NEUTRAL CITATION
R/CR.MA/3510/2021 ORDER DATED: 11/08/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 3510 of 2021
With
R/CRIMINAL MISC.APPLICATION NO. 3511 of 2021
With
R/CRIMINAL MISC.APPLICATION NO. 3513 of 2021
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ASHOK KUMAR AGARWAL
Versus
STATE OF GUJARAT
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Appearance:
MR YOGI K GADHIA(5913) for the Applicant(s) No. 1
MR. SOAHAM JOSHI, APP for the Respondent(s) No. 1
RULE NOT RECD BACK for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 11/08/2023
COMMON ORAL ORDER
1. Since the issues involved in the present applications are identical in nature, Criminal Misc. Application No.3510 of 2021 is considered as leading matter and all the applications are decided together.
2. The present application is filed for seeking following main reliefs:-
"(A) This Hon'ble court may be pleased to admit and allow the present application.
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NEUTRAL CITATION R/CR.MA/3510/2021 ORDER DATED: 11/08/2023 undefined (B) This Hon'ble Court may be pleased to quash the impugned complaint being the Criminal Case no. 340/2019 dtd. 16/09/2019 filed by the respondent no. 2 before the Judicial Magistrate First Class and Judge Labour Court, Valsad, for the offences punishable under Rule 26(A), 26(D) and 26(2) of the Minimum Wages (Gujarat) Rules.
(C) This Hon'ble Court may kindly be pleased to stay the proceedings of Criminal Case no. 340/2019 dtd. 16/09/2019 filed by the respondent no. 2 before the Judicial Magistrate First Class and Judge Labour Court, Valsad, for the offences punishable under Rule 26(A), 26(D) and 26(2) of the Minimum Wages (Gujarat) Rules pending hearing till final disposal of the present petition.
(D) This Hon'ble Court may be pleased to grant ad- interim relief in terms of the above mentioned clause. (E) This Hon'ble Court may 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."
3.1 Brief facts as per the case of the applicant in this Page 2 of 38 Downloaded on : Sun Sep 17 01:13:38 IST 2023 NEUTRAL CITATION R/CR.MA/3510/2021 ORDER DATED: 11/08/2023 undefined application, i.e., Criminal Misc. Application No.3510 of 2021 are as such that the the applicant herein seeks quashing of Criminal Case No. 340/2019 filed by the Respondent No. 2 Govt. Labour Officer under Sec. 26(A), 26(D) & 26(2) of Minimum Wages Rules alleging that the applicant have committed offences of the said Act. It is further the case of the applicant in this application are as such that the respondent no.2 Govt. labour Officer had visited the establishment on 19.07.2019 and gave inspection note under the Minimum Wages Act regarding various alleged violations under the minimum Wages Gujarat Rules. As is apparent from the complaint, the Accused No.1 did not comply with the same and hence the criminal case came to be lodged against the applicant being accused no. 2. Thereafter, the complainant has lodged 3 different complaints enumerating different offenses in different complaints from the inspection report dtd. 19.07.2019. 3.2 It is further the case of the applicant in this application that the applicant had resigned from the company as a Director on 01/04/2017. Necessary communications were sent to the office of the Dy. Page 3 of 38 Downloaded on : Sun Sep 17 01:13:38 IST 2023
NEUTRAL CITATION R/CR.MA/3510/2021 ORDER DATED: 11/08/2023 undefined Director of Industrial Safety and Health, Labour Commissioner etc. at the relevant time. But due to change in management, the same could not be updated with the Registrar of Companies. Then again the applicant resigned again from the company vide letter dtd; - 04/09/2018 which was allowed by the Board of Directors passed vide resolution on 13/09/2018. It is further the case of the applicant in this application that the applicant was not in charge of day to day affairs of the company or even a Director at the time of inspection dtd: - 19/07/2019. He had officially resigned on 04/09/2018. Even otherwise considering the averments of the complaint on their face value and accepted in entirety do not constitute the offence as alleged. Hence, as per the Law laid down by the Apex Court in case of State of Haryana vs. Bhajanlal, the present is a fit case for invoking the inherent powers of the Hon'ble Court as the complaint lacks in all material particulars. 3.3 It is further the case of the applicant in this application that the applicant herein has resigned from the post of Director on 04.09.2018 which was accepted on 13.09.2018. Hence, the applicant was not a Director of Page 4 of 38 Downloaded on : Sun Sep 17 01:13:38 IST 2023 NEUTRAL CITATION R/CR.MA/3510/2021 ORDER DATED: 11/08/2023 undefined the Company and not looking after day to activities nor was in charge of such affairs related to affairs of the company. Yet he is shown as Accused in the impugned complaint. Hence the present application is preferred.
