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2015 DIGILAW 1267 (GUJ)

Kanubhai Chunibhai Patel v. State of Gujarat

2015-12-09

J.B.PARDIWALA

body2015
ORDER : J.B. Pardiwala, J. Since the question of law raised in all the captioned petitions is the same, those were heard analogously and are being disposed of by this common judgment and order. 2. By these applications under section 482 of the Code of Criminal Procedure, 1973, the petitioner-original accused seeks to invoke the inherent powers of this Court praying for quashing of the proceedings of the criminal cases referred to in the respective petitions pending before the Judicial Magistrate, First Class. Talod. 3. Five private complaints came to be lodged by the respondent No.3 for contravention of the provisions of Rules 24(2), 22 and 21(4) of the Minimum Wages Rules, 1961. The principal argument of the learned counsel appearing for the petitioner is that the petitioner was the Chairman of the Bank for a limited period. He was an honorary Chairman and was not drawing any salary for the duties performed by him. The learned counsel would submit that his client was not in charge and responsible for the day to day affairs of the Bank. He would submit that there is not a whisper of any such averment in the complaint. He would submit that his client would not fall within the definition of the term "employer" as defined in section 2(e) of the Minimum Wages Act. 4. He submitted that in such circumstances, all the complaints deserve to be quashed. 5. On the other hand, all these applications have been vehemently opposed by Mr. Patel, the learned APP appearing for the respondents. He submitted that after due application of mind, the learned Magistrate has taken cognisance upon the complaints and has issued process. The order of process issued by the learned Magistrate is of the year 2001. He submitted that whether the petitioner was in a day to day affairs and management of the Bank or not, would be a disputed question of fact and could be decided only after appropriate evidence is led. He submitted that in such circumstances, no case is made out for quashing of the proceedings of the five criminal cases. 6. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the criminal cases should be quashed. He submitted that in such circumstances, no case is made out for quashing of the proceedings of the five criminal cases. 6. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the criminal cases should be quashed. The learned counsel appearing for the petitioner invited my attention to a judgment and order passed by a learned Single Judge of this Court in Criminal Misc. Application No.668 of 2010 and an allied matter decided on 9th June, 2015. He pointed out that identical complaints were lodged against the Bank and the petitioner herein with the only difference that in those cases, the contravention was in the provisions of the Payment of Gratuity Act. He submitted that the provisions of the Payment of Gratuity Act are more or less pari materia with the provisions of the Minimum Wages Act. He pointed out that the learned Single Judge has recorded specific findings as regards the role, function and position of the petitioner herein. I have gone through the judgment and order. The judgment reads as under; "The present petition under Section 482 of the Code of Criminal Procedure, 1973 (the Code, for short) is filed by the petitioner for the following prayers: 6. On the grounds submitted above and others that may be urged at the time of hearing of this application Your Lordships may be pleased to: (A) To quash and set aside the complaint and the proceedings of Criminal Case No.944 of 2009 pending in the Court of the learned Judicial Magistrate, First Class, Talod qua the petitioner; (B) To stay the further proceedings of Criminal Case No.944 of 2009 pending in the Court the earned Judicial Magistrate, First Class, Talod qua the petitioner pending the admission, hearing and final disposal of this petition; (C) To pass any other appropriate order that is found just and necessary in this case. 2. The brief facts giving rise to the present petition are that the petitioner was the honorary Chairman of Talod Janta Sahkari Bank Limited, Talod, District Sabarkantha. The Labour Officer and Payment of Gratuity Inspector visited the Bank on 27th December 2000. At that time, the Manager of the bank, Narendrabhai S. Mistri was present. 2. The brief facts giving rise to the present petition are that the petitioner was the honorary Chairman of Talod Janta Sahkari Bank Limited, Talod, District Sabarkantha. The Labour Officer and Payment of Gratuity Inspector visited the Bank on 27th December 2000. At that time, the Manager of the bank, Narendrabhai S. Mistri was present. Thereafter, a notice for breach of the provisions of the Payment of Gratuity Act, 1972 (the Gratuity Act, for short) came to be issued to the petitioner and ultimately a Criminal Case was filed against the Bank - Talod Janta Sahkari Bank Limited, Talod being the first accused and the present petitioner being the second accused in the court of the learned Chief Judicial Magistrate, Himatnagar by Respondent No. 2 for various violations of the provisions of the Gratuity Act. The complaint was registered as Criminal Case No. 944 of 2009 and summons came to be issued against the petitioner. The petitioner moved an application dated 10th July 2003 to drop the proceedings against him, which came to be rejected by the learned Chief Judicial Magistrate, Himatnagar by his order dated 27th October 2009. Therefore, the petitioner has preferred the present petition for quashing the complaint. 