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2019 DIGILAW 1086 (KAR)

T. K. Kurien v. State

2019-06-04

ALOK ARADHE

body2019
JUDGMENT : Alok Aradhe, J. Sri Ashok Haranahalli, learned Senior Counsel for Sri Manmohan P.N., for the petitioner. None for the respondent. 2. Petition is admitted for hearing and the same is heard finally. 3. In this petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code' for short), the petitioner inter alia seeks quashment of the proceedings in C.C.No.95/2017 pending before the Court of MMTC-III, Bengaluru. 4. The facts giving rise to filing of this petition briefly stated are that the respondent visited the premises of HDFC Bank Limited, Basaveshwaranagar Branch for inspection of the records. On 23.09.2016, the respondent issued the inspection report-cum-show cause notice calling upon the petitioner to rectify the irregularities immediately and to report compliance within 15 days. The employer, namely Wipro Limited, submitted its response to the notice on 14.11.2016, in which, it was pointed out that there has been no contravention of the provisions of Equal Remuneration Act, 1976 (hereinafter referred to as 'the Act' for short) and the Rules framed thereunder. On 05.01.2017, the respondent filed a complaint alleging contravention of Rule 6 of Equal Remuneration Rules, 1976 (hereinafter referred to as 'the Rules' for short) against the petitioner. The Magistrate by an order dated 05.01.2017 has taken cognizance in respect of the offence alleged under Section 10(1)(a) and Rule 6 read with Section 8 of the Act. Further, the Magistrate has directed registration of the case and has issued summons to the petitioner. In the aforesaid factual background, the petitioner has approached this Court. 5. Learned Senior Counsel for the petitioner submitted that the petitioner is the erstwhile Chief Executive Officer of Wipro Limited, who has retired from the services of the company as Executive Vice Chairman on 31.01.2017. It is further submitted that Wipro Limited was engaged by HDFC Bank for providing IT support services. It is further submitted that in the complaint, the employer namely, Wipro Limited has not been impleaded and therefore, the proceedings against the petitioner, who is the erstwhile Chief Executive Officer is not maintainable. It is further submitted that the impugned order taking cognizance suffers from vice of non-application of mind inasmuch as it has been passed in a mechanical manner. 6. It is further submitted that the impugned order taking cognizance suffers from vice of non-application of mind inasmuch as it has been passed in a mechanical manner. 6. In support of the aforesaid submission, learned Senior Counsel has placed reliance on the decision of the Hon'ble Supreme Court in Aneeta Hada vs. Godfather Travels and Tours Private Limited, (2012) 5 SCC 661 . 7. I have considered the submissions made by the learned Senior Counsel for the petitioner and have perused the records. 8. Admittedly, Wipro Limited was engaged by HDFC Bank for providing IT support services. The petitioner was the erstwhile Chief Executive Officer of Wipro Limited, who has demitted the office as Executive Vice Chairman on 31.01.2017. Admittedly, in the complaint, Wipro Limited who is the employer has not been impleaded as respondent. 9. In paragraph 58 of the decision in the case of Aneeta Hada (supra), the Supreme Court has held as under: "58. Applying the doctrine of strict construction, we are of the considered opinion that commission of offence by the company is an express condition precedent to attract the vicarious liability of others. Thus, the words "as well as the company" appearing in the section make it absolutely unmistakably clear that when the company can be prosecuted, then only the persons mentioned in the other categories could be vicariously liable for the offence subject to the averments in the petition and proof thereof. One cannot be oblivious of the fact that the company is a juristic person and it has its own respectability. If a finding is recorded against it, it would create a concavity in its reputation. There can be situations when the corporate reputation is affected when a Director is indicted." 10. In view of the aforesaid enunciation of law, it is evident that in the absence of the employer namely, the Wipro Limited, the complaint could not be proceeded with against the petitioner. Besides that, the order taking cognizance suffers from vice of non-application of mind as the same has been passed in a mechanical manner. In the result, the petition is allowed. The impugned order dated 05.01.2017 passed by the Magistrate taking cognizance of the offence under Section 10(1)(a) and Rule 6 read with Section 8 of the Act is hereby quashed and the proceedings pending before the Magistrate is also quashed.