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2012 DIGILAW 1237 (BOM)

Aplab v. State of Maharashtra

2012-07-09

A.M.KHANWILKAR, A.R.JOSHI

body2012
Judgment :- This petition under Article 226 of the Constitution of India has been filed to issue direction to Respondent Nos.1, 2 and 3, in particular, the Senior Police Inspector, Wagle Estate Police Station, Thane to take necessary action for enforcement of order passed by the Industrial Court, Thane dated 29.3.2012 passed in complaint (ULP) No.72 of 2012. The relevant portion of the said order reads thus: "I would direct the respondents not to hold any violent demonstration and not to do any coercive activity near the factory premises or periphery of company till the next date and be away within the vicinity of 100 meters from the factory gate. The next date is 02.04.2012." 2. The grievance in this petition is that in spite of the said peremptory directions, the respondents in the proceedings before the Industrial Court continued to violently demonstrate outside the factory premises and in breach of the order of the Industrial Court restraining them from doing so within the vicinity of 100 meters from the factory premises. This fact was reported to Respondent No.3. As per section 55 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, violation or breach of the order passed by the Industrial Court is a cognisable offence. The Respondent No.3, however, did not take any positive action against the persons engaged in violently demonstrating outside the gate of the factory premises. As a result, the present petition came to be filed on 7.4.2012. The petition also refers to the communication sent by Respondent No.3 to the petitioner, which mentions that the petitioner should take measures to ensure that no untoward situation takes place in the factory premises or thereabout. This communication is dated 30.4.2012. In the context of the grievance made by the petitioners, Respondent No.3 was asked to file affidavit and offer explanation. In the reply affidavit filed by Respondent No.3, he has justified his inaction on the ground that since the Thane Municipal Corporation had granted permission to Respondent No.4 for erection of tent (pandal), he did not take any steps in the matter. Further, he issued the communication dated 30.4.2012 in exercise of powers u/s 149 of the Criminal Procedure Code. 3. As regards the first explanation, we fail to understand as to how that can be countenanced. Further, he issued the communication dated 30.4.2012 in exercise of powers u/s 149 of the Criminal Procedure Code. 3. As regards the first explanation, we fail to understand as to how that can be countenanced. Respondent No.3 was bound by law to ensure that the order of the Industrial Court is enforced in its letter and spirit. The permission granted in favour of Manoj Suryavanshi, one of the member of Respondent No.4, by the Corporation, was in anterior point of time i.e. 24.3.2012. That permission can be no justification for permitting the members of Respondent No.4 to violate the condition of order dated 29.3.2012. If that was the complaint made by the petitioner to Respondent No.3, it was his bounden duty to ensure that the directions of the Industrial Court were fully complied with by all parties to the said proceedings. 4. As regards the issuance of letter dated 30.4.2012, this act on the part of Respondent No.3, if we may say so, is a biased approach in favour of the striking workers. In the first place, he did not immediately act on the complaint made by the petitioner, which was for enforcing the order passed by the Industrial Court dated 29.3.2012. But, on the other hand, he had the audacity to issue letter to the petitioner to take corrective measures which was completely beyond the control of the petitioner. In such a situation, it is incomprehensible as to how notice could be issued to the petitioner by invoking powers under section 149 of the Code by Respondent No.3. On the other hand, Respondent No.3 ought to have proceeded on the basis of order passed by the Industrial Court dated 29.3.2012 and also registered FIR against the concerned persons for commission of a cognisable offence. 5. Counsel for Respondent No.4 brought to our notice the order passed by the Industrial Court on 16.4.2012 which, according to her, has modified the order dated 29.3.2012. The order dated 16.4.2012 reads thus: "Heard Mr. Awati Adv. Company's Advocate is absent when called out. Adjourned. Till next date, the Respondent shall not indulge in acts of intimidation, violence or unfair labour practices." 6. The argument, though attractive, will have to be stated to be rejected. The order dated 16.4.2012 reads thus: "Heard Mr. Awati Adv. Company's Advocate is absent when called out. Adjourned. Till next date, the Respondent shall not indulge in acts of intimidation, violence or unfair labour practices." 6. The argument, though attractive, will have to be stated to be rejected. The grievance, which we are considering in the present petition, is limited to the inaction of Respondent No.3 in taking notice of the complaint made by the petitioner about non-compliance of the order dated 29.3.2012. That is in relation to the incident dated 29.3.2012 and 30.3.2012. The order dated 16.4.2012 will be of no avail to either Respondent No.4 or for that matter to Respondent No.3, Senior Police Inspector, who, as aforesaid, was bound to ensure complete compliance of order dated 29.3.2012 as soon as its violation was brought to his notice by the petitioner. In our opinion, Respondent No.3 has failed to discharge his obligation not only to immediately stop the alleged activities of members of Respondent No.4, which were allegedly in violation of order dated 29.3.2012, but also to take cognisance of the said complaint made by the petitioners and register FIR in that regard which was his bounden duty u/s 154 of the Cr.P.C. 7. Suffice it to observe that the relief claimed in this petition to a limited extent is worked out, but we direct the Respondent No.3 to forthwith register FIR on the basis of the written complaint made by the petitioner regarding the alleged activities of members of Respondent No.4 regarding violation of order dated 29.3.2012 of the Industrial Court. After registration of FIR, the investigation of the said case shall be entrusted to Assistant Commissioner of Police, Crime Branch, Thane (City). The FIR be registered within one week from today and transferred for investigation to the Assistant Commissioner of Police, Crime Branch, Thane (City) within the same time. 8. While parting, we make it clear that the direction to register FIR on the basis of the written complaint made by the petitioners does not mean that the Court has expressed any opinion on the correctness of the allegations therein one way or the other. That is a matter for investigation and to be proceeded on its own merits in accordance with law. 9. The petition is disposed of with direction to Respondent Nos.1, 2 and 3 to file compliance report within two weeks from today. That is a matter for investigation and to be proceeded on its own merits in accordance with law. 9. The petition is disposed of with direction to Respondent Nos.1, 2 and 3 to file compliance report within two weeks from today. If such compliance report is not filed within two weeks, the matter be notified on 30th July, 2012 under the caption "Directions". 10. Copy of this order be forwarded to the Secretary, Home Department, Government of Maharashtra, for information and for taking necessary action, as may be advised against the erring police officer.