Bombay High Court
M.R. Patil, Vice-Chairman & Managing ... vs Member, Industrial Court, Amravati And ... on 26 April, 1996
Equivalent citations: [1996(74)FLR2474]
Author: V.S. Sirpurkar
Bench: V.S. Sirpurkar
JUDGMENT
1. The petitioners herein seek to quash the prosecution pending against them under section 48 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter called 'the Act' for the sake of brevity). Following is the factual panorama.
2. Petitioner No. 1 is a Super Class-I Officer of IAS Cadre and is on deputation to the post of the Vice-Chairman and Managing Director, Maharashtra State Road Transport Corporation; while petitioner No. 2 is its Regional Manager for Nagpur Region. Respondent No. 2 is the Union of workers employed with the Maharashtra State Road Transport Corporation (hereinafter called 'the Corporation' for the sake of brevity), and according to the petitioners, it is not yet recognised under the Act. According to the petitioners, talks were going on between the Corporation and its Unions, though some of the Unions were not recognised, and these talks were regarding the revision of pay-scales. According to the petitioners, before reaching the final settlement, the Corporation decided to make some interim payments to the employees and the resolution to that effect was passed and a circular was issued by the Corporation on 25.6.1993 for distribution of interim payments to its employees and, according to the petitioners, they started making the payment from 25.6.1994 itself. The petitioners further point out that the respondent No. 2 had filed Complaint (ULPA) No. 397 of 1993 and also filed an application under Section 30(2) of the Act for the interim relief. This application was granted by the Member, Industrial Court, Amravati, who passed an ex parte interim order staying the effect and operation of Circular No. 3679, dated 25.6.1993, till 15.7.1993. This order was passed on 29.6.1993. The petitioners point out that after the order was passed, the petitioners appeared before the Industrial Court, and upon hearing them, the Industrial Court ultimately was pleased to vacate the stay order on 4.8.1993. Thus, according to the petitioners, the interim order passed by the Industrial Court was in vogue from 29.6.1993 to 4.8.1993. It is further pointed out that the order vacating the stay was challenged before this Court by the respondent No. 2/Union, vide Write Petition No. 2463 of 1993 and that petition was still pending, wherein this Court on 14.9.1993 had passed the following order :
"Rule returnable early. Status quo."
The petitioners point out that thereafter the respondent No. 2 has filed a criminal complaint before the Labour Court, Akola, vide Criminal Complaint (ULPA) No. 17 of 1993 complaining that petitioners Nos. 1 and 2 had committed the contempt of Court by flouting the interim order passed by the Industrial Court, Amravati, and in that complaint, the Labour Court had issued summonses against the petitioners Nos. 1 and 2, though they were not the parties to the earlier order in their personal capacities. It is further pointed out by the petitioners, that they filed their appearance before the Labour Court and raised preliminary objections that they are the Government servants and as such the public servants within the meaning of section 21 of the Indian Penal Code and as such no cognizance against them could be taken, unless there was a sanction under Section 197 of the Criminal Procedure Code. The petitioners also contend that this application was rejected by the Labour Court, vide its order dated 11.2.1994, wherein it was held that it was not necessary to obtain sanction of the Government under the contempt proceedings and the Labour Court directed the petitioners to furnish security in the Court. The petitioners further point out that against this order dated 11.2.1994, a revision came to be filed by them before the Industrial Court, Amravati, vide Revision (ULPA) No. 75 of 1994 praying for a stay to the effect, execution and operation of the order passed by the Labour Court, Akola. However, the Industrial Court, by its order dated 29.4.1994 has refused to stay the order passed by the Labour Court. It is further pointed out that this order dated 29.4.1994 was further challenged by the petitioners by filing Criminal Writ Petition No. 95 of 1994, which was heard by this Court along with writ petition No. 29 of 1994, wherein a common judgment has been delivered on 27.9.1994, whereby writ petition No. 29 of 1994 was allowed while writ petition No. 95 of 1994 was dismissed. It is further contended that the respondent No. 2 thereafter filed an application before the Labour Court at Akola, pointing out therein that there was no stay of any higher Court and as such a bailable warrant was issued on 15.3.1994 which was kept in abeyance. The Labour Court heard this application and passed a further order on 6.10.1994 below Exhibit 38 and directed the issue of bailable warrant against the petitioners, returnable on 29.10.1994. The petitioners ultimately point out that they have filed two applications for a discharge from proceedings before the Labour Court, vide exhibits 45 and 61, and the Labour Court, Akola was pleased to pass an order on 17.12.1994 rejecting both the applications. It is further pointed out that the petitioners have challenged these orders by filing a Revision (ULPA) No. 11 of 1995 before the Industrial Court, Amravati, and after hearing the parties, the Industrial Court, vide its order dated 28.4.1995, dismissed the revision and directed the petitioners to appear before the Court on or before 8.6.1995. It is this order dated 28.4.1995 which is in challenge in the present petition.
