Sh. T. V. Ramanathan vs Government Of Nct Of Delhi
2009 Latest Caselaw 3485 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    Crl. M. C. No.1845/2008

                                         Reserved on : 22.07.2009
                                     Date of Decision : 01.09.2009

Sh. T. V. Ramanathan                              ......Petitioner
                                Through:    Mr. D.C. Mathur, Sr. Adv.
                                            with Mr. I.Ghosh, Adv.

                                 Versus

Government of NCT of Delhi                       ...... Respondent
                        Through:            Mr. Pawan Bahl, APP

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether Reporters of local papers can be
       allowed to see the judgment?                   YES
2.     To be referred to the Reporter or not ?        YES
3.     Whether the judgment should be reported
       in the Digest ?                                YES

V.K. SHALI, J.

1. The petitioner by virtue of the present petition has prayed

for quashing of complaint dated 4th January, 2008 and the

summoning order passed by the learned Metropolitan

Magistrate on 10th January, 2008.

2. Briefly stated facts of the case are that on 2nd November,

2007 an inspection of the premises bearing No. B-24

Okhla, Industrial Area, Phase-I, New Delhi was conducted

by the Inspector of Factories and it is alleged that there

were 30 persons employed who were servicing and

repairing the batteries. Sixteen workers were found to be

working at the relevant time. Accordingly, a panchnama

was prepared on a factory inspection form and signatures

of one Alok Bose representative of the management were

obtained. On the basis of the aforesaid inspection, a show

cause notice dated 22nd November, 2007 was issued to Sh.

T. V. Ramanathan, M/s Exide Industries Ltd. who was

alleged to be running a servicing and repairing centre of the

Exide Batteries. Interestingly, the inspection report shows

the name of the occupier as Sh. T. V. Ramanathan

although it is not explained as to why his signatures were

not obtained.

3. The M/s Exide Industries Ltd. gave a reply to the show

cause notice on 18th December, 2007 and took the plea that

no manufacturing of battery was taking place at the

premises in question in as much as no new article or goods

were brought into existence having distinct name,

character or use resulting from particular process. It was

stated that a mere servicing and repairing of batteries

cannot amount to manufacturing process as defined in

Section 2 (k) of the Factories Act, 1948, and therefore, no

violation of provisions of the Factory Act, 1948 or the rules

framed thereunder was allegedly committed by them.

4. The petitioner after receipt of the reply chose to file the

present complaint against Sh. T. V. Ramanathan, Director

in the capacity of occupier of M/s Exide Industries Ltd.

under rule 3, 3(A), 4, 5, 11(A), 63, 102 of the Delhi

Factories Rule, 1950 read with Sections 6, 7, 9(b) and 45 of

the Factories Act, 1948. The complaint is filed by Sh. P.K.

Goswami, Inspector of Factories, Delhi during the discharge

of his duties and it is stated that since he is busy public

servant, therefore, his personal appearance may be

dispensed with.

5. On the basis of the aforesaid complaint, the learned

Magistrate issued an order dated 10th January, 2008

wherein it has been observed that the complaint has been

filed by a public servant during the discharge of his official

duties and written examination of the complainant under

Section 200 Cr.P.C. is dispensed with. The petitioner

feeling aggrieved by the aforesaid summoning order filed

the present petition praying for quashing of the complaint

and the summoning order.

6. I have heard the learned senior counsel Mr. D.C. Mathur

for the petitioner and Mr. Pawan Bahl, APP for the State.

7. The first contention of the learned senior counsel for the

petitioner is that a perusal of the complaint would show

that the first four paragraphs and the last three paragraphs

are in printed proforma, but only the columns have been

filled with hand and the name of the petitioner has been

shown as a Director and the occupier of the premises in

question. Similarly, the name of the Exide Industries Ltd.

has been mentioned though the spelling is wrong. But no

evidence whatsoever has been placed on record to show

wherefrom the respondent learnt about the fact that Sh. T.

V. Ramanathan was occupier of the premises in question.

It is stated that Sh. T. V. Ramanathan was neither present

on the spot nor his signatures were obtained to show that

he was actually the occupies of the lessee of the premises,

therefore, the complaint against Sh. T. V. Ramanathan was

without any basis whatsoever. It was contended by the

learned senior counsel that even though the complaint was

filed by a public servant in the official discharge of his

duties but it must reflect from the complaint as well as

from the documents annexed that how the averments made

by him in the complaint were sustainable. Since this has

not been done, therefore, there was absolutely no reason on

the part of the learned Court to have issued summons

against the petitioner Sh. T. V. Ramanathan.

8. The second contention of the learned senior counsel for the

petitioner is to the effect that the complaint is admittedly

on typed proforma in which only two columns have been

written with hand. Further, it has not been mentioned in

the complaint that this is a complaint filed by the Inspector

of Factories in the official discharge of his duties, and

therefore, by virtue of Section 200 proviso of Code of

Criminal Procedure his examination may be dispensed

with. But instead it has been stated in the complaint that

it is filed by the Inspector of Factories, namely, the

respondent in the official discharge of his duties and since

he is a busy public servant, therefore, the complainant may

be exempted from personal appearance. That means the

learned Metropolitan Magistrate ought not to have written

in the impugned order that this is a complaint filed by the

petitioner in the official discharge of his duties, and

therefore, the examination of the complainant under

Section 200 Cr. P.C. is dispensed with, although there was

no such prayer from the side of the Inspector of Factories.

