Himachal Pradesh High Court
Managing Director M/S Devyani Food ... vs Coram on 26 February, 2024
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No. 374 of 2022 Reserved on: 12.01.2024 .
Date of Decision: 26.02.2024 Managing Director M/s Devyani Food Industries Limited and anr.
...Petitioners
Versus
Coram
r to
State of Himachal Pradesh through Labour Inspector ...Respondent Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 For the Petitioner : Mr. Surinder Saklani, Advocate.
For the Respondent : Mr. Jitender Sharma, Additional Advocate General.
Rakesh Kainthla, Judge Labour Commissioner, Baddi (complainant) filed a complaint against the present petitioners for the commission of an offence punishable under Section 25(R) of the Industrial Disputes Act, 1947 read with H.P. Industrial Dispute Rules, 1974. It was asserted that the management of M/s Devyani Food Industry served a notice of closure upon the Labour Commissioner, 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 26/02/2024 20:30:05 :::CIS 2Himachal Pradesh vide an e-mail dated 16.5.2020 under Section 25(FFA) of the Industrial Disputes Act, 1947 stating that the .
management had decided to permanently close their factory/establishment. The Joint Labour Commissioner directed the Labour Officer, Baddi to conduct an inquiry regarding the number of workmen employed by the management in the preceding 12 months before serving the notice. It was also directed that all affected workmen should be given their full and final dues as per the provisions of applicable labour laws. The Labour Officer informed the Labour Commissioner vide letter dated 27.6.2020 that Management had given an impression that it was not closing the factory and that the factory would run at normal course. The production and dispatch activities of the unit were going on smoothly. Management did not produce the record despite the repeated visits of the Labour Officer; hence, the Labour Officer obtained the figure of workers from the Devyani Karamchari Sangh, as per which 86 workers were working in the factory. He also reported that there were no exceptional circumstances to show that the factory could not carry out its business. Rakesh Sharma (President, Bhartiya Mazdoor Sangh, Himachal Pradesh) made a complaint dated 29.07.2020 stating that the notice of closure was ::: Downloaded on - 26/02/2024 20:30:05 :::CIS 3 not given to the workers of the Company. The services of some of the workers were terminated without any notice. 105-110 workers .
were engaged in the company. The request was made to refer the matter to the Labour Court for adjudication. The Labour Commissioner directed the Labour Officer to reinvestigate the matter vide letter dated 30.6.2020 and ascertain the total strength of the workers. The Labour Officer reinvestigated the matter and submitted a revised report dated 1.7.2020 informing that 150 workmen were employed in the factory. He also supplied the list of 150 workmen provided to him by Devyani Karamchari Sangh. The Labour Officer concluded that no exceptional circumstances justified the closure of the business. The Joint Labour Commissioner asked the Factory Manager not to close the factory without obtaining permission as required under Section 25(O) of the Industrial Disputes Act vide letter dated 01.07.2020. Labour Officer, Baddi informed the Labour Commissioner that the management had closed the establishment on 6.7.2020 despite the letter of the Labour Commissioner in violation of Section 25(O) of the Industrial Disputes Act which is punishable under Section 25(R); hence, a complaint was filed against the Management by the Labour Inspector for taking action as per the law.
::: Downloaded on - 26/02/2024 20:30:05 :::CIS 42. Being aggrieved from the complaint, the present petition has been filed for quashing the summoning order and .
bailable warrants issued by the Court, as well as, the complaint filed by the Labour Inspector. It is asserted that the company planned to close its plant and sent a letter dated 7.5.2020 regarding the notice of closure. An e-mail was sent to the Labour Officer to conduct an inquiry. The Labour Officer served a show cause notice upon the company, which was duly replied to. The company filed a civil suit against the workers and obtained an injunction order. The company affixed a notice on the notice board on 6.7.2020 stating that the final settlement amount would be transferred to the workmen by the evening of 6.7.2020 in their accounts. The experience letter will be given on 7.7.2020. A supplementary demand letter was received from the union, which was duly replied to. The matter was referred to the Industrial Tribunal-cum-Labour Court, Shimla for adjudication of the issues. A letter was sent for conciliation without taking into consideration the fact that the matter was already referred to the appropriate Government. Union also filed a civil suit for restraining the company from selling/shifting and disposing of the machinery/material/finished products and other assets except as per the law. This application ::: Downloaded on - 26/02/2024 20:30:05 :::CIS 5 was dismissed. The complaint was filed to harass and pressurise the management. The Court also issued the summons and the .