The ultimate object of the revision before the Industrial Court as also of this writ petition is to get the pending proceedings before the Labour Court in the shape of the prosecution under section 48 of the Act, quashed.
3. It will have, therefore, to be examined as to whether the Court below were right in refuting the objections raised before them vide Exhibit 45 and Exhibit 61 and further whether the petitioners have made out a case in this writ petition for the quashing of the trial pending before the Labour Court under section 48 of the Act. The order passed by the Labour Court was necessitated because of the objections raised by the present petitions vide Exhibit 45 and Exhibit 61. It would, therefore, be worthwhile to see these two applications. They are not filed along with the petition but the copies thereof were made available during the arguments.
4. Exhibit 45, which is dated 20.10.1994, is an application styled as "Application for dismissing the complaint on the point of jurisdiction." It is contended therein that without admitting the allegations in the complaint and reserving all the rights of the non-applicants (the present petitioners), they pray the Court to dismiss the complaint for want of jurisdiction. It is further stated that a preliminary issue being an issue of law should be decided first. It is further submitted that the Court had no jurisdiction to try the complaint as per the Act. Thus, beyond showing that the Court had no jurisdiction, the applicants thereto (i.e., the present petitioners) have not given any reason in support of their contentions. It is merely contended that the Court had no jurisdiction, without giving any support thereto. During the course of arguments before the Labour Court and the Industrial Court, and even before this Court, Exhibit 45 was pressed on the ground that the Courts had no territorial jurisdiction to try the complaint under section 48 of the Act. This only becomes clear from the tenor of the orders of the Labour Court and the Industrial Court, though the application is conspicuously silent about the nature of the objection. Here also Shri Bobde argued the question of jurisdiction contending that since the order was passed by the Industrial Court, Amravati, Akola Labour Court would not have any jurisdiction to try the contempt. He further submitted that the finding by the Labour Court and the Industrial Court, that the Labour Court had the jurisdiction to try the criminal complaint, was an erroneous one.
5. By Exhibit 61, the petitioners contended that in Criminal (ULP) Case No. 397/93, wherein the order was passed, the non-applicant No. 2 was "Maharashtra State Road Transport Corporation through the Vice-Chairman and Managing Director, Central Office, Bombay". It was pointed out further that in the criminal complaint, the description of one of the non-applicants was "M.R. Patil, Vice-Chairman and Managing Director, MSRTC, Bombay". On this basis, it was contended that Shri M.R. Patil was not a party to the proceedings before the Industrial Court, Amravati and, thus, it could not be said that he had flouted any orders passed by the Industrial Court, Amravati which was, in fact, not against him at all. It was, therefore, prayed that Shri M.R. Patil, who was arrayed as non-applicant No. 2 in the complaint, should be discharged. Thus, in so far as the petitioner No. 2 is concerned, there appears to be no such objection raised before either the Labour Court or the Industrial Court on account of Shri Rathod not being a party in his individual capacity to ULP Case No. 397 of 1993. The Courts have also not considered any such objection on the part of petitioner No. 2. Shri Bobde, the learned Counsel for the petitioners, however, contended that what applied to petitioner No. 1, applied to the petitioner No. 2 with equal force, since even the petitioner No. 2 like petitioner No. 1 was not a party in his individual capacity in the original complaint, wherein the interim order was passed by the Industrial Court, Amravati, which was allegedly flouted. It is on this factual background that it has to be considered as to whether the criminal complaint pending before the Industrial Court is liable to be quashed or not.