3. I have heard Mr. Nitin M. Amin, learned advocate for the petitioner and Ms. Mehta, learned APP for Respondents Nos. 1 and 2. 4. Mr. Amin, learned advocate for the petitioner has vehemently submitted that the petitioner was only an honorary Chairman of the Bank for limited period and it is his further contention that the petitioner was rendering gratis services as an honorary Chairman of the Bank and was not drawing the salary for the duties performed by him. He would also contend that the petitioner was not in-charge and was not responsible day-today affairs of the Bank and used to attend the meeting of the Bank as and when he was invited. Mr Amin, learned advocate for the petitioner has relied upon the provisions of sub-clause (iii) of clause (f) of Section 2 of the Gratuity Act. Clause (f) defines term employer and sub-clause (iii) of Clause (f) is relevant for the purpose of this case and the same is extracted herein below: 2. Definitions. Mr Amin, learned advocate for the petitioner has relied upon the provisions of sub-clause (iii) of clause (f) of Section 2 of the Gratuity Act. Clause (f) defines term employer and sub-clause (iii) of Clause (f) is relevant for the purpose of this case and the same is extracted herein below: 2. Definitions. -- In this Act, unless the context otherwise requires -- (f) employer means, in relation to any establishment, factory, mine, oilfield, plantation, port, railway company or shop (i) xxx (ii) xxx (iii) in any other case, the person, who, or the authority which, has the ultimate control over the affairs of the establishment, factory, mine, oilfield, plantation, port, railway company or shop, and where the said affairs are entrusted to any other person, whether called a manager, managing director or by any other name, such person; 5. Relying upon the above definition of the employer, Mr Amin has submitted that the petitioner would not fall within the definition of term employer and therefore the petitioner cannot be held responsible under Section 9(2) of the Gratuity Act for he violation of the provisions of the Gratuity Act. Mr Amin has further contended that the provisions of this Section are mandatory in nature and Respondent No.2 is not supplied with the list of witnesses along with the complaint and therefore in absence of such list of witnesses the learned Magistrate ought not to have issued the process against the present petitioner. In support of this contention, he has relied upon the following decisions: 1. Saroj Kumar Poddar v. State (NCT of Delhi) & Anr. 2007(2) Scale 36 . 2. Padamsingh Bhakhatawarlal Soni & Ors. v. Chandrakala Padamsingh Soni, 1984 GLT 171. 6. On the other hand, Ms. Mehta, learned APP has submitted that the application submitted by the petitioner for dropping him from the proceedings was rejected by the learned trial Magistrate. It is her further contention that the plea is also recorded and therefore the present petition cannot be entertained. v. Chandrakala Padamsingh Soni, 1984 GLT 171. 6. On the other hand, Ms. Mehta, learned APP has submitted that the application submitted by the petitioner for dropping him from the proceedings was rejected by the learned trial Magistrate. It is her further contention that the plea is also recorded and therefore the present petition cannot be entertained. It is her further contention that the petitioner being the Chairman of the Bank alone was responsible for the day-today affairs of the Bank and therefore the petitioner would squarely fall within the definition of Section 2(f)(iii) of the Gratuity Act and hence when the petitioner is not in a position to show that he was not responsible for day today affairs of the Bank, the same cannot be accepted and therefore she has urged that the petition may be dismissed. 7. The provisions of Section 2(f)(iii) make it manifestly clear that the employer in relation to any establishment would mean a person who has ultimate control over the affairs of the establishment or a person who is entrusted with the said affairs. The criminal proceedings under the Gratuity Act can be lodged under Section 9(2) of the Gratuity Act against an employer who contravenes or makes default in complying with any of the provisions of the Gratuity Act. Therefore, the moot question that is involved in this petition is whether the petitioner being an honorary Chairman of the Bank would come within the sweep of Section 2(f)(iii) so as to bring him within the definition of employer and thereby make him liable for punishment under Section 9(2) of the Gratuity Act. The petitioner has come with a specific case that he was giving gratis services as the Chairman of the Bank and was in no way associated with the day-today affairs and management of the Bank. The complaint filed by Respondent No.2 against the Bank and present Respondent No.2 nowhere states that the petitioner was involved in the day-today affairs of the Bank and therefore he was covered under the definition of the employer. 