Jharkhand High Court
Rahul Jha vs The State Of Jharkhand on 24 August, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 2311 of 2019
with
I.A. No. 3865 of 2021
1. Rahul Jha, aged about 41 years, son of Shri Bamshankar Jha, resident of
Sector 4, Building No. 5, Flat No. 404, Shanti Garden, Mira Road East, P.O.
& P.S.-Mira Road Thane, Maharashtra-401107.
2. A.K. Handa, aged about 62 years, son of Shri Om Prakash Handa,
resident of B-1102, Oberai Woods, Mohan Gokhale Road, Behind Oberai
Mall, P.O. Goregaon East, P.S.- Goregaon West, Mumbai, Maharashtra-
400063.
3. P.K. Pandey @ Praveen Kumar Pandey @ Praveen Kumar Pande @
Praveen Pande @ P.K. Pande, aged about 62 years, son of Govindshankar,
resident of Jal Vayu Vihar, Powai, Building-20-D, R. No. 101, A.S. Marg,
IIT Mumbai, P.O. & P.S- Powai, Mumbai, Maharashtra-400063.
4. Surekha Y. Shetty, aged about 56 years, wife of Shri Yeshwanth Shetty,
resident of 503, Savita Sadan, Natwar Nagar Road No. 3, Near Surajba
Vidya Mandir School, Jogeshwari East, P.O.-Jogeshari East, P.S.-
Jogeshwari, Mumbai, Maharashtra-400060.
..... ... Petitioners
Versus
1. The State of Jharkhand.
2. Rajesh Prasad, son of not known, Assistant Labour Commissioner,
Deoghar, Government of Jharkhand, Williams Town, P.O.-B. Deoghar, P.S.-
Deoghar, District-Deoghar (Jharkhand).
..... ...Opposite Parties.
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioners : Mr. Pandey Neeraj Rai, Advocate
: Mr. Rohit Ranjan Sinha, Advocate
: Mr. Akchansh Kishore, Advocate.
For the State : Mrs. Niki Sinha, A.P.P.
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04/ 24.08.2021 Heard Mr. Pandey Neeraj Rai, learned counsel appearing for
the petitioners and Mrs. Niki Sinha, learned counsel appearing for the
State.
2. This petition has been heard through Video Conferencing in
view of the guidelines of the High Court taking into account the situation
arising due to COVID-19 pandemic. None of the parties have complained
about any technical snag of audio-video and with their consent this matter
has been heard.
3. This petition has been filed for quashing of the entire criminal
proceeding including the order taking cognizance dated 06.3.2019, passed
by the learned Chief Judicial Magistrate, Deoghar, in complaint Case No.
231 of 2019, corresponding to T.R. Case No. 1250 of 2019, pending in the
Court of learned Chief Judicial Magistrate, Deoghar.
4. The complaint was filed on the following premises:-
One Vinay Kumar Mishra appointed on 11.6.2013 as Sales
Representative in the company Centaur Pharmaceutical Pvt. Ltd. and
posted to work at Deoghar was ordered to be transferred to Jhansi on
16.12.2016 with a direction to give joining from 1st January, 2016.
It is alleged that earlier said Vinay Kumar Mishra had
participated in a one day strike held on 16.11.2015 by the sale
promotion employees, which was held after information was given
about the strike on 16.11.2015 itself by the Bihar-Jharkhand Sales
Representative Union.
It is further alleged that the Union requested the Company
Management to postpone the transfer and retain Sri Mishra in
Deoghar. The Management by its letter dated 06.1.2016 started
domestic enquiry for not joining on the transferred place. The
enquiry authority submitted its report finding Sri Mishra guilty
without affording proper opportunity. The Management conveyed
this to Sri Mishra and asked him to give joining at the transferred
place by 01.2.2016. Again a request was made by the Union to the
Management to keep him posted in Deoghar. The Labour
Superintendent Conciliation Officer held negotiation also but
Management stood by its decision.
It has been further alleged that the Union by its letter dated
13.1.2017 requested the Assistant Labour Commissioner, Deoghar
over taking action for unfair labour practice of the Management. The
accused persons were sent show cause notice dated 13.01.2017 but
no satisfactory reply was given by them. Again they were asked to
submit their version which was not done.