6. As a first leg of his argument, Shri Bobde raised a question of territorial jurisdiction. He contends that the stay order was passed by the Industrial Court, Amravati. According to him, the complainants contend that it is this order which is flouted by the petitioners and, therefore, the petitioners could be tried by the Labour Court at Amravati and by no other Court, much less the Labour Court at Akola, as is in this case.
7. Both the Courts below have declined to accept the objection regarding the territorial jurisdiction. It will be seen that the concerned interim order, which was allegedly flouted by the petitioners, was operative throughout the State of Maharashtra, which is the area of operation of the Corporation. Not only this but the Labour Court at Akola comes directly within the jurisdiction of the Industrial Court, Amravati, and as such if the orders of the Industrial Court, Amravati, were flouted, the complaint under section 48 of the Act was rightly entertained by the Labour Court, Akola.
That apart, really speaking, at this stage, the question of territorial jurisdiction would be immaterial for the simple reason that the evidence was yet to be led as to the places where the order was flouted. By the interim order, the Industrial Court had stayed the operation and effect of the Circular dated 29.6.1993 and the complaint was that this order was flouted by the petitioners by directing the payments to be made in pursuance of that circular in the teeth of the order of status quo passed by the Industrial Court. Not only this, but even the complaint, which has been field, specifically mentions that the Union was working all throughout Maharashtra and its members were distributed in all the regions and also at all the places where there are Depots of the Corporation. The complaint further is that it is to these members of the Union that the said payments were made and, thus, the unfair labour practice was committed and the order regarding status quo was flouted. A look at the complaint before the Labour Court also confirms to this factual position, particularly para-7 of the complaint. Thus, there is a prima facie territorial jurisdiction. That apart, the question of the said jurisdiction would also depend upon the evidence to be led. Even with the findings of the Courts below, the question of jurisdiction could still be raised provided there is no evidence that the order was flouted within the jurisdiction of Akola Court. Today, it cannot be so said. Therefore, the objection regarding the territorial jurisdiction is wholly incorrect. The Courts below were right in refuting that objection.
8. Shri Bobde further contended that the petitioners were not personally parties to the original complaint and as such even if it is assumed that they have flouted the order by ordering the distribution of payments to the workmen, they cannot be proceeded against under the provisions of section 48 of the Act. In short, according to Sri Bobde, unless the concerned person is a party to the original complaint, under the Act, he cannot be tried for the offence under Section 48 thereof. Shri Bobde pointed out that in the original complaint, party No. 2 is described as 'Maharashtra State Road Transport Corporation, through Vice-Chairman and Managing Director, Central Office'. As regards the petitioner No. 2, he pointed out that party No. 3 to the said complaint was the "Regional Manager, Maharashtra State Road Transport Corporation, Regional Office, Transport Colony, beside the New Bus Stand, Nagpur". From this, Shri Bobde urged that it was the Corporation which was a party, though for the sake of adjudication, the said Corporation was joined through its Managing Director. Shri Bobde does not dispute that at the relevant time and even today, the petitioner No. 1, Shri M.R. Patil was working as the Vice-Chairman and the Managing Director of the Corporation. He also does not dispute that the petitioner No. 2 was and is working as a Regional Manager. It is on this basis that he submits that the petitioners, who have filed this petition in their individual capacity, were not parties to the original complaint. According to Shri Bobde, it therefore, follows that if any interim orders were passed in that complaint where the petitioners were not parties, the prosecution for flouting those interim orders cannot be launched against them, particularly under Section 48 of the Act. Shri Bobde very heavily relies upon the reported decision of this Court in 1995 I CLR 200, Deepak Ray v. Mafatlal Engineering Employees' Union. He urged that though this decision was cited before the Courts below, it was not properly understood or appreciated.
9. Shri Verma, representative of the workmen, however, strongly contended that in the original complaint, after the issuance of notices, the petitioners themselves appeared before the Court and had filed their appearances. He submits that it cannot be said that the petitioners were not the parties. He points out that the petitioner No. 1 was admittedly working as a Vice-Chairman and the Managing Director at the relevant time and the Corporation was joined only through the Managing Director. His argument is similar in case of petitioner No. 2 who was joined as a party in the name of his office as a Regional Manager of the Corporation. He points out that there is no dispute that both the petitioners were working on the posts indicated in the cause-title of the complaint and, therefore, according to him, it could not be said that the petitioners were not parties.
