Vulcan Industrial Engineering ... vs State Of Gujarat
2021 Latest Caselaw 5378 Guj

              R/CR.MA/4925/2016                            ORDER



               IN THEHIGHCOURTOF GUJARATAT AHMEDABAD

                 R/CRIMINALMISC.APPLICATIONNO. 4925of 2016
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          VULCANINDUSTRIALENGINEERINGCOMPANYLTD. & 2 other(s)
                               Versus
                     STATEOF GUJARAT& 1 other(s)
==============================================================================
Appearance:
MRPRABHAKARUPADYAY(1060)for the Applicant(s)No. 1,2,3
NOTICESERVED(4)for the Respondent(s)No. 2
MS NISHATHAKORE,APPfor the Respondent(s)No. 1
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 CORAM: HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
                    Date: 06/05/2021
                     ORALORDER

1. Rule returnable forthwith. Learned APP Ms.Nisha

Thakore waives service of notice of rule for the respondent-

State. Respondent No.2, though served, has not appeared.

2. The present application is filed under Section 482 of the

Code of Criminal Procedure, 1973 (hereinafter referred to in

short as 'the Code'), seeking the following reliefs:-

"7(A). Your Lordships be pleased to quash and set aside the Criminal Case No.149 of 2019 pending in the Ld.Labour Court, Anan, in the interest of justice;

(B) Pending that admission, hearing and final disposal of this application, Your Lordships may be pleased to stay the further proceedings of Criminal Case No.149 of 2019 pending in the Ld.Labour Court, Anand, in the interest of justice"

3. The brief facts of the case as stated in the application are as under:-

3.1. The applicant is the Manager of the applicant no.1- Company. It is the case of the applicant that due to recession,

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the Company could not get the work at unit situated at Sunav- Kasor Road, at Piplav, District Anand. The applicant no.1- Company got the work-order at Manjusar, and therefore, the applicant no.1 started the unit at Manjusar in rental premises. To carry out the work at Manjusar, manpower was required, and therefore, the applicant no.1-Company decided to transfer some of the employees for the limited period for carrying out the work at Manjusar. The employees, who were transferred to Manjusar, did not report despite specific instructions. Instead of reporting for duty, the concerned employees through the Union lodged complaint before the office of the Assistant Commissioner of Labour, Anand. In pursuance to the complaint made by the Union, a show cause notice dated 24.10.2013 was issued. The applicant replied to the show cause notice dated 24.10.2013, by communication dated 15.11.2013. Without appreciating the reply filed by the applicant no.1, the respondent lodged criminal complaint before the learned Judicial Magistrate First Class, Sojitra, District-Anand, which came to be registered as Criminal Case No.30 of 2014. In pursuance to the criminal complaint, the learned Principal Civil Judge, at Sojitra issued a summons on 12.12.2015 in Criminal Case No.30 of 2014.

3.2. The concerned employees did not report for the work at

Manjusar, therefore, the applicant no.1-company decided to

initiate departmental inquiry against them for the misconduct

committed by them. As the charge against the concerned

R/CR.MA/4925/2016 ORDER

employees were proved, the applicant no.1-Company decided

to terminate services of the concerned workers considering

the inquiry report submitted by the Inquiry Officer. Since, the

Reference (ITN) No.17 of 2014 was pending before the

Industrial Tribunal, Nadiad, the applicant preferred various

approval applications before the Industrial Tribunal, which

are pending for further adjudication.

3.3. On the administrative side, the High Court issued a

notification dated 23.06.2017, whereby while exercising the

power conferred under Section 11(3) of the Code of Criminal

Procedure, 1973, the power of Judicial Magistrate (First Class)

to conduct the Criminal Cases arising out of the breach of the

Labour Laws conferred on the Civil Judges appointed in the

Labour Judiciary. Accordingly, the Criminal Case No.30 of

2014 was transferred from the Court of learned JMFC, Sojitra,

Anand to the Court of learned Labour Court, Anand and

renumbered as Criminal Case No.149 of 2019.

3.4. Being aggrieved by the complaint dated 02.04.2014 filed

by the respondent no.2 being Criminal Case No.30 of 2014

before the learned Judicial Magistrate, First Class at Sojitra,

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District Anand, the applicants have preferred the present

application.

