Gauhati High Court
Nagendra Nath Gogoi vs Tengapani Tea Co. Ltd. on 30 January, 2006
Equivalent citations: [2007]75SCL241(GAU)
ORDER B.K. Sharma, J.
1. By means of this revision application, the petitioner seeks quashing of the proceedings in CR Case No. 930(c)/2004 drawn against the petitioner under Section 630 of the Companies Act, 1956 now pending in the Court of Sub-Divisional Judicial Magistrate (Sadar), Tinsukia. The petitioner has also assailed the legality and validity of the order passed by the learned Magistrate by which plea of the petitioner that the complaint petition filed by the complainant/respondent is not maintainable, has been rejected.
2. The complainant/respondent herein filed a complaint on 29-11-2004 before the learned Chief Judicial Magistrate, Tinsukia and the same was registered as CR Case No. 930(c)/2004 under Section 630 of the Companies Act, 1956. In the complaint, it was statedmtera/iathat the petitioner having not vacated the company quarter allotted to him during his tenure of service is liable to be prosecuted under Section 630 of the Companies Act, 1956 and for restoration of the property.
3. The complaint petition having been entertained by the learned Magistrate, summons were issued to the petitioner and upon his appearance, he filed a petition challenging the very maintainability of the proceeding. The objection having been rejected by the impugned order dated 30-5-2005, the petitioner has filed the instant revision application with the aforementioned prayer.
4. The petitioner entered into the services of the respondent company in the year 1976 and in the year 1984, he was made the store keeper and he continued in that capacity till his service came to an end from October, 2003. It is the case of the petitioner that on receipt of notice of superannuation, he submitted a representation before the management of the company seeking extension of his service beyond the age of superannuation as was purportedly done in case of many other workmen. Such prayer for extension of service having not been granted, the petitioner raised a dispute before the conciliation officer and upon failure to resolve the issue, the dispute was referred for adjudication as Reference Case No. 12/2004 to the learned Labour Court, Dibrugarh.
5. It is the case of the petitioner that in view of pendency of the aforesaid Reference Case No. 12/2004, the petitioner is entitled to retain and occupy the quarter allotted to him by the management by virtue of Rule 66 of the Assam Plantation Labour Rules, 1956. Rule, 66 is quoted below:
Occupation of accommodation after termination of employment.-(1) When a worker dies in the service of the employer; or retires, or goes on transfer, or resigns, or goes on leave, or when his services are terminated, he or his family may retain the house up to the period as detailed below:
(i) in the case of death, transfer, termination of service, retirement or resignation a period not exceeding two months;
(ii) in the case of leave, for the period of leave; and
(iii) in the case where the discharge of a. worker is disputed and the matter has been taken to an Industrial Tribunal or Court, for so long as the case is not finally disposed of.
(2) If a worker fails to vacate the house on the expiry of the period mentioned above and continues to occupy the same when no member of his family is working he shall be liable to pay to the employer such rent at a rate not exceeding 10 per cent of his wages as may be fixed by the Chief Inspector of Plantation on the advice of the Housing Advisory Board, for the entire period of his unauthorized occupation.
6. Placing reliance on the aforesaid provisions of the Plantation Labour Rules, the petitioner asserts that in view of the pendency of the Reference Case No. 12/2004, the petitioner is entitled to continue to occupy the quarter till such time, the dispute is finally disposed of. Another ground urged by the petitioner is that the learned Magistrate ought not to have issued summons without there being compliance of the requirement of Section 200 of the CPC. According to the petitioner the complainant/ respondent represented by its attorney was not examined under section 200 Cr.P.C. Thus, on both these grounds, it has been contended by the petitioner that the proceedings initiated in CR Case No. 930(c)/2004 is not maintainable and liable to be interfered with invoking the jurisdiction under Section 482 Cr.P.C. read with the provisions contained in Section 397/401 of the Code. The petitioner has also invoked Article 227 of the Constitution of India.
7. I have heard Mr. B. Chakraborty, learned Counsel appearing for the petitioner as well as Mr. D. Baruah, learned Counsel representing the complainant/respondent. The records of the case having revealed that there was initial deposition on behalf of the complainant/respondent by its appointed attorney under Section 200 Cr.P.C. learned Counsel for the petitioner fairly abandoned the plea of the proceeding being not maintainable on account of non-examinatioti of the complainant under Section 200 Cr.P.C. However, Mr. Chakraborty, learned Counsel for the petitioner strenuously argued that in view of the provisions of Rule 66 of the Rules, the petitioner is entitled to continue to occupy the quarter till final disposal of the Reference Case No. 12/2004. According to him, the Assam Plantation Labour Rules, 1956 being a beneficial legislation, the provisions thereof are required to be given liberal construction. He pressed into service the decisions of the Apex Court in S.K. Sarma v. Mahesh Kumar Verma , Rohtas v. State of Haryana . He also placed reliance on the decision of this Court as in SPBP Tea Industries Ltd. Desouza IP 1997 (2) GLT 579.
8. Countering the above argument, Mr. D. Baruah, learned Counsel appearing for the complainant/respondent at the very first instance submitted that the instant revision application is liable to be dismissed there being suppression of material fact. He submitted that but for the suppression as regards the initial deposition made on behalf of the complainant/respondent, perhaps the revision application would not have been entertained and that too with an interim order staying the further proceeding in the complaint case. According to him, the provisions of Section 630 of the Companies Act is attracted directly in the instant case. Referring to paragraph 4 of the revision application, Mr. Baruah contended that the petitioner having himself admitted about his retirement on attaining the age of superannuation, it cannot be said to be a case of discharge from service so as to attract the provisions of Rule 66 of the aforesaid Rules of 1956. He also placed reliance on the decision of the Apex Court in Atul Mathur v. Atul Kalra [1990] 68 Comp. Cas. 324.
