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Gauhati High Court · body

2019 DIGILAW 925 (GAU)

Arif Khan v. State Of Assam

2019-08-22

RUMI KUMARI PHUKAN

body2019
JUDGMENT : Rumi Kumari Phukan, J. As in the above 3 petitions the challenge has been made to common proceedings initiated against the accused-petitioners, all the cases are taken together for hearing and disposed of by this common judgment and order. 2. Heard Mr. AK Bhattacharjee, learned senior counsel for the accused-petitioner (Alok Verma), Mr. P. Kataki, learned counsel for the accused-petitioner (Ranjan Mishra) and Mr. A. Suri, learned counsel for the accused-petitioner (Arif Khan) as well as Mr. D. Das, learned Addl. PP for the State and Mr. D. Das, learned senior counsel assisted by Mr. N. Talukdar, learned counsel appearing on and behalf of the respondent No.2/informant. 3. By way of these petitions filed under Section 482 CrPC, the petitioners herein have challenged the criminal proceedings pertaining to G.R. Case No. 4280 of 2017 registered under Section 120(A)/120(B)/469/499/506 IPC pending in the court learned SDJM, Sadar No.1, Kamrup. 4. The petitioner, namely, Arif Khan is working as Head of Human Resource of Vodafone Mobile Services, Guwahati. The petitioner, namely, Alok Verma is the Business Head, North East Region, Vodafone Mobile Services and the petitioner, namely, Ranjan Mishra is working as Head, Technology and Support, Vodafone Mobile Services, Guwahati. The respondent No.2/informant was working as Assistant General Manager, Property and Facility Management, Vodafone Mobile Services, now terminated from service. 5. The said respondent No.2 lodged a complaint before the court of learned CJM, Kamrup, Guwahati, which is registered as Complaint Case No. 1092C/2017 with the allegation that he was working in the said company since 2007 discharging good performance but after the appointment of petitioner, Alok Verma as Business Head, who has strong regional bias and shown his discriminatory behaviour towards the employees including the complainant, and complainant was threatened that he will be removed from the job and the accused-petitioners conspired with each other to remove the complainant from service as such. It is alleged in the complaint petition that in their conspiracy, the accused-petitioners rated him as Inconsistent in 2016 performance report despite that he was categorized as good in mid-year performance. After constant pressure upon the complainant to quit the job with a view to illegal removal from the company, they even tried to put his signature forcefully in the resignation letter to which he refused. After constant pressure upon the complainant to quit the job with a view to illegal removal from the company, they even tried to put his signature forcefully in the resignation letter to which he refused. On 05.10.2016, the authority issued a termination letter dated 05.10.2016 without assigning any reason for termination and he received the same on 14.10.2016. He took up the matter with the higher authorities including the Director, Human Resources, Vodafone India Ltd. and they assured to do something. They offered him monetary inducements to tender his resignation and leave the company on his own will. Subsequently, on 30.11.2016, the complainant was served with another letter intimating him that in view of his resignation letter dated 19.10.2016, the complainant is relieved from his service of Vodafone India Ltd. w.e.f. 05.10.2016. The respondent, however, raised his protest before the authority concerned i.e. the petitioners herein, protesting that he never tendered resignation to the authority as has been contended in the aforesaid letter. The petitioners herein immediately responded to the said letter by sending their letter dated 28.12.2016 that the said letter was issued erroneously and it was an IT system generated through ASK HR process and they requested to return the earlier letter dated 30.11.2016 as the same stands revoked and void. But, the respondent/complainant has filed the complaint before the court as mentioned above stating that they have manipulated such resignation letter on their part with a view to defeat the cause of the respondent/complainant and accordingly, it has been alleged that the accused persons had indulged in forging the documents so as to remove him from service by such conspiracy which has hurt his reputation amongst the members of the company and in the society and accused persons are liable to be prosecuted for the offence under Sections 120A/463/464/469/ 470/499 of IPC. 6. Learned trial court, after receipt of the complaint, sent the same for limited investigation by the Officer-in-Charge, Latasil Police Station, under Section 202 CrPC with a direction to submit the enquiry report. The O/c concerned, suo moto, has taken the complaint as an Ejahar and registered a case and started investigation. After completion of the investigation, police submitted charge-sheet against all the above petitioners. 7. The O/c concerned, suo moto, has taken the complaint as an Ejahar and registered a case and started investigation. After completion of the investigation, police submitted charge-sheet against all the above petitioners. 