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Gujarat High Court · body

2023 DIGILAW 796 (GUJ)

Narendrabhai Balvantrai Vashi v. State of Gujarat

2023-07-05

SANDEEP N.BHATT

body2023
JUDGMENT : SANDEEP N. BHATT, J. 1. Rule returnable forthwith. Mr. Soaham Joshi, learned APP waives service of notice of rule for and on behalf of the respondent-State. 2. By way of present application, the applicant-original accused has prayed for the following reliefs: 8. (A) be pleased to admit and allow the present petition. (B) be pleased to quash the impugned complaint being the Criminal Case No. 08/2019 dated 26/02/2019 filed by the respondent no. 2 before the Labour Court, Navsari, order dated 26/02/2019 taking cognizance and the process issued in it at Annex. A (Colly.) for the offences punishable under section 92 of the Factories Act, 1948. (C) be pleased to stay the proceedings of Criminal Case No. 08/2019 dated 26/02/2019 filed by the respondent no. 2 before the Labour Court, Navsari, order dated 26/02/2019 taking cognizance and the process issued in it at Annex. A (Colly.) for the offences punishable under section 92 of the Factories Act, 1948 pending hearing till final disposal of the present petition. (D) be pleased to grant ad-interim relief in terms of the above mentioned clause. (E) be pleased to grant such other and further relief as the nature and circumstances of the present case may require in the interest of justice. 3. The brief facts of the case are as under: 3.1 That the Society is engaged in the activity of procuring, processing and distribution of milk and milk products procured through its members and is doing the same for almost 47 years now since its inception. There has been no untoward incident or accident or any complaint by any Authority under the Labour Law against the Society or its officials except for the present complaint. 3.2 The Respondent No. 2 had visited the factory premises of applicant on 18/12/2018 alongwith Joint Director, Directorate of Industrial Safety and Health and Factory Inspector had given a visit note for the same inter-alia making various observations. The alleged issue in question for which the criminal Complaint is filed was observed at S. No. 4 in the said Inspection Note. As per the same, the Society had employed more than 500 workers and yet Welfare officer was not appointed by the Society and hence breach of Sec. 49 of the Factories Act was sought to be done. The alleged issue in question for which the criminal Complaint is filed was observed at S. No. 4 in the said Inspection Note. As per the same, the Society had employed more than 500 workers and yet Welfare officer was not appointed by the Society and hence breach of Sec. 49 of the Factories Act was sought to be done. 3.3 That the applicant had satisfactorily replied to all the observations and the same were also accepted by the respondent no. 2. The applicant had also filed details reply alongwith annexure on 16.01.2019 after receipt of the Inspection note. The applicant submits that as per the observations, the applicant had appointed a Welfare Officer and the appointment letter thereof also formed a part of the said reply. The said reply was received by the office of the respondent no. 2 on 18.01.2019. 3.4 That without considering the reply or the annexure thereto, without any further communication or intimation or show cause notice, straightway, a criminal complaint came to be filed on 26.02.2019 although the observations were complied with. Moreover, the applicant is directly shown as the accused without there being any proof whatsoever on whether the applicant was directly responsible for the alleged offence. The applicant came to know about the same on receipt of summons. The applicant appeared through it advocate and sought for time and the matter is adjourned. Hence, the present applicant is herein with the present application. 4. Heard Mr. K.M. Patel, learned senior advocate with Mr. Yogi Gadhia, learned advocate for the applicant and Mr. Soaham Joshi, learned advocate for the respondent no. 1-State. 5. Mr. K.M. Patel, learned senior advocate for the applicant has submitted that prima-facie the complaint is filed under Section-49 read with Section-92 of the Factories Act by the Inspector, is not maintainable in eye of law. He has submitted that though the compliance report is already submitted by the authority much prior to filing of the complaint. He has drawn my attention towards complaint, which is filed on 26.06.2019 and pursuant to the earlier notice received by the Valsad District Co-operative Milk Federation, the detailed explanation was given by communication dated 16.01.2019. He has submitted that though the compliance report is already submitted by the authority much prior to filing of the complaint. He has drawn my attention towards complaint, which is filed on 26.06.2019 and pursuant to the earlier notice received by the Valsad District Co-operative Milk Federation, the detailed explanation was given by communication dated 16.01.2019. He has drawn my