apl750.12
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Application [APL] No. 750 of 2012
1. Rajiv son of Rasauliaram Sharma,
aged about 58 years,
C/o Hindalco Industries Ltd.,
Village - Kollur,
MI : R C. Puram,
District - Medak 502 300
Andhra Pradesh.
2. Hindalco Industries Ltd.,
a Company incorporated and
registered under the Companies
Act, 1956,
having its registered office
at Century Bhawan, 3rd floor,
Dr. Annie Besant Road,
Worli, Mumbai-400 025,
through Authorized Signatory. ..... Applicants
Versus
Ravishankar J. N. Laxminarayanan
Jonnaiah,
aged about 41 years,
resident of Ward No.5,
Snehanagar, Mouda,
Tq. Mouda,
Distt. Nagpur. ..... Non-applicant
*****
Mr. H. V. Thakur, Adv., for the Applicants.
Mr. R. N. Deshpande, Adv., for non-applicant.
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apl750.12
2
*****
CORAM : A.S. CHANDURKAR, J.
Date on which
arguments were heard : 05th October, 2017
Date on which the
the judgment is
pronounced : 06th November, 2017
J U D G M E N T:
01. The applicants, being aggrieved by the judgment dated 22nd August, 2012 passed by the learned Member, Industrial Court, Nagpur, have filed this Criminal Application under Section 482 of the Code of Criminal Procedure, 1973. By the impugned judgment, the challenge as raised to the issuance of Process by the learned Judge, Third Labour Court, Nagpur, has been turned down.
02. The facts giving rise to the present proceedings are that according to the non-applicant, he was a permanent employee of the applicant no.2 - Industry. He was one of the five elected representatives as per the provisions of the Maharashtra Industrial Relations Act, 1947 [for short, "the said Act"] and was, thus, a ::: Uploaded on - 13/11/2017 ::: Downloaded on - 15/11/2017 00:39:07 ::: apl750.12 3 protected employee. A Departmental Enquiry was held against the non-applicant, after which a charge-sheet came to be issued. As the non-applicant was an elected representative, his status was protected under the provisions of the said Act. The Management had, therefore, filed an application before the Labour Court seeking permission to terminate the services of the non-applicant. Those proceedings came to be withdrawn on 16th March, 2011. Thereafter, on 19th April, 2011, the Management issued an order of dismissal of services of the non- applicant. That order was challenged independently by the non- applicant. On the ground that such dismissal order violated the provisions of Section 101 (3) read with Section 101 (1) [Clauses a to c] of the said Act, the non-applicant approached the Labour Court. The Labour Court passed an order directing the non-applicant to record his statement under Section 200 of the Code. After such statement was recorded, Process came to be issued against the Company, its Managing Director as well as its Works Head. The said accused persons hence filed Revision Applications challenging aforesaid order issuing Process. The Industrial Court by the impugned order set aside the order issuing Process against the Managing Director. However, the order issuing Process was maintained as against the Company and the Works Head. Being aggrieved, the present Criminal Application has been filed.
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03. Shri H. V. Thakur, learned counsel for the applicants, submitted that the learned Judge of the trial Court committed an error in issuing Process against the present applicants. There were no specific averments in the application as moved by the non-applicant by which the applicants could be held liable under Section 101 of the said Act for contravention of any provisions thereof. Even in the statement of the non-applicant that was recorded under Section 200 of the Code, there was no reference to any act committed by the applicants that would constitute an offence under Section 101 of the said Act. In absence of any statutory vicarious liability of the applicants herein, no Process could have been issued merely on the basis of vague statements in the application. It was then submitted that the applicants having acted on the basis of proved misconduct of the non- applicant, there was no question of the non-applicant being victimized. As the non-applicant had ceased to be a member of the union when he was dismissed from service, he was not entitled for any statutory protection as sought to be urged by the non-applicant. Action was taken against him under the Model Standing Orders. In the aforesaid circumstances, therefore, continuation of present proceedings would an abuse of the process of law and the proceedings, therefore, deserve to be quashed. In support of his submissions, the learned counsel ::: Uploaded on - 13/11/2017 ::: Downloaded on - 15/11/2017 00:39:07 ::: apl750.12 5 placed reliance on the following decisions:- [1] T. Natrajan Vs. Indian Oxygen Ltd. [represented by its Plant Manager], Chennai & another [2004 (1) L.L.N. 309], [2] Sabitha Ramamurthy & anotehr Vs. R.B.,S.