7. Challenging the aforesaid complaint, FIR and the entire proceedings including the chargesheet, the present petition has been preferred for quashing the entire proceedings on the ground that such a complaint is malicious and has no basis to stand inasmuch as the petitioners have already rectified that the letter dated 30.11.2016 was issued erroneously and there is no such resignation letter submitted by the complainant/respondent No.2. 8. Learned counsels for the petitioners have vehemently contended that the respondent No.2, who was an employee of the said company was released from the company by way of termination as per the rule of the company, but, however, while issuing such letter by IT system generated through ASK HR process, it was erroneously mentioned on the face of letter dated 19.10.2016 that the complaint has been resigned from the service w.e.f. 05.10.2016. The respondent/complainant taking advantage of the situation/inadvertent mistake of the company has filed the aforesaid complaint just to harass the officials of the company with vested interest whereas they have already clarified their status in this regard. It is also submitted by the learned counsels that it is the usual procedure to terminate an employee is by giving Notice while the performance of the employee is not adequate. The complainant has unnecessarily dragged all the officials of the Vodafone company to the criminal proceedings whereas there is no such document in existence like resignation letter. It is contended that none of the offence as alleged is made out against any of the accused-petitioners herein in the complaint. 9. I have considered the submission of Mr. D. Das, learned Addl. PP for the State, who has also produced the relevant Case Diary and submitted that the company has the intention to terminate the service of the complainant/respondent No.2 on the basis of such fake document, which he never tendered and the intention of the petitioners is not bonafide but they have been actuated by malice. 10. Also considered the submission of Mr. Diganta Das, learned senior counsel assisted by Mr. 10. Also considered the submission of Mr. Diganta Das, learned senior counsel assisted by Mr. N. Talukdar, learned counsel appearing for the respondent/informant, who has argued that the complainant/respondent has a case to proceed with trial in view of his serious allegation and this Court is not supposed to appreciated the matter of fact which is stated to be decided in course of trial by adducing evidence. It is also contended that merely issuing clarification by the company, the accused-petitioners cannot be eschewed from liability by using some fabricated document on their part. It has been contended that it is not a fit case to quash the entire proceeding as has been sought for. 11. I have considered the rival submissions of learned counsels for both the parties as well as gone through the Case Diary and the documents annexed with the petition. 12. Firstly, let us start with the documents that have been filed in the complaint case before the trail court as well as the same set of documents that have been annexed in the present case. It is an admitted position that the respondent/complainant was an employee under the Vodafone India Ltd. and he was served with the termination letter dated 05.10.2016 by referring to the Clause.13 of the Termination Notice. The said Termination Notice reads as follows: “To Mr. Chou P. Gogoi, 90000886 Vodafone Mobile Services, Assam & North East Sub: Termination of your contract of employment under Letter of appointment dated 22nd January, 2007 Dear Chou, You were appointed under the terms and condition of your letter of appointment dated 22nd January 2007. You are currently working as AGM- Property & Facility Management with an Annual CTC of Rs.26,34,794.00 (Rupees Twenty Six Lakh Thirty Four Thousand Seven Hundred Ninety Four only). This is a responsible managerial position with two Full Time Direct Reports. 13. Termination Notice After Confirmation, this contract of employment is terminable by three month s (90 days) notice on either sides of payment of three month s (90 days) salary in lieu of notice and either party is not bound to give any reason. However, in the event of service is terminated for fraud, theft or withholding of any information in the Application Form or to any other misconduct, notice pay will not payable. However, in the event of service is terminated for fraud, theft or withholding of any information in the Application Form or to any other misconduct, notice pay will not payable. We in terms of the above, hereby inform you that your contract of employment shall stand determined what close of business hours today i.e. on 5th October 2016. We hereby enclosed a Demand Draft bearing no. 219081 dated 4th October 2016 drawn on ICICI Bank, Guwahati for Rs.9,75,999.00 (Rupees Nine Lakh Seventy Five Thousand Nine Hundred Ninety Nine only) towards full and final (F&F) settlement of all dues statutory or otherwise including that of three months notice pay as per terms of employment. The particulars of the calculation of the F&F payments is enclosed herewith as Annexure-1 to this letter. You are advised to complete all post termination formalities including that of handing over and surrender company properties to Kamaldeep Kaur Uppal