Bombay High Court
Subhash Laxman Jadhav And ... vs Vinod Nivratti Kamble And Others on 10 March, 2016
Bench: R.V. Ghuge
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.1206/2016
1 Subhash s/o Laxman Jadhav,
Age : 57 years, Occ - Service,
Ex-Divisional Joint Director,
ig Agriculture Officer, Latur
presently working as Director,
Maharashtra State Horticulture &
Medicinal Plant Board, Pune.
2 Dr. Tukaram s/o Santaram Mote,
Age - 48 years, Occ - Service as
ex - District Superintending
Agriculture Officer, Latur.
Presently working as District
Superintending Agriculture
Officer, Nanded.
Tq. & Dist-Nanded.
...Petitioners...
Versus
1 Vinod Nivratti Kamble,
Age 37 years, Occ - Nil.
2 Prabhakar Digambarrao Deshmukh,
Age 37 years, Occ - Nil.
3 Sow. Rukhminbai Balbhim Gavde,
Age 46 years, Occ - Nil.
4 Sow. Sarubai Vitthal Satpute,
Age 55 years, Occ - Nil.
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5 Rukhminbai Baburao Katkar,
Age 45 years, Occ - Nil.
6 Sau. Ismailbee Ahamed Shaikh,
Age 45 years, Occ - Nil.
7 Gayabai Shrimant Shinde,
Age 55 years, Occ - Nil.
8 Sow. Sakumarbai Jaggnnath Thorat,
Age 41 years, Occ - Nil.
9 Sow. Gangubai Manik Birajdar,
ig Age 39 years, Occ - Nil.
10 Sow. Putlambee Pasha Shaikh,
Age 55 years, Occ - Nil.
11 Sow Azizbee Dastagir Shaikh,
Age 57 years, Occ - Nil.
12 Sow. Mudrikabai Ankush Kamble,
Age 55 years, Occ - Nil.
All R/o Nilanga, Tq. Nilanga,
Dist. Latur.
c/o Vinod Navrattirao Kamble,
r/o Bank Colony, Nilanga,
Dist - Latur.
...Respondents...
.....
Shri V.D. Salunke, Advocate for petitioners.
Shri V.D. Gunale, Advocate for respondents.
S/Shri T.K. Prabhakaran, V.R. Mundada, S.V. Dankh,
Avishkar Shelke, P.V. Barde and Y.R. Marlapalle,
Advocates acted as amicus curiae to assist the Court.
.....
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CORAM: RAVINDRA V. GHUGE, J.
DATE: 10.03.2016
ORAL JUDGMENT :
1] Rule. Rule made returnable forthwith and heard
finally by the consent of the parties.
2]
Considering the conspectus of this matter, I had
requested the learned Advocates practising Labour Laws to
assist the Court. Accordingly, S/Shri T.K. Prabhakaran,
V.R. Mundada, S.V. Dankh, Avishkar Shelke, P.V. Barde and
Y.R. Marlapalle, learned Advocates have rendered their
assistance in this matter.
3] By this petition, the petitioners have
challenged the judgment and order dated 13.7.2015
delivered by the Industrial Court, Latur, by which the
revision petition filed by the petitioners has been
allowed (in fact partly) and they have been directed to
address the Labour Court in the pending Criminal
Complaint No.6/2011 filed u/s 48(1) of the Maharashtra
Recognition of Trade Unions and Prevention of Unfair
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Labour Practices Act, 1971, as to why process should not
be issued against them.
4] By this petition and considering the contentions
of the respondents, an issue has been raised as to
whether the remedy of revision u/s 44 of the MRTU & PULP
Act, 1971 is available to the accused - respondents
before the Labour Court for questioning the issuance of
process.
5] The respondents contend that after the Labour
Court issued process in the criminal complaint, the
petitioners herein could not have preferred a Revision
(ULP) u/s 44 since Criminal Writ Petition u/s 482 of the
Code of Criminal Procedure, 1973 is the only remedy
available.