bailable warrants. Notice under Section 25(FFA) of the Act was given because the number of employees was less than 100. Section 25(O) of the Industrial Disputes Act applies only if the number of employees is more than 100. The subsequent inquiry conducted by the Labour Officer was bad and was conducted without associating with the petitioners. The reference was challenged in the writ petitions before the High Court. Two references have been made in the same matter, one of which has been challenged and the other is to be challenged. The continuation of the complaint amounts to the abuse of the process of the law; therefore, it was prayed that the present petition be allowed and the complaint, summoning order and bailable warrants be quashed.
3. The State filed a reply making a preliminary submission regarding lack of maintainability. The contents of the complaint were reproduced. It was asserted that power under Section 482 of Cr.P.C. is to be exercised sparingly in the rarest of rare cases. The petition does not establish any prima facie case in favour of the petitioners. The complaint was filed against the petitioners after obtaining permission from the competent authority. The ::: Downloaded on - 26/02/2024 20:30:05 :::CIS 6 petitioners had not submitted the record to the Labour Officer and he specifically mentioned this fact in the report submitted by him.
.
Opportunities were given to the company to join the conciliation proceedings but the company failed to join the proceedings without any justification. The complaint was rightly filed because the permission for closing down the factory was not given by the appropriate Government. The petitioners had not complied with the provisions of the Industrial Disputes Act before closing down the factory. Hence, it was prayed that the present petition be dismissed.
4. A rejoinder denying the contents of the reply and affirming those of the petition was filed.
5. I have heard Mr. Surinder Saklani, learned counsel for the petitioner and Mr. Jitender Sharma, learned Additional Advocate General for the respondent-State.
6. Mr. Surinder Saklani, learned counsel for the petitioner relied upon the orders passed in CWP No. 2895 of 2022, and CWP No. 898 of 2021 to submit that the proceedings arising out of the reference made to the Labour Court have been stayed. The continuation of the complaint is an abuse of the process of the ::: Downloaded on - 26/02/2024 20:30:05 :::CIS 7 Court; therefore, it was prayed that the present petition be allowed and the complaint and the summoning order passed by the learned .
Trial Court be set aside. Reliance was also placed upon the judgments of the Hon'ble Supreme Court in Excel Wear Vs. Union of India (1978) 4 SCC 224: (1979) 1 SCR 1009], V.Y. Jose v. State of Gujarat, (2009) 3 SCC 78: 2008 SCC OnLine SC 1891 and Rakesh Shishodia Vs. State of H.P. 2023: HHC: 6390.
7. Mr Jitender Sharma, learned Additional Advocate General for the respondent/State submitted that the petitioners had not obtained permission before closing the factory as required under Section 25(O) of the Industrial Disputes Act and the complaint was rightly filed against them. The stay of the reference has nothing to do with the criminal proceedings pending before the competent Court; therefore, he prayed that the present petition be dismissed.
8. I have given considerable thought to the submissions at the bar and have gone through the records carefully.
9. The principles of exercising the jurisdiction under Section 482 of Cr.P.C. were laid down by the Hon'ble Supreme ::: Downloaded on - 26/02/2024 20:30:05 :::CIS 8 Court in Supriya Jain v. State of Haryana, (2023) 7 SCC 711: 2023 SCC OnLine SC 765 wherein it was observed at page 716:-
.
"17. The principles to be borne in mind with regard to the quashing of a charge/proceedings either in the exercise of jurisdiction under Section 397CrPC or Section 482CrPC or together, as the case may be, has engaged the attention of this Court many a time. Reference to each and every precedent is unnecessary. However, we may profitably refer to only one decision of this Court where upon a survey of almost all the precedents on the point, the principles have been summarised by this Court succinctly. In Amit Kapoor v. Ramesh Chander [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 : (2012) 4 SCC (Civ) 687 : (2013) 1 SCC (Cri) 986], this Court laid down the following guiding principles : (SCC pp. 482-84, para 27) "27. ...27.1. Though there are no limits to the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.