Channabasavaradhya [ (2006) 10 SCC 581], [3] M/s. Thermax Ltd. & others Vs. K.MN. Johny & others [2011 (11) SCALE 128], [4] G. Sagar Suri & another Vs. State of U.P. & others [ (2000) 2 SCC 636], [5] S. K. Alagh Vs. State of Uttar Pradesh & others [ (2008) 5 SCC 662], [6] Maharashtra State Electricity Distribution Co. Ltd.
& another Vs. Datar Switchgear Ltd. & others [(2010) 10 SCC 479], [7] Maksud Saiyed Vs. State of Gujarath & others [(2008) 5 SCC 668], [8] MICICI Bank Ltd. & others Vs. State of Mah. & another [2010 III CLR 725], [9] Messers Bharat Iron Works Vs. Bhagubhai Balubhai Patel & others [(1976) 1 SCC 518], [10] Pepsi Foods Ltd. & another Vs. Special Judicial Magistrate & others [(1998) 5 SCC 749], and [11] Asmathunnisa Vs. State of A.P. Represdented by the Public Prosecutor, High Court of A.P., Hyderabad & another [(2011 (4) SCALE 101].
04. Per contra, Shri R.N. Deshpande, learned counsel for the ::: Uploaded on - 13/11/2017 ::: Downloaded on - 15/11/2017 00:39:07 ::: apl750.12 6 non-applicant, supported the impugned judgment. Referring to various provisions of the said Act and the Memorandum of Settlement dated 15th September, 2008, it was submitted that the non-applicant was a protected workman. According to him, the applicants themselves had sought permission of the Labour Court to terminate the services of the non-applicant. Those proceedings came to be withdrawn for no justifiable reason. The non-applicant being the beneficiary of the agreement between the employer and the union, he was entitled for statutory protection. As per provisions of Section 101 (1) (a) of the Act, no action could be taken against the non-applicant without complying with the statutory provisions. The averments made in the application were sufficient and an offence as alleged was clearly made out. The learned Judge of the Labour Court having issued Process and the Industrial Court having maintained that order, no interference was called for. It was, therefore, submitted that the contentions as urged on behalf of the applicants would be required to be examined during the trial and at this stage no case for interference had been made out. It was, thus, submitted that the Criminal Application deserves to be dismissed.
05. I have heard the learned counsel for the parties at length and with their assistance I have also gone through various documents ::: Uploaded on - 13/11/2017 ::: Downloaded on - 15/11/2017 00:39:07 ::: apl750.12 7 filed on record.
06. Perusal of the application filed under Section 101 (1) and (3) of the said Act indicates that according to the non-applicant, he was a protected employee of the applicant no.2 and despite such statutory protection, his services came to be terminated on 19th April, 2011. According to him, it was necessary for the Management to have sought prior permission before terminating the services of a protected employee. Such proceedings were filed by the Management seeking permission but on 16th March, 2011, as those proceedings were not prosecuted, the order of termination was illegal and was, thus, in violation of the provisions of Section 101 (1) (a), (b) & (c) of the said Act. Initially, the learned Judge of the Labour Court directed the non- applicant to record his statement as required under Section 200 of the Code. Accordingly, such statement was recorded on 21st December, 2011. Thereafter, on perusing that statement, the trial Court issued Process against all the accused. As noted above, this order issuing Process was challenged before the Revisional Court which accepted the challenge only in so far as accused no.2 is concerned.