Based on these facts, it has been finally contended that Sri
Mishra has been transferred to Jhansi by the accused with the aim to
harass him for participating in the activity of the Union.
5. Mr. Pandey Neeraj Rai, learned counsel appearing for the
petitioner submits that Section 25(U) of the Industrial Disputes Act
describes for penalty for unfair labour practice. He submits that the
definition of unfair labour practice is provided in sub-section (ra) of
Section 2 of the Industrial Disputes Act. By way of drawing attention of
this Court towards Vth Schedule of the Industrial Disputes Act, he submits
that transferring the employees from one place to another place does not
comes under the unfair labour practice. He submits that the company has
not been made accused in the complaint petition. He further submits that
concerned person was an employee of the company and the company is
the necessary party and this has been considered in the case of Aneeta
Hada Versus Godfather Travels & Tour (P) Ltd., reported in
(2012) 5 SCC 661, wherein the Hon'ble Supreme Court in paragraphs-58
and 59 held as follows:-
"58. Applying the doctrine of strict construction, we
are of the considered opinion that commission of
offence by the company is an express condition
precedent to attract the vicarious liability of others.
Thus, the words "as well as the company" appearing in
the section make it absolutely unmistakably clear that
when the company can be prosecuted, then only the
persons mentioned in the other categories could be
vicariously liable for the offence subject to the
averments in the petition and proof thereof. One cannot
be oblivious of the fact that the company is a juristic
person and it has its own respectability. If a finding is
recorded against it, it would create a concavity in its
reputation. There can be situations when the corporate
reputation is affected when a Director is indicted.
59. In view of our aforesaid analysis, we arrive at the
irresistible conclusion that for maintaining the
prosecution under Section 141 of the Act, arraigning of
a company as an accused is imperative. The other
categories of offenders can only be brought in the
drag-net on the touchstone of vicarious liability as the
same has been stipulated in the provision itself. We say
so on the basis of the ratio laid down in C.V. Parekh
which is a three-Judge Bench decision. Thus, the view
expressed in Sheoratan Agarwal does not correctly lay
down the law and, accordingly, is hereby overruled.
The decision in Anil Hada is overruled with the
qualifier as stated in para 51. The decision in Modi
Distillery has to be treated to be restricted to its own
facts as has been explained by us hereinabove."
6. Placing reliance on this decision, learned counsel submits that
the complaint has been filed on the strength of 1(i) of the Vth Schedule of
the Industrial Disputes Act and the transfer has been defined in Clause-7
of Vth Schedule of the Industrial Disputes Act, but the complaint was filed
on the strength of 1(i) of Vth Schedule of the Industrial Disputes Act
wherein the transfer has not been described as unfair labour practice.
7. He further submits that all the petitioners are the residents of
Mumbai and Thane and they are entitled for their protection under Section
202 of the Cr.P.C. To buttress his argument, he relied upon a judgment
rendered in the case of Vijay Dhanuka Versus Najima Mamtaj, reported
in (2014) 14 SCC 638, wherein in paragraphs-12 and 13, the Hon'ble
Supreme Court has held as follows:-
"12. The words "and shall, in a case where the accused
is residing at a place beyond the area in which he
exercises his jurisdiction" were inserted by Section 19
of the Code of Criminal Procedure (Amendment) Act
(Central Act 25 of 2005) w.e.f. 23-6-2006. The
aforesaid amendment, in the opinion of the legislature,
was essential as false complaints are filed against
persons residing at far off places in order to harass
them. The note for the amendment reads as follows:
"False complaints are filed against persons
residing at far off places simply to harass them. In
order to see that innocent persons are not harassed by
unscrupulous persons, this clause seeks to amend sub-
section (1) of Section 202 to make it obligatory upon
the Magistrate that before summoning the accused
residing beyond his jurisdiction he shall enquire into
the case himself or direct investigation to be made by a
police officer or by such other person as he thinks fit,
for finding out whether or not there was sufficient
ground for proceeding against the accused."