27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.
27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. 27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for ::: Downloaded on - 26/02/2024 20:30:05 :::CIS 9 correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in the exercise of its inherent powers.
.
27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.
27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.
27.7. The process of the court cannot be permitted to be used for an oblique or ultimate/ulterior purpose. 27.8. Where the allegations made and as they appeared from the record and documents annexed therewith predominantly give rise to and constitute a "civil wrong" with no "element of criminality" and does not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of the evidence.
27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.
27.10. It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.
27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is ::: Downloaded on - 26/02/2024 20:30:05 :::CIS 10 maintainable, does not mean that a criminal complaint cannot be maintained.
27.12. In the exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into .
consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was the possibility of his acquittal. The Court has to consider the record and documents annexed therewith by the prosecution.
27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit a continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to deciding the admissibility and reliability of the documents or records but is an opinion formed prima facie.
27.14. Where the chargesheet, reported under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge. 27.15. Coupled with any or all of the above, where the Court finds that it would amount to an abuse of process of the Code or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debitojustitiae i.e. to do real and substantial justice for administration of which alone, the courts exist.
*** 27.16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence."
::: Downloaded on - 26/02/2024 20:30:05 :::CIS 1110. Similar is the judgment in Gulam Mustafa v. State of Karnataka, 2023 SCC OnLine SC 603 wherein it was observed:-
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"26. Although we are not for verbosity in our judgments, a slightly detailed survey of the judicial precedents is in order. In State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, this Court held:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(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 FIR 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 ::: Downloaded on - 26/02/2024 20:30:05 :::CIS 12 the same do not disclose the commission of any offence and make out a case against the accused.
(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 r 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 vengeance on the accused and with a view to spite him due to private and personal grudge.
103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."(emphasis supplied)
11. It was laid down in CBI v. Aryan Singh, 2023 SCC OnLine SC 379, that the High Court cannot conduct a mini-trial while ::: Downloaded on - 26/02/2024 20:30:05 :::CIS 13 exercising jurisdiction under Section 482 Cr.P.C. The allegations are required to be proved during the trial based on evidence led .
before the Court. It was observed:
"10. From the impugned common judgment and order passed by the High Court, it appears that the High Court has dealt with the proceedings before it, as if, the High Court was conducting a mini-trial and/or the High Court was considering the applications against the judgment and order passed by the learned Trial Court on conclusion of the trial.
As per the cardinal principle of law, at the stage of discharge and/or quashing of the criminal proceedings, while exercising the powers under Section 482 Cr. P.C., the Court is not required to conduct the mini-trial. The High Court in the common impugned judgment and order has observed that the charges against the accused are not proved. This is not the stage where the prosecution/investigating agency is/are required to prove the charges. The charges are required to be proved during the trial on the basis of the evidence led by the prosecution/investigating agency. Therefore, the High Court has materially erred in going in detail in the allegations and the material collected during the course of the investigation against the accused, at this stage. At the stage of discharge and/or while exercising the powers under Section 482 Cr. P.C., the Court has very limited jurisdiction and is required to consider "whether any sufficient material is available to proceed further against the accused for which the accused is required to be tried or not.
11. One other reason pointed by the High Court is that the initiation of the criminal proceedings/proceedings is malicious. At this stage, it is required to be noted that the investigation was handed over to the CBI pursuant to the directions issued by the High Court. That thereafter, on conclusion of the investigation, the accused persons have been charge-sheeted. Therefore, the High Court has erred in observing at this stage that the initiation of the criminal ::: Downloaded on - 26/02/2024 20:30:05 :::CIS 14 proceedings/proceedings is malicious. Whether the criminal proceedings was/were malicious or not, is not required to be considered at this stage. The same is required to be considered at the conclusion of the trial. In any case, at this .
stage, what is required to be considered is a prima facie case and the material collected during the course of the investigation, which warranted the accused to be tried."