07. Perusal of the statement of the non-applicant recorded under Section 200 of the Code indicates that he has stated that there ::: Uploaded on - 13/11/2017 ::: Downloaded on - 15/11/2017 00:39:07 ::: apl750.12 8 was a Memorandum of Understanding entered into between the Management and the Union. The non-applicant was the office-bearer of the Union. Though proceedings seeking permission to terminate his services were filed, those proceedings were withdrawn. Thus, the termination was illegal and, therefore, he was entitled for reinstatement. Except the aforesaid, the non-applicant has not stated anything as regards the role played by the applicant no.1 herein who was described as the "Works Head" of applicant no.2. Under the provisions of the said Act, no statutory liability is imposed on the persons in control and in management of the employer. Vicarious liability of office-bearers has not been statutorily provided. In this regard, it is well settled that in absence of any provision imposing statutory liability, there has to be specific allegation as to the role played by each accused resulting in commission of the alleged offence. Merely because Applicant No.1 is holding the post of Works Head, in absence of any pleading in the application or a statement made on verification as to the role played by applicant no.1 resulting in commission of the alleged offence, he cannot be made personally liable. Reference in this regard can be made to the decisions in Maksud Saiyed [supra] and Maharashtra State Electricity Distribution Co. Ltd. & another [supra]. Thus, even if the application under Section 101 of the said Act is taken at its face value and the statement of the ::: Uploaded on - 13/11/2017 ::: Downloaded on - 15/11/2017 00:39:07 ::: apl750.12 9 non-applicant on verification is perused, no offence, whatsoever, has been alleged to have been committed or made out against the applicant no.1. There is not even a whisper about the role of the applicant no.1. The learned Judge of the Revisional Court in paragraph 21 of the impugned order while setting aside the order issuing Process against the Managing Director has rightly found that the Managing Director was not the agent of the Company as defined under Section 3 (14) of the said Act. The same analogy would apply in so far as the Works Head of the Company is concerned when he has been arrayed in his personal capacity. Thus, in absence of necessary pleadings and in further absence of any provision saddling statutory vicarious liability on the Works Head, the issuance of Process against the Works Head would be without any material basis. The Revisional Court committed an error by not setting aside order issuing Process against the Works Head on the same analogy on which it set side the order against the Managing Director.
08. Applicant No.2 is the Company itself through its Authorized Signatory. On a prima facie reading of the application filed under Section 101 (1) and (3) of the said Act, coupled with the Verification Statement made under Section 200 of the Code, I find that there is material to proceed against the Company. The contention that though ::: Uploaded on - 13/11/2017 ::: Downloaded on - 15/11/2017 00:39:07 ::: apl750.12 10 permission was sought of the Competent Authority for terminating services of the non-applicant and those proceedings came to be withdrawn as he ceased to be a protected employee, is a matter to be considered after leading evidence. There is prima facie material with regard to allegations pertaining to breach of provisions of Section 101 (1) (a) and (b) of the said Act. The claim of the non-applicant of being a protected employee and the defence of the applicant no.2 that the non-applicant ceased to have any protection and, therefore, his order of termination was not vulnerable on that count is a matter that requires adjudication at the trial. The material on record is sufficient to sustain the order issuing Process against Applicant No.2. At this stage, when the order issuing Process is under challenge, the contentions which require recording of evidence cannot be gone into. I, therefore, do not find it necessary to examine the ratio of the decisions relied upon by the learned counsel for the applicants in that regard.
09. Hence, by observing that the defence as sought to be raised to the initiation of proceedings by the non-applicant would require consideration after evidence is led, I am inclined to partly allow the present application by setting aside the order issuing Process in so far as Applicant No.1 is concerned. Without entering into the merits of question whether the order of termination was required to be preceded ::: Uploaded on - 13/11/2017 ::: Downloaded on - 15/11/2017 00:39:07 ::: apl750.12 11 with valid permission, the application is partly allowed.
10. Accordingly, the following order is passed:-
[a] The judgment dated 22nd October, 2012 in Revision [BIR] No. 1 of 2012 is partly set aside. The order issuing Process dated 6th January, 2012 against the Applicant No.1 is quashed and set aside.
[b] The proceedings shall continue against the present applicant no.2 herein. The trial Court shall decide the same in accordance with law and on its own merits without being influenced by any observations made in this order.
11. The application is partly allowed in aforesaid terms and disposed of.
Judge
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