Rashtriya Chemicals And ... vs Ramesh Kamble And Anr.
2002 Latest Caselaw 673 Bom

JUDGMENT

R.J. Kochar, J.

1. Heard the learned Counsel appearing on both the sides. Rule. By consent the petition is disposed of finally.

2. The petitioners are aggrieved by the orders dated 30th March 2002 and 24th June 2002 passed by the 4th Labour Court, Mumbai and the President, Industrial Court, Maharashtra at Mumbai in Misc. Criminal Complaint ULP No. 27 of 2002 and Revision Application ULP No. 87 of 2002 respectively. The petitioners have challenged the issuance of the process under Section 48(1) of the M.R.T.U. and PULP Act, 1971 in the aforesaid criminal complaint filed by the respondent No. 1, an employee of the petitioners. The petitioners had challenged the issuance of the process against the petitioners who were accused in the said complaint and, therefore, they filed the aforesaid revision application under Section 44 of the Act. The learned President, Industrial Court, after hearing the parties dismissed the revision by an exhaustive judgment which is impugned in the present petition.

3. The petitioner No. 1 is a company incorporated under the Companies Act, 1956 and the petitioner No. 2 is the Managing Director and the Chief Personnel Manager of the petitioner company respectively. The petitioner company is a government undertaking and the majority of the share holding of the company is with the Union of India. The company is engaged in mainly manufacturing of fertilisers employing more than 3000 workers in its organisation. From the facts averred in the proceedings, it appears that the employees had resorted to a strike from 22nd October to 24th October 1997 to press their demands for bonus. It further appears that before going on strike, the employees union, RCF employees' Union, had given a notice on 6th October 1997 to the petitioner No. 1. According to the petitioners, the said strike was unwarranted and uncalled for and, therefore, they had approached the Conciliation Authority under the Industrial Disputes Act, 1947. It further appears that the strike commenced and continued for the aforesaid three days in spite of pendency of the Conciliation Proceedings. The petitioner, therefore, filed a Reference under Section 25 read with Section 24 of the M.R.T.U. and PULP Act, 1971 for declaration that the said strike was illegal. It further appears that the Labour Court by its interim order dated 22nd October 1997, prima facie found that the strike was illegal and, therefore, passed an order restraining the members of the said union from going on strike.

4. The petitioner had also filed a complaint under Section 28 read with Section 30 and Schedule 3 of the Act seeking relief of restraining the said union from proceeding on illegal strike and also restraining its members from gheraoing the members of the management of the petitioner company. In the said complaint, the petitioner was granted interim reliefs in the form of restraining orders against the union and the employees. It further appears that the said complaint was withdrawn by the petitioner on the ground that the Industrial Court had no jurisdiction to entertain such complaint. The Industrial Court disposed of the complaint as withdrawn and vacated the interim orders. The respondent union was awarded cost of Rs. 500/- from the petitioner. It further appears that the reference filed before the Labour Court also came to be rejected on 21st February 1998 by the Labour Court. The Labour Court directed the petitioners to pay cost of Rs. 1000/- to the Union.

5. There is no dispute that the petitioners had deposited the amount of the aforesaid costs of Rs. 500/- and Rs. 1000/- for the union in accordance with the orders passed by the Labour Court and the Industrial Court respectively. The said union has, therefore, not made any grievance of non-payment of the cost amounts.

6. The present respondent No. 1, an individual employee of the petitioner company, filed the aforesaid criminal complaint before the Labour Court under Section 48(1) of the Act alleging that the petitioners (accused in the complaint) had not obeyed the aforesaid orders of the Labour Court and Industrial Court respectively. It appears from the order dated 30th March 2002 of the Labour Court that the only grievance of the said employee - complainant is that the costs awarded in the aforesaid orders were not deposited in the Court till the date of the order i.e. 30th March 2002. The Labour Court prima facie, appears to have been satisfied by the said statement made by the learned Advocate on behalf of the said employee that the petitioners- accused was guilty of an offence under Section 48(1) of the Act and, therefore, he ordered issuance of process against the petitioners accused. As stated earlier, the said order of issuance of process was challenged before the Industrial Court which ultimately turned down the challenge in the aforesaid revision which was dismissed on 24th June 2002. The petitioner has knocked the doors of this Court under Article 226 of the Constitution of India against the order passed by the President, Industrial Court under Section 44 of the M.R.T.U. and PULP Act and to get the order of process issued by the Labour Court under Section 48(1) of the Act set aside.