4. Learned advocate Mr.Prabhakar Upadyay appearing for

the applicants has submitted that without ascertaining the

genuineness of the complaint, the respondent no.2 lodged the

complaint before the learned JMFC at Sojitra. He submitted

that before filing of the complaint, respondent no.2 ought to

have taken into consideration the reply dated 15.11.2013 filed

by the applicants to the show cause notice issued by

respondent no.2 on 24.10.2013. He submitted that the

applicants have not committed any unfair labour practice as

alleged by the respondent no.2. He has submitted that the

respondent no.2 has alleged in the complaint that the

applicant no.1-Company transferred the workers at the

distance of 90 kilometers, but the fact remains that the

distance between Sunav-Kasor at Piplav, District Anand and

Manjusar, Taluka Savli, District Vadodara is about 45

kilometers.

5. Learned advocate Mr.Prabhakar Upadyay for the

applicants submitted that the applicant no.1-Company had

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not transferred the workers at Manjusar, Taluka Savli, District

Vadodara because they had joined the Union as alleged by the

respondent no.2. He submitted that bare perusal of the

complaint reveals that the case of the applicant does not fall

within the ambit of Section 25(T) read with Section 2(ra) and

in item 1 and 7 of Schedule-V of the Industrial Disputes Act,

1947 (for short "the Act"). He submitted that the applicant

no.1-Company did not transfer the workmen with malafide

intention from one place to another, in fact, due to recession,

the applicant no.1-Company could not get work order at the

Unit situated at Sunav-Kasor. He also submitted that the

applicant got the work order at Manjusar and hence, he

started unit at Manjusar and for carrying out work for a

limited period, the applicant the workmen of the company to

join work at Manjusar. He submitted that instead of reporting

for duty at the concerned work place, the concerned

workmen lodged the complaint through the Union with a

view to adopt the pressurize tactics. He submitted that the

filing of the complaint against the applicants is nothing but a

misuse of process of law. He submitted that as the applicants

have not committed any offence as alleged by the respondent

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no.2 and the applicants have not adopted unfair labour

practice as contemplated under Section 25-T read with

Section 2(r)(a) and under item 1 and 7 of Schedule-V of the

Act, the Criminal Case No.30 of 2014 filed by the respondent

no.2 against the applicants deserves to be quashed and set

aside.

5.1. Learned advocate Mr.Prabhakar Upadyay for the

applicants has stated that the case of the applicant is squarely

covered by the decisions rendered in Criminal Misc.

Application No.14462 of 2006 decided on 01.09.2008 and

Criminal Misc. Application No.13637 of 2016 decided on

05.12.2018.

6. Per contra, learned APP Ms.Nisha Thakore submitted

that the impugned complaint filed by the respondent no.2 at

the stage of summons issued against the applicants and the

applicants are required to appear before the competent court.

She submitted that this Court may not entertain the present

application since it is at the stage of issuance of summons and

it is always open for the applicants to present their case.

7. Heard learned advocates appearing for both the parties.

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8. Considering the submissions made by the learned

advocates for both the parties, the following facts emerge:-

8.1. The applicant-Company, due to recession could not get

the work at Unit situated at Sunav-Kasor Road, at Piplav,

District Anand, as there was no work order. The Company

had work order at its manjusar unit. The applicant therefore

decided to shift some of its employees for a limited period for

carrying out work at Manjusar.

8.2. The union lodged a complaint before the office of

Assistant Labour Commissioner, Anand for adopting unfair

labour practice and a show cause notice dated 24.10.2013

came to be issued to the applicant-Company. The show cause

notice dated 24.10.2013 states that the Gujarat General

Mazdur Sangh, Anand by its complaint dated 23.10.2013 had

informed that transfer of 35 employees amounted to unfair

labour practice under Section 25(T) read with Section 2(ra)

and item 1 and 7 of the 5th schedule of the Act. It is also stated

that workmen were likely to be terminated as they joined the

union activities.

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9. The applicant replied to the said show cause notice

dated 24.10.2013 on 15.11.2013. It was mainly contended by

the applicant in its reply that the applicant has not violated

the procedure under Section 5(C) of the Act as also has not

violated the provisions of Section 25-T read with Section 2(ra)

and item 1 and 7 of the 5th schedule of the Act. It was further

stated that the workmen were not put to any peril or there

was no intention to do so. The Company did not have work, to

see that the workmen were ensured of their salary and day to

day life of the workmen do not get adversely affected. On

23.10.2013, the applicant-Company received work at

Manjusar Unit and therefore, it was decided to transfer some

workers. It further stated that the respondent no.2-Office as

well as other concerned departments were informed and it

was also put on the notice board of the company as also those

workmen, who were going to be transferred, were informed

in writing. It was further stated in the reply that the company

tried to secure the livelihood of workers and work from

various places in Gujarat or outside the Gujarat as well as

overseas.

