Gujarat High Court
Balaji Wafers Private Ltd vs State Of Gujarat on 8 September, 2023
Bench: Sandeep N. Bhatt
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 9126 of 2016
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BALAJI WAFERS PRIVATE LTD. & 1 other(s)
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR VANDAN K BAXI(5863) for the Applicant(s) No. 1,2
MR SI NANAVATI, SENIOR ADVOCATE for NANAVATI & NANAVATI(1933)
for the Applicant(s) No. 1,2
MR DHAWAN JAYSWAL, APP for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 08/09/2023
ORAL ORDER
1. Present petition is filed with a prayer to quash and set
aside the complaint being Criminal Case No.3598 of 2015
dated 1.12.2015 filed by respondent no.2 before learned
Judicial Magistrate, First Class, Valsad, for the offences
punishable under Sections 25-T and 25-U of the Industrial
Disputes Act, 1947 (for short, "the Act").
2. The brief facts of the case are that petitioner no.1 is
manufacturing wafers at the address given in the petition.
The petitioners by letter dated 13.6.2014 requested their
workmen to go on paid leave and, thereafter, on 25.7.2014 all
the 25 workmen were allowed to resume duties. On 6.8.2014,
respondent no.2 issued show cause notice to the petitioners
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as to why criminal case for committing unfair labour
practices should not be filed against them. On 12.8.2014, the
petitioners herein submitted a reply to the said show cause
notice. Without considering the reply of the petitioners,
respondent no.2 sought authorization from the Labour
Commissioner for filing criminal complaint against the
petitioners under Section 25T and 25U of the Act and the
Fifth Schedule of the Act. It is the case of the petitioners
that if the reply would have been considered in proper
perspective, respondent no.2 would not have filed impugned
complaint against the petitioners. Being aggrieved by it, the
petitioners have filed present petition for quashing of the
complaint filed against them.
3. I have heard learned Senior Advocate, Mr.S.I. Nanavati
for the petitioners and learned APP, Mr.Dhawan Jayswal for
the respondent-State. With the consent of the parties, the
matter is taken up for final disposal at the admission stage.
4. Mr.S.I.Nanavati, learned Senior Advocate for the
petitioners has submitted that the proceedings initiated by
respondent no.2 by filing complaint before learned Judicial
Magistrate, First Class, Valsad, for the offences punishable
under Section 25-T and 25-U of the Act are not maintainable
in the eyes of law. He has submitted that show cause notice
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was issued on 6.8.2014 by respondent no.2 asking as to why
criminal case should not be filed against present petitioners
for committing unfair labour practice. He has submitted that
this notice was replied on 12.8.2014 by present petitioners,
however, without considering this reply, respondent no.2 has
sought authorization from Labour Commissioner for filing
criminal complaint against the petitioners under Section 34 of
the Act. Pursuant to the request made by respondent no.2,
Labour Commissioner granted authorization to file criminal
case against present petitioners. He has submitted that the
impugned complaint is filed without appreciating the
provisions of Sections 2 (ra), 25-T and 25-U of the Act and
the Fifth Schedule of the Act in proper perspective.
4.1 Mr.S.I.Nanavati, learned Senior Advocate has further
submitted that if the material available on record would have
been properly examined then respondent no.2 would not have
filed the impugned complaint against present petitioners. He
has drawn attention of the Court to aforesaid provisions and
submitted that the complaint is silent on the aspect, as to
how the action of granting paid leave to the workmen can be
said to be an 'unfair labour practice'. He also submitted that
the complaint is lacking in material particulars, which are
required as per Section 2 (ra) and the Fifth Schedule of the
Act. He has further submitted that there is no material
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available on record to show as to how the offence can be
said to have been committed. He has further submitted that
when provisions of Section 2 (ra) and the Fifth Schedule of
the Act are not attracted in present case, there is no
question of applying the provisions of Sections 25-T and 25-U
of the Act. He has further submitted that respondent no.2
has failed to discharge his duty diligently and lodged the
complaint in mechanical manner as no breach of any of the
provisions of Act is committed by the petitioners.