4. Heard learned advocate Mr. Yogi K. Gadhia for the applicant and Mr Soaham Joshi, learned Additional Public Prosecutor (APP) for the respondent No.1 - State. 5.1 Learned advocate Mr. Yogi K. Gadhia for the applicant has submitted that though there is material available on the record, which indicates that the applicant, being a director of the company against whom the complaint is filed, has resigned much prior to filing of the impugned F.I.R., which filed on 16.9.2019 pursuant to the inspection dated 19.7.2019, He has submitted that applicant has resigned himself as director on 4.9.2018, and the same was reported to the Ministry of Corporate Affairs, as such resignation under Section 168 of the Companies (Incorporation) Rules, 2014 is required to be recorded with the concerned Ministry. Furthermore, he has drawn my attention towards the receipt issued by the company about the receipt of the Page 5 of 38 Downloaded on : Sun Sep 17 01:13:38 IST 2023 NEUTRAL CITATION R/CR.MA/3510/2021 ORDER DATED: 11/08/2023 undefined resignation letter and also resolution passed by the company to the effect that Ashok Kumar Agarwal has resigned as a director w.e.f. 4.9.2018. 5.2 Thereafter, he has placed reliance upon the judgments of this Court in the case of Kanubhai Chunibhai Patel versus State of Gujarat and Others reported in 2016 II CLR 172 as well as judgment of the Madras High Court in the case of Parag M. Munot versus State and Another reported in 2020 LLR 993, and the judgment of Jharkhand High Court in the case of Rakesh Dixit @ Ajay Kumar Dixit @ Ajay Dixit versus State of Jharkhand and Anr. reported in 2019 LLR 1117. 5.3 He has also submitted that looking to the averments made in the complaint, there is no whisper about the fact that how the applicant is responsible for day to day work of the company. Therefore, he has submitted that since the applicant has already resigned as director, the complaint filed under the provisions of Rule 26(A), 26(D) and 26(2) of the Minimum Wages (Gujarat) Rules, 1961 is erroneous and continuation of such proceeding would amount to abuse of process of Page 6 of 38 Downloaded on : Sun Sep 17 01:13:38 IST 2023 NEUTRAL CITATION R/CR.MA/3510/2021 ORDER DATED: 11/08/2023 undefined law, resultantly, harassment to the applicant and therefore, in view of the judgment of the Hon'ble Supreme Court in the case of State of Haryana V/s Bhajan Lal reported in AIR 1992 SC 604, and other judgments, this Court should exercise the powers under Section 482 of the Criminal Procedure Code, 1973 to prevent the abuse of process of law.