10. It will have to be first considered as to whether it can be said that the petitioners were not parties to the original complaint. From the description of the parties in the original complaint in the cause-title, it is clear that at least insofar as petitioner No. 2 is concerned, he was made party, though not by his own name, by the designation that he held. The petitioner No. 2 undoubtedly was a Regional Officer and it was the Regional officer who was made a party to the original complaint, as according to the complainants, the unfair labour practice was being exercised by or with the connivance of the said Regional officer. Insofar as the said Regional Officer is concerned, therefore, it cannot be said that petitioner No. 2 was not a party. If ultimately, it was found that the orders were being flouted at the instance of petitioner No. 2, there was nothing wrong if the petitioner No. 2's name appeared in the complaint under Section 48 of the Act along with his designation. Merely by describing the petitioner with his designation in the original complaint, it cannot be said that the petitioner No. 2 was not a party at all.
11. As regards the petitioner No. 1, Shri Verma points out that originally the Corporation itself was made a party through its Vice-Chairman and Managing Director. Now, the Corporation has to act through its officers. The Corporation was, therefore, rightly described in the cause-title and was rightly sought to be represented by its Vice-Chairman and Managing Director, who was none but its Chief Executive. The reasons why there was a difference in the description of the parties is quite apparent, which would be clear from the prayer clauses of the original complaint (ULP) No. 397/93 and the Criminal Case No. 17 of 1993. In the original complaint (ULP) No. 397/93, it was prayed that the Circular dated 25.6.1993 should be cancelled and all the workmen should workmen should be paid at the rate of Rs. 210/- per month by way of interim relief. The second prayer was also for cancellation of the optimum limit of the interim relief at 15 per cent. The third relief claimed is for the declaration that the non-applicants had engaged in an unfair labour practice. Now, it is quite clear from this prayer clause that no personal reliefs were claimed against the non-applicants in the ULP case. The reliefs claimed are against the management as such, in contradistinction to its officers in their personal capacity. However, when it was found that the interim order was flouted by some individual officers, the said individual officers were joined in their personal capacity in Criminal Case No. 17 of 1993 and it was prayed in that complaint that the accused should be dealt with under Section 48(1) of the Act and they should be convicted. The first prayer in Criminal Case No. 17 of 1993 is of course for the declaration that the accused persons have failed to follow the orders passed by the Industrial Court. Thus, in the criminal complaint, what was sought was the conviction of the concerned officers who had allegedly flouted the orders. The said conviction could result in passing individual sentences also and as such sentences could be both, individual as well as against the Corporation. However, it was particularly contended in the criminal complaint that particular officers of the Corporation, i.e., the present petitioners had flouted the orders and as such it was probably felt essential to join them with names in the array of the accused. It is, therefore, clear that in the original Complaint (ULP) No. 397 of 1993, the reliefs were sought against the Corporation in its capacity as management and the said Corporation was joined as a party through petitioner No. 1 who was then its Chief Executive, being Vice-President and Managing Director, and also against the petitioner No. 2 who was then its Regional Manager; while in Criminal Case No. 17 of 1993, the twosome, namely, the Managing Director, petitioner No. 1, and the Regional Manager, - petitioner No. 2, were sought to be punished for the contempt, in their individual capacity. It cannot be ignored that in Complaint (ULP) No. 397/93, it was the petitioner No. 1 who fully represented the Corporation and it was not disputed that it was he who had put in appearance personally on behalf of the Corporation. It can, therefore, at least, be said that petitioner No. 1 also had the full notice of the proceedings. In Original Complaint (ULP) No. 397 of 1993 he had taken an active part on behalf of the Corporation and had taken all the steps on behalf of the Corporation which a party is supposed to take, i.e., to put in appearance, to sing Vakalatnama and to defend the proceedings. On this backdrop, it was this very officer who had allegedly flouted the orders passed in Complaint (ULP) No. 397 of 1993, it cannot be said that he himself was not a party to the original complaint and he cannot be allowed to defend himself and that since he was not a party, he cannot be proceeded against in a criminal case under Section 48(1) of the Act. That would be a hypertechnical view, particularly in the express language of section 48 of the Act.