The use of the expression "shall" prima facie makes
the inquiry or the investigation, as the case may be, by
the Magistrate mandatory. The word "shall" is
ordinarily mandatory but sometimes, taking into
account the context or the intention, it can be held to be
directory. The use of the word "shall" in all
circumstances is not decisive. Bearing in mind the
aforesaid principle, when we look to the intention of the
legislature, we find that it is aimed to prevent innocent
persons from harassment by unscrupulous persons
from false complaints. Hence, in our opinion, the use of
the expression "shall" and the background and the
purpose for which the amendment has been brought,
we have no doubt in our mind that inquiry or the
investigation, as the case may be, is mandatory before
summons are issued against the accused living beyond
the territorial jurisdiction of the Magistrate.
13. In view of the decision of this Court in Udai
Shankar Awasthi v. State of U.P. this point need not
detain us any further as in the said case, this Court has
clearly held that the provision aforesaid is mandatory.
It is apt to reproduce the following passage from the
said judgment: (SCC p. 449, para 40)
"40. The Magistrate had issued summons without
meeting the mandatory requirement of Section 202
CrPC, though the appellants were outside his
territorial jurisdiction. The provisions of Section 202
CrPC were amended vide the Amendment Act, 2005,
making it *mandatory to postpone the issue of process*
where the accused resides in an area beyond the
territorial jurisdiction of the Magistrate concerned.
The same was found necessary in order to protect
innocent persons from being harassed by unscrupulous
persons and making it obligatory upon the Magistrate
to enquire into the case himself, or to direct
investigation to be made by a police officer, or by such
other person as he thinks fit for the purpose of finding
out whether or not, there was sufficient ground for
proceeding against the accused before issuing
summons in such cases."
(emphasis supplied)
8. Mrs. Niki Sinha, learned counsel appearing for the State
submits that the complaint has been filed on the basis of the complaint
received from the concerned Union as one Vinay Kumar Mishra was
appointed as a Sales Representative and he was transferred to Jhansi vide
letter dated 16.12.2015 under the provisions of Industrial Disputes Act and
after authority of the Governor this case has been filed. She submits that
there is no illegality in the impugned order, passed by the Court below.
9. The Vth Schedule in terms of Section 2(r)(a) of the Industrial
Disputes Act defines the 'unfair labour practice', which is quoted
hereunder as per the Fifth Schedule:-
"I.--On the part of employers and trade unions of
employers
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
purposes of collective bargaining or other mutual aid or
protection, that is to say:--
(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 organisation.
2. To dominate, interfere with or contribute support,
financial or otherwise, to any trade union, that is to
say:--
(a) an employer taking an active interest in organising a
trade union of his workmen; and
(b) an employer showing partiality or granting favour to
one of several trade unions attempting to organise his
workmen or to its members, where such a trade union is
not a recognised trade union.
3. To establish employer sponsored trade unions of
workmen.
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 organise a trade union;
(b) discharging or dismissing a workman for taking part
in any strike (not being as trike which is deemed to be an
illegal strike under this Act);
(c) changing seniority rating of workmen because of
trade union activities;
(d) refusing to promote workmen to higher posts on
account of their trade union activities;
(e) giving unmerited promotions to certain workmen
with a view to creating discord amongst other workmen,
or to undermine the strength of their trade union;
(f) discharging office-bearers or active members of the
trade union on account of their trade union activities.
5. To discharge or dismiss workmen--
(a) by way of victimisation;
(b) not in good faith, but in the colourable exercise of
the employer's rights;
(c) by falsely implicating a workman in a criminal case
on false evidence or on concocted evidence;
(d) for patently false reasons;
(e) on untrue or trumped up allegation of absence
without leave;
(f) in utter disregard of the principles of natural justice
in the conduct of domestic enquiry or with undue haste;
(g) for misconduct of a minor or technical character,
without having any regard to the nature of the particular
misconduct or the past record or service of the workman,
thereby leading to a disproportionate punishment.
6. To abolish the work of a regular nature being done by
workmen, and to give such work to contractors as a
measure of breaking a strike.
7. To transfer a workman mala fide from one place to
another, under the guise of following management
policy.
8. To insist upon individual workmen, who are on a legal
strike to sign a good conduct bond, as a pre-condition to
allowing them to resume work.