6. Conversely, Mr Soaham Joshi, learned Additional Public Prosecutor (APP) for the respondent No.1 - State has submitted that prima facie, complaint is lodged against the company as well as the applicant as the applicant was holding the post of director. He has further submitted that from bare reading of tenor of the impugned complaint, prima facie, case is made out against the applicant herein and therefore, this Court should not exercise the inherent discretion at this stage by relegating the applicant to face the proceeding of trial as essentially the grievance raised in the present application is required further adjudication at the time of trial. Therefore, he prays to dismiss this application as no case is made out to exercise the powers under Section 482 of the Criminal Procedure Code, which Page 7 of 38 Downloaded on : Sun Sep 17 01:13:38 IST 2023 NEUTRAL CITATION R/CR.MA/3510/2021 ORDER DATED: 11/08/2023 undefined should be exercised very sparingly. 7.1 I have heard the learned advocates for the respective parties. I have considered the prayers made in the present application. On bare reading of the complaint filed under the provisions of Rule 26(A), 26(D) and 26(2) of the Minimum Wages (Gujarat) Rules, prima facie, it is revealed that except mentioning the present applicant as director of the company no averment is made against the present applicant, which remotely connects the present applicant in the allegedly commenced F.I.R. Additionally, it also becomes evident that the applicant has resigned from accused No.1 - company much prior to the filing of the complaint in the month of September, 2018 and the complaint is filed on 16.9.2019 and even inspection which is carried out on 19.7.2019. Therefore, all the incident inspection and pursuant to that complaint are happened subsequent to the resignation of the applicant. Hence, the applicant cannot be connected in the offence allegedly committed by the company under the provisions of Rule 26(A), 26(D) and 26(2) of the Minimum Wages (Gujarat) Rules, which creates great hardship to the applicant. Page 8 of 38 Downloaded on : Sun Sep 17 01:13:38 IST 2023
NEUTRAL CITATION R/CR.MA/3510/2021 ORDER DATED: 11/08/2023 undefined 7.2 It is required to refer the provisions of Section 22(c) and Rule 26(A), 26(D) and 26(2) of the Minimum Wages (Gujarat) Rules, as under:
"Section 22C in The Minimum Wages Act, 1948:- 22C Offences by companies.
(1) If the person committing any offence under this Act is a company, every person who at the time the offence was committed, was incharge of, and was responsible to, the company for the conduct of the business of the company as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer of the company shall also be deemed to be Page 9 of 38 Downloaded on : Sun Sep 17 01:13:38 IST 2023 NEUTRAL CITATION R/CR.MA/3510/2021 ORDER DATED: 11/08/2023 undefined guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation. For the purposes of this section,
(a) "company" means any body corporate and includes a firm or other association of individuals; and
(b) "director" in relation to a firm means a partner in the firm.] State Amendments Section 22CC Madhya Pradesh. After section 22C, add the following section, namely: 22CC. Liability of principals in certain cases.
(1) Subject to the provisions of sub-section (2), where in any scheduled employment in respect of which minimum rate of wages have been fixed under this Act, any person (hereinafter in this section referred to as principal) contracts with any other person (hereinafter in this section referred to as contractor) for having any goods made for sale for the purposes of the trade or business of the principal either wholly or partly out of materials supplied to the contractor by the principal, then, notwithstanding that the employees for making such goods are employed by the contractor, the principal shall also in addition to the contractor be deemed for all purposes of this Act to be the employer in relation to the employees:
Provided that where by virtue of the provision of sub- section (1), a principal is convicted of an offence punishable Page 10 of 38 Downloaded on : Sun Sep 17 01:13:38 IST 2023 NEUTRAL CITATION R/CR.MA/3510/2021 ORDER DATED: 11/08/2023 undefined under section 22, he shall be punishable only with fine as provided for in that section.
(2) The provisions of this section shall apply only to such scheduled employments as the State Government may, by notification, specify in this behalf.'' [ Vide Madhya Pradesh Act 11 of 1959, sec. 2 (w.e.f. 12-6- 1959 ) as amended by Madhya Pradesh Act 23 of 1961, sec. 21(b) (w.e.f. 23-6-1961 ).] Manipur After section 22C, insert the following section, namely:22CC. Compounding of offences. An officer specially empowered by the State Government in this behalf by notification in the Official Gazette may, subject to any general or special order of the State Government in this behalf, compound any offence punishable under this Act with fine only committed for the first time, either before or after the institution of the prosecution, on realization of such amount of composition fee as he thinks fit, not exceeding the maximum amount of fine fixed for the offence, and where the offence is so compounded
(i) before the institution of the prosecution, the offender shall not be liable to prosecution for such offence and shall, if in custody, be set at liberty;
(ii) after the institution of the prosecution, the composition shall amount to acquittal of the offender. Vide Manipur Act 5 of 1993, sec. 2.] Uttar Pradesh. After section 22C, insert the following section, namely: Page 11 of 38 Downloaded on : Sun Sep 17 01:13:38 IST 2023
NEUTRAL CITATION R/CR.MA/3510/2021 ORDER DATED: 11/08/2023 undefined 22CC. Compounding of offences. An officer specially empowered by the State Government in this behalf by notification may, subject to any general or special order of the State Government in this behalf, compound any offence punishable under this Act with fine only committed for the first time, either before or after the institution of the prosecution, on realisation of such amount of composition fee as he thinks fit, not exceeding the maximum amount of fine fixed for the offence; and where the offence is so compounded
(i) before the institution of the prosecution, the offender shall not be liable to prosecution for such offence and shall, if in custody, be set at liberty;
(ii) after the institution of the prosecution, the composition shall amount to acquittal of the offender. 26A. Maintenance of Inspection Book :- Every employer shall maintain a bound Inspection Book and shall produce it when so required by the Inspector. 26D. Powers of revenue officers appointed as Inspectors :- The registers and records prescribed under sub-rule (2) of rule 25 and sub-rule (1) and (5) of rule 26 shall be preserved for a period of three years after the last entry is made therein and shall be produced when so required by Inspector.