7. Shri Cama, the learned Senior Counsel for the petitioners has made a very serious grievance against the Labour Court and also against the Industrial Court' that there was total non application of mind before the issue of process against the petitioners under Section 48(1) read with Section 39 of the Act. The learned Counsel has attacked the order of the Labour Court on the ground that the Labour Court had mechanically and lightly passed the serious order of issue of process which has serious consequences on the accused - petitioners. Shri Cama pointed out that in fact, there was no offence committed by the petitioner and, therefore, the Labour Court had no reason to take cognizance of the alleged offence. The only grievance of the complainant union before the Labour Court was non-payment of costs. According to Shri Cama, the petitioners had deposited costs in both matters and that there was no breach or violation of the order passed by both the Courts and, therefore, there was no offence committed by the petitioners. Shri Cama further pointed out that there was an alternative effective remedy available to the respondents for recovery of cost awarded by executing the said orders. The respondent had mala fide, maliciously and with ulterior motive to pressurise and coerce the petitioners, had filed the criminal complaint instead of executing the order of cost. Shri Cama also pointed out that the real ground or reason to file the criminal complaint was to pressurise the petitioners to pay three days wages of the strike period which were deducted from the wages of the employees at the relevant time. According to Shri Cama, there was no legal and valid order passed by any competent Court directing the petitioners to pay wages for three days period of strike and, therefore, it could not be said that the petitioners had committed any offence of violation of any lawful order as contemplated under Section 48(1) of the Act. Shri Cama pointed out that in the order dated 21-2-1998 passed by the Labour Court under Section 25 of the Act, the only order which was passed by the Labour Court was that of rejection of the reference and vacation of interim reliefs and direction to pay cost of Rs. 1000/- to the opponent union in the said reference. The Labour Court had not at all directed the petitioners to pay three days wages for the strike period. The observations made by the Labour Court in para 7 of the order were totally unwarranted and beyond the scope of the jurisdiction of the Labour Court under Section 25 of the Act. Under the said jurisdiction, the Labour Court could only declare whether a strike or lock out was illegal. The Labour Court in the reference cannot decide the question of payment of wages for the strike or lock out period. Shri Cama further submitted that the said order of the Labour Court was passed on 21-2-1998, while the criminal complaint was filed almost after a period of four years i.e. on 28th February 2002. Shri Cama made a grievance that the Labour Court ought not to have issued process before deciding the question of maintainability of the complaint on the ground of limitation, prescribed under the Criminal Procedure Code. According to the learned Counsel, the Labour Court ought to have dismissed the complaint, as being not maintainable, on the ground of limitation itself Shri Cama made the same grievance against the order of the learned Member of the Industrial Court who did not interfere with the order of the Labour Court under his power of superintendence under Section 44 of the Act.