4.2 Mr.S.I.Nanavati, learned Senior Advocate for the
petitioners has further submitted that in view of decision in
the case of State of Haryana V/s Bhajan Lal reported in AIR
1992 SC 604, certain categories of cases are given by the
Honourable Apex Court wherein inherent powers can be
exercised by the High Court and one of the category is the
case wherein allegations in the FIR or complaint even if they
are taken at their face value and accepted in their entirety do not
prima facie constitute any offence or make out a case against the
accused. He has submitted that the allegations made in the
present case, even if they are taken at their face value, no
case is made out against the petitioners. He has also relied
upon the decision of coordinate Bench of this Court in
Criminal Misc. Application No.14462 of 2006 decided on
1.9.2008, and another decision of coordinate Bench in
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Criminal Misc. Application No.13637 of 2016 decided on
5.12.2018. In view of these decisions and the decision of this
Court in the case of Yogesh Babubhai Trivedi and Others v.
K.V.Dabhi, Food Inspector and Others reported in 2006 (1)
GLH 83, present petition may be allowed by quashing and
setting aside the impugned proceedings.
5. Per contra, learned APP has submitted that prima facie
case is made out against present petitioners. He has drawn
attention of this Court towards show cause notice issued on
6.8.2014, whereby management has taken action only against
25 workmen and not other workmen. He has further
submitted that the management has failed to give proper
explanation in the reply given to the show cause notice and
on what basis action is taken against these 25 workmen. He
has submitted that considering the provisions of Section 25-T
and 25-U read with Section 2 (ra) and the Fifth Schedule of
the Act, prima facie case is made out and after obtaining
necessary authorization from the Labour Commissioner
complaint is filed and, therefore, it cannot be said the
complaint is filed in violation of the provisions of law. He
has further submitted that by letter dated 13.6.2014, the
petitioners requested 25 workmen to go on paid leave and on
25.7.2014, all these workmen were allowed to resume duties
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and no justification is given for this action by the petitioners.
He has further submitted that there is no valid reason for
taking such action by the petitioners and the case of 'unfair
labour practice' is made out against the petitioners. He has
also submitted that in view of catena of decisions of
Honourable Apex Court, the powers under Section 482 of
Criminal Procedure Code should be exercised very sparingly,
more particularly, when no prima facie case for quashing is
made out. In view of this, he prays to dismiss present
petition.
6. I have considered rival submissions made by the
parties. I have also considered the tenor of the complaint and
the decisions cited at bar. Before proceeding further, this
Court may refer to the observations of the Hon'ble Supreme
Court in the case of State of Haryana V/s Bhajan Lal
reported in AIR 1992 SC 604, wherein the Hon'ble Supreme
Court has illustrated the cases wherein inherent powers
under Section 482 of the Criminal Procedure Code could be
exercised either to prevent abuse of the process of any court
or otherwise to secure the ends of justice and observed as
under:-
"In the backdrop of the interpretation of the various
relevant provisions of the Code under Ch.XIV and of
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the principles of law enunciated by this court in a
series of decisions relating to the exercise of the
extraordinary power under Art.226 or the inherent
powers under sec.482 of the Code which we have
extracted and reproduced above, we give the following
categories of cases by way of illustration wherein such
power could be exercised either to prevent abuse of the
process of any court or otherwise to secure the ends of
justice, though it may not be possible to lay down any
precise, clearly defined and sufficiently channelised and
inflexible guidelines or rigid formulae and to give an
exhaustive list of myriad kinds of cases wherein such
power should be exercised.
(1) Where the allegations made in the first information
report or the complaint, even if they are taken at their
face value and accepted in their entirety do not prima
facie constitute any offence or make out a case against
the accused.
(2) Where the allegations in the first information report
and other materials, if any, accompanying the FIR do
not disclose a cognizable offence, justifying an
investigation by police officers under sec.156(1) of the
Code except under an order of a Magistrate within the
purview of sec.155(2) of the Code.
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(3) Where the uncontroverted allegations made in the
FIR or complaint and the evidence collected in support
of the same do not disclose the commission of any
offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute
a cognizable offence but constitute only a non-
cognizable offence, no investigation is permitted by a
police officer without an order of a Magistrate as
contemplated under sec.156(2) of the Code.