6] There is no dispute that the Industrial Court
had granted certain reliefs to the respondents herein in
Complaint (ULP) No.40/1992 (new No.3/2004). On account
of the purported disobedience of the directions of the
Industrial Court, the respondents had filed the criminal
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complaint before the Labour Court and the Labour Court
had issued process against the petitioners. It was for
challenging the issuance of process dated 8.2.2011 that
the petitioners preferred the Revision (ULP) before the
Industrial Court.
7] The learned amicus curiae alongwith Shri V.D.
Salunke, learned Advocate for the petitioners, have
contended that the issuance of process could be
challenged by the respondents - accused in revision
proceedings u/s 44. If advised, they could also have
preferred a Criminal Writ Petition u/s 482 of the Code of
Criminal Procedure, 1973, before the High Court.
8] The Labour Court while issuing process on
8.2.2011 had passed the following order :-
"Perused contents of complaint duly verified on
oath and the orders of Hon'ble Industrial Court,
Latur. The complainants alleged that in
contravention of order of Hon'ble Member,
Industrial Court, the complainants are
retrenched by the accused. There is a prima
case. Hence issue process U/s 48 of M.R.T.U. &
P.U.L.P. Act."
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9] Before I delve upon the issue of maintainability
of the revision proceedings, it needs to be noted that
Shri Gunale, learned Advocate on behalf of the respondent
- employees, has made a statement on instructions that
the criminal complaint filed by the respondents before
the Labour Court was with regard to the disobedience of
the petitioners of the direction of the Industrial Court
to give work to the respondents whenever available and
that the Labour Court would not be having the
jurisdiction to go into whether the work was available or
not, in a criminal complaint u/s 48(1) of the 1971 Act.
He, therefore, submits on instructions that this Court
may conclude the issue as to whether a revision is
maintainable for challenging the issuance of process by
the Labour Court, notwithstanding the fact that the
respondents would be withdrawing Criminal Complaint
No.6/2011 with liberty to approach the Industrial Court
under Item 9 of Schedule IV for the redressal of their
grievances.
10] Shri Salunke, learned Advocate for the
petitioners, does not oppose the withdrawal of the
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criminal complaint, but joins Shri Gunale in submitting
that this Court may deal with the issue as to whether a
revision was maintainable before the Industrial Court for
questioning the legality and the validity of the order of
issuance of process by the Labour Court u/s 48(1).
11] In the light of the above, it needs mention that
Chapter VIII of the 1971 Act pertains to the powers of
the Labour Court and the Industrial Court to try offences
under this Act. Needless to state that a criminal
complaint filed u/s 48(1) is to be considered in the
light of Sections 39, 48(1) and 55 of the 1971 Act. It
would, therefore, be apposite to reproduce Sections 38 to
48 and 55 thereof as under :-
"38. POWERS OF LABOUR COURT IN RELATION TO
OFFENCES -
(1) A Labour Court shall have power to try
offences punishable under this Act.
(2) Every offences punishable under this Act
shall be tries by a Labour Court within the
limits of whose jurisdiction it is committed.
39. COGNIZANCE OF OFFENCE -
No Labour Court shall take cognizance of
any offence except on a complaint of facts
constituting such offence made by the person
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affected thereby or a recognised union or on a
report in writing by the Investigating Officer.
40. POWERS AND PROCEDURE OF LABOUR COURTS IN
TRIALS -
In respect of offences punishable under
this Act, a Labour Court shall have all the
powers under the Code of Criminal Procedure,
1898, V of 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.
41. POWERS OF LABOUR COURT TO IMPOSE HIGHER
PUNISHMENT -
Notwithstanding anything contained in
section 32 of the Code of Criminal Procedure,
1898, V of 1898, it shall be lawful for any
Labour Court to pass any sentence authorised
under this Act in excess of its powers under
section 32 of the said Code.
42. APPEAL -
Notwithstanding any thing contained in section
40, an appeal shall lie to the Industrial
Court-
(a) against a conviction by a Labour Court,
by the person convicted;
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(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.
(2) 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.
43. POWERS OF INDUSTRIAL COURT -
(1) The Industrial Court in an appeal under
section 42 may confirm, modify, to, or rescind
any order of the Labour Court appealed against;
and may pass such order thereon as it may deem
fit.