AGM Business HR, the particulars are enclosed herewith as Annexure-2 to this letter. Thanking you, Yours faithfully, For Vodafone Mobile Services Limited, Sd/- Arif Khan (Head- Circle HRBP)” 13. Subsequent thereto, another letter dated 30.11.2016 was issued by the authority i.e. accused-petitioner (Arif Khan) in following manner: “Date: November 30, 2016 Chou P Gogoi This is to certify that basis your resignation dated October 19, 2016 you have been relieved from the services of Vodafone Mobile Services Limited, Assam effect October 05, 2016. As per service record maintained with the company, we confirm the following: Employee Code : 90000886 Name : Chou P Gogoi Band : G Designation : AGM- Property & FM Business Area : Property Date of Joining : January 22, 2007 Last working day : October 05, 2016 For Vodafone Mobile Services Limited. Sd/- Arif Khan Head – Circle HRBP.” 14. The respondent No.2 herein has not challenged the receipt of first termination letter but after receipt of the second subsequent letter dated 30.11.2016, he protested by writing a letter dated 24.12.2016 that he never signed any resignation letter from the service and it is a clear misrepresentation for vested interest by the company and requested the authority to provide him authenticated copy of the said resignation letter. He has also issued another letter dated 10.01.2017 raising the allegation of forgery by manipulation of such document i.e. resignation letter and thereafter has filed the complaint before the court. 15. He has also issued another letter dated 10.01.2017 raising the allegation of forgery by manipulation of such document i.e. resignation letter and thereafter has filed the complaint before the court. 15. The petitioners’ company made the following reply: “28th December 2016 Chou P Gogoi, Guwahati Dear Chou, This is with reference to the relieving and experience Letter dated 30th November, 2016 and thank you for bringing the inadvertent error to our knowledge. It is a matter of record that consequent to the cessation of employer employee relationship vide letter dated 5th October 2016, full and final settlement of all dues statutory or otherwise, including the notice period pay was made to you as per Cl.13 of your letter of Appointment dated 22nd January, 2007 read with applicable terms of your employment and law. The aforesaid full and final payment of Rs.9,75,999/- was made vide demand draft No.219081 drawn on ICICI Bank, Guwahati which you have received as well. In regard to the relieving letter dated 30th November, 2016, as you also are aware that such letters are IT system generated through ASK HR process and the said letter has been issued erroneously. Please be informed that appropriate letter will be issued to you in due course of time as people are on leave due to year end. You are requested to return the earlier letter dated 30th November, 2016 as the same stands revoked and void. We regret the inconvenience caused to you. For Vodafone Mobile Services Limited Sd/- Kamaldeep Kaur Uppal HR Business Manager” 16. The allegation of the respondent/complainant is that the officials of the company i.e. present accused-petitioners have forged the document of resignation letter and has terminated his service on the basis of such forged document which is wholly illegal and for such forceful resignation from his service, his reputation is at stake and the officials of the company is liable for such criminal offence as alleged in the complaint. 17. Pursuant to the submissions of the learned counsel for both the parties, I have also considered the Case Diary that has been produced before this Court, which contains entire documents including the complaint petition and the investigation report of the Investigating Officer. 17. Pursuant to the submissions of the learned counsel for both the parties, I have also considered the Case Diary that has been produced before this Court, which contains entire documents including the complaint petition and the investigation report of the Investigating Officer. I/O has recorded the statements of lot of witnesses and seized certain documents like appointment letter issued to the respondent and other documents that have been referred to and filed in the complaint, as indicated above, copy of demand draft etc. 18. First and foremost aspect to be noted is that the demand draft of Rs.9,75,999/- that was issued to the respondent No.2 at the time of termination from service and whether it was encashed or not by the respondent No.2 is not mentioned. So there is no reason to believe that the same was encashed by the respondent No.2 as the same was issued far back in 2016. We have come across the appointment letter that was issued to the respondent on 20.01.2007, wherein the company has indicated all the terms and conditions of the company including the matter of remuneration, bonus, benefits, responsibilities and duties and the termination and obligation after termination. Insofar as regards the responsibilities and duties, Clause.10 of the appointment letter reads as follows: “10. Responsibilities & Duties: Your work in the organization will be subject to the rules and regulations of the organization as laid down in relation to conduct, discipline and other matters. You will always be alive to the responsibilities and duties attached to your position and conduct yourself accordingly. In view of your office, you must effectively perform to ensure results and you will be expected to work extra hours to achieve this whenever the job so requires.” “13. Termination Notice After Confirmation, this contract of employment is terminable by three month’s (90 day’s) notice on either sides of payment of three month’s (90 day’s) salary in lieu of notice and either party is not bound to give any reason. However, in the event of service is terminated for fraud, theft or withholding of any information in the Application Form or to any other misconduct, notice pay will not payable.” Clause. 