Deepak Parekh vs The State Of Jharkhand
2023 Latest Caselaw 1323 Jhar

                                             1                   Cr.M.P. No. 1669 of 2012




              IN THE HIGH COURT OF JHARKHAND, RANCHI
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Cr.M.P. No. 1669 of 2012

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Deepak Parekh, son of Shantilal T.Parekh, resident of 169, Back Bay Reclamation, H.T.Parekh Marg, Church Gate, P.O. Church Gate, P.s. Marine Drive, District Mumbai, Maharashtra .... Petitioner

-- Versus --

1.The State of Jharkhand

2.The Assistant Director Incharge (Employment), Sub Regional Employment Exchange, P.O., P.S. and District -Dhanbad .... Opposite Parties

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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       For the Petitioner         :- Mr. R.S. Mazumdar, Sr. Advocate
                                        Mr. Nishant Roy, Advocate
       For the State              :- Mr. Fahad Allam, Advocate
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6/27.03.2023        Heard Mr. R.S. Mazumdar, the learned Senior counsel

appearing on behalf of the petitioner and Mr. Fahad Allam, the learned

counsel appearing on behalf of the respondent State.

This petition has been filed for quashing of the entire

criminal proceeding including the order taking cognizance dated

24.1.2009 passed by the learned Chief Judicial Magistrate, Dhanbad in

connection with Employment Exchange Case No.70 of 2009 whereby the

learned court has been pleased to take cognizance under section 4(2),

5(2) and 6 of the Employment Exchange (Compulsory Notification of

Vacancy) Act, 1959 (hereinafter referred to as Act) and also for quashing

of the order dated 1.8.2012 by which warrant of arrest against the

petitioner was issued, pending in the court of learned Judicial Magistrate,

Dhanbad.