12. While testing as to whether any person who is technically not a party to the complaint case under the Act, can be proceeded against under Section 48(1) of the Act, was considered in Deepak Ray's case cited supra. There is, however, one more decision on which reliance was placed by Shri Verma, learned Counsel for respondent No. 2, that being S.J. Mehta v. State of Mah. reported in 1991 FLR 908. This case was decided prior to the Deepak Ray's case, and Chapalgaonker, J., had taken a view that it was permissible to prosecute a person flouting orders under Section 48(1) of the Act even if he was not a party to the original complaint proceedings. Shri Bobde, therefore strongly contended that there is an apparent conflict of opinions in these two decisions, namely, Deepak Ray's case decided by B.N. Srikrishna, J., and S.J. Mehta's case decided by Chapalgaonker, J. and, therefore, this is a fit case where the Court should make a reference to the larger Bench. It is, therefore, to be considered as to whether, firstly, a reference is necessary in this matter.
13. It will be seen that in Deepak Ray's case, the decision in S.J. Mehta's case, has not been noticed. In Deepak Ray's case, three officers, they being Executive Director, General Manager (Operations) and the Deputy Personnel Manager, of a Limited Company had challenged the prosecution. The Company Mafatlal Engineering Industries Ltd. was a party to the arbitration award under Section 10A of the Industrial Disputes Act, and under the terms of the same, the Company was required to discontinue the employment of the contract labour, which was prohibited, except in the employments specified in the said award. The said award was terminated by the Trade Union which filed a ULP complaint before the Industrial Court invoking Items 9 and 10 of Schedule IV of the Act and contended that though prohibited, the Company was continuing to engage contract labour and, therefore, it was engaging in unfair labour practice. In this complaint, there were only two respondents, namely, the Company itself and the Deputy Commissioner of Labour. There was an ex parte interim injunction order passed restraining the Company from engaging any contract labour on any job, except as provided in the arbitration award. The Company filed an affidavit of the Deputy Personnel Manager to oppose the interim relief and prayed for vacating the ad interim injunction order. A complaint thereafter came to be filed before the Labour Court, Thane, to the effect that the three officers named as the accused had disobeyed the order and continued to engage the contract labour. In this complaint, Company was shown as the first accused, while the three officers thereof were shown as the accused Nos. 2, 3 and 4 respectively. The Labour Court issued summonses to all the accused persons and these summonses came to be challenged by way of a revision application, as in the present case, wherein a prayer was made for quashing of the proceedings. The principal contention therein was that the original accused Nos. 2 to 9 who were merely the individual Director and the officers of the Company, could not be prosecuted for the alleged offences as they were not the parties to the original proceedings in the ULP complaint wherein ex parte ad interim injunction which was alleged to have been breached, was passed. Reliance therein was placed on the reported decision in M/s. Eduljee & Co. v. First Labour Court, Nagpur 1976 LIC 1077. The Industrial Court accepted the arguments in respect of only accused Nos. 5 to 9 and quashed the proceedings against them, while insofar as the three officers were concerned, it took the view that the notices issued to them were not in a proper form and were liable to be set aside. The matter was remanded to the Labour Court for taking the further steps in law. The order, therefore, came to be challenged by a writ petition.
