Telangana High Court

M/S. Veljan Hydrair Pvt. Ltd. vs The State Of A.P. Another on 27 December, 2021

Bench: G.Radha Rani

        THE HON'BLE Dr. JUSTICE G. RADHA RANI

             CRIMINAL PETITION No.9329 of 2013
ORDER:

This petition is filed by the petitioner - accused under Section

482 Cr.P.C. to quash the proceedings in STC No.4 of 2013 on the file

of I-Class Munsif Magistrate, Sangareddy, Medak District.

2. The petitioner submitted that it was a company registered

under the Companies Act, 1956, manufacturer of Hydraulic and

Pneumatic Cylinders etc. The petitioner had two units and service

branches at Kolkata, Mumbai and Bangalore. Unit-I was situated at

Balanagar, Hyderabad and Unit II was situated at Plot No.9A, Phase-I,

IDA, Patancheru, Medak District. The Unit-II factory premises

consisted of four different product units such as Hydraulic Cylinders

unit, Naval Equipments unit, Piston Pumps unit and Mobile Cranes

unit. The petitioner company had a service centre at Kolkata wherein

the maintenance and service of the products supplied by the petitioner

would be provided to the respective customers. As per the

appointment orders and the certified standing orders of the company,

the petitioner company was entitled to transfer its employees

depending upon the exigencies of work on business and

administrative grounds. The petitioner, on specific requirement from

Kolkata service centre, transferred 3 employees of Unit - II to Kolkata

by order dated 19.07.2011 on administrative and business

requirements. However, all the 3 employees refused to receive the

transfer orders, when the same were served on them by their Dr.GRR,J

superiors. Hence, the same were sent through registered post

acknowledgment due. Further, the said 3 workmen did not report to

duty with effect from 20.07.2011 at Patancheru Unit. Instead of

reporting to duty as per the transfers orders, with the help of some

outsiders, they got registered a Trade Union on 29.07.2011. The

Management did not know or had any information about formation of

any union at the time of the transfers, much less the union informed

about the formation of union to the management prior to the said

transfers. The union raised demand to retransfer the said 3 employees.

The Management explained to the union about the business

requirements and advised the 3 workers to report for duty. The said

issue was taken up by the Deputy Commissioner of Labour and

Conciliation Officer, Medak District and called for several joint

meetings on the said issue. Finally, he submitted his failure report on

22.11.2011 to his highest authority in terms of the provisions of the

Industrial Disputes Act, 1947 (for short 'ID Act'). However, the

union without any justifiable reason took decision to strike and

demanded for cancellation of the three transfer orders by its notice

dated 18.11.2011. The Management gave its reply dated 26.11.2011

informing the union about the units precarious condition due to low

production and the need of the employees to report for duty at the

place of transfer. However, the union was bent upon to insist the

management to cancel the transfer orders and went ahead with the

strike with effect from 09.01.2012 and caused irreparable damage to

the unit with the totally unjustified strike.

Dr.GRR,J

3. During the strike period, some of the workmen along with

outsiders created terror near the factory premises. Infact on

25.03.2012 when two lady workers were leaving the factory after

completion of their duty hours, four workmen along with others

obstructed them and forcibly took them in an auto to Patancheru,

abused them and threatened them that if they attend to their duties,

they would be killed. Hence, the complaint of the said women

workers was forwarded to the police on 25.03.2012, on which an FIR

was registered against the four workmen and the said case was still

pending. The petitioner was subsequently forced to approach the civil

court, Sanga Reddy, seeking injunction against the union and its office

bearers to restrain them from acting illegally. The Court granted

interim injunction on 04.05.2012 vide I.A. No.264 of 2012 in O.S.

No.55 of 2012. Thereafter only the officials and other loyal

employees were able to report for work at Unit-II.

4. It was further submitted by the petitioner that the Union

earlier approached the High Court of A.P. by filing writ petition

No.5597 of 2012 questioning the transfer orders dated 19.07.2011 as

illegal and void. The said writ petition was dismissed by the High

Court of A.P. by order dated 10.04.2012. The union also filed W.A.

No.520 of 2012 against the order in writ petition and the said writ

appeal was also dismissed by the High Court of A.P. vide order dated

06.06.2012. As the petitioner Management engaged new persons at

Kolkata Service Unit, it re-transferred all the 3 employees to Dr.GRR,J

Hyderabad and posted them at its Unit-I (Balanagar, Hyderabad) and

other places of work at Balanagar and Jeedimetla, Hyderabad by order

dated 09.03.2012. Out of the said three employees, two employees

except Mr.Jangaiah, joined at their respective places of transfer after

the High Court dismissed the writ appeal filed by the union.

