Gujarat High Court
Acey Engineering vs State Of Gujarat on 3 July, 2025
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
NEUTRAL CITATION
R/CR.MA/3732/2022 JUDGMENT DATED: 03/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 3732 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
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Approved for Reporting Yes No
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ACEY ENGINEERING & ANR.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR YOGI K GADHIA(5913) for the Applicant(s) No. 1,2
NOTICE SERVED for the Respondent(s) No. 2
MR RONAK RAVAL ADDITIOAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 03/07/2025
ORAL JUDGMENT
1. Heard learned advocate Mr. Yogi Gadhia appearing for the petitioner and learned Additional Public Prosecutor Mr. Ronak Raval appearing for the respondent - State.
2. With the consent of the parties, the matter was Page 1 of 13 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:25:44 IST 2025 NEUTRAL CITATION R/CR.MA/3732/2022 JUDGMENT DATED: 03/07/2025 undefined taken up for final hearing. Hence, RULE. Learned APP waives the service of rule on behalf of the respondent - State.
3. By way of this petition, the petitioner has prayed for quashing and setting the impugned complaint being Criminal Case No. 26 of 2001 dated 18.12.2001 filed by the respondent No.2 before the JMFC cum Labour Court, Navsari for the offences punishable under Section 25(T) and 32 read with Section 25(U) of the Industrial Dispute Act.
4. In short the case of the petitioner is that the petitioner Company entered into a settlement between management and all the employees of the Company on 30.3.2019 and as per the settlement one of the condition was that the Company has right to transfer any of the employee to any other unit and the employee is required to join that and the person will have to abide by the transfer policy of the Company and would not resist the same.
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5. Accordingly, the benefits as per the settlement were given to all the employees including the present petitioner and later on the present petitioner was transferred from Navsari to Pantnagar unit at Uttarakhand vide order dated 4.6.2020 as per the exigency of work and she was to join there on or before 12.6.2020. It was also stated that her condition of service will remain unchanged and she will be paid salary of the intervening / joining period and continuity of her service will not be affected, the transfer order was accompanied with a cheque of Rs. 5000/- towards traveling expenses as well.
6. A representation was made by the concerned employee on 5.6.2020 and a reminder to that also was sent on 22.6.2020. Thereafter, the present petitioner even issue a corrigendum letter dated 11.7.2020 to the transfer order dated 4.6.2020 inter alia rectifying the date of settlement from 10.8.2016 to 30.3.2019 and as the employee did not join, another reminder was sent of Page 3 of 13 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:25:44 IST 2025 NEUTRAL CITATION R/CR.MA/3732/2022 JUDGMENT DATED: 03/07/2025 undefined 13.7.2020. The employee ultimately vide letter dated 25.7.2020 reiterated that she will not be joining at the transferred place. Thereafter, some communication between the parties took place and ultimately the present petitioner received a notice from the Government Labour Officer, the complainant, on 11.8.2020 inter alia stating that the concerned employee has filed a complaint on 22.7.2020 regarding her transfer. As per the notice, the employee was pressurized to give resignation and hence petitioner was called to show cause as to why a complaint should not be filed under Section 25(U) of the Industrial Dispute Act, 1947 for which the present petitioner filed a detailed reply and the petitioner further requested for the copy of the complaint. However, a show cause notice dated 11.8.2020 was issued to the petitioner and he was provided with the copy of the complaint dated 18.8.2020 for which the petitioner filed a reply on 25.8.2020 and thereafter, the petitioner received a letter Page 4 of 13 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:25:44 IST 2025 NEUTRAL CITATION R/CR.MA/3732/2022 JUDGMENT DATED: 03/07/2025 undefined dated 11.8.2020 (SIC)/24.09.2020 wherein it was stated that the representations were not considered and further proceedings would be done in the aforesaid matter and thereafter, the present petitioner received a letter dated 16.10.2020 stating that the settlement did not take place with the union and therefore, the same is not applicable to the concerned employee. Ultimately, the petitioner received a show cause notice from the office of Labour Commissioner on 26.3.2021 to which petitioner filed a detailed response but ultimately at the end of following due procedure, a complaint was filed along with another two complaints, in respect of present employee and another employee being complaint No. 26 of 2021 and 27 of 2021 filed against the present petitioner whereas the present petition is filed in respect of Criminal Case No.26 of 2021 which is in respect of complaint which is referred to in the foregoing paragraph and the same is sought to be quashed. Page 5 of 13 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:25:44 IST 2025
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7. Learned advocate Mr. Yogi Gadhia appearing for the petitioner made following submissions :-
7.1 That the incident alleged cannot be termed as unfair labour practice as defined under Section 2(ra) of the Industrial Dispute Act for which the penal provision is under Section 25T and 25U. However, the facts of the case would not attract the aforesaid provision and therefore, the filing of criminal complaint is completely misconceived.
