Gujarat High Court

Acey Engineering vs State Of Gujarat on 3 July, 2025

Author: Nirzar S. Desai

Bench: Nirzar S. Desai

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                          R/CR.MA/3732/2022                                      JUDGMENT DATED: 03/07/2025

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                                 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                                   FIR/ORDER) NO. 3732 of 2022


                      FOR APPROVAL AND SIGNATURE:


                      HONOURABLE MR. JUSTICE NIRZAR S. DESAI

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                               Approved for Reporting                           Yes           No

                      =====================================================
                                     ACEY ENGINEERING & ANR.
                                              Versus
                                     STATE OF GUJARAT & ANR.
                      =====================================================
                      Appearance:
                      MR YOGI K GADHIA(5913) for the Applicant(s) No. 1,2
                      NOTICE SERVED for the Respondent(s) No. 2
                      MR RONAK RAVAL ADDITIOAL PUBLIC PROSECUTOR for the
                      Respondent(s) No. 1
                      =====================================================
                        CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                                                      Date : 03/07/2025

                                                          ORAL JUDGMENT

1. Heard learned advocate Mr. Yogi Gadhia appearing

for the petitioner and learned Additional Public

Prosecutor Mr. Ronak Raval appearing for the

respondent - State.

2. With the consent of the parties, the matter was

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taken up for final hearing. Hence, RULE. Learned

APP waives the service of rule on behalf of the

respondent - State.

3. By way of this petition, the petitioner has

prayed for quashing and setting the impugned

complaint being Criminal Case No. 26 of 2001

dated 18.12.2001 filed by the respondent No.2

before the JMFC cum Labour Court, Navsari for

the offences punishable under Section 25(T) and

32 read with Section 25(U) of the Industrial

Dispute Act.

4. In short the case of the petitioner is that the

petitioner Company entered into a settlement

between management and all the employees of the

Company on 30.3.2019 and as per the settlement

one of the condition was that the Company has

right to transfer any of the employee to any

other unit and the employee is required to join

that and the person will have to abide by the

transfer policy of the Company and would not

resist the same.

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5. Accordingly, the benefits as per the settlement

were given to all the employees including the

present petitioner and later on the present

petitioner was transferred from Navsari to

Pantnagar unit at Uttarakhand vide order dated

4.6.2020 as per the exigency of work and she was

to join there on or before 12.6.2020. It was

also stated that her condition of service will

remain unchanged and she will be paid salary of

the intervening / joining period and continuity

of her service will not be affected, the

transfer order was accompanied with a cheque of

Rs. 5000/- towards traveling expenses as well.

6. A representation was made by the concerned

employee on 5.6.2020 and a reminder to that also

was sent on 22.6.2020. Thereafter, the present

petitioner even issue a corrigendum letter dated

11.7.2020 to the transfer order dated 4.6.2020

inter alia rectifying the date of settlement

from 10.8.2016 to 30.3.2019 and as the employee

did not join, another reminder was sent of

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13.7.2020. The employee ultimately vide letter

dated 25.7.2020 reiterated that she will not be

joining at the transferred place. Thereafter,

some communication between the parties took

place and ultimately the present petitioner

received a notice from the Government Labour

Officer, the complainant, on 11.8.2020 inter

alia stating that the concerned employee has

filed a complaint on 22.7.2020 regarding her

transfer. As per the notice, the employee was

pressurized to give resignation and hence

petitioner was called to show cause as to why a

complaint should not be filed under Section

25(U) of the Industrial Dispute Act, 1947 for

which the present petitioner filed a detailed

reply and the petitioner further requested for

the copy of the complaint. However, a show cause

notice dated 11.8.2020 was issued to the

petitioner and he was provided with the copy of

the complaint dated 18.8.2020 for which the

petitioner filed a reply on 25.8.2020 and

thereafter, the petitioner received a letter

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dated 11.8.2020 (SIC)/24.09.2020 wherein it was

stated that the representations were not

considered and further proceedings would be done

in the aforesaid matter and thereafter, the

present petitioner received a letter dated

16.10.2020 stating that the settlement did not

take place with the union and therefore, the

same is not applicable to the concerned

employee. Ultimately, the petitioner received a

show cause notice from the office of Labour

Commissioner on 26.3.2021 to which petitioner

filed a detailed response but ultimately at the

end of following due procedure, a complaint was

filed along with another two complaints, in

respect of present employee and another employee

being complaint No. 26 of 2021 and 27 of 2021

filed against the present petitioner whereas the

present petition is filed in respect of Criminal

Case No.26 of 2021 which is in respect of

complaint which is referred to in the foregoing

paragraph and the same is sought to be quashed.

