Gujarat High Court
A K Bhandari vs State Of Gujarat Thro P D Sunny, Labour ... on 26 July, 2023
NEUTRAL CITATION
R/SCR.A/337/2013 JUDGMENT DATED: 26/07/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 337 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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A K BHANDARI & 1 other(s)
Versus
STATE OF GUJARAT THRO P D SUNNY, LABOUR ENFORCEMENT
OFFICER & 1 other(s)
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Appearance:
MR DHARMESH DEVNANI FOR NANAVATI ASSOCIATES(1375) for the
Applicant(s) No. 1,2
MS ASMITA PATEL APP for the Respondent(s) No. 1
RULE NOT RECD BACK for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 26/07/2023
ORAL JUDGMENT
By way of this petition under Section 482 of the Code of Criminal Procedure, 1973, the petitioners seek to challenge the complaint being Criminal Case No.2807 of 2012 dated 06/09/2012 filed by the respondent No.2 before the learned Page 1 of 17 Downloaded on : Sat Sep 16 22:52:02 IST 2023 NEUTRAL CITATION R/SCR.A/337/2013 JUDGMENT DATED: 26/07/2023 undefined Metropolitan Magistrate, Court No.6, Ahmedabad whereby the learned Court has issued the summons against the petitioners after registration of the said complaint.
2. The facts of the case which can be gathered from the pleadings are stated succinctly that, 1 st petitioner is the Zonal Manager, Bank; whereas 2nd petitioner is the Sr. Manager (IR), Bank of India and both came to be superannuated on 30/04/2009 and 31/08/2008 respectively from the service.
2.1 That, one Mr.Ashok Pandya was working as Staff Clerk at the Bank of India since 01/09/1977 raised an industrial disputes through Maha Gujarat Bank Employee's Association, Ahmedabad before the Conciliation Officer & Assistant Labour Commissioner (Central), Ahmedabad demanding grant of pension. The Memorandum of Settlement ( in short 'MOS') was arrived at between the Management of the Bank of India and the Maha Gujarat Bank Employees Association on 19/02/2008 before the concerned conciliation Officer & Assistant Labour Commissioner under Section 12(3) of the ID Act which was signed in Form 'H' by the concerned and the terms of the MOS reads thus:
"* The workman/Union (Bank of India) mentioned that he is willingly ready to move afresh application in the prescribed format for the grant of pension. The management of the bank has agreed to the same and stated that the pension shall be granted/released to him within a reasonable time of 30-45 days from the date of application.
* With this MOS, the existing industrial dispute is Page 2 of 17 Downloaded on : Sat Sep 16 22:52:02 IST 2023 NEUTRAL CITATION R/SCR.A/337/2013 JUDGMENT DATED: 26/07/2023 undefined hereby, disposed - off with immediate effect. "
2.2 That, Mr.Ashok Pandya on 19/02/2008 made an application to the Bank and the Bank was required to process and release the pension; within reasonable time. The Head Office of the Bank of India addressed a communication to Mr.Pandya vide letter dated 03/04/2008 copy whereof was received by the Zonal Office of Bank of India on 05/04/2008; but unfortunately Mr.Pandya received the said letter on 10/04/2008. This letter indicates that the payment of the pension is released as per MOS and that too within the time frame limit.
2.3 That Mr.Pandya also preferred Special Civil Application No.8681 of 2008 before this Court and demanding revision in pension with the penal interest and in view of the statement made before this Court, the Bank agreed to re-fix the pension of Mr.Pandya from Rs.4165/- to Rs.5,647/- which was noted in the order dated 25/02/2009 and the arrears was promised to pay within one month. That, while passing the said order, the Court also observed that there is no deliberate delay on the part of the Bank of India in not granting the pension and the net effect of the said observation is denial of the penal interest on the delayed payment.
2.4 Review application being Misc. Civil Application No.2545 of 2010 was filed unsuccessfully by Mr.Pandya.
2.5 While not stopping there, Mr.Pandya availed the remedy by filing Letters Patent Appeal No.2857 of 2010 before this Court challenging the order dated 25/02/2009; however he still Page 3 of 17 Downloaded on : Sat Sep 16 22:52:02 IST 2023 NEUTRAL CITATION R/SCR.A/337/2013 JUDGMENT DATED: 26/07/2023 undefined remained unsuccessful.