(2) In respect of offences punishable under
this Act, the Industrial Courts shall have all
the powers of the High Court of Judicature at
Bombay under the Code of Criminal Procedure,
1898, V of 1898.
(3) A copy of the order passed by the
Industrial Court shall be sent to the Labour
Court.
44. INDUSTRIAL COURT TO EXERCISE
SUPERINTENDENCE OVER LABOUR COURTS -
The Industrial Court shall have
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superintendence over all Labour Courts and may,
-
(a) call for returns;
(b) make and issue general rules and prescribe
forms for regulating the practice and procedure
of such Courts in matters not expressly
provided for by this Act and in particular, for
securing the expeditious disposal of cases;
(c) prescribe form in which books, entries and
accounts shall be kept by officers of any such
Courts; and
(d) settle a table of fees payable for process
issued by a Labour Court or the Industrial
Court.
45. POWER OF INDUSTRIAL COURT TO TRANSFER
PROCEEDINGS -
The Industrial Court may, by order in
writing, and for reasons to be stated therein,
withdraw any proceeding under this Act pending
before a Labour Court, and transfer the same to
another Labour Court for disposal and the
Labour Court to which the proceeding is so
transferred may dispose of the proceeding, but
subject to any special direction in the order
of transfer, proceed either de novo or from the
stage at which it was so transferred.
46. ORDERS OF INDUSTRIAL OR LABOUR COURT NOT TO
BE CALLED IN QUESTION IN CRIMINAL COURTS -
No order of a Labour Court or an order of
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the Industrial Court in appeal in respect of
offences tried by it under this Act shall be
called in question in any criminal court.
47. PENALTY FOR DISCLOSURE OF CONFIDENTIAL
INFORMATION -
If an Investigating Officer or any person
present at, or concerned in, any proceeding
under this Act willfully discloses any
information or the contents of any document in
contravention of the provisions of this Act, he
shall, on conviction, on a complaint made by
the party who gave the information or produced
the document in such proceeding, be punished
with fine which may extend to one thousand
rupees.
48. CONTEMPTS OF INDUSTRIAL OR LABOUR COURTS -
(1) Any person who fails to comply with any
order of the Court under clause (b) of sub-
section (1) or sub-section (2) of section 30 of
this Act shall, on conviction, be punished with
imprisonment which may extend to three months
or with fine which may extend to five thousand
rupees.
(2) If any person, -
(a) when ordered by the Industrial Court or a
Labour Court to produce or deliver up any
document or to furnish information being
legally bound so to do, intentionally omits to
do so; or
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(b) when required by the Industrial Court or a
Labour Court to bind himself by an oath or
affirmation to state the truth refuses to do
so;
(c) being legally bound to state the truth on
any subject to the Industrial Court or a Labour
Court refuses to answer any question demanded
of him touching such subject by such Court; or
(d) intentionally offers any insult or causes
any interruption to the Industrial Court or a
Labour Court at any stage of its judicial
proceeding, he shall, on conviction, be
punished with imprisonment for a term which may
extend to six months or with fine which may
extend to one thousand rupees or with both.
(3) If any person refuses to sign any statement
made by him, when required to do so, by the
Industrial Court or a Labour Court, he shall,
on conviction, be punished with imprisonment
for a term which may extend to three months or
with fine which may extend to five hundred
rupees or with both.
(4) If any offence under sub-section (2) or
(3), is committed in the view or presence of
the Industrial Court or as the case may be, a
Labour Court, such Court may, after recording
the facts constituting the offence and the
statement of the accused as provided in the
Code of Criminal Procedure, 1898, V of 1898
forward the case to a Magistrate having
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jurisdiction to try the same, and may require
security to be given for the appearance of the
accused person before such Magistrate or, if
sufficient security is not given, shall forward
such person in custody to such Magistrate.
The Magistrate to whom any case is so
forwarded shall proceed to hear the complaint
against the accused person in the manner
provided in the said Code of Criminal
Procedure.