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NEUTRAL CITATION R/CR.MA/3510/2021 ORDER DATED: 11/08/2023 undefined 26(2) [Provided that the Muster Roll may not be maintained by an employer who maintains a like roll under the Factories Act, 1948.
(6)
(a) Notwithstanding anything contained in this rule, the employer shall in the case of employment in Agriculture
(i) issue wage slip in Form V-C for daily or non-yearly- rated workers in lieu of wage slip referred to in sub- rule (2),
(ii) maintain a combined register of wages and wage slip in form VB for yearly-rated workers in lieu of the combined Register of wages and Muster Roll and wage slip referred to in sub-rules (1) and (5) and sub-rule (2) respectively.
(b) The wage slip for daily or non-yearly-rated workers and the combined Register of wages and wage slip for yearly rated workers shall be maintained by the employer in Gujarati language in duplicate and one copy shall be given to the employee. The employer shall preserve this record for three years.
(c) The entries in the combined register of wage slip for yearlyrated workers shall be made on each occasion in presence of the employed person by the employer or any person authorised by him in that behalf and the employer shall produce it whenever required for this purpose.
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NEUTRAL CITATION R/CR.MA/3510/2021 ORDER DATED: 11/08/2023 undefined
(d) If the employed person loses his copy of combined register of woges and wage slip, the employer shall, on payment of twenty five paise, provide him within a week, with another copy duly completed from his record; 3 [Provided that in the employment in agriculture, the employer shall not be required to maintain the inspection book, but the Inspector shall maintain such inspection book, and shall give a copy of his inspection note to the employer at the time of inspection."
7.3 It is required to refer the judgment of this Court in the case of Kanubhai Chunibhai Patel (supra), more specifically, paragraphs 3 and 6 are relevant, as under:
"3. Five private complaints came to be lodged by the respondent No.3 for contravention of the provisions of Rules 24(2), 22 and 21(4) of the Minimum Wages Rules, 1961. The principal argument of the learned counsel appearing for the petitioner is that the petitioner was the Chairman of the Bank for a limited period. He was an honorary Chairman and was not drawing any salary for the duties performed by him.
The learned counsel would submit that his client was not in charge and responsible for the day to day affairs of the Bank. He would submit that there is not Page 14 of 38 Downloaded on : Sun Sep 17 01:13:38 IST 2023 NEUTRAL CITATION R/CR.MA/3510/2021 ORDER DATED: 11/08/2023 undefined a whisper of any such averment in the complaint. He would submit that his client would not fall within the definition of the term "employer" as defined in section 2(e) of the Minimum Wages Act.
6. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the criminal cases should be quashed. The learned counsel appearing for the petitioner invited my attention to a judgment and order passed by a learned Single Judge of this Court in Criminal Misc. Application No.668 of 2010 and an allied matter decided on 9th June, 2015. He pointed out that identical complaints were lodged against the Bank and the petitioner herein with the only difference that in those cases, the contravention was in the provisions of the Payment of Gratuity Act. He submitted that the provisions of the Payment of Gratuity Act are more or less pari-materia with the provisions of the Minimum Wages Act. He pointed out that the learned Single Judge has recorded specific findings as regards the role, function and position of the petitioner herein. I have gone through the judgment and order. The judgment reads as under;
"The present petition under Section 482 of the Page 15 of 38 Downloaded on : Sun Sep 17 01:13:38 IST 2023 NEUTRAL CITATION R/CR.MA/3510/2021 ORDER DATED: 11/08/2023 undefined Code of Criminal Procedure, 1973 (the Code, for short) is filed by the petitioner for the following prayers:
6. On the grounds submitted above and others that may be urged at the time of hearing of this application Your Lordships may be pleased to:
(A) To quash and set aside the complaint and the proceedings of Criminal Case No.944 of 2009 pending in the Court of the learned Judicial Magistrate, First Class, Talod qua the petitioner;
(B) To stay the further proceedings of Criminal Case No.944 of 2009 pending in the Court the earned Judicial Magistrate, First Class, Talod qua the petitioner pending the adminssion, hearing and final disposal of this petition; (C) To pass any other appropriate order that is found just and necessary in this case. 2 The brief facts giving rise to the present petition are that the petitioner was the honorary Chairman of Talod Janta Sahkari Bank Limited, Talod, District Sabarkantha. The Labour Officer and Payment of Gratuity Inspector visited the Bank on 27th December 2000. At that time, the Manager of the bank, Narendrabhai S Mistri was present. Thereafter, Page 16 of 38 Downloaded on : Sun Sep 17 01:13:38 IST 2023 NEUTRAL CITATION R/CR.MA/3510/2021 ORDER DATED: 11/08/2023 undefined a notice for breach of the provisions of the Payment of Gratuity Act, 1972 (the Gratuity Act, for short) came to be issued to the petitioner and ultimately a Criminal Case was filed against the Bank - Talod Janta Sahkari Bank Limited, Talod being the first accused and the present petitioner being the second accused in the court of the learned Chief Judicial Magistrate, Himatnagar by Respondent No.2 for various violations of the provisions of the Gratuity Act. The complaint was registered as Criminal Case No.944 of 2009 and summons came to be issued against the petitioner. The petitioner moved an application dated 10th July 2003 to drop the proceedings against him, which came to be rejected by the learned Chief Judicial Magistrate, Himatnagar by his order dated 27th October 2009. Therefore, the petitioner has preferred the present petition for quashing the complaint.
3 I have heard Mr Nitin M Amin, learned advocate for the petitioner and Ms Mehta, learned APP for Respondents Nos.1 and 2. 4 Mr Amin, learned advocate for the petitioner has vehemently submitted that the petitioner Page 17 of 38 Downloaded on : Sun Sep 17 01:13:38 IST 2023 NEUTRAL CITATION R/CR.MA/3510/2021 ORDER DATED: 11/08/2023 undefined was only an honorary Chairman of the Bank for limited period and it is his further contention that the petitioner was rendering gratis services as an honorary Chairman of the Bank and was not drawing the salary for the duties performed by him. He would also contend that the petitioner was not in-charge and was not responsible day-today affairs of HC-NIC Page 4 of 9 Created On Thu Dec 10 02:15:04 IST 2015 R/CR.MA/487/2015 ORDER the Bank and used to attend the meeting of the Bank as and when he was invited. Mr Amin, learned advocate for the petitioner has relied upon the provisions of sub- clause (iii) of clause (f) of Section 2 of the Gratuity Act. Clause (f) defines term employer and sub-clause
(iii) of Clause (f) is relevant for the purpose of this case and the same is extracted hereinbelow:
2. Definitions. -- In this Act, unless the context otherwise requires -
(f) employer means, in relation
to any establishment, factory,
mine, oilfield, plantation, port, railway
company or shop
(i) xxx (ii) xxx (iii) in any other case, the person, who, or the authority which, has the Page 18 of 38 Downloaded on : Sun Sep 17 01:13:38 IST 2023 NEUTRAL CITATION R/CR.MA/3510/2021 ORDER DATED: 11/08/2023 undefined ultimate control over the affairs of the establishment, factory, mine, oilfield, plantation, port, railway company or shop, and where the said affairs are entrusted to any other person, whether called a manager, managing director or by any other name, such person;
5 Relying upon the above definition of the employer, Mr Amin has submitted that the petitioner would not fall within the definition of term employer and therefore the petitioner cannot be held responsible under Section 9(2) of the Gratuity Act for he violation of the provisions of the Gratuity Act. Mr Amin has further contended that the provisions of this Section are mandatory in nature and Respondent No.2 is not supplied with the list of witnesses along with the complaint and therefore in absence of such list of witnesses the learned Magistrate ought not to have issued the process against the present petitioner. In support of this contention, he has relied upon the following decisions:
1. Saroj Kumar Poddar v. State (NCT of Delhi) & Anr. 2007(2) SCALE 36.
2. Padamsingh Bhakhatawarlal Soni & Ors. v. Page 19 of 38 Downloaded on : Sun Sep 17 01:13:38 IST 2023
NEUTRAL CITATION R/CR.MA/3510/2021 ORDER DATED: 11/08/2023 undefined Chandrakala Padamsingh Soni, 1984 GLT 171. 6 On the other hand, Ms Mehta, learned APP has submitted that the application submitted by the petitioner for dropping him from the proceedings was rejected by the learned trial Magistrate. It is her further contention that the plea is also recorded and therefore the present petition cannot be entertained. It is her further contention that the petitioner being the Chairman of the Bank alone was responsible for the day-today affairs of the Bank and therefore the petitioner would squarely fall within the definition of Section 2(f)(iii) of the Gratuity Act and hence when the petitioner is not in a position to show that he was not responsible for day- today affairs of the Bank, the same cannot be accepted and therefore she has urged that the petition may be dismissed.
7. The provisions of Section 2(f)(iii) make it manifestly clear that the employer in relation to any establishment would mean a person who has ultimate control over the affairs of the establishment or a person who is entrusted with the said affairs. The criminal proceedings under the Gratuity Act can be lodged under Page 20 of 38 Downloaded on : Sun Sep 17 01:13:38 IST 2023 NEUTRAL CITATION R/CR.MA/3510/2021 ORDER DATED: 11/08/2023 undefined Section 9(2) of the Gratuity Act against an employer who contravenes or makes default in complying with any of the provisions of the Gratuity Act. Therefore, the moot question that is involved in this petition is whether the petitioner being an honorary Chairman of the Bank would come within the sweep of Section 2(f)(iii) so as to bring him within the definition of employer and thereby make him liable for punishment under Section 9(2) of the Gratuity Act. The petitioner has come with a specific case that he was giving gratis services as the Chairman of the Bank and was in no way associated with the day-today affairs and management of the Bank. The complaint filed by Respondent No.2 against the Bank and present Respondent No.2 nowhere states that the petitioner was involved in the day-today affairs of the Bank and therefore he was covered under the definition of the employer.
8. The Supreme Court in the case of Sarojkumar (supra), which is relied upon by the learned counsel for the petitioner, has held that when there is no averment in the complaint that in what manner the accused was responsible for the conduct of the business Page 21 of 38 Downloaded on : Sun Sep 17 01:13:38 IST 2023 NEUTRAL CITATION R/CR.MA/3510/2021 ORDER DATED: 11/08/2023 undefined of the company or otherwise the responsibility to it in regard to HC-NIC Page 6 of 9 Created On Thu Dec 10 02:15:04 IST 2015 R/CR.MA/487/2015 ORDER its functioning, he cannot be arraigned as an accused. Here, in the present case also there is no whisper in the impugned complaint as to in what manner the appellant was involved or responsible for the day-today functioning of the Bank and therefore, in my opinion, he cannot be held responsible for the alleged breach of the Gratuity Act. Even otherwise, as submitted by the learned advocate for the petitioner, the alleged violations of the Gratuity Act are in respect of the period when the petitioner was not honorary Chairman of the Bank and therefore also, in my view, criminal liability for the breach of the Gratuity Act cannot be foisted on him.
