Gujarat High Court
Acey Engineering vs State Of Gujarat on 2 September, 2025
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
NEUTRAL CITATION
R/CR.MA/3779/2022 JUDGMENT DATED: 02/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO.3779 of 2022
FOR APPROVAL AND SIGNATURE :
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
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Approved for Reporting Yes No
NO
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ACEY ENGINEERING
Versus
STATE OF GUJARAT & ANR.
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Appearance :
MR YOGI K GADHIA for the Applicant.
NOTICE SERVED for the Respondent No.2.
MR RONAK RAVAL, APP for the Respondent No.1.
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 02/09/2025
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 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
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No.27 of 2021 dated 8.12.2021 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.
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 he was to join there on or before 12.6.2020. It
was also stated that his condition of service will remain unchanged
and he will be paid salary of the intervening / joining period and
continuity of his 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 9.6.2020 and a reminder to that also was sent on 22.6.2020.
Thereafter, correspondence has ensued between the parties where
no allegation of unfair labour practice is made. Thereafter, some
communication between the parties took place and ultimately the
present petitioner received a notice from the Government Labour
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Officer, the complainant, on 16.10.2020 inter alia stating that the
concerned employee has filed a complaint on 21-22.9.2020
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
16.10.2020 was issued for which the petitioner filed a reply on
13.11.2020 and thereafter, the petitioner received a letter dated
8.12.2020 wherein it was stated that the representations were not
considered and further proceedings would be done in the aforesaid
matter. Ultimately, the petitioner received a show-cause notice
from the office of Labour Commissioner on 10.5.2021 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.27 of 2021 which is in respect of
complaint which is referred to in the foregoing paragraph and the
same is sought to be quashed.
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
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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 himself and the employee is a signatory to that
settlement and therefore, it is not open for him 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.
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
advocate Mr. Gadhia prayed for quashing and setting aside
aforesaid proceedings.
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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
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 :-
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"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 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 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
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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 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
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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
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 basic material for filing the complaint.
Accordingly, the petition is allowed. The impugned complaint being
Criminal Case No.27 of 2021 dated 8.12.2021 filed by the
respondent No.2 before the JMFC cum Labour Court, Navsari is
required to be quashed and set aside and the same is quashed and
set aside. Rule made absolute. No order as to costs.
(NIRZAR S. DESAI,J)
SAVARIYA