The prosecution case has been filed alleging therein that

Assistant Sub Regional Employment Exchange, Dhanbad has authorized

by the Director Employment and Training Jharkhand Ranchi to exercise

the rights under section 6 of the said Act with Rule 7 of the Rules made

there-under. The complainant as the competent Assistant Director

Incharge (Employment ) visited the office of the company on 8.3.2007

and found that above named accused persons have violate the provisions

of the aforesaid Act. The accused persons failed to notify 6 vacancies of

Sales Development Manager and Branch Operation Officer to the

prescribed Employment Exchange which occurred and filled above stated

establishment from April, 2006 to December, 2006 in contravention of

Sub Section (2) of Section 4 of the said Act. The accused persons

neglected to furnish quarterly returns in form ERI to the Local

Employment Exchange, Dhanbad, despite the office letter with which the

specimen copy of the quarterly return was made available to the

establishment and inspite of reminders and thus they have violated Sub

section (2) of section 5 of the above mentioned Act read with Rule 6 of

the Rules there-under. The accused persons did not furnish information

and the documents to that office vide letter no. 696 dated 15.3.2007

inspite of the reminders thereupon. It is also stated that the Manager

(HR) Corporate has furnished partial information and documents to this

office vide letter no.NIL dated 27.6.2007 and others and the rest required

information under column (a), (b) and (c) of the letter were furnished

knowingly and thus they have violated section 6 of the said Act. The

Managing Director, Regional Manager, Manager (HR) Corporate and the

then Br.Manager and the Br. Manager of the company were given notice

vide this office memo no.1564-68 to show cause within 15 days. The

Sr.Manager Human Resource replied to the show cause notice which was

not found satisfactory and the Sr.Manager (HR) was informed with the

view vide office letter no.1212-13 dt. 14.3.2008. The plea taken by the

accused persons that the above named establishment was not covered

by the Act as the number of employees on the pay roll were less than 25

during the quarters ended in June, September and December, 2006 is not

true. Establishment is private sector- as defined under section 2(g) of the

said Act means an establishment which is not an establishment in public

sector and where ordinarily 25 or more persons are employed to work for

remuneration. Here persons employed to work for remuneration as also

explained under column 1(a) of the proforma for quarterly return

prescribed by Rule-2(4) and Rule 6 the said rules include all those persons

whether they are working proprietors, partners, commission agents,

contingent paid and contractual workers. But the named establishment

concealed the fact by excluding number of insurance advisors working as

commission agents under column 1(a) of the quarterly return of the

above mentioned quarters. The accused persons is one Managing

Director, one Regional Manager, one Senior Branch Manager (HR) one the

then Branch Manager and one Branch Manager of the company and are

entrusted with employment, supervision and control of employees of this

company and so they are employees within meaning of word „employer‟

as defined in section 2(c) of the said Act having an establishment in the

private sector as defined in section 2(g) of the said Act. The accused

persons have committed offence punishable under section 7(1), section

7(2)(a)(i) and 7(2)(b) of the said Act. The complainant applied for the

sanction in time and the necessary sanction for filing of complaint has

been accorded vide office order no.52 of 2008, Ranchi, dt. 16.12.2008 of

Director, Employment and Training Jharkhand, Ranchi.

Mr. Mazumdar, the learned Senior counsel appearing for the

petitioner submits that the petitioner is not Managing Director of the

HDFC Life Insurance and he was only founder Chairman of HDFC Limited.

He submits that inspire of that the case has been lodged against the

petitioner. He submits that so far section 4(2) of the Act is concerned the

punishment is only for the first offence with fine which may extend to

five hundred rupees and for every subsequent offence with fine which

may extend to one thousand rupees and section 5(2) and section 6 of

the Act are concerned the punishment is for the first offence with fine

which may extend to two hundred and fifty rupees and for every

subsequent offence with fine which extend to five hundred rupees and

he submits that under all these sections only the penalty is there and in

view of sub section 2 of section 468 Cr.P.C. the case was required to be

filed within six months from the date of occurrence whereas it has been

alleged in the complaint that the occurrence took place from 8.3.2007

and lastly up to 14.3.2008 and the complaint has been lodged on

20.1.2009. He submits that in view of sub section 2 of section 468 Cr.P.C

it is barred by limitation. He further submits that the sanction by the

competent authority is not in accordance with law and there is no

independent mind applied in passing such sanction order which is against

the mandate of law. On the point of delay the learned counsel for the

petitioner relied in the case of "Sarah Mathew v. Institute of Cardio

Vascular Diseases through its Director and Others and Other Analogous

cases", (2014) 2 SCC 62, paragraph no.35 of the said judgment is quoted

below:

"35. In this connection, our attention is drawn to the judgment of this Court in Sharadchandra Dongre [State of Maharashtra v. Sharadchandra Vinayak Dongre, (1995) 1 SCC 42 : 1995 SCC (Cri) 16] . It is urged on the basis of this judgment that by condoning the delay, the court takes away a valuable right which accrues to the accused. Hence, the accused has a right to be heard when an application for condonation of delay under Section 473 CrPC is presented before the court. Keeping this argument in mind, let us examine both the viewpoints i.e. whether the date of taking cognizance or the date of filing complaint is material for computing limitation. If the date on which complaint is filed is taken to be material, then if the complaint is filed within the period of limitation, there is no question of it being time-barred. If it is filed after the period of limitation, the complainant can make an application for condonation of delay under Section 473 CrPC. The court will have

to issue notice to the accused and after hearing the accused and the complainant decide whether to condone the delay or not. If the date of taking cognizance is considered to be relevant then, if the court takes cognizance within the period of limitation, there is no question of the complaint being time-barred. If the court takes cognizance after the period of limitation then, the question is how will Section 473 CrPC work. The complainant will be interested in having the delay condoned. If the delay is caused by the Magistrate by not taking cognizance in time, it is absurd to expect the complainant to make an application for condonation of delay. The complainant surely cannot explain that delay. Then in such a situation, the question is whether the Magistrate has to issue notice to the accused, explain to the accused the reason why delay was caused and then hear the accused and decide whether to condone the delay or not. This would also mean that the Magistrate can decide whether to condone delay or not, caused by him. Such a situation will be anomalous and such a procedure is not known to law. Mr Luthra, learned ASG submitted that use of disjunctive "or" in Section 473 CrPC suggests that for the first part i.e. to find out whether the delay has been explained or not, notice will have to be issued to the accused and for the latter part i.e. to decide whether it is necessary to do so in the interest of justice, no notice will have to be issued. This question has not directly arisen before us. Therefore, we do not want to express any opinion whether for the purpose of notice, Section 473 CrPC has to be bifurcated or not. But, we do find this situation absurd. It is absurd to hold that the court should issue notice to the accused for condonation of delay, explain the delay caused at its end and then pass an order condoning or not condoning the delay. The law cannot be reduced to such absurdity. Therefore, the only harmonious construction which can be placed on Sections 468, 469 and 470 CrPC is that the Magistrate can take cognizance of an offence only if the complaint in respect of it is filed within the prescribed limitation period. He would, however, be entitled to exclude such time as is legally excludable."