attention by that communication dated 16.01.2019 and sub do not find that there is any flaw in the impugned order or any illegality has been committed by the High Court imitted that the District Co-operative Milk Federation, Valsad has informed the Assistant Director pursuant to the inspection note, which is carried out on 18.12.2018 that the old workers of the institute Shri Shankarbhai Patel is appointed as a Welfare Officer, who had undertaken activity since last 20 years about the welfare of the workers in the institution. The letter of appointment of Shri Shankarbhai Patel is produced alongwith that communication. That communication is sent to the Assistant Director, which was received by the Assistant Director on 18.01.2019 by concerned clerk, officer of the Industrial Safety & Healther & Factory Inspector, Navsari. He has drawn my attention towards rubber stamp put on said communication and therefore, he has submitted that proceedings initiated pursuant to the breach of Section-49 is totally against the settled position of law and by ignoring the materials available with the authority, more particularly, communication dated 16.01.2019 by the institution i.e. District Co-operative Milk Federation, Valsad. He has drawn attention towards the fact that on the proposal which is filed on 26.02.2019 by the Factory Inspector, Navsari, the Labour Court, Navsari without recording statement as required under the law, straight-way directed to register the criminal case under Section-49 r/w. 92 of Factories Act and process is issued. Even that order is also not tenable in eye of law and learned trial Court has to believe itself that the offence is prima-facie made out, which was done in the present facts and circumstances of the case. He has drawn attention towards the provisions of Section 49 and 92 of the Factories Act and submitted that in view of such provisions, as such now the welfare officer is already appointed by the institution, which was communicated by communication dated 16.01.2019, there is no valid reason to make the person for prosecution dur to violence of Section-49. He has drawn attention towards the provisions of Section 49 and 92 of the Factories Act and submitted that in view of such provisions, as such now the welfare officer is already appointed by the institution, which was communicated by communication dated 16.01.2019, there is no valid reason to make the person for prosecution dur to violence of Section-49. Section-49 essential speaks about the Welfare Officers. He has further submitted that even as per communication, the accused person is an occupier of the premises, which is also erroneous. In view of the various judgments of the Hon’ble Apex Court, the Board of the Director cannot be liable for any criminal prosecution and cannot be considered as an occupier, unless it is specifically communed to the concerned authority by the company. He has further submitted that as there is no breach of section-49 of the factories act as this section-49 is wrongly mentioned in the present case. Therefore, present application be allowed. 6. Per contra Mr. Soaham Joshi, learned advocate for the respondent no. 1- State has submitted that when the inspection was carried out by the Assistant Director, Industrial Safety and Health and Factory Inspector, and as per his report, in column no. 4 of the inspection note, more than 500 workers are employed, yet the welfare officer was not appointed by the society and therefore, he has committed breach of section-49 of the Factories Act. He has further submitted that the Valsad District Co-operative Milk Federation has already sent such materials, it seems that such materials is not available with the Factory Inspector and he has made necessary proposal. Therefore, he has submitted that there is error committed on such proposal and now process is already issued under Section-204 of Cr.P.C. by the concerned police authority. Therefore, the applicant has to face the proceedings initiated by the trial Court. This court should not exercise its inherent power under Section-482 of the Cr.P.C. and in view of the judgment of the State of Haryana and Others vs. Bhajanlal and Others, this application is not maintainable. 7. I have considered the rival submissions made at the bar. It is relevant to note that the present application is filed by the Narendra Balvantrai Vashi, who is at the relevant point of time shown as Director of the Valsad District Co-operative Milk Federation. 