Consequently, both the complaint as well as the impugned

order shows the lack of application of mind on the part of

the Inspector of Factories as well as the Court in issuing

the order. Various judgments of this Court have been cited

in order to substantiate his contention that there must be

an application of mind both by the complainant as well as

by the learned Metropolitan Magistrate while passing an

order of summoning reliance in this regard can be placed

on:

Ravinder Goel & Anr. Vs. State & Anr. 2007 (1) JCC 465

D.A. Mehta & Ors. Vs. The Regional Director, ESI, Corporation 1991 (3) Crimes 72

Flex Foods Ltd. Vs. Registrar of Companies (Delhi & Haryana) 1996 (37) DRJ 60

Charnjeet Vs. DDA & Anr. 94 (2001) DLT 334

9. The third contention raised by the learned senior counsel

for the petitioner is to the effect that the inspection report

dated 2nd November, 2007 itself shows that what was being

carried out by the petitioner on the premises in question

was only service and repairing of batteries and the said

factum of service and repair of batteries being carried out

by the petitioner could not be said to be tantamounting to

manufacturing process under Section 2 (k) of the Factories

Act, 1948. The learned senior counsel for the petitioner

further contended that the manufacturing process means a

new article or a good being brought into existence or a new

or a different article having distinct name, character or use

which may result from a particular process. The learned

senior counsel for the petitioner in this regard referred to

various judgments which are as under:

Employee State Corporation Vs. Ram Chander 1988 (1) SCR 835

Dunlop India Ltd. Vs. UOI 1994 (4) SCC 686

Dy. Commissioner of Sales Tax Vs. M/s Coco Fibres 1990 (3) Suppl. SCR 419 UOI Vs. Delhi Cloth & General Mills 1963 (1) (Supp.) SCR

Tega India Ltd. Vs. CCE 2004 (2) SCC 727

In Re: A.M. Chinniah Manger 786 Sangu Soap Works, AIR 1957 Mad 755

10. The learned APP has refuted the contention of the learned

senior counsel for the petitioner, however, no case has been

cited.

11. I have carefully considered the respective submissions. So

far as the question of Sh. T. V. Ramanathan being

impleaded as Director/occupier of the premises in

question, no doubt, an averment has been made in the

complaint that he is a Director/occupier of the premises in

question but there is not even a single shred of evidence

which has been placed on record to show as to how the

Inspector of Factories came to form an opinion that it was

Sh. T. V. Ramanathan who was a Director of M/s Exide

Industries Ltd. and the occupier of the premises in

question. The occupier of premises in question is

admittedly exide industry and Sh. T. V. Ramanathan is not

the only Director of the said company. Only if there was a

lease deed in respect of the premises in question executed

by the land lord in his favour and a copy thereof seized by

the Inspector of Factories it could be said that he was the

occupier of the premises or alternatively if he was present

at the spot at the time of inspection, some inference could

have been drawn that he was the in-charge of the service

and repairing center, and therefore, there was a reason to

assume that he was the occupier of the premises in

question. Merely because during the course of inspection

the factory Inspector got to know that Sh. T. V.

Ramanathan was the occupier of the premises thereby

enroped him in criminal proceedings is not sufficient

enough to summon him for a criminal offence.

12. Therefore, in my considered view there is absolutely no

reason or justification or shred of evidence against Sh. T. V.

Ramanathan as Director and the occupier of the premises

for which summons could have been issued by the learned

Magistrate to the petitioner. This clearly shows lack of

application of mind by the Court. On this score, reliance

can be placed on D.A.Mehta & Ors. Vs. The Regional

Director ESI Corporation 1991 (3) Crimes 72, Flex Foods

Ltd. Vs. Registrar of Companies (Delhi & Haryana)

1996 (37) DRJ 60, Charanjeet Vs. DDA & Anr. 94(2001)

DLT 334 and Ravinder Goel & Anr. Vs. State & Anr.

2007 (1) JCC 465.

13. So far as the complaint is concerned the same is

substantially on a typed proforma but some of the columns

have been filled with the hand. So much so even the

printed clause 6 where the complaint is stated to have been

made by the Inspector of Factories in the discharge of his

official duties it has not been stated that this is a complaint

which is being made by the Inspector of Factories in the

official discharge of his duties, and therefore, the

examination of the complainant be or is dispensed with in

terms of Section 200 proviso Cr. P.C. What has been

claimed in the said clause is that the complainant is in the

discharge of his official duties and since

complainant/respondent is busy public servant, therefore

he may be exempted from personal appearance. Under

these circumstances it becomes a stereo typed complaint

which is prepared without any application of mind as the

learned Magistrate could have dispensed with the recording

of the statement of the complainant only if such a benefit

was claimed. There was no occasion on the part of the

learned Magistrate to have dispensed with the examination

of the complainant or such other witnesses as might have

been present at the time of the presentation of the

complaint. Thus, both order of summoning as well as the

complaint itself are suffering from non-application of mind.

This Court has repeatedly in various judgments as have

been cited above come down heavily on the complaints or

the summoning order being passed without any application

of mind in a printed proforma.

14. For this reason not only the summoning order dated 10th

January, 2008 but even the complaint suffers from the vice

of arbitrariness and non-application of mind, and therefore,

both the order of summoning and the complaint itself

deserves to be quashed.

15. So far as the third contention of the learned senior counsel

for the petitioner is concerned that the service and

repairing of the batteries did not tantamount to

manufacturing process, I do not feel that it is necessary to

go into such a question as the complaint itself has been

directed to be quashed for the reason that it is passed

without any application of mind and along with the

summoning order, and therefore, it is not necessary for this

particular Court to dwell on the point that the service and

repairing center does not fall within the definition of

'manufacturing process'.

16. For the reasons mentioned above, I am of the considered

view that both the complaint as well as the summoning

order dated 10th January, 2008 deserves to be set

aside/quashed. With these directions, the petition stands

disposed of.

V.K. SHALI, J.

September 1st, 2009 KP