9. To show favouritism or partiality to one set of workers
regardless of merit.
10. To employ workmen as "badlis", casuals or
temporaries and to continue them as such for years, with
the object of depriving them of the status and privileges
of permanent workmen.
11. To discharge or discriminate against any workman
for filing charges or testifying against an employer in
any enquiry or proceeding relating to any industrial
dispute.
12. To recruit workmen during a strike which is not an
illegal strike.
13. Failure to implement award, settlement or
agreement.
14. To indulge in acts of force or violence.
15. To refuse to bargain collectively, in good faith with
the recognised trade unions.
16. Proposing or continuing a lock-out deemed to be
illegal under this Act.
II.--On the part of workmen and trade unions of
workmen
1. To advise or actively support or instigate any strike
deemed to be illegal under this Act.
2. To coerce workmen in the exercise of their right to
self-organisation or to join a trade union or refrain from
joining any trade union, that is to say:--
(a) for a trade union or its members to picketing in such
a manner that non-striking workmen are physically
debarred from entering the work place;
(b) to indulge in acts of force or violence or to hold out
threats of intimidation in connection with a strike
against non-striking workmen or against managerial
staff.
3. For a recognised union to refuse to bargain
collectively in good faith with the employer.
4. To indulge in coercive activities against certification
of a bargaining representative.
5. To stage, encourage or instigate such forms of
corrective actions as willful "go slow", squatting on the
work premises after working hours or "gherao" of any
of the members of the managerial or other staff.
6. To stage demonstrations at the residence of the
employers or the managerial staff members.
7. To incite or indulge in willful damage to employer's
property connected with the industry.
8. To indulge in acts of force or violence or to hold out
threats of intimidation against any workman with a view
to prevent him from attending work."
10. Section 25(U) of the Industrial Disputes Act is the penalty
provision for committing unfair labour practice, which is quoted
hereinbelow:-
"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."
11. On perusal of these provisions of Industrial Disputes Act, it
transpires that in the Vth Schedule in terms of Section 2(ra)(i), under
which, the complaint has been filed, the transfer is not prescribed as unfair
labour practice. The complainant was transferred from Deoghar to Jhansi
and before transferring the said Vinay Kumar Mishra, full-fledged enquiry
was conducted and when the complainant refused to join on the
transferred place, he was given all the opportunity of hearing in the
departmental proceedings, wherein he has refused to examine and cross-
examine the witnesses. In the enquiry, misconduct was found against the
said Vinay Kumar Mishra. Thus, it cannot be said that by way of mala fide
action, the said Vinay Kumar Mishra was transferred to Jhansi for any
misconduct. Transfer will come under the definition of unfair labour
practice, if it is mala fide, but in the present case on the basis of the
complaint of the Union, action has been taken under the Industrial
Disputes Act.
12. All the petitioners are the residents of Mumbai and Thane and
Section 202 Cr.P.C. provides that if the accused are residing at the place
beyond the area, in which the Magistrate exercises the jurisdiction
postponed the issue of process against the accused, either inquire into the
case himself or to direct the investigation to be made by the police officer
for the referred question as may deem fit for the purpose of deciding
whether there is sufficient ground for proceeding or not. This has not been
complied with in this case while taking cognizance against the petitioners,
which is against the mandate of Hon'ble Supreme Court in the case of
Vijay Dhanuka (Supra).
13. This Court find force in the submission of learned counsel
appearing for the petitioners that if the company is not made an accused in
this case and the petitioners are the office bearers of the company, they
cannot be prosecuted in the light of the judgment of the Hon'ble Supreme
Court in the case of Aneeta Hada (Supra).
14. Accordingly, the entire criminal proceedings including the
order taking cognizance dated 06.3.2019, passed by the learned Chief
Judicial Magistrate, Deoghar, in complaint Case No. 231 of 2019,
corresponding to T.R. Case No. 1250 of 2019, pending in the court of
learned Chief Judicial Magistrate, Deoghar are, hereby, quashed.
15. Interim order granted earlier stands vacated.
16. This criminal miscellaneous petition is allowed and disposed
of. Pending interlocutory application also stands disposed of.
(Sanjay Kumar Dwivedi, J.)
Amitesh/-
