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2016 DIGILAW 1095 (JHR)

Mecon Limited, through its General Manager Sri A. Ghosh @ Arbindo Ghosh, Ranchi v. State of Jharkhand

2016-07-20

RAVI NATH VERMA

body2016
ORDER : Invoking the inherent power of this Court under Section 482 of the Code of Criminal Procedure (in short “the Code”), the petitioners have prayed for quashing of the entire criminal proceeding including the order taking cognizance of offence under Section 25(Q) of the Industrial Disputes Act, 1947 (in short “the Act”) dated 02.08.2002 passed by the Chief Judicial Magistrate, Ranchi in C-III Case no. 122 of 2002. 2. The facts of the case, which is relevant for the proper appreciation of the issue involved in this case, in short, is that at the instance of Labour Superintendent, Ranchi, the complaint was filed in the court of Chief Judicial Magistrate, Ranchi with the allegation that in the STP Sewerage Treatment Plant, several workmen, who were appointed on contract basis, have not been paid their wages by the accused persons i.e. the petitioners- the MECON Ltd. through its General Manager and other officials and on demand of payment of wages, they were terminated by the Management without giving any prior notice violating the provision of Section 25 (N) of the Act. Resultantly, the accused persons are liable for prosecution under Section 25(Q) of the said Act. The further allegation is that vide notice dated 05.04.2002, the Deputy Labour Superintendent, Ranchi directed the Management not to terminate those employees without following the prescribed procedure as envisaged under Section 25(N) of the Act but the Management without complying the said direction and without following the procedure terminated them. Thereafter, a show-cause notice dated 15.05.2002 was given to the Management and the Management subsequently filed their reply dated 30.05.2002 stating inter alia that the MECON is covered under the provisions of Bihar Shops and Establishment Act but no unit of MECON, Ranchi is covered under the provisions of Factories Act and as such, Chapter V-B of the I.D. Act, 1947 has no application so far the workmen are concerned and those 14 workmen, who have been terminated, were though working in STP Department but were engaged by the contractors and the wages of those workmen were paid by the contractors and not by the petitioners. Since the reply was not found to be satisfactory, the complaint was filed. 3. Since the reply was not found to be satisfactory, the complaint was filed. 3. The learned Chief Judicial Magistrate, Ranchi on the very next day of submission of the prosecution report i.e. the complaint, filed by the Labour Superintendent, Ranchi took cognizance of the offence relying upon the prosecution report and held that a prima facie case under Section 25 (Q) of the Act is made out against the accused persons and directed to issue summons. Aggrieved by the said order of taking cognizance, the petitioners preferred this criminal miscellaneous petition as indicated above. 4. Mr. Kalyan Roy learned counsel appearing for the petitioners assailing the order taking cognizance as bad in law and perverse seriously contended that since the workmen were appointed at the instance of the contractor, no wages was ever paid to them by the petitioners resultantly there is no violation of any provision of Section 25 (N) of the said Act and without considering the legal proposition, the court took cognizance of the offence, which is a sheer abuse of the process of the Court. Learned counsel further relying upon the supplementary affidavit filed at the instance of the petitioners submitted that subsequent to the order taking cognizance on a dispute raised by the parties, the Government referred the dispute to Industrial Tribunal, Ranchi for adjudication, whereafter Reference Case No. 06 of 2002 was registered and the said Industrial Tribunal after giving opportunity to both the parties and considering their cases and after examining witnesses passed the award in favour of the Management i.e. the petitioners holding that the concerned workmen were appointed by the contractors and they had worked under the control and supervision of the contractors. The Contractors used to give their wages, therefore, there was no relationship of master and servant existing between MECON-the petitioners and the concerned workmen. As such, the concerned workmen are not fit to be regularized. Learned counsel further submitted that when there was no relationship of master and servant between MECON and concerned workmen, the entire proceeding and order taking cognizance are bad in law. It was also submitted that the award given by the Industrial Tribunal has not been challenged by the concerned workmen before any higher court of law and the same has attained finality. 