(5) Where the allegations made in the FIR or
complaint are so absurd and inherently improbable on
the basis of which no prudent person can ever reach a
just conclusion that there is sufficient ground for
proceeding against the accused.
(6) Where there is an express legal bar engrafted in
any of the provisions of the Code or the concerned Act
(under which a criminal proceeding is instituted) to the
institution and continuance of the proceedings and/or
where there is a specific provision in the Code or the
concerned Act, providing efficacious redress for the
grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended
with mala fide and/or where the proceeding is
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maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view to
spite him due to private and personal grudge."
7. This Court may also refer to some relevant provisions
of the Act, which are as under:-
"2. Definitions. In this Act, unless there is anything
repugnant in the subject or context, -
(a)..........
(b)..........
.............
(g) "employer" means--
(i) in relation to an industry carried on by or under the
authority of any department of the Central Government
or a State Government], the authority prescribed in this
behalf, or where no authority is prescribed, the head of
the department;
(ii) in relation to an industry carried on by or on
behalf of a local authority, the chief executive officer of
that authority;
...................
(ra) "Unfair labour practice" means any of the practices
specified in the Fifth Schedule;
(rb)........."
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""25T. Prohibition of unfair labour practice. No employer
or workman or a trade union, whether registered under
the Trade Unions Act, 1926 (16 of 1926), or not, shall
commit any unfair labour practice"
"25U. Penalty for committing unfair labour practices. -
any person who commits any unfair labour practice
shall be punishable with imprisonment for a term which
may extend to six months or with fine which may
extend to one thousand rupees or with both".
"THE FIFTH SCHEDULE
................
(4) To encourage or discourage membership in any
trade union by discriminating against any workman,
that is to say-
(a) discharging or punishing a workman, because he
urged other workmen to join or organize a trade union;"
8. Considering aforesaid provisions, it transpires that before
filing the complaint, respondent no.2 is required to take into
consideration some of the aspects, which are as under:-
(i) Whether there is any change of service condition of
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the concerned workmen?
(ii) Whether the concerned workmen have received
salary for the particular period or not?
(iii) Whether action of the petitioners to ask the
workmen to go on paid leave can be considered as
unfair labour practice as defined in Section 2 (ra)
of the Act ?
(iv) Whether the action of the petitioners is included in
The Fifth Schedule of the Act, which can be
considered as unfair labour practice or not?
(v) Whether concerned workmen have raised an
industrial dispute on the subject matter?
8.1 Without ascertaining aforesaid details, respondent no.2,
who is responsible officer, cannot file complaint and when
such complaint is filed, it can be said to be abuse of process
of law.
9. At this stage, it is appropriate to refer to the
observations made by this Court in Criminal Misc.
Application No. 13637 of 2016, this Court has observed as
under:-
"7.0 In the judgment dated 01.09.2008, passed in
Criminal Misc. Application No.14462 of 2006, this Court
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while examining the para materia dispute under Section
25S of the Act has observed thus:
"10. 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 7
thereof, which reads as under:
"S7. To transfer a workman mala fide from one
place to another, under the guise of following
management policy."
11. Examining the complaint in the background of the
aforesaid statutory provisions, all that is alleged is that
the petitioners have committed unfair labour practice by
transferring the workmen in question from one place to
another under the guise of administrative policy.
However, the complaint is absolutely silent as to how
the said transfer amounts to unfair labour practice.
As pointed out by the learned counsel for the
petitioners, the complaint is totally lacking in all
material particulars. There is nothing whatsoever to
show as to how the offence as alleged is constituted. In
the circumstances, on the allegations made in the
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complaint no offence as alleged can be stated to have
been made out so as to attract the provisions of section
25S of the Act.
12. The Supreme Court in the case of State of Haryana
v. 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 492 of
the Code 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 offence alleged.
Considering the facts noted hereinabove, the present
case squarely falls within the aforesaid category; hence
this is a fit case for exercise of powers under section
482 of the Code.