9. Section 204 of the Criminal Procedure Code, 1973 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 Page 22 of 38 Downloaded on : Sun Sep 17 01:13:38 IST 2023 NEUTRAL CITATION R/CR.MA/3510/2021 ORDER DATED: 11/08/2023 undefined summons for the attendance of the accused, or
(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. Page 23 of 38 Downloaded on : Sun Sep 17 01:13:38 IST 2023
NEUTRAL CITATION R/CR.MA/3510/2021 ORDER DATED: 11/08/2023 undefined The bare reading of the above provisions makes it HC-NIC Page 7 of 9 Created On Thu Dec 10 02:15:04 IST 2015 R/CR.MA/487/2015 ORDER explicitly clear that before issuing the process the Magistrate should verify as to whether the complainant has supplied the list of witnesses whom he proposes to examine in support of the complaint. Learned counsel for the petitioner has relied upon the decision in the case of Padamsingh Bhakhatawarlal Soni & Ors (supra), it is held as under:
It is stated in the complaint that all accused were present at the time of marriage but it is not mentioned as to who else was present at the time of the said marriage. In fact, in para 8 of the complaint it is stated by the complainant that she craves leave of Hon'ble Court to produce documentary and other evidence and to adduce oral evidence by examining witnesses in support of this case. This clearly shows that a complainant has neither filed, a list of prosecution witnesses nor made a mention of any of witnesses in the complainant. In view of this, the learned Metropolitan Magistrate was clearly in error in issuing process. It is clear that the process Page 24 of 38 Downloaded on : Sun Sep 17 01:13:38 IST 2023 NEUTRAL CITATION R/CR.MA/3510/2021 ORDER DATED: 11/08/2023 undefined issued by the learned Metropolitan Magistrate requires to be quashed.
10. Thus, it is clear from the bare reading of Section 204 of the Code and above cited judgment of this Court that the provisions of Section 204 of the Code are mandatory. In the instant case, the Respondent No.2 has not stated in the impugned complaint that he does not propose to examine witness or witnesses in support of the impugned complaint. In the backdrop of these facts, the learned Magistrate could not have issued the process in absence of list of witnesses being supplied by Respondent No.2 and therefore the process issued against the petitioner deserves to be quashed and set aside.
11. In the premises aforesaid, the order dated 27th October 2009 passed by the learned Chief Judicial Magistrate, Himatnagar passed below application Exhibit 8 for dropping the proceedings against the petitioner as well as the complaint and the proceedings of Criminal Case No.944 of 2009 pending in the Court of the learned Judicial Magistrate, First Class, Talod qua the petitioner are quashed and set aside."
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NEUTRAL CITATION R/CR.MA/3510/2021 ORDER DATED: 11/08/2023 undefined 7.4 Hence, considering the above settled position of law and considering the fact that this Court has also considered the judgment in case of the Narendrabhai Balvantrai Vashi reported in Criminal Misc. Application No.16704 of 2019 dated 5.7.2023, of course, under the provisions of another statues, which is under the Factories Act but principles are broadly remain same in both the statues for considering the provisions of statues. Paragraphs 7 and 8 of that judgment is relevant, as under:
"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 Page 26 of 38 Downloaded on : Sun Sep 17 01:13:38 IST 2023 NEUTRAL CITATION R/CR.MA/3510/2021 ORDER DATED: 11/08/2023 undefined 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 interalia 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 annexures 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 primafacie 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 Page 27 of 38 Downloaded on : Sun Sep 17 01:13:38 IST 2023 NEUTRAL CITATION R/CR.MA/3510/2021 ORDER DATED: 11/08/2023 undefined 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 Section49 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 Page 28 of 38 Downloaded on : Sun Sep 17 01:13:38 IST 2023 NEUTRAL CITATION R/CR.MA/3510/2021 ORDER DATED: 11/08/2023 undefined 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. (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 Page 29 of 38 Downloaded on : Sun Sep 17 01:13:38 IST 2023 NEUTRAL CITATION R/CR.MA/3510/2021 ORDER DATED: 11/08/2023 undefined 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 1 [two years] or with fine which may extend to 2 [one lakh rupees] or with both, and if the contravention is continued after conviction, with a further fine which may extend to 3 [one thousand rupees] for each day on which the contravention is so continued: 4 [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 5 [twenty- ive thousand rupees] in the case of an accident causing death, and 6[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 whichinvolves, 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 Page 30 of 38 Downloaded on : Sun Sep 17 01:13:38 IST 2023 NEUTRAL CITATION R/CR.MA/3510/2021 ORDER DATED: 11/08/2023 undefined 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.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 ognizance 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, or (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 Page 31 of 38 Downloaded on : Sun Sep 17 01:13:38 IST 2023 NEUTRAL CITATION R/CR.MA/3510/2021 ORDER DATED: 11/08/2023 undefined 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."