5. Contrary to the aforesaid submissions, learned counsel Mr. It was also submitted that the award given by the Industrial Tribunal has not been challenged by the concerned workmen before any higher court of law and the same has attained finality. 5. Contrary to the aforesaid submissions, learned counsel Mr. Mukesh representing the State contended that this Court sitting in inherent power cannot look into the subsequent event or development and at the time when the court below took cognizance of the offence, this award was not in existence and it is well settled that the court while taking cognizance has only to see the prima facie case and the allegation and no other evidence and the court below being satisfied with the prima facie case against the petitioners took cognizance of offence. 6. In the case Chandra Dev Vs. Prakash Chandra reported in AIR 1963 S.C. 1340, the Hon’ble Supreme Court while considering the scope of Section 202 of the Code held that the object of an inquiry under Section 202 of the Code is to ascertain whether the allegations made in the complaint are intrinsically true, the Magistrate has to satisfy himself that there is sufficient ground for proceeding and for this, he is entitled to consider the evidence taken by him or recorded in an inquiry under Section 202 of the Code and he is not entitled to rely upon any other material besides above. It was also held that though an accused may have a plausible defence of innocence, the matter has to be left to be decided at the appropriate stage and issue of process cannot be refused. 7. In the instant case, undoubtedly, there was nothing before the court at the time of taking cognizance and the award upon which the petitioners are now relying is a subsequent event. The facts subsequently found out to prove the truth or otherwise, cannot be a ground on the basis of which, the complaint or the order taking cognizance can be quashed. It has to be borne in mind that the learned Chief Judicial Magistrate took cognizance of the offence on the basis of the allegations made in the complaint. The facts subsequently found out to prove the truth or otherwise, cannot be a ground on the basis of which, the complaint or the order taking cognizance can be quashed. It has to be borne in mind that the learned Chief Judicial Magistrate took cognizance of the offence on the basis of the allegations made in the complaint. It is a well settled proposition that this Court while considering the inherent power under Section 482 of the Code has to see that taking the allegations and the complaint as these were, without adding or substracting anything, if no offence is made out then only this Court would be justified in quashing the proceeding under the inherent power and it should be used very sparingly. In the Case J.P. Sharma Vs. Vinod Kumar Jain & Others; (1986) 3 SCC 67 , the Hon’ble Supreme Court in a similar situation, where the High Court relying upon a subsequent development had quashed the entire criminal proceeding, held in paragraph 51 as follows: “51. The grounds upon which the learned judge seems to have quashed the complaint in the instant case was the subsequent report by the CBI which had not yet been proved and considered in the background of the allegations made and secondly that some of the parties alleged to be in the conspiracy were not made parties. These, in our opinion, are no grounds for quashing the criminal proceedings where on prima facie being satisfied the learned Metropolitan Magistrate had taken cognizance. Taking all the allegations in the complaint to be true, without adding or substracting anything, at this stage it cannot be said that no prima facie case for trial had been made out. That is the limit of the power to be exercised by the High Court under Section 482 of the Code of Criminal Procedure. The High Court in the instant case has exceeded that jurisdiction.” 8. I have gone through the complaint petition and found that taking all the allegations in the complaint on its face value to be true, without adding or substracting anything, at this stage it cannot be said that no prima facie case against the accused is made out. Even if there is an award of a competent court but being a subsequent event cannot be considered at this stage. Even if there is an award of a competent court but being a subsequent event cannot be considered at this stage. The truth or otherwise allegation made in the complaint would be investigated at the time of the trial. Hence, I do not find any illegality in the order impugned taking cognizance and direction to issue summons. However, I make it quite clear that I am not expressing any opinion on the merit of the case and the petitioners shall be at liberty to raise the questions at an appropriate stage in the court concerned. 9. In the result, this petition being devoid of any merit is, accordingly, dismissed. Petition dismissed.