13. As the Court is of the view that the complaint
itself does not disclose any offence as alleged, it is not
necessary to enter into the merits of the other
submissions advanced by the learned Counsel for the
petitioners as regards the interpretation of the
provisions of clause (7) of the Fifth Schedule to the
Act."
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8.0 A perusal of the impugned complaint would
clarify that the same is absolutely silent on the aspect
that the transfer of the concerned workmen amounts to
unfair labour practice. The complaint is totally lacking
in all material particulars. There is nothing produced to
show as to how the offence as alleged in the complaint
is constituted. Thus, as per law enunciated by this
Court in the aforesaid judgment dated 01.09.2008 on a
similar issue, this Court is of the considered opinion
that present case false under the categories of cases as
laid down by the Apex Court in the case of State of
Haryana Vs. Bhajanlal [1992(1) SCC 335].
10. In Criminal Misc. Application No.14462 of 2006,
coordinate Bench of this Court has held as under:-
"5. Referring to the contents of the complaint, the
learned senior advocate has submitted that the
allegations made in the complaint do not disclose any
offence as alleged. It is submitted that the allegation is
to the effect that the petitioners have transferred the
workmen in question resulting into an unfair labour
practice. However, no details have been submitted to
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point out as to how the transfer of the said workmen
is mala fide. Drawing attention of the Court to the
provisions of section 2(ra) of the Act which defines
unfair labour practice as well as to Clause 7 of
Schedule 5 of the Act, it is pointed out that in the
present case, unfair labour practice would be constituted
where the workman is transferred mala fide from one
place to another under the guise of following
management policy. It is submitted that in the facts of
the present case, on account of administrative
exigencies, about 170 workmen had been transferred,
however, with an ulterior motive, the concerned union
has raised a dispute qua six workmen. It is submitted
that a bare perusal of the complaint shows that the
same is lacking in all material particulars and hence, is
liable to be quashed and set aside. It is further
submitted that considering the over all facts of the
present case, the complaint is vexatious and malicious.
It is submitted that assuming for a moment that there
is indeed some dispute, the dispute is pre-dominantly an
industrial dispute, hence, the same does not give any
rise to any criminal offence so as to call for filing of a
criminal complaint. It is submitted that Clause 7 of
Schedule 5 to the Act envisages transfer of a workman
from one place to another. In the facts of the present
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case, the concerned workmen have only been transferred
from one department to the other, hence, the provisions
of Clause 7 would not be attracted.
5. In support of his submissions, the learned senior
advocate has placed reliance upon the decisions of the
Supreme Court in the case of Madhavrao Jiwaji Rao
Scindia and another v. Sambhajirao Chandrojirao Angre
and others, AIR 1988 SC 709 and in the case of Raj
Kumar Gupta v. Lt. Governor, Delhi and others, (1997)
1 SCC 556 as well as the decision of this Court in the
case of Yogesh Babubhai Trivedi and others v. K.V.
Dabhi, Food Inspector and others. 2006(1) GLH 83.
6. On the other hand, Mr. U.R. Bhatt, learned
Additional Public Prosecutor has opposed the application.
It is submitted that the complaint clearly states that
unfair labour practice have been committed. It is
submitted that the complaint is filed in connection with
violation of the provisions of the Industrial Disputes
Act, 1947 which is a welfare legislation. It is clearly
stated in the complaint that unfair labour practice have
been adopted by the petitioners. As to what is the
nature of the unfair labour practice etc. would be
proved by way of evidence during the course of trial.
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Considering the fact that the complaint is filed for the
welfare of the labourers, no intervention is warranted
by this Court.
7. Considering the rival submissions advanced by the
learned advocates for the parties, it would be necessary
to refer to the contents of the complaint in question. As
can be seen from the complaint dated 17th October,
2006 made by the respondent No.1, the first paragraph
refers to the authorization given to the respondent No.1
for the purpose of filing the complaint in question. The
second paragraph refers to the parties. In the third
paragraph, it is stated that the accused have committed
unfair labour practice by transferring six workmen
named therein under the guise of administrative policy.