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9.1. In view of the above, though the Company requested the

workers to cooperate or facilitate, the workers did not remain

present and as stated in the show cause notice that 35

employees were transferred 70 kilometers from the unit

situated at Sunav-Kasor Road, at Piplav, District Anand to

Manjusar, Taluka Savli, District Vadodara was denied. It was

further stated that Manjusar is not an isolated place and there

are various factories in adjoining area as also GIDC. The said

decision of the Company was taken due to prevailing

recession and in the interest of workmen to ensure their

livelihood. In such circumstances, it was also bounden duty of

the workers to cooperate with the decision taken by the

Company else the Company would not be in a position to

continue its production. So far as the transportation is

concerned, it was clarified that as and when the workers

would start the work at newly shifted place, the Company

would readily arrange for transportation in due course.

Moreover, the other facilities are required to be extended to

the workmen, would also have been considered once the

workers would join at the Manjusar Unit. The Union misled

the workmen and resultantly, the workmen did not remain

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present at the transferred place. It was informed to the Union

also by the applicant that the Union may not take away the

daily bread of the workmen and let the workmen cooperate

with the Company.

9.2. It was denied that the workers were transferred to

Manjusar Unit, since they joined the Union. It was further

stated that the Union has tried in such a way against the

interest of the Company and resultantly, the Company would

close down. The applicant had appraised the authority about

the same earlier also as well as the higher officer in writing

that if the Union filed false complaint against the Company or

its Directors, the applicant stated that it would to approach

the Hon'ble High Court and then, it would be compelled to

take action against the Officers and the Union. On receipt of

the latter Nos. 3347 and 3348 dated 27.10.2013, reply in this

regard was filed by the applicant. Notice placed by the

applicant, which is referred to in its reply to the show cause

notice, dated 23.08.2013 was displayed on the notice board of

the Company. The respondent no.2 initiated action against the

Company and its Directors invoking Section 25-T of Schedule-

V of Clause 1 to 7 of the Act. The respondent no.2 initiated

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complaint before the learned JMFC, Sojitra, which came to be

registered as Criminal Case No.30 of 2014 against the

applicants alleging that breach of Section 25-T read with

clause 1 to 7 of Schedule-V of the Act.

10. The Akhil Gujarat General Mazdur Sangh, D-77, Krushna

Complex, Near Borsad Chokdi, Anand vide its letter dated 23-

10-2013 submitted complaint to the Government Labour

Officer and Conciliation Officer under the Industrial Disputes

Act,1947 regarding unfair labour practice, which is produced

hereinbelow for reference:-

"As per the statement of the union, as the

workmen working in the company joined union, the

workmen functioning as representatives of workmen

were harassed in one or the other manner and 35

workmen were transferred to remote location

namely Manjusar, Vadodara district about 90

kilometers away without any arrangement of

transportation so that the workmen would leave the

union and by doing so, the company has violated

Clause 1 and 7 of the fifth Schedule as per the

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Section-25(T) of the Industrial Disputes Act-1947. On

reading the same with Section 32, it amounts to

offence punishable u/s 25 U."

11. I have gone through the facts of the present application

and submissions made by the learned advocates for both the

parties.

12. Section 25-T of the ID Act which prohibits unfair labour

practice provides that no employer or workman or a trade

union, whether registered under the Trade Unions Act, 1926

or not, shall commit any unfair labour practice. Section 25S

provides for penalty for committing unfair labour practices.

Hence, for the purpose of attracting the provisions of section

25S of the Act, the accused should have committed any unfair

labour practice.

13. Unfair labour practice is defined under Section 2(ra) of

the Act to mean any of the practices specified in the Fifth

Schedule. The relevant practice specified in the Fifth Schedule

is under clause 1 and clause 7 thereof, which read as under:-

"1. To interfere with, restrain from, or coerce, workmen in the exercise of their right to organise, form, join or assist a trade union or to engage in concerted activities for the purpose or collective bargaining or other mutual aid or protection, that is to say-

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(a) threatening workmen with discharge or dismissal, if they join a trade union;

(b) threatening a lock-out or closure, if a trade union is organised;

(c) granting wage increase to workmen at crucial periods of trade union organisation, with a view to undermining the efforts of the trade union organisaion.

