committed was incharge of and was responsible to the company for the conduct of the business of the company, as well as the company shall be deemed to be guilty of the offence. So the company as well as the person who at the time the offence was committed, was in charge of and was responsible to the company for the conduct of the business of the company, shall be arrayed as accused to the complaint. Thus the private complaint filed by the respondent against the petitioners for breach of Rule 6(a) of the Rules while working as Managing Director and Chief Regional Manager without making IRCTC as accused is bad in law and taking cognizance of the offence in such private complaint and ordering process of law and continuation of such criminal proceedings against the petitioners will not serve any purpose. Accordingly Criminal Petition is allowed. The impugned order dated 14.06.2007 passed by the VI Addl. C.M.M, Bangalore in C.C.No. 14246/07 taking cognizance of complaint (Annexure-D) is hereby quashed. Respondent/complainant is at liberty to file fresh complaint, if they are so advised and if law permits.