7.5 Further, it will also be fruitful to mention the judgment of the Hon'ble Supreme Court in the case of State of Haryana V/s Bhajan Lal reported in 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 Page 32 of 38 Downloaded on : Sun Sep 17 01:13:38 IST 2023 NEUTRAL CITATION R/CR.MA/3510/2021 ORDER DATED: 11/08/2023 undefined 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 Page 33 of 38 Downloaded on : Sun Sep 17 01:13:38 IST 2023 NEUTRAL CITATION R/CR.MA/3510/2021 ORDER DATED: 11/08/2023 undefined 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. (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 Page 34 of 38 Downloaded on : Sun Sep 17 01:13:38 IST 2023 NEUTRAL CITATION R/CR.MA/3510/2021 ORDER DATED: 11/08/2023 undefined 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."
7.6 It is also relevant to refer to the judgment of the Hon'ble Apex Court in the case of Inder Mohan Goswami and Another versus State of Uttaranchal reported in (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 CrPC. 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 Page 35 of 38 Downloaded on : Sun Sep 17 01:13:38 IST 2023 NEUTRAL CITATION R/CR.MA/3510/2021 ORDER DATED: 11/08/2023 undefined to prevent abuse of the process of the court. Inherent power under Sec. 482 CrPC can be exercised:
[(i) to give effect to an order under the Code;] [(ii) to prevent abuse of the process of court, and] [(iii) to otherwise secure the ends of justice.]
24. Inherent powers under Sec. 482 CrPC 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."
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NEUTRAL CITATION R/CR.MA/3510/2021 ORDER DATED: 11/08/2023 undefined 7.7 In view of the above, this is fit case to exercise my power under Section 482 of the Criminal Procedure Code, 1973 to prevent to abuse of process of law.
8. Accordingly, all the captions applications are allowed qua the present applicant herein.
9. The impugned complaint being the Criminal Case No. 340 of 2019 dtd. 16.09.2019 filed by the respondent No.2 before the Judicial Magistrate First Class and Judge Labour Court, Valsad, for the offences punishable under Rule 26(A), 26(D) and 26(2) of the Minimum Wages (Gujarat) Rules is hereby quashed and set aside qua the present applicant herein in Criminal Misc. Application No.3510 of 2021.
10. The impugned complaint being the Criminal Case no. 338 of 2019 dtd. 16.09.2019 filed by the respondent no.2 before the Judicial Magistrate First Class and Judge Labour Court, Valsad, for the offences punishable under Rule 21(1)(1)(k) of the Minimum Wages (Gujarat) Rules is hereby quashed and set aside qua the present applicant herein in Criminal Misc. Application No.3511 of 2021.
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NEUTRAL CITATION R/CR.MA/3510/2021 ORDER DATED: 11/08/2023 undefined
11. The impugned complaint being the Criminal Case no. 339 of 2019 dtd. 16.09.2019 filed by the respondent no. 2 before the Judicial Magistrate First Class and Judge Labour Court, Valsad, for the offences punishable under Rule 26(B)(1), 22 and 21(4) of the Minimum Wages (Gujarat) Rules is hereby quashed and set aside qua the present applicant herein in Criminal Misc. Application No.3513 of 2021.
12. All consequential proceedings pursuant thereto shall stand terminated.
13. It is clarified that the complainant can proceed the proceedings against the company as well as any other director, if it is permissible under the law.
Rule is made absolute to the aforesaid extent.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 38 of 38 Downloaded on : Sun Sep 17 01:13:38 IST 2023