12. This position was reiterated in Abhishek v. State of M.P. 2023 SCC OnLine SC 1083 wherein it was observed:
12. The contours of the power to quash criminal proceedings under Section 482 Cr. P.C. are well defined. In V. Ravi Kumar v. State represented by Inspector of Police, District Crime Branch, Salem, Tamil Nadu [(2019) 14 SCC 568], this Court affirmed that where an accused seeks quashing of the FIR, invoking the inherent jurisdiction of the High Court, it is wholly impermissible for the High Court to enter into the factual arena to adjudge the correctness of the allegations in the complaint. In Neeharika Infrastructure (P). Ltd. v. State of Maharashtra [Criminal Appeal No. 330 of 2021, decided on 13.04.2021], a 3-Judge Bench of this Court elaborately considered the scope and extent of the power under Section 482 Cr. P.C. It was observed that the power of quashing should be exercised sparingly, with circumspection and in the rarest of rare cases, such standard not being confused with the norm formulated in the context of the death penalty. It was further observed that while examining the FIR/complaint, quashing of which is sought, the Court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made therein, but if the Court thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, and more particularly, the parameters laid down by this Court in R.P. Kapur v. State of Punjab (AIR 1960 SC 866) and State of Haryana v. Bhajan Lal [(1992) Supp (1) SCC 335], the Court would have jurisdiction to quash the FIR/complaint.::: Downloaded on - 26/02/2024 20:30:05 :::CIS 15
13. It is apparent from these judgments that power under Section 482 of Cr.P.C. can be exercised to prevent the abuse of the .
process or secure the ends of justice. The Court can quash the F.I.R.
if the allegations do not constitute an offence or make out a case against the accused. However, it is not permissible for it to conduct a mini-trial to arrive at such findings.
14. In Excel Wear Vs. Union of India [(1978) 4 SCC 224: 1978 SCC (L&S) 509 : (1979) 1 SCR 1009], the Hon'ble Supreme Court declared Section 25(O) of the Industrial Disputes Act (as it existed at that time) as unconstitutional. The legislature amended Section 25(O) of the Industrial Dispute Act after this judgment. The Constitutional validity of the amended provision was considered by the Hon'ble Supreme Court in Orissa Textile & Steel Ltd. v. State of Orissa, (2002) 2 SCC 578: 2002 SCC OnLine SC 94 and it was held that Section 25(O) as amended is constitutional. It was observed:-
18. We also see no substance in the contention that the amended section merely deals with the procedural defects pointed out in Excel Wear case [(1978) 4 SCC 224: 1978 SCC (L&S) 509: (1979) 1 SCR 1009] and does not deal with the substantive grounds set out in Excel Wear case [(1978) 4 SCC 224: 1978 SCC (L&S) 509: (1979) 1 SCR 1009]. In our view, the amended Section 25-O is very different from Section 25-O (as it then stood). It is now more akin to Section 25-N (as it then stood) the constitutional validity of which was upheld in Meenakshi Mills case [(1992) 3 SCC 336: 1992 SCC (L&S) 679].::: Downloaded on - 26/02/2024 20:30:05 :::CIS 16
In the Excel Wear case [(1978) 4 SCC 224: 1978 SCC (L&S) 509:
(1979) 1 SCR 1009] it has been accepted that reasonable restrictions could be placed under Article 19(6) of the Constitution. Excel Wear case [(1978) 4 SCC 224: 1978 SCC (L&S) .
509 : (1979) 1 SCR 1009] recognizes that in the interest of the general public, it is possible to restrict, for a limited period of time, the right to close down the business. The amended Section 25-O lays down guidelines which are to be followed by the appropriate government in granting or refusing permission to close down. It has to have regard to the genuineness and adequacy of the reasons stated by the employer. However, merely because the reasons are genuine and adequate cannot mean that permission to close must necessarily be granted. There could be cases where the interest of the general public may require that no closure take place. Undoubtedly where the reasons are genuine and adequate the interest of the general public must be of a compelling or overriding nature. Thus, by way of examples, if an industry is engaged in the manufacturing of items required for the defence of the country, then even though the reasons may be genuine and adequate it may become necessary, in the interest of the general public, not to allow closure for some time. Similarly, if the establishment is manufacturing vaccines or drugs for an epidemic which is prevalent at that particular point of time, the interest of the general public may require not to allow closure for a particular period of time. We must also take note of sub-section (7) of the amended Section 25-O which provides that if there are exceptional circumstances or accidents in the undertaking or death of the employer or the like, the appropriate government could direct that provision of sub-section (1) would not apply to such an undertaking. This, in our view, makes it clear that the amended Section 25-O recognizes that if there are exceptional circumstances then there could be no compulsion to continue to run the business. It must however be clarified that this Court is not laying down that some difficulty or financial hardship in running the establishment would be sufficient. The employer must show that it has become impossible to continue to run the establishment. Looked at from this point ::: Downloaded on - 26/02/2024 20:30:05 :::CIS 17 of view, in our view, the restrictions imposed are reasonable and in the interest of the general public.