2.6 During pendency of the aforesaid litigation, the Regional Labour Commissioner (Central), Ahmedabad requested the Bank of India to provide the names of the Officials of the Bank working in the specified Zone, as also particulars and whereabouts of the Officer were also asked and provided.
2.7 That in spite of the specific observations made in order dated 25/02/2009 by this Court which has been confirmed in the LPA that there is no deliberate delay on the part of the Bank, the Office of the Regional Labour Commissioner, Central, Ahmedabad issued show-cause notice dated 20/03/2012 to the petitioners calling upon them to explain as to why the legal action should not be initiated against them for non- implementation of MOS dated 19/02/2008. The said show-cause notice was replied to with the clarification that differential amount of Rs.12/- has been incorporated in the pension from the month of December, 2001 and yet the Regional Labour Commissioner (Central), Ahmedabad through Labour Enforcement Officer filed a complaint under Section 29 of the Industrial Disputes Act against the present petitioners alleging failure to implement the settlement dated 19/02/2008 before the learned Metropolitan Magistrate, Court No.6, Ahmedabad.
2.8 The said complaint came to be registered as Criminal Case No.2807 of 2012 and as per order dated 06/09/2012 the learned Court has issued the summons against the petitioners after registration of the said complaint which has given rise to the present petition.
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3. Vide order dated 09/11/2016, Rule came to be issued and ad-interim-relief granted earlier was ordered to be continued till the final disposal of the matter.
4. Heard Mr.Dharmesh Devnani, learned Advocate for the petitioners and learned APP Ms.Asmita Patel, appearing for the respondent-State. None has remained present for respondent No.2 though served.
5. Learned Advocate Mr.Devnani for the petitioners has taken this Court through the grounds mentioned in the memo of application and would submit that the present petitioners have signed the MOS in the capacity of the officials of the Bank of India and not in the individual or personal capacity; yet they have been arraigned as accused in their individual and personal capacity; without joining the Bank of India as accused. He would further submit that the very foundation of the said complaint lodged before the learned Court below is baseless and merit-less. He has further submitted that this Court has categorically held that there was no deliberate delay on the part of the Bank to execute the MOS and therefore, question does not arise to prefer the complaint under Section 29 of the ID Act. He has further submitted that if the said complaint is perused, it would indicate that same is filed in teeth of the order passed by this Court and it is therefore submitted that the present petition may be allowed and further proceedings of the complaint which is nothing but a sheer abuse of process of law may be quelled and set aside.
6. Objecting to the aforesaid submissions, learned APP Ms.Asmita Patel would submit that there is a clear delay on the Page 5 of 17 Downloaded on : Sat Sep 16 22:52:02 IST 2023 NEUTRAL CITATION R/SCR.A/337/2013 JUDGMENT DATED: 26/07/2023 undefined part of both the petitioners in implementation and execution of the MOS which was arrived at between the parties before the Regional Labour Commissioner. It was deliberate and since it was mischief of the Bank; within Section 29 of the ID Act, the Labour Commissioner has rightly filed the complaint and consequently the learned Court below has rightly taken cognizance of the said complaint. She has further submitted that perusing the said complaint on bare face in juxta position of the present petition, the petitioners have failed to make out any case to discontinue with the said proceedings at threshold and therefore, the present petition may be dismissed.
7. Regard being had to the rival contentions of the parties, at the outset, it would be beneficial to refer to Sections 18 and 29 of the ID Act which reads thus:
"18. Persons on whom settlements and awards are binding.-2 (1) A settlement arrived at by agreement between the employer and workman otherwise than in the course of conciliation proceeding shall be binding on the parties to the agreement.