7. I have considered the rival submissions made at the bar. It is relevant to note that the present application is filed by the Narendra Balvantrai Vashi, who is at the relevant point of time shown as Director of the Valsad District Co-operative Milk Federation. The said Valsad District Co-operative Milk Federation is a society engaging in the activity of procuring, processing and distribution of milk and milk products procured through its members and is doing the same for almost 47 years now since its inception. There has been no untoward incident or accident or any complaint by any authority under the Labour Law against the society or its officials except for the present complaint. The respondent no. 2 had visited the factory premises of the society on 18.12.2018 alongwith the Joint Director, Director of Industrial Safety and Health and had given a visit note for the same inter-alia making various observations. The alleged issue in question for which the criminal complaint is filed was observed at Sr. No. 4 in the inspection note. As per the same, the society had employed more than 500 workers and yet Welfare Officer was not appointed by the society and therefore, it is fount that breach of Section-49 of the Factories Act. It also transpires from the record that the present applicant has filed detailed reply alongwith the annexure to the said inspection note on 16.01.2019, whereby, the applicant has informed that the Welfare Officer is already appointed and appointment letter is also annexed with the reply. That reply seems to be received by the office of the respondent no. 2 on 18.01.2019, thereafter, without any further communication or intimation or show-cause notice, straight-way the proposal for criminal prosecution has filed on 26.02.2019, even after observation made at the time of visit regarding the Section-49 is applied much earlier by 16.01.2019 by the society. Therefore, it transpires that prima- facie the proceedings initiated pursuant to the alleged breach of Section-49 and for the offence under Section-92 of the Factories Act is prima-facie initiated on perception and without considering the materials available on record at the relevant point of time, otherwise also, without giving proper opportunity to the applicant, the respondent should not have initiated such criminal proceedings for the alleged breach. It transpires that the allegations made in the complaint does not discloses any offence as alleged as the allegation is mainly on the ground that the Welfare Officer is not appointed, however, on perusal of the complaint, it appears that the authority has not considered the reply filed by the applicant where it is specifically mentioned that the Welfare Officer is appointed and the order is annexed with the reply. Therefore, at the time of complaint, it cannot be said that there is breach of Section-49 as there is no cause to file such complaint. It is also required to be noted that on examining the complaint, it is alleged that the applicant has committed breach of Section-49 of the Act, however, the same is totally silent on the reply filed by the society and the compliance thereof. Therefore, the said FIR is totally lacking to show how and when the offence alleged is constituted. Therefore, prima-facie, it is found that no case is made out to attract the provisions of Section-92 of the Factories Act. Therefore, considering this aspect, as well as also considering the material available on record, it transpires that the State Government has given direction on 12.02.2016 to the Society whether the applicant is one of the Board of Director. Regarding the position about the same, the amendment is carried out for recruitment, as per section-76 of the amended act of Gujarat Co-operative Societies Act and therefore, no appointment cane be made and in view of that, it cannot be said that the society has not deliberately complied with the necessary requirement of Section-49 of the Factories Act at the relevant point of time prior to visit of the respondent no. 2. It is also transpires that the Managing Director of the Society i.e. present applicant shown as an accused in the criminal complaint and from the complaint, it is found that there is whisper of anything about the applicant being In-charge and responsible for day-to-day affairs of the factory in the entire complaint. Therefore, it is necessary to reproduced Section-49 and 92 of the Factories Act as under: 49. Welfare officers: (1) In every factory wherein five hundred or more workers are ordinarily employed the occupier shall employ in the factory such number of welfare officers as may be prescribed. Therefore, it is necessary to reproduced Section-49 and 92 of the Factories Act as under: 49. Welfare officers: (1) In every factory wherein five hundred or more workers are ordinarily employed the occupier shall employ in the factory such number of welfare officers as may be prescribed. (2) The State Government may prescribe the duties, qualifications and conditions of service of officers employed under sub-section (1). 