Ismt Ltd, Ahmednagar vs Jaggannath Gangadher Mate
2016 Latest Caselaw 7160 Bom

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             IN THE HIGH COURT OF JUDICATURE OF BOMBAY   
                         BENCH AT AURANGABAD




                                                       
                           WRIT PETITION NO.12313 OF 2016

    ISMT Ltd.,
    C-1, M.I.D.C., 




                                                      
    Ahmednagar
    (Previously known as Indian
    Seamless Metal Tubes Ltd.,)
    Through Mr.Santosh Padmakar Dabir,




                                            
    Associate Vice President (ER)                            -- PETITIONER

    VERSUS                    
    1. Jaggannath Gangadher Mate,
        Age-48 years, Occu-Service,
                             
        R/o Dongergaon, Post : Jeur,
        Tq and Dist.Ahmednagar,

    2. Sodi Fabricators and Erectors,
        L-28, MIDC Industrial Area,
      


        Ahmednagar                                           -- RESPONDENTS 

Mr.V.N.Upadhye, Advocate for the petitioner. Mr.P.V.Barde, Advocate for the respondents.

( CORAM : RAVINDRA V. GHUGE, J.)

DATE : 13/12/2016

ORAL JUDGMENT :

1. Rule. Rule made returnable and heard finally by the consent of

the parties.

2. The petitioner is aggrieved by the order dated 21/10/2011 by

which Cri.Appl.No. 4/2007 filed by the respondent u/s 48(1) of the

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MRTU and PULP Act, has been allowed and the accused

Mr.Nageshchandra Eknath Aadhav has been convicted with

imposition of fine of Rs.3,000/- for having violated the directions of

the Industrial Court.

3. The petitioner is further aggrieved by the judgment of the

Industrial Court dated 24/09/2014 by which Cri.Appeal No.1/2012

filed by the Management of Indian Seamless Metal Tubes Limited

through Dattatraya Digambar Ghotankar.

4. I have heard the strenuous submissions of Mr.Upadhye for the

Management and Mr.Barde on behalf of the employee.

5. Mr.Upadhye has put forthwith a two fold submission. Firstly,

that the Manager of the petitioner Factory was the respondent in the

ULP Complaint before the Industrial Court. There is no dispute on

this count. As such, the petition filed by the petitioner as well as the

Criminal Appeal filed by him would be maintainable since the

Manager Mr.Nageshchandra Eknath Aadhav is no longer in

employment. Secondly, that as Mr.Aadhav is not in employment, the

judgment of the Labour Court convicting Mr.Aadhav can be

challenged by the Vice President of the company of Mr.Ghotankar.

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Mr.Barde contends that in criminal proceedings, the accused alone, if

aggrieved, can file a criminal appeal as well as this petition.

6. There is no dispute that Mr.Nageshchandra Eknath Aadhav

was the accused/respondent in Criminal (ULP) No.4/2007. The

company was made a party through the Manager and the name of

Mr.Aadhav was not mentioned in the cause title. Yet, the entire

proceedings were conducted before the Labour Court by Mr.Aadhav

and it appears that there was no grievance or objection raised on this

count. Mr.Aadhav himself has appeared in the matter and has

executed a bail bond. Statement u/s 313 of the Cr.P.C. was also

recorded by Mr.Nageshchandra Aadhav. As such, Mr.Aadhav

accepted the responsibility of the disobedience of the order of the

Industrial Court in Complaint (ULP) No.308/1989. Consequentially,

Mr.Aadhav was convicted and suffered the punishment of fine of

Rs.3,000/-.

7. In the above backdrop, in my view, Mr.Aadhav should have

preferred the Criminal Appeal keeping in view the provisions of

Section 42 of the MRTU and PULP Act, 1972, which read as under :-

"42. Appeal :-

(1) Notwithstanding anything contained in section 40, an

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appeal shall lie to the Industrial Court -

(a) against a conviction by a Labour Court, by the person

convicted ;

(b) against an acquittal by a Labour Court in its special jurisdiction, by the complainant ;

(c) for enhancement of a sentence awarded by a Labour Court in its special jurisdiction, by the State Government.

(e) Every appeal shall be made within thirty days from the

date of the conviction, acquittal or sentence, as the case may be :

Provided that, the Industrial Court may, for sufficient reason, allow an appeal after the expiry of the said period."

8. It is apparent from Section 42(1)(a) that an appeal against

conviction by a Labour Court can be filed only by the person

convicted. There is no provision under the Act of 1971 to entertain a

stranger's appeal since there is no provision to substitute a convicted

accused. Substitution of a person in criminal proceedings after

conviction is alien to criminal jurisprudence. There is no dispute that

Mr.Aadhav did not prefer the appeal and which was preferred by

Mr.Dattatraya Digambar Ghotankar. From the entire appeal memo,

even if it is assumed that a convicted person can be substituted for

filing an appeal, there is no statement made by Mr.Dattatraya

Digambar Ghotankar as to what are the circumstances in which the

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appeal is filed by him.

9. The Industrial Court, while dismissing the appeal, has

concluded that Mr.Ghotankar is a responsible person and therefore

he cannot be considered to be a stranger to the criminal appeal for

seeking the setting aside of the conviction of Mr.Aadhav.

10.

In the light of the above, though this petition deserves to be

dismissed, I deem it proper to exercise my jurisdiction to make a

specific observation that Criminal Appeal No.1/2012 filed by

Mr.Ghotankar was not maintainable under Section 42(1)(a) of the Act

of 1971. In the light thereof, the observations of the Industrial Court

to the extent of concluding that Mr.Ghotankar can prefer the appeal

are quashed and set aside.

11. This petition, being devoid of merit, is therefore dismissed.

( RAVINDRA V. GHUGE, J.)

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