8. On the other hand, Shri Bukhari, the learned Counsel for the respondent No. 1 raised a preliminary issue of maintainability of the writ petition on the original side of this Court. According to the learned Counsel, the main cause of actiqn arose under the criminal jurisdiction of the Labour Court and, therefore, the petitioners ought to have filed a criminal writ petition on the appellate side of this Court. In reply to the question of limitation, Shri Bukhari contended that the non-payment of the cost and the non-payment of three day's wages was a continuous cause of action and, therefore, the complaint was well within the time as there was no limitation for continuing cause of action. Shri Bukhari also pointed out that on the one hand the petitioners have raised the question of non applicability of the State Act to the establishment on the ground that appropriate Government was the Central Government and on the other hand, says the learned Counsel, the petitioners have instituted proceedings under Section 25 of the Act by way of reference seeking declaration of the strike as "illegal" and also seeking interim orders by filing a complaint of unfair labour practice against the union under Section 28 of the Act. Shri Bukhari further submitted that the Labour Court had merely issued a process against the petitioners and that they should not feel shy or ashamed in appearing before the Labour Court to answer the process. Shri Bukhari further criticises the conduct of the petitioners in not responding to the legitimate demands of the employees compelling them to resort to the criminal proceedings. Shri Bukhari pointed out from para 7 of the order of the Labour Court that the Labour Court had specifically found that the employees were entitled to get wages for the three days strike. The petitioners ought to have obeyed the said order and ought to have paid the wages for the three day's strike. The learned Counsel, therefore, submitted that this Court should not interfere with the orders passed by the Courts below under Article 226 of the Constitution of India. He, therefore, finally, prayed that the petition should be rejected.

9. At the outset, I must observe that the resort to the criminal proceedings by the respondent No. 1 employee is a glaring example of abuse of process of the law and the Court. It is significant that the union has not resorted to such an act of filing a criminal complaint against the petitioners. The respondent No. 1, an individual employee, has chosen to file the criminal complaint against the petitioners. The main thrust of the complaint at the time of issuance of process was obviously non-payment of cost by the petitioners as is clear from the order of the Labour Court. There is not even a whisper in that order of issue of process that the Labour Court was satisfied that the three days wages were not paid though directed by competent Court. No such offence appears to have been pointed out to the Labour Court at the time of issue of process. In my opinion, in both the proceedings, the order of the cost was passed against the petitioners directing them to pay cost to the union as the union was the opposite party and not the present respondent No. 1, who initiated the criminal proceedings. It was for the union to have filed appropriate proceedings for recovery of the cost. It was the union that perhaps could have filed the present criminal complaint, if the union had not received the cost awarded by the Labour Court and the Industrial Court. The criminal complaint, therefore, was totally untenable as filed by the respondent No. 1 employee, as it was not the respondent No. 1 who was ordered to be paid cost and, he had, therefore, no cause of action against the petitioners in respect of non-payment of cost to the union.

10. The criminal complaint was filed by two employees, one of whom is the present respondent No. 1. Both of them have specifically averred in their complaint that they were filing the said complaint in their individual capacity of employees. It is nowhere mentioned and it was not their case that they had filed the said criminal complaint under the authority of the union. The criminal complaint, therefore, in my opinion, filed by the two individual employees who had no cause of action in respect of costs was not maintainable at all and, therefore, the Labour Court ought not to have issued the process against the petitioners. Moreover, it is not seriously disputed that the petitioners had deposited the amount of cost awarded under the orders of the Labour Court and the Industrial Court. There was, therefore, no ground for the Labour Court to have issued the process against the petitioners.

11. The Labour Court ought to have refused to issue process on the ground of inordinate delay in filing the complaint after a period of almost about four years. The Criminal Procedure Code is applicable to the criminal proceedings under the Act and, therefore, the Labour Court ought to have considered the question of limitation before issuing the process. It cannot be said that the failure of the petitioners in not paying the cost can be said to be a continuing cause of action. If the order was passed for payment of cost, the date of the said order was the beginning of the period of limitation and merely because the petitioners had not paid the cost, it cannot be said that the period of limitation continued to run. The Labour Court has totally failed to consider this crucial aspect while considering to issue process against the petitioners in such a complaint.