(5) If any person commits any act or publishes
any writing which is calculated to improperly
influence the Industrial Court, or a Labour
Court or to bring such Court or a member or a
Judge thereof into disrepute or contempt or to
lower its or his authority, or to interfere
with the lawful process of any such Court, such
person shall be deemed to be guilty of contempt
of such Court.
(6) In the case of contempt of itself, the
Industrial Court shall record the facts
constituting such contempt, and make a report
in that behalf to the High Court;
(7) In the case of contempt of a Labour Court,
such Court shall record the facts constituting
such contempt, and make a report in that behalf
to the Industrial Court; and thereupon, the
Industrial Court may, if it considers it
expedient to do so, forward the report to the
High Court.
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(8) When any intimation or report in respect of
any contempt is received by the High Court
under sub-sections (6) or (7), the High Court
shall deal with such contempt as if it were
contempt of itself, and shall have and exercise
in respect of it the same jurisdiction, powers
and authority in accordance with the same
procedure and practice as it has and exercises
in respect of contempt of itself.
55. OFFENCE UNDER SECTION 48(1) TO BE
COGNIZABLE -
The offence under sub-section (1) of
section 48, shall be cognizable."
12] It is, therefore, apparent that the Labour Court
is empowered to try the offences punishable under this
Act depending upon its jurisdiction within which an
offence may have been committed. The Labour Court has
the powers under the Code of Criminal Procedure, 1898, of
a Presidency Magistrate in Greater Bombay and a
Magistrate of the First Class elsewhere. The procedure
laid down in Chapter XXII of the Code of Criminal
Procedure, therefore, renders the proceedings in the form
of a summary trial. By Section 41, the Labour Court can
impose higher punishment.
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13] Quite evidently, the 1971 Act has expressly
provided for an appeal u/s 42, which is to be entertained
by the Industrial Court only under the three
eventualities as have been reproduced u/s 42(1)
hereinabove. It is, therefore, apparent that only after
a complete trial and either on conviction or acquittal,
the appeal could be preferred by the aggrieved party
challenging the conviction or the acquittal, as the case
may be. An appeal can also be filed for seeking
enhancement of a sentence awarded by the Labour Court.
14] As like the provision of appeal, conspicuously,
no provision has been expressly set out under Chapter VII
so as to indicate that the issuance of process by the
Labour Court or for that reason, any order passed by the
Labour Court u/s 48(1) during the course of the trial in
the criminal complaint, could be questioned before the
Industrial Court either through an appeal or through its
revisional powers.
15] The learned Advocates appearing as amicus curiae
have unitedly submitted that since the 1971 Act, as
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regards the grievance about issuance of process or any
order passed by the Labour Court while adjudicating upon
a criminal complaint, is silent, having not provided any
remedy under the Act, all such orders can be questioned
u/s 44 of the Act since the Industrial Court has the
power of superintendence over all Labour Courts.
16] This Court had an occasion to deal with a
somewhat similar situation in the matter of Navnath
Siddhappa Koli v. Shri Siddheshwar Sahakari Sakhar
Karkhana Ltd. & others (1981 Mh.L.J., 888). The powers
of the Industrial Court u/s 44 were held to be akin to
its jurisdiction u/s 85 of the Bombay Industrial
Relations Act (now Maharashtra Industrial Relations Act).
This Court, therefore, concluded that the Industrial
Court had the power to examine the legality of the order
passed by an authority below it whenever the record of
the case is before it.