7.2 That the transfer of the respondent No.2 has taken place pursuant to a settlement taken place between the petitioner No.1 Company for which petitioner No.1 is a Director and the employee herself and the employee is a signatory to that settlement and therefore, it is not open for her to challenge the action of transfer in view of terms of settlement that the petitioner Company would be at liberty to transfer the employees at another unit including a unit situated outside Gujarat.Page 6 of 13 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:25:44 IST 2025
NEUTRAL CITATION R/CR.MA/3732/2022 JUDGMENT DATED: 03/07/2025 undefined 7.3 That for prosecuting the present petitioner for unfair labour practice, there must be an adjudication to the effect that the petitioner has indulged into unfair labour practice and unless the aforesaid finding is recorded by the competent Tribunal, the criminal complaint against the present petitioner is not maintainable and therefore, the proceedings are without any basis.
7.4 Learned advocate Mr. Gadhia relied upon a decision of this Court dated 1.9.2008 in Criminal Misc. Application No. 14462 of 2006 in case of Tata Chemicals Limited and others Versus Shri B.C. Trivedi Government of the Asst. Commissioner and another as well as decision of this Court in case of Rolastar Private Limited through his Hemant Chhaganlal Surati Versus State of Gujarat dated 5.12.2018 in Criminal Misc. Application No. 13637 of 2016.
8. By relying upon the aforesaid decision, learned Page 7 of 13 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:25:44 IST 2025 NEUTRAL CITATION R/CR.MA/3732/2022 JUDGMENT DATED: 03/07/2025 undefined advocate Mr. Gadhia prayed for quashing and setting aside aforesaid proceedings.
9. Learned Additional Public Prosecutor Mr. Ronak Raval appearing for the respondent - State vehemently opposed the petition and submitted that the original complainant has after following due procedure and after issuance of show cause notice when the reply was not found to be accepted after conveying its decision to the petitioner, the complaint was filed and therefore, complaint was in accordance with law and therefore, it was submitted that once the due procedure is followed, this Court may not interfere with the ongoing proceedings of criminal complaint.
10. I have heard learned advocates for the parties and perused the record. On perusal of record, I found that it is true that the respondents have followed the procedure prescribed under the law. However, the fact remains that what has not been taken into Page 8 of 13 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:25:44 IST 2025 NEUTRAL CITATION R/CR.MA/3732/2022 JUDGMENT DATED: 03/07/2025 undefined consideration by the respondent - complainant is the fact that the transfer of the employee was ordered in view of terms of settlement which was duly signed by the employee. Further, there is nothing on the record to indicate that there was any adjudication about the fact that the petitioner has indulged into unfair law practice. Further, the complaint filed by the competent officer states that the settlement is not applicable to the employee concerned. However, how it is not applicable is not stated in the complaint.
11. Further, the Co-ordinate Bench of this Court has in its decision dated 1.9.2008 passed in Criminal Misc. Application No. 14462 of 2006 in case of Tata Chemicals Limited and others Versus Shri B.C. Trivedi Government of the Asst. Commissioner and another rendered in paragraph No.8 to 13 observed as under :-
"8. Considering the allegations made in the complaint, it would be necessary to examine as to whether any offence as alleged is made out. The petitioners are Page 9 of 13 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:25:44 IST 2025 NEUTRAL CITATION R/CR.MA/3732/2022 JUDGMENT DATED: 03/07/2025 undefined alleged to have committed breach of the provisions of section 25T of the Act and are accordingly said to have committed the offence punishable under section 25S of the Act.