14 – “After Termination” of the terms and conditions of the appointment letter is as follows: “13. However, in the event of service is terminated for fraud, theft or withholding of any information in the Application Form or to any other misconduct, notice pay will not payable.” Clause. 14 – “After Termination” of the terms and conditions of the appointment letter is as follows: “13. After Termination On termination of his contract, you will immediately give up to the company all correspondence, specifications, formulae, books, documents, effects, market data, cost data, drawings or records etc. belonging to the company or relating to its business and shall not retain or make any copies of these items. The terms of termination are strictly confidential between you and the Company. You agree that at all times after the termination date, directly or indirectly not to a) Use for your own purposes or those of any other person, company business entity or any other organization whatsoever, (b) Disclose to any person, company, business entity or any other organization whatsoever. Any trade secrets or confidential information relating or belonging to the company or any of its subsidiaries or associated companies including but not limited to information relating to customers, customer lists or requirements, price lists or pricing structures, marketing and sales information, business plans or dealings, associates or officers, financial information or plans, designs, formulae, product lines, research activities, any document “confidential” or any information which you have been advised is “confidential” or which you might reasonably expect the Company to regard as “confidential” or any information which has been given to the Company or any of its subsidiaries or associates companies in confidence by customers, suppliers or other persons.” Clause. 16 – “Others” of the terms and conditions of the appointment letter is as follows: “16. Others (a) You are required to undergo medical examination as and when directed by the Management and to comply with rules and instructions in the matter. Your services may be terminated without notice if the Management considers you unsuitable for retention in service on medical grounds. (b) You will keep us informed of any change in your residential address, civil or marital status and such other matters. If the change in correspondence/residence address is not intimated, any communication sent at the available addresses shall be deemed to have reached you. (b) You will keep us informed of any change in your residential address, civil or marital status and such other matters. If the change in correspondence/residence address is not intimated, any communication sent at the available addresses shall be deemed to have reached you. (c) In the event of any Central or State laws coming into force at any time effecting any aspect of your terms and conditions of service, it is hereby expressly agreed that no double benefits shall accrue to you. (d) Your employment shall also be governed by Rules and Regulations laid down by the Management from time to time, some of which are contained, in the enclosed Code of Conduct.” 19. On perusal of the terms of appointment, it reflects that one can be terminated from service without assigning any reason from either side by paying 3 months remuneration which is being done by the company when issuing termination letter in the present case. Per se, there appears no irregularity or illegality in issuing termination Notice. But, in suppression of aforesaid aspect, the respondent/complainant raised the allegation that such termination has been issued without any prior intimation to him whereas it is not at all necessary. On the next, as has been discussed above, at the time of serving the Termination Notice, he was given Bank Draft of aforementioned amount, to which he might have encashed by now. The trouble started when the company issued another letter dated 30.11.2016 to the respondent that he has been relieved from service w.e.f. 05.10.2016 on the basis of his resignation letter dated 19.10.2016. On the communication made by the respondent/complainant, the company however, promptly replied to the said letter that it was issued erroneously and the same is revoked and void. Perhaps, in view of such clarification, matter should be ended there because they have admitted to their mistake in their letter and rectified it but still yet the complainant/respondent choose to allege that the conduct of the officials of the company is malafide and they trying to rely upon such document which was never tendered by him. 20. Now, on perusal of the Case Diary, it reveals that I/O itself reflected that no such resignation letter was found in course of investigation and the accused in their statement have also stated that there was no such resignation letter and matter has been wrongly construed by the respondent/complainant. 