17] Paragraph no.12 of Navnath Siddhappa Koli
judgment (supra) reads as under:-
"12. Moreover, the grounds which were taken in
the memo of revision before the Industrial Court
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do contain sufficiently the seeds of the point
which was ultimately decided by the Industrial
Court. In may opinion, therefore, the Industrial
Court has not committed any error in the
exercise of its jurisdiction when it proceeded
to examine the correctness of the order passed
rather than the finding given by the Labour
Court. As I have already mentioned above, the
order of the Labour Court was not sustainable on
the finding the Labour Court itself gave. If the
Industrial Court had proceeded to interfere with
the finding, if there was a finding of the
Labour Court in favour of the petitioner, than
one could have legitimately complained that the
Industrial Court has exceeded the jurisdiction
vested in it. The revisional jurisdiction of the
Industrial Court under section 44 of the PULP
Act, which is analogous to its jurisdiction
under section 85 of the Industrial Relations
Act, does invest the Industrial Court with the
power to examine the legality of the order
passed by an authority below it whenever the
record of the case is before it. In Shree
Talkies, Kamptee v. Industrial Court,
Maharashtra, 1970 Lab.I.C. 1354, the extent of
the jurisdiction of the Industrial Court under
section 85 of the Bombay Industrial Relations
Act has been described. In passing the impugned
order the Industrial Court has not overstepped
the limits set by the aforesaid judgment. In the
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instant case the Industrial Court has found, and
in my opinion rightly, that the order of the
Labour Court was wholly unsustainable in the
absence of the finding that the order passed by
the respondent was "for patently false reasons."
In other words, the order of the Labour Court is
found to be without jurisdiction. I have ,
therefore, no hesitation in holding that the
Industrial Court was fully justified in passing
the order by which it set aside the order of the
Labour Court."
18] This Court once again considered a similar
situation in the matter of Satish J. Mehta & others v.
The State of Maharashtra & others (1991 II CLR 547). The
contention of the employee was that since Sections 42 and
44 of the 1971 Act give a remedy to the aggrieved
petitioner, who had challenged the issuance of process by
the Labour Court, a Criminal Writ Petition u/s 482 of the
Code of Criminal Procedure was not maintainable. This
Court while negating the contention of the employee to
the extent of the challenge to the maintainability of the
Criminal Writ Petition has observed in paragraph no.9 as
under :-
"Thus, it is clear that unless there is final
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order of conviction or acquittal or an order of
enhancement of sentence by the Government, no
appeal is maintainable before the Industrial
Court. Hence no appeal would lie before the
Industrial Court if a person is aggrieved by
issuance of process for an offence under Section
48(1)of the Act. It is true that Section 44 of
the Act of 1971 gives Industrial Court power of
superintendence over the Labour Court. But this
is enabling power and not a remedy for the
party. Therefore, submission of Shri
Prabhakaran that the writ petition is not
maintainable will have to be rejected."
19] This Court had, therefore, considered the remedy
u/s 44, but had not specifically dealt with an issue as
to whether the remedy u/s 44 could be said to be
available to a person aggrieved by the issuance of
process. Nevertheless, the above conclusion does have a
semblance that the remedy u/s is available to an
aggrieved person.
20] In the matter of Mohamad M. Alam v. Western
India Automobile Association, Mumbai & another (2002 (1)
Mh.L.J., 40), this Court dealt with an order passed by
the Court u/s 48. It was specifically canvassed before
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this Court that the order passed by the Labour Court
issuing process, could not be a subject matter of a
revision u/s 44 as the said revision was not
maintainable. The judgment of this Court in the case of
Satish J. Mehta (supra) was cited. Negativing the said
contention, this Court concluded in paragraph no.4 of
Mohamad M. Alam judgment (supra) that the Industrial
Court is vested with the power of superintendence over
the Labour Court. Though an efficacious remedy of appeal
after completion of the trial is available u/s 42, the
order of issuance of process could be questioned u/s 44
of the 1971 Act since it is an enabling power.