9. Section 25T of the Act which prohibits unfair labour practice provides that no employer or workman or a trade union, whether registered under the Trade Unions Act, 1926 or not, shall commit any unfair labour practice. Section 25S provides for penalty for committing unfair labour practices. Hence, for the purpose of attracting the provisions of section 25S of the Act, the accused should have committed any unfair labour practice.
10. Unfair labour practice is defined under section 2(ra) of the Act to mean any of the practices specified in the Fifth Schedule. The relevant practice specified in the Fifth Schedule is under clause 7 thereof, which reads as under:
"7. To transfer a workman mala fide from one place to another, under the guise of following management policy."
11. Examining the complaint in the background of the aforesaid statutory provisions, all that is alleged is that the petitioners have committed unfair labour practice by transferring the workmen in question from one place to another under the guise of administrative policy. However, the complaint is absolutely silent as to how the said transfer amounts to unfair labour practice. As pointed out by the learned counsel for the petitioners, the complaint is totally lacking in all material particulars. There is nothing whatsoever Page 10 of 13 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:25:44 IST 2025 NEUTRAL CITATION R/CR.MA/3732/2022 JUDGMENT DATED: 03/07/2025 undefined to show as to how the offence as alleged is constituted. In the circumstances, on the allegations made in the complaint no offence as alleged can be stated to have been made out so as to attract the provisions of section 25S of the Act.
12. The Supreme Court in the case of State of Haryana v. Bhajanlal, 1992 (1) SCC 335 has laid down certain categories of cases wherein the High Court can and should exercise its inherent powers under section 492 of the Code to quash the proceedings. One of the categories enumerated therein is in case where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged. Considering the facts noted hereinabove, the present case squarely falls within the aforesaid category; hence this is a fit case for exercise of powers under section 482 of the Code.
13. As the Court is of the view that the complaint itself does not disclose any offence as alleged, it is not necessary to enter into the merits of the other submissions advanced by the learned Counsel for the petitioners as regards the interpretation of the provisions of clause (7) of the Fifth Schedule to the Act."
12. Similarly another Co-ordinate Bench of this Court has while considering the similar issue by following the aforesaid decision, quashed the complaint on the same ground by observing in case of Rolastar Private Limited through his Page 11 of 13 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:25:44 IST 2025 NEUTRAL CITATION R/CR.MA/3732/2022 JUDGMENT DATED: 03/07/2025 undefined Hemant Chhaganlal Surati Versus State of Gujarat dated 5.12.2018 in Criminal Misc. Application No. 13637 of 2016 in paragraph No.8 and 9 as under :-
"8.0 A perusal of the impugned complaint would clarify that the same is absolutely silent on the aspect that the transfer of the concerned workmen amounts to unfair labour practice. The complaint is totally lacking in all material particulars. There is nothing produced to show as to how the offence as alleged in the complaint is constituted. Thus, as per law enunciated by this Court in the aforesaid judgment dated 01.09.2008 on a similar issue, this Court is of the considered opinion that present case false under the categories of cases as laid down by the Apex Court in the case of State of Haryana Vs. Bhajanlal [1992(1) SCC 335].
9.0 Hence, in light of aforenoted facts and observations, present application is allowed. The impugned complaint being the Criminal Case No.1007/2015 dated 17.06.2015 filed by the respondent no.2 before the Judicial Magistrate First Class, Gandevi and subsequent proceedings thereof are hereby quashed and set aside. Rule is made absolute. Direct service is permitted."
13. Considering the aforesaid observations made by two Co-ordinate Benches of this Court and as in the present case as well the complaint itself does not disclose that how transferring the Page 12 of 13 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:25:44 IST 2025 NEUTRAL CITATION R/CR.MA/3732/2022 JUDGMENT DATED: 03/07/2025 undefined present petitioner can be said to be an unfair labour practice and how the settlement arrived at between the parties can be said to be not applicable in the facts of the case, the complaint filed by the respondent No.2 lacks basic material for filing the complaint. Accordingly, the petition is allowed. The impugned complaint being Criminal Case No. 26 of 2001 dated 18.12.2001 filed by the respondent No.2 before the JMFC cum Labour Court, Navsari is required to be quashed and set aside and the same is quashed and set aside. Rule made absolute. No order as to costs.
(NIRZAR S. DESAI,J) Pallavi Page 13 of 13 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:25:44 IST 2025