N.J. Lawankar, Divisional ... vs Anil Devidas Garad, Praveen ...
2007 Latest Caselaw 656 Bom

JUDGMENT

C.L. Pangarkar, J.

1. By this application the applicants seek to quash the criminal proceedings before the Labour Court Akola.

2. Few facts may be stated thus: Applicant No. 1 is the Divisional Controller of Maharashtra State Road Transport Corporation Akola, applicant No. 2 is Chairman & Managing Director of M.S.R.T.C. Mumbai, applicant No. 3 is Regional Manager, Amravati and applicant No. 4 is the Mechanical Engineer, M.S.R.T.C. Divisional Workshop Akola. Non applicants are the employees working with Maharashtra State Road Transport Corporation. It is alleged that on 03.04.07 at about 3 P. M. the non applicants went to the house of applicant No. 4 and forcibly entered into his house. They abused him in a filthy language and even assaulted him. He was forcibly brought in the Division Workshop of M.S.R.T.C. since one person had fallen down in the said workshop and had sustained injuries. Since the applicant No. 4 was assaulted he lodged a report with the police, upon which offence has been registered against the non applicants. Non applicants 1 to 3 are the members of unrecognised union. For administrative reasons the applicant No. 1 transferred the non applicants 1 to 3 at different places in Akola district. The said order was issued on 04.04.07. The non applicants were relieved on 05.04.07. These non applicants refused to join their place of posting, instead they filed a complaint under Section 28 being Complaint No. 41/2007 before the Industrial Court. The complaint was filed on 21.04.07. In the said complaint it was not disclosed by the non applicants that they had already been relieved. Industrial Court passed an order staying the transfer order. Notice was issued to the present applicants. They appeared before the Industrial Court and informed the Industrial Court that the application is infructuous since the applicants have already been relieved and prayed for vacation of the stay. Instead of vacating the order and without hearing the applicants the Industrial Court extended the order of stay till 17.05.07. It is contended by the applicants that since the non applicants were already relieved there was no question of disobedience on their part. Ignoring this fact the non applicants instituted a Criminal Complaint Case No. 15/07 before the Labour Court Akola. The complaint is filed under Section 48(1) of the Maharashtra Recognition of Trade Unions And Prevention of Unfair Labour Practices Act 1971 (hereinafter referred to as Act). The applicants contend that even though applicants No. 3 and 4 were not party to the original complaint under Section 28 still they have been made accused in Criminal Complaint Case. It is further contended that the applicant No. 2 is an I.A.S. Officer and he could not be prosecuted without sanction from the Government as contemplated by Section 197 of the Code of Criminal Procedure. It is contended that since there was no disobedience of the order the proceedings before the Court in Criminal Case are liable to be quashed.

3. Non applicants appeared and resist this application. Their main contention is that no process has been issued against the applicant. They have no locus to appear and challenge the order until process is issued. Applicants have actually disobeyed the order of the Industrial Court.

4. I have heard the learned Counsel for the applicants and the non applicants. The Labour Court has issued a notice to the present applicants of the criminal proceedings instituted before him under Section 48(1) of the Act.

5. A complaint under Section 48 of the Act can be filed by any person in whose favour order has been passed and the other side has not complied with the said order. In this case as stated above criminal complaint case is filed on the ground that all 4 applicants failed to comply with the stay order passed by the Industrial Court inasmuch as applicants were not allowed to resume duty. The accused have raised a plea in fact before the Industrial Court while applying for vacating stay that the applicants were already relieved on 05.04.07.

6. If the allegations in criminal complaint filed on 30.04.07 are seen, it no where discloses that accused had raised plea in their reply in a case filed under Section 28 of the Act that, the applicants have already been relieved. This clearly shows that the complainants had suppressed this fact while filing the criminal complaint. Complainants were bound to disclose that such a plea was raised. The criminal complaint simply alleges that the accused did not allow the complainant to resume duty inspite of stay.