21] The observations of this Court in paragraph no.4
of Mohamad M. Alam judgment (supra) read as under:-
"4. The learned counsel appearing on behalf of
the petitioner sought to submit that against the
order passed by the Labour Court issuing
process, a revision under Section 44 of the MRTU
and PULP Act was not maintainable. Reliance was
sought to be placed on a Judgment of the learned
Single Judge of this Court in Satish J. Mehta
and Ors. v. The State of Maharashtra and Anr.,
reported in 1991 Vol. II CLR 547. There is no
substance in the first submission which has been
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urged on behalf of the petitioner : Under
Section 44 of the MRTU and PULP Act, 1971 the
Industrial Court has been vested with
superintendence over the Labour Court. In the
decision of the learned Single Judge of this
Court in Satish J. Mehta v. The State of
Maharashtra (supra), a petition under Section
482 of the Code of Criminal Procedure 1873 was
filed by the employer upon an order passed by
the Labour Court in pursuance of a complaint
under Section 48 of the MRTU and PULP Act, 1971,
in which the workman had alleged that the
employer had failed to abide by an order passed
by the Industrial Court. One of the objections
which was raised to the maintainability of the
petition, under Section 482 of the Code of
Criminal Procedure, 1973, was that an employer
has an efficacious remedy of an appeal under
Section 42 or of a revision under Section 44 of
the Act. This was repelled by the learned Single
Judge, who noted that under Section 42 an appeal
could lie to the Industrial Court only against
an order of conviction by a Labour Court, by the
person convicted; against an acquittal by a
Labour Court in its special jurisdiction, by the
complainant; and for the enhancement of a
sentence awarded by a Labour Court, at the
behest of the State Government. Insofar as the
revisional jurisdiction under Section 44 was
concerned, the learned Single Judge held that
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while it is true that Section 44 gives the
Industrial Court power of superintendence over
the Labour Court, "this is an enabling power and
not a remedy for the party". In the
circumstances, it was held that the petition
under Section 482 of the Code of Criminal
Procedure, 1973, was maintainable. The judgment
of the learned Single Judge does not advance the
case of the petitioner, because it has not been
held that a revision against an order passed by
the Labour Court issuing process would not be
maintainable before the Industrial Court. The
question which arose was with regard to the
maintainability of the petition under Section
482 of the Code of Criminal Procedure, 1973 and
it was held that Section 44 of the MRTU and PULP
Act, 1971 confers only an enabling power upon
the Industrial Court. The, petition under
Section 482 was held to be maintainable before
this Court. There is, therefore, no merit in the
first submission."
22] In the matter of Vishwanath Ramkrishna Patil v.
Ashok Murlidhar Sonar & another (2006 (5) Mah.L.J., 671),
while considering the availability of a remedy to
challenge the issuance of process, this Court concluded
that a Criminal Writ Petition u/s 482 of the Code of
Criminal Procedure would be a remedy available to an
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aggrieved party. However, it would be difficult to
curtail this remedy merely because a revisional remedy is
available. In paragraph no.11 of the said judgment, this
Court concluded that, considering the facts and
circumstances in the case of V.K. Jain v. Pratap V.
Padode (2005 (3) Mh.L.J., 778) and Saket Gore v. Aba
Dhavalu Bagul (2005 ALL MR (Cri), 2514), it would be
appropriate for the parties to even file a revision
application against the order of issuance of process.
23] Before parting with this case, I find it
necessary to refer to the judgment of the Hon'ble Supreme
Court in the matter of Pepsi Foods Ltd. & another v.
Special Judicial Magistrate & others (1998 Cri.L.J.,1),
with regard to the fetters on the Courts issuing process
under the Criminal Law. It would be apposite to refer to
the observations of the Hon'ble Apex Court in paragraph
nos.28, 29 and 30 as under:-
"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
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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 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. it was submitted before us on
behalf of the State that in case we find that
the High Court failed to exercise its
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jurisdiction the matter should be remanded back
to it to consider if the complaint and the
evidence on record did not make out any case
against the appellants, If, however, we refer to
the impugned judgment of the High Court it has
come to the conclusion, though without referring
to any material on record, that "in the present
case it cannot be said at this stage that the
allegations in the complaint are so absurd and
inherently improbable on the basis of which no
prudent man can ever reach a just conclusion
that there exists no sufficient ground for
proceedings against the accused." We do not
think that the High Court was correct in coming
to such a conclusion and in coming to that it
has also foreclosed the matter for the
magistrate as well, as the magistrate will not
give any different conclusion on an application
filed under section 245 of the code. The High