(2)Subject to the provisions of sub- section (3), an arbitration award] which has become enforceable shall be binding on the parties to the agreement who referred the dispute to arbitration.] (3)] A settlement arrived at in the course of conciliation proceedings under this Act or an arbitration award in a case where a notification has been issued under sub- section (3A) of section 10A] or an award of a Labour Court, Tribunal or National Tribunal] which has become enforceable] shall be binding on--Page 6 of 17 Downloaded on : Sat Sep 16 22:52:02 IST 2023
NEUTRAL CITATION R/SCR.A/337/2013 JUDGMENT DATED: 26/07/2023 undefined
(a) all parties to the industrial dispute;
(b) all other parties summoned to appear in the proceedings as parties to the dispute, unless the Board, arbitrator,] Labour Court, Tribunal or National Tribunal], as the case may be, records the opinion that they were so summoned without proper cause;
(c)where a party referred to in clause (a) or clause (b) is an employer, his heirs, successors or assigns in respect of the establishment to which the dispute relates;
(d)where a party referred to in clause (a) or clause (b) is composed of workmen, all persons who were employed in the establishment or part of the establishment, as the case may be, to which the dispute relates on the date of the dispute and all persons who subsequently become employed in that establishment or part.
29. Penalty for breach of settlement or award.- Any person who commits a breach of any term of any settlement or award, which is binding on him under this Act, shall be punishable with imprisonment for a term which may extend to six months, or with fine, or with both, and where the breach is a continuing one, with a further fine which may extend to two hundred rupees for every day during which the breach continues after the conviction for the first] and the Court trying the offence, if it fines the offender, may direct that the whole or any part of the fine realised from him shall be paid, by way of compensation, to any person who, in its opinion, has been injured by such breach.] "
8. In the present case, it is alleged that the petitioners have breached the MOS arrived at between the parties on 19/02/2008 and not acted as per the terms and conditions of the MOS; within the stipulated time limit and therefore, the said Page 7 of 17 Downloaded on : Sat Sep 16 22:52:02 IST 2023 NEUTRAL CITATION R/SCR.A/337/2013 JUDGMENT DATED: 26/07/2023 undefined MOS is breached at the instance of the petitioners. It is true that MOS dated 19/02/2008 is signed by the present petitioners; but in the capacity of the Officials of the Bank of India as the present petitioners at the relevant time were posted as Zonal Manager and Sr. Manager (IR), Bank of India respectively. Thus, in their official capacity, on behalf of the Bank of India, they have signed the MOS. In real sense, the Bank of India is the employer and the Bank of India enters into the settlement through their officials with the employee viz. Mr.Pandya. Therefore, such MOS can be binding to the Bank of India being employer and Mr.Pandya being employee. It cannot shoulder the personal and / or individual responsibility on the Zonal Manager and the Senior Manager since they were acting on behalf of their employer. In other words, the present petitioners cannot be held liable in their personal or individual capacity for the breach of MOS, if any, as Section 18 of the ID Act does speak about binding of the settlement between the parties who are employee and employer. In no terms, it states that it would also bind upon the Manager that too in personal or individual capacity of the officials of the employer. Section 18 of the ID Act stipulates that settlement arrived at by the agreement is binding only to the employer and the workman and not to any other person. The binding effect therefore is limited between the employer and workman and it will be enforceable between the said parties only.
9. The another highlighted point appears from the record is that both the petitioners have retired from their services on 30/04/2009 and 31/08/2008 respectively i.e. much prior to Page 8 of 17 Downloaded on : Sat Sep 16 22:52:02 IST 2023 NEUTRAL CITATION R/SCR.A/337/2013 JUDGMENT DATED: 26/07/2023 undefined they have been arraigned as accused by the learned Court below. What reflects that both the petitioners though superannuated from their service a long ago; still held responsible for alleged non-execution or non-implementation of the MOS entered into by the officials of the Bank in capacity of employee. Now, insofar as the order passed by the learned Court below, issuing process and taking cognizance if examined, it appears that the said order is a rubber stamp order. The learned Metropolitan Magistrate, Court No.6, Ahmedabad has put his signature only. This is a clear non-application of mind on the part of the learned Court below and therefore, such a rubber stamp order cannot be considered as the order passed after application of mind.