12. As far as the preliminary point of Shri Bukhari is concerned, I fail to understand why an order passed under Section 44 of the Act by the Industrial Court in its power of superintendence cannot be challenged under Article 226 of the Constitution of India. It is possible that the order passed by the Labour Court under Section 48(1) read with Section 39 can also be challenged on the appellate side in criminal proceedings. That however, does not bar any party from instituting proceedings under Article 226 of the Constitution of India on the original side. I, therefore, do not agree with the submissions of Shri Bukhari that the petitioner ought to have filed a criminal writ petition on the appellate side of this Court and that the present petition under Article 226 is not maintainable. It is also not possible for me to agree with the submissions of Shri Bukhari that the relief of grant of three days wages by the Labour Court under Section 25 of the Act was an incidental relief and, therefore, the petitioners were bound to obey the said order. The jurisdiction of the Labour Court under Section 25 in Chapter 5 of the Act is restricted to the grant or refusal to grant declaration in respect of illegality of a strike or a lock out. There is no provision in the said chapter to travel beyond the power of declaration of a strike or a lock out being illegal. Section 25 talks about the effect or consequences of non withdrawal of a strike or a lock out after its declaration as illegal and that such strike or a lock out which is not withdrawn within 48 hours of the declaration of such strike or lock out being illegal, it is deemed illegal under this Act, There is no provision to grant any wages to the employees under this chapter. If the employees are entitled to claim wages, they have to institute independent proceedings and they cannot claim any wages in the proceedings instituted by the petitioners for declaration of the strike as illegal. The petitioners either fail or succeed in getting the strike declared illegal. No relief can be granted to the respondents in the reference. The Labour Court has rejected the reference meaning thereby that the declaration sought by the petitioners that the strike was illegal was not granted. Though, the Labour Court has made certain observations in para 7 of its order, which according to me, were not warranted, the Labour Court has rightly not passed any order in the operative part of the judgment. It has only rejected the reference and awarded cost to the respondent union. The criminal complaint, therefore, filed by one employee i.e. the respondent No. 1 was totally misconceived and he should not have pressed the said criminal complaint to get the relief of 3 days wages for the strike period as, whether he and the other employees were entitled to get the wages for the strike period was not the subject matter of the reference. It, therefore, cannot be said that the petitioners had committed any breach or violation ,of any order passed by the Labour Court. The observations made by the Labour Court in para 7 are to be ignored and they cannot be a part of the order to be enforced by way of filing a criminal complaint. Even if the Labour Court were to direct the petitioners to pay wages for three days in its operative part, in the proceedings under chapter 5 of the Act such an order would have been null and void and could not be enforced in any Court of law. The employees will have to establish their legal right in appropriate proceedings to get the wages for 3 days. The criminal complaint, therefore, is totally misconceived and it amounts to abuse of process of law and the Court. The institution of such proceedings is malicious, vexatious and the Labour Court ought not to have issued process which has resulted in sheer harassment of the petitioners.

13. It is significant to note that in the case of R. N. Dey and Ors. v. Bhagyabati Pramanik and Ors., , the Supreme Court has held that the decree holder who takes no steps towards executing the decree should not be encouraged to invoke contempt jurisdiction of the Court only because the decree has not been satisfied. In the present case, there is no order or decree directing the petitioners to pay wages for strike period. Therefore, it cannot be said that there was any wilful or deliberate disobedience of any order amounting to the offences contemplated under Section 48(1) of the Act.

14. The law on the question of issuance of process has been once again reiterated by the Supreme Court in the case of Pepsi Foods Ltd. v. Special Judicial Magistrate and Ors., . The Supreme Court has seriously cautioned the Courts issuing process under the criminal law, which according to the Supreme Court cannot be set into motion as a matter of course. The Supreme Court has treated summoning of an accused in a criminal case as a serious matter. The following observations of the Supreme Court are relevant for our purpose :--

28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course, it is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of the allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.

29. No doubt the magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial......."

30. It is no comfortable thought for the appellants to be told that they could appear before the Court which is at a far off place in the Gazipur in the State of Uttar Pradesh, seek their release on bail and then to either move an application under Section 245(2) of the Code or to face trial when the complaint and the preliminary evidence recorded makes out no case against them. It is certainly one of those cases where there is an abuse of the process of the law and the Courts and the High Court should not have shied away in exercising its jurisdiction. Provisions of the . Articles 226 and 227 of the Constitution and Section 482 of the Code are devised to advance justice and not to frustrate it. In our view High Court should not have adopted such a rigid approach which certainly has led to miscarriage of justice in the case. Power of judicial review is discretionary but this was a case where the High Court should have exercised it."