Court says that the appellants could very well
appear before the court and move an application
under Section 245(2) of the Code and that the
magistrate could discharge them if he found the
charge to be groundless and at the same time it
has itself returned the finding that there are
sufficient grounds for proceeding against the
appellants. if we now refer to the facts of the
case before us it is clear to us that not only
that allegation against the appellants make out
any case for an offence under Section 7 of the
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Act and also that there is no basis for the
complainant to make such allegation. The
allegations in the complaint merely show that
the appellants have given their brand name to
"Residency Foods and Beverages Ltd." for
bottling the beverage "Lehar Pepsi". The
complaint does not shoe what is the role of the
appellants in the manufacture of the beverage
which is said to be adulterated. The only
allegation is that the appellants are the
manufacturer of bottle. There is no averment as
to how the complainant could say so and also if
the appellants manufactured the alleged bottle
or its contents. His sole information is from
A.K. Jain who is impleaded as accused No.3. The
preliminary evidence on which the 1st respondent
relied in issuing summon to the appellants also
does not show as to how it could be said that
the appellants are manufacturers of either the
bottle or the beverage or both. There is another
aspect of the matter. The Central Government in
the exercise of their powers under Section 3 of
the Essential Commodities Act, 1955 made the
Fruit Products Order, 1955 (for short, the
"Fruit Order"), It is not disputed that the
beverage in the question is a "fruit product"
within the meaning of clause (2)(b) of the Fruit
Order and that for the manufacture thereof
certain licence is required. The fruit Order
defines the manufacturer and also sets out as to
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what the manufacturer is required to do in
regard to the packaging, making and labeling of
containers of fruit products. One of such
requirement is that when a bottle is used in
packing any fruit products, it shall be so
sealed that it cannot be opened without
destroying the licence number and the special
identification mark of the manufacture to be
displayed on the top or neck of the bottle. The
licence number of manufacturer shall also be
exhibited prominently on the side label on such
bottle [clause (8)(1)(b)]. Admittedly, the name
of the first appellant is not mentioned as a
manufacturer on the top cap of the bottle. It is
not necessary to refer in detail to other
requirements of the Fruit Order and the
consequences of infringement of the Order and to
the penalty to which the manufacturer would be
exposed under the provisions of the Essential
Commodities Act, 1955. We may, however, note
that in The Hamdard Dawakhana (WAKF) Delhi &
Anr. vs. The Union of India & Ors. [AIR 1965 SC
1167 = (1965) 2 SCR 192], an argument was raised
that the Fruit Order was invalid because its
provision indicated that it was an Order which
could have been appropriately issued under the
Prevention of Food Adulteration Act, 1954. This
Court negatived this plea and said that the
Fruit Order was validly issued under the
Essential Commodities Act. What we find in the
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present case is that there was nothing on record
to show if the appellants held the licence for
the manufacture of the offending beverage and
if, as noted above, the first appellant was the
manufacturer thereof.
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 Ghazipur 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 the. 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 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."
24] In the light of the above, I do not find any
merit in the contention of Shri Gunale that a revision
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u/s 44 of the 1971 Act was not maintainable. Considering
the law as is laid down in the above referred judgments,
I am of the view that an order of issuance of process in
a criminal complaint filed u/s 48(1) r/w Sections 39 and
55 of the 1971 Act can be questioned before the
Industrial Court by a revision u/s 44. Consequentially,
any order passed by the Labour Court during the
adjudication of a criminal complaint and prior to the
final judgment being delivered, can be a subject matter
of revision u/s 44. Once the judgment of the Labour
Court is delivered in the said criminal complaint, an
appeal would be maintainable u/s 42 before the Industrial
Court challenging the conviction or the acquittal or for
seeking enhancement of sentence awarded by the Labour
Court.
25] Having answered the issue as above, this
petition is disposed of in the light of the statement
made on instructions by Shri Gunale, with liberty to file
a complaint under Item 9 of Schedule IV before the
Industrial Court for the redressal of the grievances of
the respondents, provided the Criminal (ULP) No.6/2011 is
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withdrawn by the respondents within a period of four
weeks from today. Only after the criminal complaint is
withdrawn by the respondents, they shall be at liberty to
file a complaint invoking Item 9 of Schedule IV and with
any other Items as they may deem fit and proper before
the competent Court.
ig (RAVINDRA V. GHUGE, J.)
ndk/c1031612.doc