14. Srikrishna J., wholly relied upon the judgment in M/s. Eduljee & Company's case cited supra and held that the reasons advanced by Division Bench for holding that the prosecution under Section 106 of the Bombay Industrial Relations Act was not maintainable unless the person against whom the prosecution was sought was himself a party to the earlier proceedings, were equally application (sic) to a prosecution under section 48(1) of the Act. It is liable to be seen that in Eduljee's case, the Division Bench was primarily of the opinion that in the scheme of sub-sections (1) and (2) of section 106 of the Bombay Industrial Relations Act, it was primary that there had to be a prior adjudication against an employer and a result of that adjudication, the employer must be exposed to certain penalties. Such adjudication must precede and further the persons who is sought to be subjected to the prosecution must be a party in that adjudication. The Division Bench went on further to clarify that unless such persons were parties to the prior adjudication, they could not be prosecuted under section 106 of the BIR Act as such person, if they were not party to the earlier proceedings, would not be in a position to challenge the orders passed in the same and, for there was a finality attached to the adjudication under the provisions of the Act and, secondly, even the Court trying such a person for an offence contemplated by these sub-sections (1) and (2) would not be in a position to go behind the earlier adjudication. This was mainly the reason why the Court took the view that the person concerned must be a party to the adjudication proceedings. Srikrishna J., went on to accept this very view and pointed out that the reliance of the Industrial Court on the provisions of section 32 of the Industrial Disputes Act, holding that the Director or an officer in charge of the Management of the Body Corporate or a Company would be victoriously liable for a criminal act of the Company, was not called for at all. He specifically held that section 32 of the Industrial Disputes Act could be attracted only when there was an offence under the Industrial Disputes Act and not otherwise. He expressed thus :
"It is trite law that there can be no vicarious liability in criminal jurisprudence, unless any statute has specifically provided for the same. Section 32 of the Industrial Disputes Act plays this role of creating vicarious penal liability and a Director, Manager or other Officer incharge of the Management, as provided in section 32 of the Industrial Disputes Act, becomes liable for the criminal act of a Company. There is no such provision under the Act, which significantly applies to industries covered both by the Bombay Industrial Relations Act and the Industrial Disputes Act. In my view in the absence of such clear cut provision making a Director or an Officer of a Company vicariously liable for a criminal act of the Company, it would not be possible to prosecute a Director or individual officer for an offence alleged to have been committed by the Company and the prosecution would not be maintainable. The view taken in Eduljee's case is equally applicable here and, unless an individual Director or Officer was himself party to the original proceedings in which the order which is alleged to have been breached, was made, he cannot be made liable in subsequent proceedings in which the criminal jurisdiction of the Labour Court to try offences under the Act is invoked."
It has already been shown, firstly, that though the Corporation was a party, it was sought to be joined to the original complaint proceedings through the petitioner No. 1 only, whose designation was fully described in the complaint. Not only this, but it was already been pointed out that the petitioner No. 1 took a direct part in that proceeding by filing his Vakalatnama and by taking all the other steps which were essential to defend those proceedings. It has also been shown that the present petitioner No. 2 was also joined as respondent No. 2 in that complaint case, though not his own name but in the name of his office as a regional Manager of the Corporation. His specific designation, address of his office, etc., have been fully described in the said complaint. It could not, therefore, be said that these two were not having the proper notice and were not the parties to the proceedings. It is, therefore, difficult to apply the law laid down in Deepak Ray's case to the present facts.
15. Shri Bobde, however, argues that what may be true in case of petitioner No. 2, may not be true in case of petitioner No. 1. He points out that petitioner No. 2 was individually a party to the original complaint, because there was a clear mention of his office, viz. Regional Manager, in the complaint. However, the petitioner No. 1 was not described as a party in the original complaint and he was only described as representing the Maharashtra State Road Transport Corporation. Shri Bobde, therefore, says that the rule laid down in Deepak Ray's case is applicable at least in case of petitioner No. 1.
16. It will be seen that in Deepak Ray's case, there is no indication that the Company was joined through any particular officer, as in the present case. Paragraph 3 in the judgment mentions that the Company was a party, but none of the petitioners therein was the party to the original proceedings. The Corporation in this case has been joined through the petitioner No. 1 and it was the petitioner No. 1 who took part in the original proceedings on behalf of the Corporation. It will be again seen that the view taken in Deepak Ray's case predominantly depended upon the view taken in Eduljee's case to the effect that a person facing the prosecution under section 106 of the BIR Act must be a party to the original proceedings, as if he is not such a party, he would not be in a position to challenge the original proceedings and the Court trying for an offence contemplated by section 106 would not be able to go behind the earlier adjudication. It will be seen that such situation would not be available in the present case as the petitioner No. 1 through whom the Corporation was joined, would always be in a position to challenge the original proceedings, for the simple reason that it was he who was conducting and defending those proceedings on behalf of the Corporation. The argument of Shri Bobde is, therefore, incorrect.