7. It was contended on behalf of the applicants/accused that, had the complainants disclosed these facts perhaps the Labour Court would not have issued even notice to the applicants/accused. His main thrust of the argument was that no criminal complaint could be filed against the applicants, particularly applicant No. 2 i.e. accused No. 2 inasmuch as he is a Government Servant and there is a bar under Section 197 of Criminal Procedure Code. It is not in dispute that accused No. 2 is an I.A.S. Officer and Government Servant working on deputation with the M.S.R.T.C. No criminal complaint can be instituted and cognizance taken against any public servant without sanction of the Government. The title of Chapter VIII of the Act is as follows:

POWERS OF LABOUR COURT AND INDUSTRIAL COURT TO TRY OFFENCES UNDER THIS ACT.

The procedure required to be adopted by the Labour Court is one adopted by the Magistrate under Chapter XXI of the Criminal Procedure Code for dealing with the complaint cases. Therefore, institution of proceedings under Section 48 of the Act is essentially institution of a criminal complaint case against the accused and accused could be punished. It is on account of this reason that it was contended that no cognizance could have been taken atleast against accused/applicant No. 2.

8. Shri Verma learned Counsel for the non applicants submitted that no process has been issued against the applicants/accused at all and they could not be heard before issue of process. There can be no dispute over this proposition. Shri Verma learned Counsel submitted that it is merely a notice and not a summons. If that is so then the procedure adopted by the Court is unknown to the Criminal Procedure Code. Therefore, for this simple reason it could be said that the alleged notice itself is a summons as required under Section 204 of the Criminal Procedure Code. It would be necessary to look into the Rules framed under the Act as well as the provisions of the Act itself. Section 39 and 40 of the Act reads as follows: Section 39: No Labour Court shall take cognizance of any offence except on a complaint of facts constituting such offence made by the person affected thereby or a recognised union or on a report in writing by the Investigating Officer. Section 40: In respect of offences punishable under this Act, a Labour Court shall have all the powers under the *Code of Criminal Procedure, 1898, of Presidency Magistrate in Greater Bombay and a Magistrate of the First Class elsewhere, and in the trial of every such offence, shall follow the procedure laid down in Chapter XXII of the said Code for a summary trial in which an appeal lies; and the rest of the provisions of the said Code shall, so far as may be, apply to such trial. (*now see 39 of the Code of Criminal Procedure, 1973). It is thus obvious that the Judge of the Labour Court can take cognizance upon a complaint and has to follow the procedure as laid down in Criminal Procedure Code and the complaint case has to be tried as a summary case. If the provisions of the Code of Criminal Procedure are seen there is nothing which authorises a Magistrate to issue notice to any party before the order of issue of process is passed. It is only after the order of issue process is passed that a summons is issued under Section 204 as stated earlier. In the instant case notice is said to be issued to the accused. Although such notice is not contemplated by Criminal Procedure Code it seems to have been issued under Rule 137 of the Industrial Regulations 1975. Rule 137 reads thus: If the person committing offence under Section 48 of the Act is not present in Court, notice shall be issued to such person calling upon him to show cause why proper action under Section 48 of the Act should not be taken against him in view of the facts noted in the notice. When such person appears before the Court his statement as provided by Section 313 of the Code of Criminal Procedure, 1973 shall be recorded. Notice shall be in Form 27. What this rule contemplates is that as soon as the person appears in pursuance of the notice his statement under Section 313 should be recorded. When this Rule contemplates that persons statement under Section 313 Criminal Procedure Code be recorded, it presupposes that all stages prior to stage of statement under Section 313 are complete. Therefore, by no stretch of imagination it could be said that the notice as issued is a simple notice, not a summons issued in pursuance of the order of issue process. When a Judge acting as Magistrate, calls upon any person accused, to appear before him it has to be said that the Magistrate has taken cognizance and, therefore, has directed the preson accused to be present. The provisions of Criminal Procedure Code must prevail over the provisions contained in Rule 137. It is also because substantive provisions in Section 40 says that provisions of Criminal Procedure Code should be followed. Therefore, when a Judge acting as Magistrate directs any person accused of the offence in a complaint to appear before him it must be said that the process is issued against that person accused. In this case, therefore, when the Labour Judge ordered notice to be issued, it has to be said that he issued a process. Therefore, accused certainly have a right to be heard. There is, therefore, a need to redraft Rule 137 in consonance with the provisions contained in Criminal Procedure Code. Now the question is whether the Labour Judge was justified in issuing notice to accused No. 2. We have seen that accused No. 2 is a Government Servant and an IAS Officer. He is sought to be prosecuted for offence committed in discharge of his official duty. A sanction would be necessary and there would certainly be a Bar under Section 197 of the Criminal Procedure Code. In a case reported M.R. Patil and Anr. v. Member, Industrial Court and Anr. 1997(2) Maharashtra Law Journal 693, Supreme Court has made the following observations: As the above discussion of ours is sufficient to quash the impugned prosecution we need not discuss the other patent infirmities relating to the procedure adopted by the Labour Court in dealing with the complaint and to the rejection of the indefensible contention raised on behalf of Appellant 1 about the maintainability of the prosecution in view of, Section 197, Criminal Procedure Code. These observations were made while deciding appeal which arose out of prosecution of Shri M.R. Patil, the then Managing Director of the M.S.R.T.C. under Section 48 of the Act. In this case accused No. 2 is Managing Director of M.S.R.T.C. and is sought to be prosecuted. In view of the observations of the Supreme Court, it is apparent that the order of issue of notice against accused No. 2 was patently illegal.