On the same line, he further relied in the case of

"Vanka Radhamanohari v. Vanka Venkata Reddy," reported in (1993) 3

SCC 4, and on the point of sanction, he relied in the case of "Mansukhlal

Vithaldas Chouhan v. State of Gujarat" reported in (1997) 7 SCC 622,

paragraph no.19 of the said judgment is quoted below:

"19. Since the validity of "sanction" depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the

generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution."

On these grounds, he submits that so far the petitioner is

concerned, the entire criminal proceeding including the order taking

cognizance is bad in law and this petition my kindly be allowed.

On the other hand, Mr. Fahad Allam, the learned counsel

appearing on behalf of the respondent State submits that in view of non

compliance of the said provision, the case has been filed by the

competent authority and the learned court has taken the cognizance and

he submits that the sanction is also in accordance with law. He further

submits that a show cause has been issued to the company however

unsatisfactory reply has been filed and that is why the case has been

filed. On the point of limitation, the learned counsel for the respondent

State has not been able to demolish the argument of the learned counsel

for the petitioner.

In view of the above submission of the learned counsels

appearing on behalf of the parties, the Court has gone through the

contents of the complaint petition as well as the order taking cognizance.

Admittedly, the case has been filed under section 4(2), 5(2) and 6 of the

Employment Exchange (Compulsory Notification of Vacancy) Act, 1959

and so far section 4(2), section 5(2) and section 6 of the Act is

concerned the punishment is as aforesaid. In view of sub section 2(a) of

section 468 Cr.P.C, the limitation is prescribed therein for six months.

Admittedly the last occurrence is said to be made on 14.3.2008 whereas

the complaint case has been filed on 20.01.2009 that is beyond six

months period as disclosed in the said section. Further the learned court

without condoning the limitation has taken cognizance which is bad in

law and in that view of the matter the case of the petitioner is fully

covered in view of the judgment relied by the learned counsel for the

petitioner rendered in the case of "Sarah Mathew v. Institute of Cardio

Vascular Diseases through its Director and Others and Other Analogous

cases", as well as "Vanka Radhamanohari v. Vanka Venkata Reddy,"

(supra). The Court has perused the sanction order contained at page 50

of the complaint petition and finds that the learned sanctioning authority

has not stated that what are the materials against this petitioner and he

has passed that order in a mechanical way which is against the mandate

of law and for providing sanction there must be application of mind

which is absent in the case in hand and in that view of the matter the

case of the petitioner is fully covered in view of the judgments relied by

the learned counsel for the petitioner rendered in the case of "Sarah

Mathew v. Institute of Cardio Vascular Diseases through its Director and

Others and Other Analogous cases", as well as "Vanka Radhamanohari v.

Vanka Venkata Reddy," (supra). The Court further finds that it has been

argued by the learned counsel for the respondent State that the show

cause has been issued to the petitioner and looking into the show cause

annexed with the complaint petition it transpires that that said show

cause has been issued to the Branch Manager of the HDFC Life Insurance

at Dhanbad and the petitioner is said to be stationed at Mumbai. Thus,

the contention of the learned counsel for the respondent State is not

accepted by the Court.

In view of the above facts, reasons and the analysis and

considering that the case is fully covered in light of sub section 2(a) of

section 468 Cr.P.C and the sanction order is not in accordance with law,

the entire criminal proceeding including the order taking cognizance

dated 24.1.2009 passed by the learned Chief Judicial Magistrate,

Dhanbad in connection with Employment Exchange Case No.70 of 2009,

pending in the court of learned Judicial Magistrate, Dhanbad so far as

this petitioner is concerned, is quashed.

Cr.M.P. No.1669 of 2012 is allowed in the above terms and

disposed of.

It is made clear, that this Court has not interfered with the

complaint with regard to other accused persons including the order

taking cognizance.

( Sanjay Kumar Dwivedi, J.)

SI/;