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2018 DIGILAW 2330 (JHR)

P. Gosh @ Parmeshwar Ghosh v. State Of Jharkhand

2018-10-23

RONGON MUKHOPADHYAY

body2018
JUDGMENT Rongon Mukhopadhyay, J. - Heard Mr. J.N. Upadhyay, learned counsel for the petitioner and Mr. Anand Kr. Pandey, learned A.P.P. for the State. 2. This application is directed against the judgment dated 07.06.2008 passed by the learned 4th Additional Sessions Judge, East Singhbhum, Jamshedpur in Criminal Appeal No. 18/2008, by which the judgment and order of conviction and sentence dated 28.01.2008 passed by the learned Judicial Magistrate, 1st Class, Jamshedpur, in C/2 Case No. 4192/2000, by which the petitioner has been convicted for the offence under Section 29 of the Industrial Disputes Act and sentenced to undergo S.I. for three months as also a fine of Rs. 3000/- has been affirmed. 3. The prosecution story in brief is that there was a tripartite agreement between the Management of Incab Industries Limited and the Labour Union and as per clause 8.1 of the settlement there was a provision for appointment of a son and son-in-law of an employee who has worked for a long period in the company. It has been stated that R.H. Biswas had retired on 30.06.85 and had given an application for employment of his son. The Management did not provide employment and according to the complaint no preference was given to the son of R.H. Biswas as per the agreement which is violative of Section 8(3) and 9(1) (2) of the Industrial disputes Act. It has been alleged that the reply submitted by the Management was found to be unsatisfactory and after sanction was granted complaint was instituted. 4. After cognizance was taken substance of acquisition was explained to the accused for the offence under Section 29 of the Industrial Disputes Act to which he pleaded not guilty and claimed to be tried. 5. In course of trial four witnesses were examined on behalf of the prosecution. P.W.1 (Ghanshyam Singh) has proved the prosecution report and the letter addressed to C.J.M., Jamshedpur which has been marked as Exhibit-6 and 7 respectively. He has also proved the letter dated 12.02.07 issued by the Labour Superintendent which has been marked as Exhibit-1. This witness has also proved the complaint of R.H. Biswas, notice issued from the Office of Deputy Labour Commissioner, reply of the Management of Incab Industries Ltd., and sanction for prosecution which has been marked as Exhibits- 2, 3, 4 and 5. This witness has also proved the complaint of R.H. Biswas, notice issued from the Office of Deputy Labour Commissioner, reply of the Management of Incab Industries Ltd., and sanction for prosecution which has been marked as Exhibits- 2, 3, 4 and 5. P.W.2 (Ram chandra Choudhary) is the Deputy Labour Commissioner who has stated that on 06.02.95 R.H. Biswas made a complaint in writing that as per the tripartite agreement dated 20.05.82, the company is not providing preference in employment. He has stated that on such complaint he issued notice to the General Manager (works) Indian Cable Company and the General Manager (works) Indian Cable Company had replied through the letter dated 22.04.95. It has also stated that the Management did not implement the tripartite agreement which was in violation of the provisions of the Industrial Disputes Act. P.W.3 (Norotam Prasad) was posted as an Assistant Labour Commissioner in the office of the Deputy Commissioner between 06.07.2000 to 24.07.2003. This witness was authorized to institute the complaint. He has identified the sanction order which already has been marked as Exhibit-5. P.W.4 (Ravindar Mohan Prasad) was posted as a clerk in the office of the Deputy Commissioner at Jamshedpur between 26.07.93 to 31.12.2000. This witness had typed the complaint on the dictation given by P.W.3. 6. It has been submitted by the learned counsel for the petitioner that instead of instituting a criminal complaint the matter with respect to non-providing of employment to the son of R.H. Biswas and not giving preference could have been adjudicated by a Labour Court. It has further been submitted that admittedly no notice was issued under Section 10 of the Industrial Disputes Act to the petitioner who was a Works Manager. It has been submitted that the persons responsible for implementation of the tripartite agreement should have been prosecuted and not the petitioner who was merely a Works Manager. On such score he has prayed for acquitting the petitioner from the charges levelled against him. 7. Learned A.P.P., for the State has opposed the prayer made by the petitioner. 8. The petitioner has been prosecuted and convicted for the offence under Section 29 of the Industrial Disputes Act on the ground that preference was not given to the son of R.H. Biswas in terms of the tripartite agreement entered into between the Management and the Labour Union. 8. The petitioner has been prosecuted and convicted for the offence under Section 29 of the Industrial Disputes Act on the ground that preference was not given to the son of R.H. Biswas in terms of the tripartite agreement entered into between the Management and the Labour Union. It is the case of the prosecution that notice was issued under Section 10 of the Industrial Disputes Act to the General Manager (works) of Incab Industries Ltd., and the reply was also submitted by the General Manager (works) which was found to be unsatisfactory and which led to institution of a complaint. The prosecution has failed to show as to in how and what manner the petitioner being a Works Manager could have been prosecuted for committing an offence under Section 29 of the Industrial Disputes Act. Nothing has been enumerated by the prosecution that it was the petitioner who was to implement the tripartite agreement and for nonimplementation of which the petitioner could be prosecuted. 9. As per the Memorandum of Settlement the petitioner and the other accused persons were representing the Management but it has not been stated by the prosecution as to whether the petitioner was responsible for implementing the settlement. The tripartite settlement in terms of clause 8.1 reveals about the preference being given to the near relations of the employees'' with long service for direct recruitment as and when necessary within the framework of the Company''s standing orders/existing tripartite agreement. Therefore the consideration for employment in terms of clause 8.1 of the tripartite settlement is as per the necessity of the Company for introducing such work force. It does not mean that the Company was bound to recruit near relations of such employees'' as enumerated in clause 8.1 of the settlement but was dependent upon the necessity of the Company for recruitment. The complaint which was made by R.H. Biswas was with respect to non-employment of his son by taking recourse to the tripartite settlement. As has been stated above clause 8.1 of the settlement was conditional and therefore if the Management has not provided employment to the son of R.H. Biswas the same cannot be said to constitute a criminal offence under Section 29 of the Industrial Disputes Act. As has been stated above clause 8.1 of the settlement was conditional and therefore if the Management has not provided employment to the son of R.H. Biswas the same cannot be said to constitute a criminal offence under Section 29 of the Industrial Disputes Act. Moreover the petitioner although was a signatory to the tripartite agreement but whether such agreement was to be implemented by the petitioner has not been disclosed by the prosecution and in such circumstances therefore the petitioner could not have been convicted for the offence under Section 29 of the Industrial Disputes Act. 10. On consideration of the aforesaid facts, therefore, this application stands allowed and the impugned judgment dated 07.06.2008 passed by the learned 4th Additional Sessions Judge, East Singhbhum, Jamshedpur in Criminal Appeal No. 18/2008 and the judgment and order of conviction and sentence dated 28.01.2008 passed by the learned Judicial Magistrate, 1st Class, Jamshedpur, in C/2 Case No. 4192/2000, are hereby set aside. 11. This application stands allowed.