Bombay High Court
Chandragupta Gupta vs Padmanabha Subramani (Administrative ... on 7 September, 1988
Equivalent citations: [1989]65COMPCAS190(BOM)
JUDGMENT Tated, J.
1. The petitioner-accused preferred this petition under section 482, Criminal Procedure Code, 1973, for quashing the proceedings in Criminal Case No 108/S of 1982, pending before the learned Additional Chief Metropolitan Magistrate, 9th Court, at Bandra, Bombay, for the offence punishable under section 630 of the Companies Act, 1956, or in the alternative, for staying the proceedings of the said criminal case till the dispute raised by him under the Industrial Disputes Act, 1947, and which has been referred by the State to the First Labour Court is decided.
2. The facts giving rise to the present petition, briefly stated, are that they petitioner-accused was appointed and was working as an Industrial Relations Executive with Glaxo Laboratories (India) Ltd (now Glindia Ltd), a company incorporated under the Indian Companies Act, 1913. The petitioners joined the services of the said company in 1977. As the petitioner had no accommodation, the company, on July 2, 1977, allotted temporary accommodation to him at the company's transit camp. That flat had to be vacated and another temporary accommodation was gives to the petitioner at 93/B, "Ashiana", Bandra, Bombay. That flat was also vacated by the petitioner on September 5, 1978, and thereafter the company allowed him to occupy the flat in question situated in the said building "Ashiana" on the eighth floor. The company, on October 8, 1980, directed the petitioner to vacate the flat by August 31, 1981. The petitioner did not vacate the flat. He was again asked on September 4, 1981, and April 16, 1982, to vacate the flat, but he did not vacate it. On September 15, 1982, the company terminated the services of the petitioner did not vacate the flat, the company filed a complaint under section 630 of the Companies Act, 1956, on November 12, 1982, against the petitioner in the Court of the Additional Chief Metropolitan Magistrate, Ninth Court, at Bandra, and it is registered as Case No 108/S of 1982.
3. The company moved the learned Additional Chief Metropolitan Magistrate, Ninth Court, at Bandra, Bombay, to expedite the hearing of the said Criminal Case No 108/S of 1982, and the learned Additional Chief Metropolitan Magistrate on March 4, 1983, passed an order for expediting the trial. Being aggrieved by the said order expenditing the hearing of the criminal case, the petitioner filed a transfer application against the learned Additional Chief Metropolitan Magistrate to the Chief Metropolitan Magistrate, Bombay, and thereafter to the Sessions Court, Bombay. That application was dismissed. On June 6, 1983, the recording of evidence of respondent No 1-complainant commenced. On June 14, 1983, the petitioner filed Criminal Application No 616 of 1983 in this court challenging the initiation of the complaint by respondent No 1. That application was dismissed by this court on July 13, 1983. The evidence of respondent No 1 which had commenced on June 6, 1983, was completed on conclusion of the cross-examination on October 5, 1984, and, thereafter, on February 12, 1985, the examination of P W 2, R P Bharucha, the Vice-President, Personnel, Administration and Legal Division of the company, commenced. The examination-in-chief was completed on the same day and his cross- examination commenced on that very day and it is yet to be completed. The petitioner-accused raised a dispute under the Industrial Disputes Act, 1947, by contending that he is a "workman" within the definition of that term as appearing in section 2(s) of the said Act and the termination of his services with the company was not done in accordance with the provisions of section 25F of th said Act and as such it was bad in law and void a initio and hence he continued to be in service. According to him, the flat in question was given to him as part of his conditions of service and as such he was entitled to occupy the same till his services were validly terminated. According to him, as his services have not been validly terminated, the company could not ask him to vacate the flat and also could not maintain any action in the criminal court under section 630 of the Companies Act, 1956. According to him, as the dispute raised by him has been referred by the State in 1985 to the Labour Court, it was necessary either to quash the criminal proceedings or to stay them till the Labour Court decided the dispute raised by him. By an application dated November 11, 1987, the petitioner moved the learned Additional Chief Metropolitan Magistrate, Ninth Court at Bandra, Bombay, for stay of the proceedings. That application was dismissed by the learned Additional Chief Metropolitan Magistrate by a reasoned order dated December 15, 1987. Feeling aggrieved, the petitioner has preferred this petition.