It is further stated therein that a show cause notice
dated 20th October, 2005 had been issued pursuant to
the complaint lodged by the union. That pursuant to
the notice, the company had given its written
explanation. However, it is not possible to accept the
same, hence, the proposals for prosecuting the accused
made by the said workmen were forwarded to the
Labour Commissioner for sanction thereof. Vide letter
dated 12.9.2006, the Labour Commissioner had given a
permission for filing the complaint. In the 4th
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paragraph, it is stated that thus, as Tata Chemicals
Limited, Mithapur and its responsible officers have
committed breach of the provisions of section 25T of the
Act, the offence has been made out under section 25U
of the Act. In the 5th paragraph, the names of three
witnesses namely Assistant Labour Commissioner,
Assistant Director, Industrial Safety and Health as well
as the General Secretary of the union have been listed.
The remaining paragraphs are formal paragraphs.
8. Considering the allegations made in the complaint, it
would be necessary to examine as to whether any
offence as alleged is made out. The petitioners are
alleged to have committed breach of the provisions of
section 25T of the Act and are accordingly said to have
committed the offence punishable under section 25S of
the Act.
9. Section 25T of the 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
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accused should have committed any unfair labour
practice.
10. 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 7 thereof, which reads as
under:
"7. To transfer a workman mala fide from one
place to another, under the guise of following
management policy."
11. Examining the complaint in the background of the
aforesaid statutory provisions, all that is alleged is that
the petitioners have committed unfair labour practice by
transferring the workmen in question from one place to
another under the guise of administrative policy.
However, the complaint is absolutely silent as to how
the said transfer amounts to unfair labour practice. As
pointed out by the learned counsel for the petitioners,
the complaint is totally lacking in all material
particulars. There is nothing whatsoever to show as to
how the offence as alleged is constituted. In the
circumstances, on the allegations made in the complaint
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no offence as alleged can be stated to have been made
out so as to attract the provisions of section 25S of the
Act."
11. By catena of decisions, it is held that inherent powers
under Sec. 482 Criminal Procedure Code though wide have to
be exercised sparingly, carefully and with great caution and
only when such exercise is justified by the tests specifically
laid down in this section itself. Considering the facts of the
case, it appears that by letter dated 13.6.2014, present
petitioners have asked 25 workmen to go on paid leave till
25.7.2014 and the amount of allowances/remuneration for that
period is also paid to the said workmen. Therefore, it
transpires that there is no monetary loss caused to the
workmen by the action taken of the management. It also
transpires that pursuant to said action, Assistant Labour
Commissioner has issued show cause notice to the petitioner
on 6.8.2014, which was responded by a detailed reply on
12.8.2014. However, Labour Commissioner has given
authorization to respondent no.2 to file criminal case without
considering the averments made by the petitioners in the
reply. Accordingly, present complaint is filed. The complaint
is filed on the basis of the allegations that one Mitulbhai
Natubhai Patel and other 24 workmen have started union
activity in the establishment and, therefore, the management
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has taken action against them by asking them to go on paid
leave for the period from 13.6.2014 to 25.7.2014. For the said
period, salary has already been paid to them. Therefore,
considering the aforesaid fact, submissions made by the
petitioners are required to be accepted. Considering the ratio
laid down in the decisions, cited above, it appears that
impugned complaint is nothing but an abuse of process of
law, therefore, interference of this Court is called for.
Considering the facts of present case, it cannot be said that
the petitioners have adopted unfair labour practice as defined
under the provisions of the Act. Therefore, complaint on the
basis of such allegations is not tenable in the eyes of law
and no fruitful purpose will be served to continue the
proceedings pursuant to the impugned complaint against
present petitioners.
12. In view of above, this Court deems it proper to exercise
inherent powers under Section 482 of Criminal Procedure
Code. Accordingly, present petition is allowed. Resultantly,
this application is allowed. The impugned complaint being
Criminal Case No.3598 of 2015 dated 1.12.2015 filed by
respondent no.2 before learned Judicial Magistrate, First
Class, Valsad, for the offences punishable under Sections 25-T
and 25-U of the Industrial Disputes Act, 1947 and all other
consequential proceedings, if any, arising out of said
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complaint qua the petitioners are hereby quashed and set
aside. Direct service is permitted.
(SANDEEP N. BHATT,J)
R.S. MALEK