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7. Learned advocate Mr. Yogi Gadhia appearing for

the petitioner made following submissions :-

7.1 That the incident alleged cannot be termed

as unfair labour practice as defined under

Section 2(ra) of the Industrial Dispute Act for

which the penal provision is under Section 25T

and 25U. However, the facts of the case would

not attract the aforesaid provision and

therefore, the filing of criminal complaint is

completely misconceived.

7.2 That the transfer of the respondent No.2

has taken place pursuant to a settlement taken

place between the petitioner No.1 Company for

which petitioner No.1 is a Director and the

employee herself and the employee is a signatory

to that settlement and therefore, it is not open

for her to challenge the action of transfer in

view of terms of settlement that the petitioner

Company would be at liberty to transfer the

employees at another unit including a unit

situated outside Gujarat.

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7.3 That for prosecuting the present petitioner

for unfair labour practice, there must be an

adjudication to the effect that the petitioner

has indulged into unfair labour practice and

unless the aforesaid finding is recorded by the

competent Tribunal, the criminal complaint

against the present petitioner is not

maintainable and therefore, the proceedings are

without any basis.

7.4 Learned advocate Mr. Gadhia relied upon a

decision of this Court dated 1.9.2008 in

Criminal Misc. Application No. 14462 of 2006 in

case of Tata Chemicals Limited and others Versus

Shri B.C. Trivedi Government of the Asst.

Commissioner and another as well as decision of

this Court in case of Rolastar Private Limited

through his Hemant Chhaganlal Surati Versus

State of Gujarat dated 5.12.2018 in Criminal

Misc. Application No. 13637 of 2016.

8. By relying upon the aforesaid decision, learned

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advocate Mr. Gadhia prayed for quashing and

setting aside aforesaid proceedings.

9. Learned Additional Public Prosecutor Mr. Ronak

Raval appearing for the respondent - State

vehemently opposed the petition and submitted

that the original complainant has after

following due procedure and after issuance of

show cause notice when the reply was not found

to be accepted after conveying its decision to

the petitioner, the complaint was filed and

therefore, complaint was in accordance with law

and therefore, it was submitted that once the

due procedure is followed, this Court may not

interfere with the ongoing proceedings of

criminal complaint.

10. I have heard learned advocates for the

parties and perused the record. On perusal of

record, I found that it is true that the

respondents have followed the procedure

prescribed under the law. However, the fact

remains that what has not been taken into

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consideration by the respondent - complainant is

the fact that the transfer of the employee was

ordered in view of terms of settlement which was

duly signed by the employee. Further, there is

nothing on the record to indicate that there was

any adjudication about the fact that the

petitioner has indulged into unfair law

practice. Further, the complaint filed by the

competent officer states that the settlement is

not applicable to the employee concerned.

However, how it is not applicable is not stated

in the complaint.

11. Further, the Co-ordinate Bench of this

Court has in its decision dated 1.9.2008 passed

in Criminal Misc. Application No. 14462 of 2006

in case of Tata Chemicals Limited and others

Versus Shri B.C. Trivedi Government of the Asst.

Commissioner and another rendered in paragraph

No.8 to 13 observed as under :-

"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

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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 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

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to show as to how the offence as alleged is constituted. In the circumstances, on the allegations made in the 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."

12. Similarly another Co-ordinate Bench of this

Court has while considering the similar issue by

following the aforesaid decision, quashed the

complaint on the same ground by observing in

case of Rolastar Private Limited through his

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Hemant Chhaganlal Surati Versus State of Gujarat

dated 5.12.2018 in Criminal Misc. Application

No. 13637 of 2016 in paragraph No.8 and 9 as

under :-

"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].

9.0 Hence, in light of aforenoted facts and observations, present application is allowed. The impugned complaint being the Criminal Case No.1007/2015 dated 17.06.2015 filed by the respondent no.2 before the Judicial Magistrate First Class, Gandevi and subsequent proceedings thereof are hereby quashed and set aside. Rule is made absolute. Direct service is permitted."

13. Considering the aforesaid observations made

by two Co-ordinate Benches of this Court and as

in the present case as well the complaint itself

does not disclose that how transferring the

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present petitioner can be said to be an unfair

labour practice and how the settlement arrived

at between the parties can be said to be not

applicable in the facts of the case, the

complaint filed by the respondent No.2 lacks