5. The petitioner further submitted that during the strike period,

at the instance of the union, the Deputy Manager of Labour, Sanga

Reddy, Medak District came to the petitioner's unit for inspection and

without even serving any inspection report to the petitioner, issued

show cause notice dated 20.04.2012 and unilaterally served it on the

petitioner on the same date. The petitioner immediately gave a reply

on 02.05.2012 and sought for the copies of relevant papers based on

which the said show cause notice was issued. Further, the petitioner

addressed another letter dated 05.05.2012 detailing the circumstances

on which seven temporary workers were discharged due to lack of

work with effect from 06.08.2011. Infact they worked for very less

number of days i.e. six of them were engaged on or after 01.06.2011

and another was engaged from 03.02.2011 only. Further, out of the

said seven workmen, two workmen were re-engaged with effect from

01.12.2011 on exigencies of work. There was no connection of any

nature between forming the union by some permanent workmen and

the discharge of some temporary workmen. The management was not

aware of the particulars of membership of the union in whatsoever

manner. The management never refused to participate in conciliation Dr.GRR,J

meetings. The proceedings of the Deputy Commissioner of Labour

dated 22.12.2011 would amply prove the participation of the

management representatives in the meetings. However, the Deputy

Commissioner on pressure from the union, which was led by an

outsider, came for inspection on 17.04.2012, while the strike of the

said union of workmen was continuing with effect from 09.01.2012

and issued show cause notice dated 20.04.2012 unilaterally without

any basis. The union itself never made any such allegation. The 2nd

respondent filed the prosecution case based on the sanction order

dated 26.05.2012 issued by the Joint Commissioner of Labour Ranga

Reddy Zone, Hyderabad. Whereas the Joint Commissioner of Labour,

Ranga Reddy Zone issued proceedings dated 02.04.2012 referring the

matter of the transfer of the three employees for adjudication to the

Labour Court-II, Hyderabad. The said reference was numbered as ID

No.90 of 2012. On one hand, the authority referred the dispute for

adjudication and on the other hand, issued sanction alleging malafides

in transferring the workmen. Both were self contradictory and

nothing but mis-use of the powers conferred on the said authority.

6. While the matter was still pending, the petitioner was asked

to receive summons from the Court of the I-Class Munsif Magistrate,

Sangareddy, Medak District in STC No.4 of 2013 calling upon the

petitioner to be present to answer a charge of V Schedule and Clause -

XV read with Section 2 (ra) of the Industrial Disputes Act, 1947. The

complaint attached to the said summons would show that the 2nd Dr.GRR,J

respondent lodged complaint on the premise that the petitioner refused

to bargain with the trade union in good faith and thereby violated V

Schedule and committed unfair labour practice as defined under

Section 2 (ra) of the ID Act. There was no violation of the V schedule

of the ID Act committed by the petitioner. On the contrary, it was the

union of workmen who committed violation of the provisions of the V

Schedule of the Act by indulging 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. Though there was

specific complaint to the Dy.Commissioner of Labour, Sangareddy,

Medak District, no action was taken by him till date. He further

submitted that the very issue on which the prosecution was now

sought to be levied was admitted in conciliation on 08.11.2011 by the

2nd respondent. The prosecution thereof now, without the adjudication

having been concluded, was a pre-judgment in nature and biased in

action. The 2nd respondent could not seek to coerce the petitioner

under the guise of the present prosecution and thereby make them

submit to the unjust demands of the union. The prosecution in STC

No.4 of 2013 was illegal and unwarranted and liable to be quashed

and prayed to quash the proceedings in STC No.4 of 2013 on the file

of the I-Class Munsif Magistrate at Sangareddy, Medak District.

6. Heard the learned counsel for the petitioner and the learned

Public Prosecutor. There is no representation for the 2nd respondent.

Dr.GRR,J

7. Learned counsel for the petitioner argued on the same lines

of the petition.

8. Learned Public Prosecutor reported to decide the petition on

merits.

9. Perused the record. The record would disclose that the

complaint was lodged by the 2nd respondent before the I-Class Munsif

Magistrate at Sangareddy, Medak District vide STC No.4 of 2013

alleging that the petitioner-accused had contravened the provisions of

Section 25-T read with clause 15, V Schedule of ID Act, which was

pertaining to "refusing to bargain collectively with Trade Union and

rendering himself liable for punishment under Section 25-U of the ID

Act and Rules there under." A show cause notice was issued to the

petitioner on 20.04.2012 by the Deputy Commissioner of Labour,

Sangareddy, vide proceedings No.B/466/2012, as to why he should

not be prosecuted for contravention of Section 25-T, V Schedule of ID

Act and Rules thereunder, which is as under:

1. Fifth schedule Threatening a lock out or closure Clause 1 (b) if a trade union is organized.

2. Fifth schedule Discharging workmen by way of Clause V (a) victimization.

3. Fifth schedule Transferred the workmen with Clause VII malafides from one place to another.

4. Fifth schedule Refused to bargain collectively Clause XV with Trade Union.

and after obtaining approval from the Joint Commissioner of Labour,

Ranga Reddy Zone to prosecute the petitioner on 26.05.2012 lodged Dr.GRR,J

the complaint. The record would also disclose that the Joint

Commissioner of Labour referred the dispute between the General

Secretary of Velijan Employees Union and the Management of

Velijan Hydrair Pvt. Ltd., under Section 10(1) of the ID Act for

adjudication to Labour Court-II, Hyderabad on 02.04.2012 vide

proceedings No.B/137/2012 and the same was numbered as ID No.90

of 2012. Referring the dispute for adjudication to the Labour Court

on one hand and giving permission to prosecute the petitioner under

Section 25-T, V Schedule of the ID Act on the other hand, are

contradictory stands taken by the Joint Commissioner of Labour. It

appears that the Deputy Commissioner of Labour as well as the Joint

Commissioner of Labour had taken the side of the Trade Union even

before the dispute was adjudicated by the Labour Court-II. The

learned counsel for the petitioner contended that the very issue on

which the prosecution was now sought to be levied was admitted in

conciliation on 08.11.2011 and the adjudication process was not

concluded, as such, the 2nd respondent pre-judged the issue, and his

action was biased in nature. He further contended that the petitioner

also lodged a specific complaint to the Deputy Commissioner of

Labour, Sangareddy, Medak District against the Union of Workmen

as they committed violation of the provisions of the V Schedule of the

ID Act and indulged in acts of forces or violence and committed threat

of intimidation in connection with the strike against non-striking

workmen, but no action was taken by him till date. The proceedings in

I.A No.264 of 2012 in O.S. No.55 of 2012 filed for interim injunction Dr.GRR,J

by the petitioner company seeking injunction for restraining the

respondents therein / Union for obstructing ingress and egress of men,

material, vehicles and visitors of the petitioner company was allowed

by the Court on 04.05.2012. The writ petition filed by the Union as

well as the writ appeal filed by them was dismissed by the High Court

with specific observations that "what was challenged in the Writ

Petition was the transfer of the three employees of the appellant union

to Kolkata and admittedly they were retransferred from the said place.

Therefore, even assuming that the said employees or the appellant

union is aggrieved, since a new cause of action arose on account of

the retransfer, it is for them to work out the appropriate remedy as

available under law against the order of retransfer".

10. Learned counsel for the petitioner submitted that as on the

date of filing the complaint in STC No.4 of 2013, ID No.90 of 2012

and ID No.104 of 2012 were pending and the very same issues were

pending for consideration in W.P. Nos.10568 and 12297 of 2017. ID

No.104 of 2012 was filed by the workmen claiming wages during the

strike period. When the matters are pending before the Labour Court

and the High Court, filing of criminal proceedings against the

petitioner is considered as an abuse of process of law.

11. Learned counsel for the petitioner also relied upon a

judgment of the Hon'ble Apex Court in Md. Ibrahim and Ors. v.

State of Bihar and Ors.1, wherein it was held that:

2009 (8) SCC 751 Dr.GRR,J

"6.The question that therefore arises for consideration is whether the material on record prima facie constitutes any offences against the accused. The contention of the appellant is that if the allegations made in the complaint and FIR, even if accepted to be true in entirety did not disclose the ingredients of any offence of forgery (sections 467 and 471) or cheating (section 420) or insult (section 504) or wrongful restraint (section

341) or causing hurt (section 323) and there was no other material to show any offence and therefore, their application ought to have been accepted.

7. This Court has time and again drawn attention to the growing tendency of complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal courts should ensure that proceedings before it are not used for settling scores or to pressurise parties to settle civil disputes. But at the same, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes. [See: G. Sagar Suri v. State of U.P. [2000 (2) SCC 636] and Indian Oil Corporation vs. NEPC India Ltd. [2006 (6) SCC 736]."

12. In the present case, the petitioner-accused was alleged to

have contravened Section 25 T read with Clause 15 of V Schedule of

ID Act pertaining to refusal to bargain collectively with Trade Union.

But, the record would disclose that no union was formed by the date

of transfer of the 3 workmen and the petitioner re-transferred the 3

workmen transferred to Kolkata to their Unit-I at Balanagar,

Hyderabad and to the other places of work at Balanagar and

Jeedimetla, Hyderabad and also re-engaged 2 workers out of the 7

temporary workers discharged by him with effect from 01.12.2011.

Thus, the charge of the petitioner refusing to bargain collectively with

the trade union prima facie also appears to be false. When the matters Dr.GRR,J

are pending before the Labour Court and the High Court and when