19. In the Excel Wear case [(1978) 4 SCC 224: 1978 SCC (L&S) 509 : (1979) 1 SCR 1009] it has been held that under Section 25-O .
(as it then stood), even if the reasons are adequate and sufficient, approval could be denied in purported public interest or security of labour. It was submitted that even now permission to close could be refused even if the reasons were genuine and adequate. It was submitted that this was a substantive vice which still prevailed in the amended Section 25-O. We do not read the Excel Wear case [(1978) 4 SCC 224:
1978 SCC (L&S) 509: (1979) 1 SCR 1009] to mean that permission to close must always be granted if the reasons are genuine and adequate. The observations relied on, in Excel Wear case [(1978) 4 SCC 224: 1978 SCC (L&S) 509: (1979) 1 SCR 1009] are in the context of an order under Section 25-O (as it then stood), based on subjective satisfaction and capable of being arbitrary and whimsical. Now the amended Section 25- O provides for an enquiry after affording an opportunity of being heard and provides that the order has to be a reasoned order in writing. The order cannot be passed arbitrarily and whimsically. Now the appropriate government is exercising quasi-judicial functions. Thus the principles laid down in Meenakshi Mills case [(1992) 3 SCC 336: 1992 SCC (L&S) 679] would now apply.
20. Reliance was also placed on the observations in the Excel Wear case [(1978) 4 SCC 224: 1978 SCC (L&S) 509: (1979) 1 SCR 1009] that there could be several methods to regulate and/or restrict the right of closure e.g. by providing for extra compensation over and above the retrenchment compensation. It was submitted that this was also a substantive ground on which Section 25-O (as it then stood) was struck down. It was submitted that the amended Section 25-O still suffers from the same vice inasmuch as permission to close could still be refused. It was submitted that this amounts to the restriction being excessive and unreasonable. We are unable to accept this submission. We do not read the observations in the Excel Wear case [(1978) 4 SCC 224: 1978 SCC ::: Downloaded on - 26/02/2024 20:30:05 :::CIS 18 (L&S) 509 : (1979) 1 SCR 1009] which are relied on, as laying down that that could be the only method of laying down a reasonable restriction. We read these observations as being a suggestion as to one method of imposing a reasonable .
restriction. This is clear from the following observations in Excel Wear case [(1978) 4 SCC 224: 1978 SCC (L&S) 509: (1979) 1 SCR 1009] (SCR p. 1036): (SCC p. 249, para 30) "The law may provide to deter the reckless, unfair, unjust or mala fide closures. But it is not for us to suggest in this judgment what should be a just and reasonable method to do so."
As set out hereinabove, the main consideration would be the genuineness and adequacy of the reasons stated by the employer. But that cannot be the only consideration. As stated hereinabove, there could be exceptional circumstances or overriding reasons where, in the interest of the general public, there would have to be a restriction on closure for some time.
The observations relied on, cannot be read out of context. It is not possible to accept the submission that if the reasons are genuine and adequate the appropriate government must always grant permission to close, even though interest of the general public and/or other factors require that the business be continued for some time.