10. Reasons are heart of every judicial order. In India, the judicial trend always encourage of recording of the reasons even in the administrative decisions, if such decision is affecting anyone prejudicially. The Apex Court in the case of Kranti Associates (P) Ltd. v. Masood Ahmed, (2010) 9 SCC 496, while summing up the discussion in paragraph 47 recognized the importance of the reasons which reads thus:
"47. Summarising the above discussion, this Court holds:
(a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.
(b) A quasi-judicial authority must record reasons in support of its conclusions.Page 9 of 17 Downloaded on : Sat Sep 16 22:52:02 IST 2023
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(c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.
(d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.
(e) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations.
(f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.
(g) Reasons facilitate the process of judicial review by superior courts.
(h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice.
(i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system.
(j) Insistence on reason is a requirement for both judicial accountability and transparency.
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(k) If a judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.
(l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or "rubber-stamp reasons" is not to be equated with a valid decision-making process.
(m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the judges and decision- makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor [(1987) 100 Harvard Law Review 731-37] .)
(n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija v. Spain [(1994) 19 EHRR 553] EHRR, at 562 para 29 and Anya v. University of Oxford [2001 EWCA Civ 405 (CA)] , wherein the Court referred to Article 6 of the European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions".
(o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "due process"." Therefore, even while passing such an interim order, in exceptional cases with caution and circumspection, the High Court has to give brief reasons why it is necessary to pass such an interim order, more particularly when the High Court is exercising the extraordinary Page 11 of 17 Downloaded on : Sat Sep 16 22:52:02 IST 2023 NEUTRAL CITATION R/SCR.A/337/2013 JUDGMENT DATED: 26/07/2023 undefined and inherent powers under Section 482Cr.P.C. and/or under Article 226 of the Constitution of India. Therefore, in the facts and circumstances of the case, the High Court has committed a grave error of law and also of facts in passing such an interim order of "no coercive steps to be adopted" and the same deserves to be quashed and set aside. Criminal Miscellaneous Petition No. 4961 of 2021."
11. Thus, the rubber stamp order is clearly without application of mind and the learned Court below has arbitrarily exercised the power in issuing process. Since no such reasons are given in a rubber stamp order; it has breached the principles of natural justice and this is one of the reason that issuing process against the present petitioners is bad in law and in clear violation of the principles of law as laid down in the aforesaid referred decisions.
12. In the order dated 25/02/2009 passed in SCA No.8681 of 2008 and allied matters, this Court has explicitly held that there is no deliberate delay on the part of the respondent-Bank in not granting the pension; paragraph 3 thereof reads thus:
"3. So far as prayer of the petitioner for penal interest on delayed payment of pension is concerned, considering the fact that dispute was pending with respect to grant of pension, which came to be settled in the month of February,2008 and the petitioner has stated before the Assistant Labour Commissioner (Central), Ahmedabad & Conciliation Officer that he is ready to make afresh application in the prescribed format for the grant of pension, it cannot be said that there is a Page 12 of 17 Downloaded on : Sat Sep 16 22:52:02 IST 2023 NEUTRAL CITATION R/SCR.A/337/2013 JUDGMENT DATED: 26/07/2023 undefined deliberate delay on part of respondent bank in not granting the pension. In view of the above, prayer of the petitioner for penal interest on delayed payment of the pension, is rejected."
13. The above finding is confirmed in LPA No.2857 of 2010 and the Bank has re-fixed the pension which clearly indicates that there was clear implementation and execution of the MOS.