4. Learned counsel, Mr. R S Bhonsale, appearing for the petitioner-accused, submitted before me that though the petitioner was employed as an industrial relations executive with the company, he was doing duties of a clerical nature and as such he was a "workman" within the definition of that term as appearing in section 2(s) of the Industrial Disputes Act, 1947. Learned counsel contends that whether the petitioner is a workman and whether the termination of his services by the company is bad and illegal for non-compliance of the provisions of section 25F of the Industrial Disputes Act can be decided only by the courts constituted under the said Act and in case he is held to be a workman and it is also further held that the termination of his services or retrenchment is not in accordance with the said section 25F, he continues to be in the service of the company and as such he could not be asked to vacate the premises, as those premises were allotted to him as part of the conditions of his service. He, therefore, submits that it is necessary either to quash or to stay the criminal proceedings pending decision by the First Labour Court, Bombay. Learned counsel, Mr. V P Vashi, appearing for respondent No 1- complainant, on the other hand, contends that the accommodation in question was never allotted to the petitioner could not arrange for his own accommodation, the company had obliged him by giving temporary accommodation and even before his services were terminated, he was asked by the company to vacate the premises, as the company wanted to honour the promise it had given to the landlord that it would surrender the premises to him by a particular date. According to learned counsel, the petitioner, when asked by the company to vacate the premises, never raised a contention that he was entitled to continue to occupy the premises as a condition of his service. On the contrary, he replied to the company that he was making arrangements for his accommodation and would vacate the premises. Learned counsel further submits that the petitioner was employed by the company in an executive capacity and that he is not a "workman" within the definition of the term appearing in section 2(s) of the Industrial Disputes Act and as such he could not raise any dispute under the said Act. He submits that the hearing of the criminal case and the examination of the complainant commenced on June 6, 1983, and one of the witnesses has been examined and cross-examined and the second witness is in the witness-box since February 12, 1985, and he is being cross-examined since then. According to him, the witness attended the trial court as many as 75 times and he has to attend it till his cross-examination is complete. According to learned counsel, though the dispute on the application of the petitioner was referred to the Labour Court in the year 1985, the petitioner did not move the trial court for stay of the criminal proceedings till November 11, 1987, that is for about two years after the dispute was referred to the Labour Court. He submits that right from the beginning, it has been the modus operand of the petitioner to protract the trial for some reasons or other and that he has not even failed to file a transfer application against the learned Additional Metropolitan Magistrate, Ninth Court at Bandra, Bombay, when he ordered the expeditious hearing of the matter. Learned counsel contends that it is not necessary to stay the proceedings in the criminal court till the decisions of the dispute referred to the Labour Court. According to him, he can raise the defence that is available to him in the criminal court and if the criminal court is satisfied about his defence, he can secure acquittal in the case and, therefore, it is not necessary to stay the proceedings.
5. The complaint under section 630 of the Companies Act, 1956, was filed against the petitioner-accused in the year 1982 and the recording of evidence has already commenced. Normally, when the recording of evidence commences in a criminal trial, the trial has to be held day-to-day and the matter has to be disposed of as early as possible. The speedy trial of the criminal cases is in the interest of the accused and the courts have gone to the extent of propounding that under article 21 of the Constitution of India, speedy trial is the fundamental right of the accused. Therefore, courts should be very reluctant to stay the hearing of criminal cases which have already begun. The fact that there is a dispute between the petitioner and the company as to whether the petitioner is a workman and whether his services have been properly terminated as required by section 25F of the Industrial Disputes Act, 1947, does not in any way affect the continuation of the trial and the decision of the crinimal case. Section 630 of the Companies Act reads thus :
"630(1). If any officer or employee of a company-
(a) wrongfully obtains possession of any property of a company; or
(b) having any such property in his possession, wrongfully withholds it or knowingly applies it to purposes other than those expressed or directed in the articles and authorised by this Act;
he shall, on the complaint of the company or any creditor or contributory thereof, be punishable with fine which may extend to one thousand rupees.
(2) The court trying the offence may also order such officer or employee to deliver up or refund, within a time to be fixed by the court, any such property wrongfully obtained or wrongfully withheld or knowingly misapplied, or in default, to suffer imprisonment for a term which may extend to two years."
6. A reading of section 630 of the Companies Act, reproduced above, clearly shows that it is for the complainant to prove that the accused is wrongfully withholding the flat allotted to him by the company and the defence in the cross-examination of the complainant's witnesses or by adducing evidence can show that the accused is not wrongfully occupying the premises, and it is well settled that the burden of proof is always on the prosecution and the burden on the accused to prove the defence is not as onerous as that of the prosecution. Therefore, taking into consideration all those facts, I do not find that there is any case made out either for quashing or for staying the proceedings in Criminal Case No 108/S of 1982.
7. It may be mentioned that counsel for both the parties have cited before me a large number of authorities on the question whether the petitioner is a workman, and also on the question as to when the proceedings in the criminal court should be stayed when there are civil proceedings pending, but I propose not to deal with those cases, lest my observations may, in any way, prejudice the defence or the case of the complainant, and counsel for both the parties also say that it is not necessary to discuss all those cases. Every case has to be decided on its facts, and under certain circumstances, to avoid failure of justice, it becomes necessary to stay the criminal proceedings pending the civil proceedings, but that is not the case in the present matter.
8. In the result, there is no substance in the petition and it is hereby dismissed. The rule is discharged. The interim stay is vacated. The writ shall be immediately sent to the trial court. The parties are directed to appear in the trial court on September 21, 1988, and the learned Additional Chief Metropolitan Magistrate shall continue the trial and dispose of the matter as expeditiously as possible within six months.