17. However, even assuming that technically speaking petitioner No. 1 was not a party to the proceedings in his individual capacity, it would be interesting to consider as to whether his not being a party in his individual capacity would make it impossible for his being tried under section 48 of the Act.
18. In Deepak Ray's case, what is held is that in the absence of a provision like Section 32 of the Industrial Disputes Act which makes a Director or Officer incharge of the management of a body corporate or a Company vicariously liable, the prosecution of such person for the offence under section 48 of the Act would not be possible, as there could be no vicarious liability in Criminal Jurisprudence. The whole Act has been examined in that case to find out any such provisions like section 32 of the Industrial Disputes Act and "discernible absence of any such provision" has been marked and relied upon for holding that there could be no such prosecution of an individual without his being a party to the original proceedings. The whole Act, thus, has been scanned with the sole objective of finding any such provision like section 32 of the Industrial Disputes Act.
19. On this backdrop, it would be interesting to see some other provisions to see whether such interpretation is possible. It would be worthwhile to see the language of section 30 of the Act, in this behalf. The relevant portion of section 30 is reproduced below :
"30. (1) Where a Court decides that any person named in the complaint has engaged in or is engaging in, any unfair labour practice, it may in its order -
(a) declare that an unfair labour practice has been engaged in or is being engaged in by that person, and specify any other person who has engaged in, or is engaging in the unfair labour practice;
(b) direct all such persons to cease and desist from such unfair labour practice, and take such affirmative action (including .....) .......;
(c)................;
(2) In any proceeding before it under this Act, the Court may pass such interim order (including any temporary relief or restraining order) as it deems just and proper (including directions to the person to withdraw temporarily the practice complained of, which is an issue in such proceeding) pending final decision :"
A glance at this provision would suggest that for declaring that a person is engaging in the unfair labour practice, it is not even necessary that such person is named in the complaint. Words "specify any other person who has engaged in" specifically bring out that situation. Thus, the Court can hand out a declaration in respect of a person who is named in the complaint and can also specify any other person who has engaged in the unfair labour practice. The words of clause (b) specifically give the power to the Court to direct "all such persons" to cease and desist from such unfair labour practice. The term, "all such persons" in clause (b) would certainly include the person named in the complaint as well as any other person who is specified as such within the terms of Section 30(1)(a). Such-section (1) of section 30 undoubtedly speaks of the final order. However, sub-section (2) speaks of the interim order, and again it is interesting to note that the interim order can be passed not only against a person named in the complaint but also against any person who is engaging himself in any unfair labour practice. In sub-section (2) of section 30, in the bracketed portion, the words used are "to the person" in contradistinction to the use of the words "any person named in the complaint" in sub-section (1). The words "the person" in sub-section (2) will have to be read along with the language used in clause (a) of sub-section (1) which suggest that the Court can declare that the unfair labour practice has been engaged in by that person, i.e., the person named in the complaint and the Court can also specify "any other person" who has engaged in such unfair labour practice. When the Legislature specifically uses the words "to the person" in sub-section (2) and omits to qualify that term with the further words "named in the complaint" which it has used in sub-section (1), its (Legislature's) intention is clear and unambiguous that under sub-section (2), the Court can pass final and interim orders also against any person who is not named in the complaint, if it is so necessary.
20. On this backdrop, when we consider the language of section 48(1) of the Act, the meaning becomes absolutely clear. Section 48(1) provides as under :-
"48. (1) Any person who fails to comply with any order of the Court under clause (b) of sub-section (1) or sub-section (2) of Section 30 of this Act shall, on conviction, be punished with imprisonment which may extend to three months or with fine which may extend to five thousand rupees."