"7. To transfer a workman mala fide from one place to another, under the guise of following management policy."

14. On over all consideration the transfer order does not

appear to be malafide so as to affect the trade union activity.

The transfer has been effected so that workmen continue to

get work at Manjusar unit. The transfer was also for a short

period, otherwise there was no work with the applicant.

There was no unfair labour practice as listed in item 1 and 7

of the Schedule-V. The decision arrived at is bonafide in view

of prevailing recession at Aanand. The further facilities were

to be considered on the workmen joining the duty.

15. Having gone through the contents of the complaint

dated 02.04.2014, no offence is made out as required under

Section 25(T) of the Act. It was bonafide act in the interest of

the workmen in view of the prevailing recession. The

impugned complaint dated 23.10.2013 requires to be quashed.

The transfer order was not given because of joining of the

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workmen with the union but in order to provide work to the

workmen at Manjusar which is approximately 45 kilometers

away. It is noticed that the complaint lacks the particulars to

show as to how the applicant has resorted to unfair labour

practice. As submitted by the learned advocate Mr.Prabhakar

Upadhyay appearing for the applicants, the complaint lacks

such particulars alleging malafides and no offence appears to

have been committed at this stage to attract the provisions of

Section 25-T of the Act.

16. The Supreme Court in the case of State of Haryana V/s.

Bhajanlal, 1992(1) SCC 335 has laid down certain categories of

cases wherein the High Court can and should exercise its

inherent powers under Section 482 of the Code of Criminal

Procedure, 1973 to quash the proceedings. One of the

categories enumerated therein is in case where the

allegations in the first information report or complaint taken

at their face value and accepted in their entirety do not

constitute the alleged offence.

17. The case of the applicants is also squarely covered by

the judgment of the Apex Court in the case of Bhajanlal

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(Supra) and judgments passed in Criminal Misc. Application

Nos.14462 of 2006 and 13637 of 2016 dated 01.09.2008 and

05.12.2018 respectively by the Coordinate Benches of this

Court.

18. The Supreme Court in Rajneesh Khajuria vs. M/s.

Wockhardt Limited and another [AIR 2020 SC 629] was

dealing with a case of unfair labour practice under

Maharashtra Recognition of Trade Unions and Prevention of

Unfair Labour Practices Act. The Supreme Court held in

paragraph 14 that the act of transfer can be unfair labour

practice if the transfer is actuated by mala fide either malice

in law and/or malice in fact. Mere assertion or a vague

statement is not sufficient to constitute a mala fide action. It

has to be established that the action taken was mala fide.

19. This Court is of the view that the complaint itself does

not disclose an offence as alleged. The Company had not

transferred the workers at Manjusar, Taluka Savli, District

Vadodara because they joined Union as alleged by the

respondent no.2. However, it was merely because the

applicant was facing severe recession rather than as an

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administrative decision decided to shift some of its workers at

Manjusar, Taluka Savli, District Vadodara. The authority did

not take into consideration the reply filed by the applicant-

Company.The initiation of criminal proceedings against the

applicants appear to be pre-matured in absence of the

malafide intention being proved against the applicants.

20. In view of above, penal action for breach of Section

25(T) read with Section 2(ra) and item 1 and 7 of the Schedule-

V of the Act could have been initiated against the applicant if

it would have been established that the applicant had

resorted to malafide practice, which was unfair to the

workers. The filing of criminal complaint under Section 25T

of the Act was not called for when the proceedings had been

initiated by the Assistant Commissioner of Labour, Anand by

issuing show cause notice dated 24.10.2013 and the same has

been replied by the applicant on 15.11.2013, which is pending

adjudication.

21. This Court is of the view that the complaint itself does

not disclose the offence under Section 25T of the Act against

the applicant as alleged. Further, the observations made by

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this Court may not come in the way of the proceedings

pending before the competent authority. The parties are at

liberty to agitate their grievances before the competent

authority in the proceedings, if pending adjudication, on

merits of the case. The adjudicating authority is directed not

to be influenced by the observations made hereinabove and

decide pending application on its own merits.

22. In view of the observation, the present application is

allowed. The Criminal Case No.149 of 2019 pending in the

Labour Court, Anand is hereby quashed and set aside. Rule is

made absolute.

(VAIBHAVID. NANAVATI,J) ABHISHEK