92. General penalty for offences - Save as is otherwise expressly provided in this Act and subject to the provisions of section 93, if in, or in respect of, any factory there is any contravention of any of the provisions of this Act or of any rules made thereunder or of any order in writing given thereunder, the occupier and manager of the factory shall each be guilty of an offence and punishable with imprisonment for a term which may extend to [two years] or with fine which may extend to [one lakh rupees] or with both, and if the contravention is continued after conviction, with a further fine which may extend to [one thousand rupees] for each day on which the contravention is so continued: Provided that where contravention of any of the provisions of Chapter IV or any rule made thereunder or under section 87 has resulted in an accident causing death or serious bodily injury, the fine shall not be less than [twenty-five thousand rupees] in the case of an accident causing death and [five thousand rupees] in the case of an accident causing serious bodily injury. Explanation - In this section and in section 94 “serious bodily injury” means an injury which involves, or in all probability will involve, the permanent loss of the use of, or permanent injury to, any limb or the permanent loss of, or injury to, sight or hearing, or the fracture of any bone, but shall not include, the fracture of bone or joint (not being fracture of more than one bone or joint) of any phalanges of the hand or foot. 8. Considering the one more aspect coming to the notice of the Court that while issuing process pursuant to the proposal of the respondent no. 8. Considering the one more aspect coming to the notice of the Court that while issuing process pursuant to the proposal of the respondent no. 2 to the learned Labour Court, Navsari, straight-way the order is passed to register the criminal case and further directed to process for the breach of Section-49 and 92 of the Factories Act without recording any statement or without recording any prima-facie reason for issuance of process that is also not permissible in view of the provision under Section-204 of the Cr.P.C. which reads as under: 204. Issue of process: (1) If in the opinion of a Magistrate taking cognizance 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. (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) 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. 9. Therefore, from the bare reading of Section-204 of Cr.P.C. and judgment in the case of HDFC Securities Ltd. and Others vs. State of Maharashtra and Another, 2017 (1) SCC 640 now it is well-settled position of law that before issuance of such process, before taking any cognizance of offence, the Magistrate has to form opinion that there is sufficient ground for proceedings and accordingly, the process is required to be issued. On that count also, the process issued by the learned Magistrate is not in accordance with law and therefore, the process is required to be quashed and set aside. On that count also, the process issued by the learned Magistrate is not in accordance with law and therefore, the process is required to be quashed and set aside. Therefore, considering the judgment of State of Haryana vs. Bhajan Lal and considering the fact that continuation of the present proceedings pursuant to the impugned order passed by the learned Magistrate, Labour Court, Navsari is nothing, but amounts to abuse of process of law and accordingly, I found that this is fit case where this Court should exercise power under Section-482 of Cr.P.C. 10. Further, it will also be fruitful to mention the judgment of Hon’ble Supreme Court in the case of State of Haryana vs. Bhajan Lal, AIR 1992 SC 604 , wherein the Hon’ble Supreme Court has observed thus: “In the backdrop of the interpretation of the various relevant provisions of the Code under Ch. XIV and of the principles of law enunciated by this court in a series of decisions relating to the exercise of the extraordinary power under Art. 226 or the inherent powers under Sec. 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Sec. 156(1) of the Code except under an order of a Magistrate within the purview of Sec. 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Sec. 156(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala-fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 11. It is also relevant to refer to the judgment of the Hon’ble Apex Court in the case of Inder Mohan Goswami and Another vs. State of Uttaranchal, (2007) 12 SCC 1 , more particularly Para-23 & 24 thereof, which read as under: “23. This Court in a number of cases has laid down the scope and ambit of courts' powers under Sec. 482 Cr.P.C. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Sec. 482 Cr.P.C. can be exercised: (i) to give effect to an order under the Code. (ii) to prevent abuse of the process of court. 24. Inherent powers under Sec. 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself'. Authority of the court exists for the advancement of justice. (ii) to prevent abuse of the process of court. 24. Inherent powers under Sec. 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself'. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute. Discussion of decided cases.” 12. In the result, this application is allowed. The proceedings of Criminal Case No. 08 of 2019 pending before the Labour Court, Navsari, is hereby ordered to be quashed qua the applicant herein. All consequential proceedings pursuant thereto shall stand terminated. Rule is made absolute to the aforesaid extent. Direct service is permitted.