20. Now, on perusal of the Case Diary, it reveals that I/O itself reflected that no such resignation letter was found in course of investigation and the accused in their statement have also stated that there was no such resignation letter and matter has been wrongly construed by the respondent/complainant. Over and above, it is also found that the witnesses that have been examined during the course of investigation have not at all supported the allegation of the complainant that he has been forced to resign from service but stated that he has been terminated for his poor performance. They have also denied the allegation of the complainant that officials of the company have any sort of anti-communal feeling towards the employees of the company including the complainant/respondent. Rather, some of witnesses have stated that they never experienced such discriminating behaviour from the officials as has been contended by the complainant/respondent. Peculiarly, some set of witnesses have also stated that the complainant has brought false allegation against the officials of the company and in fact, he was terminated from service for his poor performance. The same aspect has also been reiterated by the present 3 petitioners in their statement that due to poor performance, the respondent/complainant was terminated from his service. 21. So, in the given circumstances, when there is no resignation letter in existence and there is no corroborative and supporting evidence to the allegation levelled by the complainant, the complaint of the respondent/complainant is unsubstantiated. There is no whisper in any of the statement of any of the witnesses that the accused persons forged and prepared any document and it is merely a hoax. As has been discussed above, there is no illegality or irregularity in issuance of termination letter by the company and the complainant/respondent being an employee of the company concerned, he may have his option to raise such grievances before the higher authority of the company. The present petitioners being his superiors, they have the authority and right to supervise his performance and also have the authority to terminate his employment. The present petitioners being his superiors, they have the authority and right to supervise his performance and also have the authority to terminate his employment. This aspect cannot be given colour by the respondent/complainant by alleging them as anti-communal, whereas he has alternative remedy to challenge his termination before the higher authority of the company and the matter cannot be dragged into a criminal proceedings unless there is any palpable criminal intention and gross irregularity and illegality in the entire process drawn by the petitioners. 22. From the entirety of the matter, it can be found that no witnesses have supported the allegation of the respondent/complainant that he has been terminated by the company without giving his dues but in one of the letter it was wrongly written as “resignation letter” instead of “termination letter”, which has also been rectified by the company promptly, the respondent/complainant cannot say that the petitioners manipulated such document where as no such document is found or seized during investigation of the case. In such a backdrop, it can be held that question of forgery does not arise and it is not a matter of conspiracy at all. So far the other allegation of defamation is concerned, same is not at all attracted in the given facts and circumstances of the case and it appears to be simply a personal feeling of the respondent/complainant having no ingredients of Section 499 of IPC. 23. Lastly, finding of the Investigating Officer in the charge-sheet is totally unfounded as there is no basis to accept that a case has been made out against the petitioners under the aforesaid Sections of law. There is no denial that the prosecution case would rely upon the testimony of the witnesses that has been recorded, during the course of investigation, under Section 161 CrPC. As I have discussed above, there is no iota of witness to support the case of the informant/complainant and in such backdrop, further continuance of the criminal proceedings against the present accused-petitioners is a futile exercise and the abuse of process of law. A criminal proceeding cannot be utilized to vindicate the personal grievance of a person where there is no legal evidence to be proceeded. 24. A criminal proceeding cannot be utilized to vindicate the personal grievance of a person where there is no legal evidence to be proceeded. 24. In view of all above, there being no sufficient ground to proceed with the criminal proceedings against the accused-petitioners, the entire proceedings pertaining to C.R. Case No.1092C/2017 and G.R. Case No.4280/2017 is hereby set aside and quashed. 25. Resultantly, all the aforementioned three criminal petitions succeed and disposed of. 26. Return the Case Diary.