Prakash S/O Rupchand Gangarde vs State Of Maharashtra And Anr.
2007 Latest Caselaw 879 Bom

JUDGMENT

S.R. Dongaonkar, J.

1. Heard Mr. N.R. Saboo, Advocate, for the applicant, Mr. K.S. Dhote, A.P.P. for respondent No. 1 State and Mrs. Anjali Joshi, Advocate, for respondent No. 2.

2. By this application under Section 482 of Code of Criminal Procedure, the applicant/accused in Criminal Complaint Case No. 1790/2002 filed by respondent No. 2 for the offence under Section 630 of the Companies Act, before Judicial Magistrate, First Class, Telhara, challenges the order by which his application for discharge was rejected, and the order passed by learned Additional Sessions Judge, Akola, by which he rejected his Criminal Revision to challenge the said order.

3. Respondent No. 2 Complainant has filed the proceedings under Section 630 of the Companies Act against the applicant/accused in Criminal Complaint Case No. 1790/2002 before J.M.F.C, Telhara. It had sought the eviction of the accused/applicant inasmuch as he was not in the service of the complainant, as allotment of accommodation was a condition of service. During the course of the proceedings, the applicant/accused moved an application for discharge on the ground that he has filed Misc. ULP Complaint No. 24/2000 before the Labour Court, Akola. It was for setting aside the order passed on 1-8-2001 of termination of service. It is alleged that the applicant/accused was transferred to Khandwa on 21-6-1996. Thereafter he had joined at Khandwa on 12-3-1997. He was instructed by the complainant to vacate the quarter. The permission granted to him to occupy the quarter was also cancelled by letter dated 13-10-1997. Thereafter his services were terminated and notice was issued to the accused/applicant for vacating the quarter. It is alleged that he was wrongfully holding the residential quarter without any legal right and permission from the Company. As such the complaint under Section 630 of the Companies Act were filed by the complainant.

4. The reply by the accused/applicant was filed. In that complaint case, the applicant/accused filed an application for discharge, as stated above. His main contention was that the proceedings under Section 630 of the Companies Act were not tenable inasmuch as a labour Court proceedings in Misc. ULP Complaint No. 24/2000 for setting aside the relevant order of termination issued by the complainant were pending and the applicant/accused therein had claimed reinstatement, by seeking quashing of the order of illegal termination. As this application was rejected by the learned trial Judge and the said order was confirmed in the revision application preferred by him, he has challenged those orders in this application.

5. Learned Counsel Mr. N.R. Saboo, for the applicant, has contended that in view of the provisions of Section 33(1) of the Industrial Disputes Act, 1947, which read thus -

33. Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings

(1) During the pendency of any conciliation proceedings before a Conciliation Officer or a Board or of any proceeding before [an arbitrator or] a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall -

(a) in regard to any matter connected with dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceedings; or

(b) for any misconduct, connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute,

save with the express permission in writing of the authority before which the proceeding is pending.

the complainant was under obligation to take written permission from the authority before whom the said ULP proceedings were pending. As the complainant did not do so, the application for discharge was clearly maintainable and should have been allowed by the learned trial Judge. He has relied on the decisions of the Apex Court in 2002(1) CLR 789, Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Shri Ram Gopal Sharma and Ors., and the decision of this Court in 1997(1) Mh.LJ. 648, Shankarprasad Gopalprasad Pathak v. Lokmat Newspapers Pvt. Ltd. to contend that it was obligatory on the part of complainant to obtain prior permission of the Labour Court before resorting to file the complaint under Section 630 of the Companies Act.

6. As against this, Learned Counsel Mrs. Anjali Joshi, for respondent No. 2 has contended that as the applicant/accused was not in service after his termination, the allotment of quarter which was part of condition of his service, ceases to be in existence and therefore, he was required to vacate the said quarter. She has further contended that as there was no status quo in respect of services of the applicant/accused, he was not entitled to retain the quarter. She has also contended that the notice was issued to the applicant/accused by respondent No. 2 after his services were terminated on 1-8-2001 to vacate the said quarter and thereafter he was prosecuted. She has contended that the orders of the learned trial Judge as well as the Revisional Court are correct. She has relied on the observations of Allahabad High Court in 1996(1) CLR 1011, R. Antony v. Renusagar Power Company Ltd. to contend that the applicant can continue to be workman only for the purposes of Industrial Disputes Act and that Section 28 does not mention that such a person would be workman for the proceedings under the Companies Act also. It is further contended by her that Section 630 of the Companies Act does confer the right on the Company for the proceeding to get the employee evicted from the quarter allotted to him as a term of service after he has been dismissed or his services has otherwise come to an end, and in default for suitable penalty.

7. In the present case, the applicant/accused is claiming discharge on the ground that his proceedings to challenge the termination order is pending before the Labour Court. The condition of the service of the applicant/accused provided for allotment of quarter was perhaps on consideration of nature of his duties. Once the accused/applicant is terminated and he has been issued notice to vacate the quarter, unless the stay is granted by the Labour Court or the concerned authorities to his termination order, he would not be entitled to retain the accommodation allotted to him by virtue of his service condition. Needless to mention that if anybody is appointed by the complainant Company in his place, he would be entitled for residential accommodation, which obviously cannot be granted to him, if the applicant remains in possession of the same, despite he being not in the service of the company.

8. It is true that Section 33(1) of the Industrial Disputes Act, referred above, requires permission of the concerned Labour Court, before the service conditions of the employee are altered. But here is the case where the service condition of the applicant/accused is not changed, in fact he has been terminated. Therefore, even if it is assumed for a moment that he would be reinstated in future if his ULP complaint succeeds, because he is not doing presently any work related to his duties, he would not be able to retain the quarter. At the most if he succeeds, he may be entitled for suitable compensation. In my opinion, therefore, the authorities referred by the learned Counsel for the applicant may not be helpful to him to justify retention of the residential accommodation granted to him as a condition of service, after he ceases to be in service. Consequently, the proceedings under Section 630 of the Companies Act would not be bad only because the permission required under Section 33(1) of the Industrial Disputes Act is not obtained.

For the aforesaid reasons, the application cannot succeed. The same is dismissed.