9. It was next contended by the learned Counsel for the applicants that applicants No. 3 and 4 were not party to the original proceedings under Section 28 of the Act and as such could not be made accused in Criminal Complaint Case. Shri Verma learned Counsel for the non applicants submitted that it is not necessary that only those who were party to original complaint under Section 28 could be made accused. He submitted that any person who has not complied the order could be made accused. He relied upon a decision of this Court in M.R. Patil, Vice Chairman and Managing Director, Maharashtra, S.R.T. Corporation and Anr. v. Member, Industrial Court, Amravati and Anr. 1996(2) Bombay Labour Cases 489. In fact it was most inappropriate on the part of the learned Counsel to have cited this decision. This decision has been reversed by the Supreme Court in 1997(2) Maharashtra Law Journal 693. This decision of this Court is, therefore, no more a good law. This Court in two other decisions reported in Maruti s/o Narsingrao Ladde v. Balakdas s/o Lakhan Meshram and Ors. 2006 All MR (Cri)2113 and 1995(1) CLR 200 has held that a person who was not a party to original complaint could not be made party to criminal complaint. It is held that concept of vicarious liability is unknown to criminal law. In view of these two decisions certainly applicants No. 3 and 4 could not be impleaded as accused. The simple reason for this is that the order binds those who were party to the earlier proceedings. That person becomes liable to comply that order and not a third person who is not party. In fact, therefore, even the complaint under Section 28 has to be instituted against only that person who is authorised to act or holds power to comply with the directions of the Court. As a result institution of criminal proceedings against applicants 3 and 4 was also improper and illegal.

10. As far as applicant No. 1 is concerned, it is he who has issued the transfer order. He holds a power to transfer and even to cancel. The order of Industrial Court was served on him and the responsibility lay on him to comply. Shri Wankhede learned Counsel submitted that the non applicants were already relieved on 05.04. 07 and as such there was no question of compliance. It was submitted on behalf of the non applicants that the non applicants were not served with the relieving order and, therefore, they were justified in instituting criminal complaint. He submitted that the question as to whether the order relieving the non applicants was served or not, could be a defence which the accused may take. It is alleged in Criminal Complaint that relieving order was not served on the non applicants herein. Obviously there is a dispute with regard to service of order of relieving. Applicant/accused No. 1 may, therefore, raise a defence and establish that defence, but admittedly there is an order of the Industrial Court staying the transfer and non applicants of not being allowed to resume the duty. Hence the order issuing notice to the applicants 2, 3 and 4 needs to be quashed and set aside and the complaint as against them also is quashed. However, the order as against applicant No. 1 is quite justified. Criminal Application therefore partly succeeds in the above terms.