9. On the basis of the arguments advanced by the learned Counsel for the parties and the materials available on record, the core question which comes up for consideration is as to whether the petitioner is entitled to any protection towards retention of the quarter till the proceedings in Reference Case No. 12/2004 stated to be pending before the learned Labour Court, Dibrugarh comes to an end. It will be appropriate at this stage to refer to the references made to the Labour Court. The references are as follows:
1. Whether the refusal of the Management of Tengapani T.E. to extend the service of Sri N.N. Gogoi, Store Clerk is justified?
2. If not, what relief is he entitled to?
10. On perusal of the above reference, it will be seen that the reference is not in respect of discharge of the petitioner from service, but is in respect of extension of his service. As per the own admission of the petitioner his service came to an end on attaining the age of superannuation. However, it is his grievance that unlike others, his service was not extended by the management of the company. Even if such plea of the petitioner is held to be correct, such refusal to grant extension of service does not fall in the category of discharge from service. It is only in respect of discharge from service, the workman is entitled to the protection as envisaged under Rule 66(1)(m) of the aforesaid Rules of 1956. Merely because the Reference Case No. 12/2004 in respect of extension of service of the petitioner is pending in the Labour Court, Dibrugarh, the petitioner is not entitled to the protection, such protection being available only in case of discharge from service. By no stretch of imagination refusal to extend the service after the age of superannuation can (sic) out the equated with that of discharge from service which necessarily implies dispensation of the services of the workman before attaining the age of superannuation.
11. Section 630 of the Companies Act, 1956 provides that in the event of wrongful possession of any property of a company by its officer or employee, he shall, on the complaint of the company or any creditor or contributory thereof, be punishable with fine which may extend to 1,000 rupees. It further provides that 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. It is under the provisions of Section 630 of the Companies Act, the complainant/respondent has filed the complaint before the learned Magistrate and the learned Magistrate on the basis of the materials on record including the initial deposition of the appointed attorney of the company issued summons to the petitioner taking cognizance of the matter. I do not find any infirmity with the same.
12. In the case of S.K. Sarma (supra), the Apex Court dealing with the object of Section 138 of the Railways Act observed that the word "discharge" used in the context is of the widest amplitude and would include cessation of relationship of employer and employee, may be retirement, resignation, dismissal or removal. It was in the context of Section 138 of the Act, dealing with the procedure for summary delivery to Railways Administration of property detained by a Railway servant, it was held that termination of service by the Railway under the relevant clause of the agreement amounts to discharge within the meaning of Section 138 of the Act and the employee is therefore liable to dispossession of the premises, which he was occupying as a servant of the Railway. Thus, this case is of no help to the case of the petitioner rather runs counter to the plea advanced.
13. The case of Rohtas (supra) was pressed into service to put emphasis that the Assam Plantation Labour Act, 1951 and the Rules of 1956 framed thereunder would prevail over the provisions of the Companies Act, 1956. This case is also no help to the petitioner, when the dispute under reference is not in respect of discharge of the petitioner from service, but is only in respect of extension of his service, which he claims to be entitled to. It is not understood as to in what context the case of SPBP Tea Industries Ltd. (supra) has been referred to. It was held in that case that Rule 66(1)(iii) of the Rules, 1956 does not provide for stay of any proceeding of eviction when a workman is dismissed and his case is not referred under Section 10 of the Industrial Disputes Act and that the rule also does not empower the Court to stay any proceeding during the pendency of any conciliation proceeding. The case in hand is neither a case of dismissal from service nor it is a case of discharge from service.
14. In the case referred to by Mr. Baruah, learned Counsel for the complainant/respondent, namely Atul Mathur (supra), Apex Court observed that the purpose of enacting Section 630 of the Companies Act, 1956, is to provide speedy relief to a company when its property is wrongfully obtained or wrongfully withheld by an employee or an ex-employee. It has already been observed above that the provisions of Section 630 of the Companies Act are prima facie attracted in the instant case and accordingly, there was nothing wrong on the part of the complainant/respondent to invoke the jurisdiction of the Court below under the provisions of Section 630 of the Act.
15. Needless to say that the power of quashing proceedings should be exercised very stringently and with circumspection. As has been observed by the Apex Court in the case of MMTC Ltd. v. Medchl Chemicals & Pharma (P.) Ltd. , it is well settled law that at this stage the Court is not justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the complaint. The inherent powers do not confer an arbitrary injunction on the Court. The inherent power under Section 482 Cr.P.C. can be exercised by the High Court either to prevent abuse of process of any Court or otherwise to secure ends of justice. The power of quashing being available in the rarest of the rare cases, such power will have to be exercised with circumspection. In the instant case the complaint filed by the company under Section 630 of the Companies Act, prima facie having disclosed the offence as contemplated under the section, the learned Magistrate issued process and rightly rejected the objection filed by the petitioner and I do not find any infirmity in the impugned order dated 30-5-2005.
16. For the foregoing reasons, discussions and conclusions there is no merit in the revision application and the same is dismissed, leaving the parties to bear their own costs.