At least, the plain reading of the language does not require any such person to be a party to the proceedings. On the other hand, it makes a direct reference to clause (b) of sub-section (1) of section 30 which includes all such person, which term has a clear reference to the person named in the complaint as also any other person specified in clause (a) of sub-section (1) of section 30. It will be seen that clause (a) of sub-section (1) of section 30 gives the Court a power to declare that an unfair labour practice has been engaged in by any person named in the complaint, or besides this, it also gives the power to specify any other person who has engaged in such unfair labour practice, while by clause (b), the Court is empowered to direct all such person, namely, the persons named in the complaint and the persons specified in clause (a), to desist from such unfair labour practice. A reference to clause (b) of sub-section (1) and sub-section (2) of section 30 would, therefore, clearly bring out a situation that where there is failure to comply with the order of the Court by any person, the necessary consequences in section 48 must follow. A clear cut language of section 30 and more particularly of clauses (a) and (b) of sub-section (1) and sub-section (2) of section 30, goes to show that sub-section (1) of section 48 is not restricted to the person who is a party in the original complaint and takes into its fold any person who fails to comply with any order of the Court. The logic behind the language under section 48(1) is loud and clear. If any Company or a Corporation is directed under sub-sec. (2) of section 30, it cannot by-pass such order by saying that it was not the Company itself but some officer thereof who was not a party to the original proceedings who failed to comply with the order. It is clear that any person who fails to comply with the order passed under section 30(1)(b) or section 30(2) can be brought into the dragnet of the criminal prosecution.
21. That, a person who is being tried under section 48 of the Act need not be a party to the original proceedings, would also be clear from the other sub-sections. Sub-section (2) of section 48 provides that if any person, when ordered by the Industrial Court or a Labour Court to produce or deliver up any document or to furnish information being legally bound to so do, intentionally omits to do so; or when required by the Industrial Court or a Labour Court to bind himself by an oath or affirmation to state the truth, refuses to do so; or being legally bound to state the truth on any subject to the Industrial Court or a Labour Court, refuses to answer any question demanded of him touching such subject by such Court; or intentionally offer any insult or causes any interruption to the Industrial Court or a Labour Court at any stage of its judicial proceedings, can be punished. Similarly, under sub-section (3), any person refuses to sign any statement when required to do so, can be punished. Now, the terminology used in sub-sections (2) and (3) is again "any person", which is an identical terminology used in sub-section (1) also. This is also a reason why any person contemplated in section 48(1) need not necessarily be a party to the original complaint.
22. There is one more reason for holding that such person who is being proceeded against under section 48(1) need not be necessarily a party to the earlier proceedings. Section 40 of the Act provides that in respect of offences punishable under this Act, a Labour Court, which has the jurisdiction to try such offences under section 48(1), would have all the powers under the Code of Criminal Procedure, 1898. By necessary implication, it will have to be said that the Labour Court enjoys the powers under the Criminal Procedure Code 1973. Under section 319 of the Criminal Procedure Code, the Criminal Court has a power to summon any person, besides the ones who are being tried before it, who appears to have committed the offence. This power is wide. If it is held that the Court has no power to proceed against a person who is not a party, such interpretation would bring unnatural fetters on the power of the Labour Court which enjoys all the powers of a Criminal Court under the Code of Criminal Procedure. This also would be one of the reasons to hold that such a person need not be a party to the original proceedings.
23. All the above-mentioned provisions have not been noticed in Deepak Ray's case, as that case has turned only on the rationale that there is no provision in the Act like section 32 of the Industrial Disputes Act and, therefore, a person cannot be vicariously liable. It is held by the Division Bench of this Court in Kashibai v. State of Maharashtra 1993 M.L.J. 1168 that where the necessary provisions of the Act are not noticed, such judgment becomes per incuriam and has no binding force in the law of precedents. Applying the same rule, it will have to be said that the judgment in Deepak Ray's case could not be read in as general terms as the learned Counsel for the petitioners wants it to be read. It will have to be seen that the petitioners herein are insisting on the reading of the judgment in far wider terms than the judgment permits it. It will have to be held that the said judgment has to be read only in terms of the facts stated therein, and not in the manner the petitioners want this Court to do.
24. In view of what is stated above, it would not be necessary to make any reference to the larger Bench, as there would be no conflict in the law stated earlier in S.J. Mehta's case 1991 FLR 908 and Deepak Ray's case 1995 CLR 200.
25. For the reasons stated above, it is clear that the petition has no merits and is liable to be dismissed and is hereby dismissed.
26. Petition dismissed.