14. Now, if the complaint which was filed on 06/09/2012 before the learned Court below is examined, it appears that Labour Commissioner dares to make a statement that the Court has confirmed the wrong fixation of the pension by the Management. This is something unusual and against the judicial discipline which can be noticed from paragraph 3 of the complaint which reads thus:
"3. That the bank management re-fixed the pension at 4165/- w.e.f. 1.5.2005 which was not found to be correct and therefore Shri Ashok Pandya had to approach Hon'ble High Court of Gujarat for remedy. Hon'ble High Court of Gujarat in CA No.14753/2008 in SCA No.8681/2008 passed the order dated 25.2.2009 granting relief to Shri Pandya and therefore by confirming wrong fixation of pension by the management. Further, even after the said order of Hon'ble High Court of Gujarat, the management paid pension to Shri Ashok Pandya @ 5635/- till November, 2011 and finally, the difference of 12/- in the pension was incorporated and included in the pension for the month of December, 2011 when finally the pension of Page 13 of 17 Downloaded on : Sat Sep 16 22:52:02 IST 2023 NEUTRAL CITATION R/SCR.A/337/2013 JUDGMENT DATED: 26/07/2023 undefined Shri Ashok Pandya stood fixed correctly. Thus the management continued to avoid implementation of settlement till 23.12.2011."
15. This is nothing but an attempt to overreach the process of the order passed by this Court. A meager difference of Rs.12/- in fixation of pension has been highlighted to call for inference under the criminal jurisdiction by the Labour Enforcement Officer (Central); however such exercise on face of it indicates a sheer abuse of process of law and in flaws of the order passed by this Court.
16. In State of Haryana & Ors. vs. Ch.Bhajan Lal & Ors. [1992 SCC Supl. (1) 335], the Apex Court has considered the scope of High Courts' power under Section 482 of the Code of Criminal Procedure to quell the FIR and the Hon'ble Apex Court has identified the following case in which the FIR or complaint can be quashed.
"(1) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;
(2) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;
(3) where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;Page 14 of 17 Downloaded on : Sat Sep 16 22:52:02 IST 2023
NEUTRAL CITATION R/SCR.A/337/2013 JUDGMENT DATED: 26/07/2023 undefined (4) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;
(5) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;
(6) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;
(7) Where a criminal proceeding is manifestly attended with mala fide and / or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengence on the accused and with a view to spite him due to private and personal grudge. "
17. Though quashing the complaint at the threshold is a higher remedy and non-suiting the complainant at the stage of summoning the order when the factual controversy is yet to be canvassed and if the FIR or complaint and the submissions made therein are taken at face value and accepted in their entirety do not constitute the offence or make out any case against the accused still the accused cannot be directed to face the tune of trial. It would be profitable to refer to the case of R. P. Kapur vs. State of Punjab [1960 3 SCR 388] wherein the Hon'ble Apex Court summarized the category of cases and where inherent power can and should be exercised to quash the proceedings.
Page 15 of 17 Downloaded on : Sat Sep 16 22:52:02 IST 2023NEUTRAL CITATION R/SCR.A/337/2013 JUDGMENT DATED: 26/07/2023 undefined "(i) where it is manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;
(ii) where the allegations in the first information report or complaint taken at the face value and accepted in their entirety doe not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge."
18. In the present case, learned Metropolitan Magistrate issued the process in a private complaint; without examining the issues such as (01) whether there is a deliberate delay on the part of the employer and what was order passed in this regard by this Court; (02) whether the petitioner in their personal capacity can be prosecuted or can be held liable and; (03) whether the process can be issued against the accused persons; without joining the original employer i.e. Bank of India in the present case as party?
19. A bare reading of the complaint indicates that it is filed mala-fidely ignoring the order and observations made by this Court and terming the order of this Court as wrong order. Thus, such kind of complaint cannot be permitted to stand and cannot be allowed to be culminated into the trial.
20. In the given circumstances, this is a fit case to exercise the powers under Section 482 of the Code to quash the impugned Page 16 of 17 Downloaded on : Sat Sep 16 22:52:02 IST 2023 NEUTRAL CITATION R/SCR.A/337/2013 JUDGMENT DATED: 26/07/2023 undefined complaint filed before the learned Court below. In wake of the above reasons, the present petition succeeds and the complaint being Criminal Case No.2807 of 2012 dated 06/09/2012 filed by the respondent No.2 before the learned Metropolitan Magistrate, Court No.6, Ahmedabad and subsequent proceedings arising out thereof are hereby quashed and set aside. Rule is made absolute to the aforesaid extent. Direct Service is permitted.
(J. C. DOSHI,J) sompura Page 17 of 17 Downloaded on : Sat Sep 16 22:52:02 IST 2023