In respect of the filing of the writ petition under Article 226 or Section 482 of the Code of Criminal Procedure, the Supreme Court has observed as under :--

26. Nomenclature under which petition is filed is not quite relevant and that does not debar the Court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory, if in a case like the present one the Court finds that the appellants could not invoke its jurisdiction under Article 226, the Court can certainly treat the petition one under Article 227 or Section 482 of the Code. It may not however, be lost sight of that provisions exist in the Code of revision and appeal but sometime for immediate relief Section 482 of the Code or Article 227 may have to be resorted to for correcting some grave errors that might be committed by the subordinate Courts. The present petition though filed in the High Court as one under Articles 226 and 227 could well be treated under Article 227 of the Constitution."

15. Reliance by Shri Bukhari on the judgment of the learned Single Judge of this Court at Aurangabad bench in the case of Nand Kishore Laxminarayan Khagliwal and ors. and Waman B.Nandekar and ors., reported in 1989(59) FLR 630 is totally misplaced and I fail to understand how this would help Shri Bukhari in his submissions on preliminary point of maintainability. Shri Bukhari has also relied upon a judgment of Calcutta High Court in the case of National Projects Constructions Corporation Ltd. and ors. and Labour Enforcement Officer, reported in 1991 (62) FLR 497. The facts are entirely different and, therefore, the said judgment also does not help Shri Bukhari. The learned Judges have observed that the approach of the criminal Court at the trial is different from its approach at its earlier stages, say framing charge or taking cognizance. It is true that at the stage of taking cognisance, the criminal Court need not look for sufficient material for conviction but only for sufficient ground to proceed with the trial. In the present case, as we have discussed, there was absolutely no ground to proceed with the trial against the petitioners. As held by me that the orders by the Labour Court and the Industrial Court awarding cost have been complied with and, therefore, there was no offence of any nature committed by the petitioners. Assuming that a party does not pay cost as awarded, it cannot be said by any stretch of imagination that such a party is guilty of contempt of Court to be dragged in criminal proceedings. Such a party can be made to pay cost by instituting appropriate proceedings for recovery of the costs, in the present Act, the union could seek a certificate under Section 50 of the Act for recovery of the amount of costs awarded to it. The respondent-employee certainly could not have approached any authority under any law for recovery of costs which were awarded to the union and not to the respondent No. 1 employee. Similarly, there is no lawful and valid order of competent Court holding that the employees are entitled to get the wages for the strike period and, therefore, there is no such lawfully enforceable order which, it can be said that the petitioners had failed to comply with. In my opinion, the petitioners have not committed any offence under Section 48(1) of the Act and, therefore, the Labour Court was not at all justified to issue process summoning the petitioners to remain present as accused in the complaint before the Labour Court. Even the Industrial Court has failed to appreciate and consider this aspect in revision under Section 44 of the Act. The Industrial Court ought to have held the order of issuance of process in the given circumstances as totally illegal and perverse and ought to have exercised its power of superintendence to quash and set aside the process issued by the Labour Court.

16. In the aforesaid circumstances, the writ petition succeeds and the impugned orders passed by the Labour Court and the President of the Industrial Court, both, are quashed and set aside. The issuance of the process and any further execution of warrant is also quashed and set aside. The whole criminal complaint is totally misconceived and not tenable in law and, therefore, deserves to be dismissed and the same is dismissed. I have no doubt in my mind that filing of the criminal complaint amounts to abuse of process of law and the Court. I was inclined to impose exemplary cost but I am refraining from doing so as the respondent No. 1 is an individual employee who might have acted without any proper advice, to take charitable view in his favour. The petition is allowed. Rule is made absolute with no orders as to costs.