8. The complaint filed by Respondent No.2 against the Bank and present Respondent No.2 nowhere states that the petitioner was involved in the day-today affairs of the Bank and therefore he was covered under the definition of the employer. 8. The Supreme Court in the case of Saroj kumar (supra), which is relied upon by the learned counsel for the petitioner, has held that when there is no averment in the complaint that in what manner the accused was responsible for the conduct of the business of the company or otherwise the responsibility to it in regard to its functioning, he cannot be arraigned as an accused. Here, in the present case also there is no whisper in the impugned complaint as to in what manner the appellant was involved or responsible for the day-today functioning of the Bank and therefore, in my opinion, he cannot be held responsible for the alleged breach of the Gratuity Act. Even otherwise, as submitted by the learned advocate for the petitioner, the alleged violations of the Gratuity Act are in respect of the period when the petitioner was not honorary Chairman of the Bank and therefore also, in my view, criminal liability for the breach of the Gratuity Act cannot be foisted on him. 9. Section 204 of the Criminal Procedure Code, 1973 reads as under: 204. Issue of process. (1) If in the opinion of a Magistrate taking cognisance of an offence there is sufficient ground for proceeding, and the case appears to be- (a) a summons-case, he shall issue his summons for the attendance of the accused, or (b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction. 2. No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed. 3. In a proceeding instituted upon a complaint made in writing every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint. 4. 2. No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed. 3. In a proceeding instituted upon a complaint made in writing every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint. 4. When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint. 5. Nothing in this section shall be deemed to affect the provisions of Section 87. The bare reading of the above provisions makes it explicitly clear that before issuing the process the Magistrate should verify as to whether the complainant has supplied the list of witnesses whom he proposes to examine in support of the complaint. Learned counsel for the petitioner has relied upon the decision in the case of Padamsingh Bhakhatawarlal Soni & Ors (supra), it is held as under: It is stated in the complaint that all accused were present at the time of marriage but it is not mentioned as to who else was present at the time of the said marriage. In fact, in para 8 of the complaint it is stated by the complainant that she craves leave of Hon'ble Court to produce documentary and other evidence and to adduce oral evidence by examining witnesses in support of this case. This clearly shows that a complainant has neither filed, a list of prosecution witnesses nor made a mention of any of witnesses in the complainant. In view of this, the learned Metropolitan Magistrate was clearly in error in issuing process. It is clear that the process issued by the learned Metropolitan Magistrate requires to be quashed. 10. Thus, it is clear from the bare reading of Section 204 of the Code and above cited judgment of this Court that the provisions of Section 204 of the Code are mandatory. In the instant case, the Respondent No.2 has not stated in the impugned complaint that he does not propose to examine witness or witnesses in support of the impugned complaint. In the instant case, the Respondent No.2 has not stated in the impugned complaint that he does not propose to examine witness or witnesses in support of the impugned complaint. In the backdrop of these facts, the learned Magistrate could not have issued the process in absence of list of witnesses being supplied by Respondent No.2 and therefore the process issued against the petitioner deserves to be quashed and set aside. 11. In the premises aforesaid, the order dated 27th October 2009 passed by the learned Chief Judicial Magistrate, Himatnagar passed below application Exhibit 8 for dropping the proceedings against the petitioner as well as the complaint and the proceedings of Criminal Case No.944 of 2009 pending in the Court of the learned Judicial Magistrate, First Class, Talod qua the petitioner are quashed and set aside." 7. The view taken by the learned Single Judge is binding to me as a Coordinate Bench. In view of the specific findings recorded by the learned Single Judge in the above referred judgment, I am left with no other option but to accept all the five petitions. 8. In the result, all the five petitions are allowed. The proceedings of the respective criminal cases referred to in the prayer clause of each of the petitions are hereby ordered to be quashed. Rule is made absolute to the aforesaid extent. Direct service is permitted. Petition Allowed.