21. We also see no substance in the submission that the phrase "in the interest of the general public" is of a very wide amplitude or that it is vague or uncertain. In the case of Maneka Gandhi v. Union of India [(1978) 1 SCC 248] it has been held as follows: (SCC pp. 293-94, para 16) "We are concerned only with the last ground denoted by the words 'in the interests of the general public', for that is the ground which is attacked as vague and indefinite. We fail to see how this ground can, by any stretch of argument, be characterised as vague or undefined. The words 'in the interests of the general public' have a clearly well-defined meaning and the courts have often been called upon to decide whether a particular action is 'in the interests of the general ::: Downloaded on - 26/02/2024 20:30:05 :::CIS 19 public' or in 'public interest' and no difficulty has been experienced by the courts in carrying out this exercise. These words are in fact borrowed ipsissima verba from Article 19(5) and we think it would be nothing short of .
heresy to accuse the constitution-makers of vague and loose thinking. The legislature performed a scissor- and-paste operation in lifting these words out of Article 19(5) and introducing them in Section 10(3) (c) and if these words are not vague and indefinite in Article 19(5), it is difficult to see how they can be condemned to be such when they occur in Section 10(3)(c). How can Section 10(3)(c) be said to incur any constitutional infirmity on account of these words when they are no wider than the constitutional provision in Article 19(5) and adhere loyally to the verbal formula adopted in the Constitution? We are clearly of the view that sufficient guidelines are provided by the words 'in the interests of the general public' and the power conferred on the Passport Authority to impound a passport cannot be said to be unguided or unfettered. Moreover, it must be remembered that the exercise of this power is not made dependent on the subjective opinion of the Passport Authority as regards the necessity of exercising it on one or more of the grounds stated in the section, but the Passport Authority is required to record in writing a brief statement of reasons for impounding the passport and, save in certain exceptional circumstances, to supply a copy of such statement to the person affected, so that the person concerned can challenge the decision of the Passport Authority in appeal and the Appellate Authority can examine whether the reasons given by the Passport Authority are correct, and if so, whether they justify the making of the order impounding the passport."
22. Again, in the case of Premium Granites v. State of T.N. [(1994) 2 SCC 691] it has been held that the phrase "public interest" finds a place in the Constitution and many ::: Downloaded on - 26/02/2024 20:30:05 :::CIS 20 enactments and has since been noted and considered by this Court in various decisions. It has been held that the said expression is of a definite concept and that there is nothing vague about it. Undoubtedly, in Maneka Gandhi's case [(1978) 1 .
SCC 248] it had been held that a fundamental right had not been breached. However, that would make no difference to the understanding of the term "in the interest of the general public". In our view, the phrase "in the interest of the general public" is a phrase with a definite connotation and a known concept. This phrase, as used in the amended Section 25-O, has been bodily lifted from Article 19(6) of the Constitution of India. As stated in Maneka Gandhi case [(1978) 1 SCC 248] if it is not vague in the Constitution, one fails to see how it becomes vague when it is incorporated in the amended Section 25-O.
23. It was submitted that the restriction in order to be valid must be imposed by the law made by the Government. It is admitted that such law could include delegated legislation or subordinate legislation. It is submitted that mere executive order or mere executive determination was not permissible. It was submitted that the law itself must define the content of the restriction. It was submitted that Parliament cannot leave it to the executive to determine the content of the restriction. It was submitted that the object of the restriction must be differentiated from the restriction itself. It was submitted that Articles 19(2) to (6) of the Constitution lay down the grounds or objects of the restriction. It was submitted that the actual restriction had to be defined by "law". It was submitted that otherwise, it would not be possible to say whether the restriction laid down by the specific law conforms to the standards specified in the Constitution and/or whether it was proximate thereto and reasonable. It was submitted that if the content of the restriction was not laid down by the law but was left to be decided by the executive on a case-by-case basis then there would be an impermissible delegation of legislative functions.
24. We see no substance in these contentions. The amended Section 25-O is the law which lays down the restriction. As has been set out above, there is nothing vague or ambiguous in its ::: Downloaded on - 26/02/2024 20:30:05 :::CIS 21 provision. It is Section 25-O which gives the power to grant or refuse permission. It would be impossible to enumerate or set out in Section 25-O all different contingencies or situations which may arise in actual practice. Each case would have to be .
decided on its own facts and on the basis of circumstances prevailing at the relevant time. All that can be set out, in the section, are guidelines. These have been set out in the amended Section 25-O.
25. Mr Cama also submitted that the amended Section 25-O was discriminatory inasmuch as a firm of lawyers or chartered accountants or doctors or a hospital employing several hundred workmen could close down on giving 60 days' notice and on payment of closure compensation but in cases of a factory, mine or plantation permission to close could be refused. Just such an argument has been negatived in the Excel Wear case [(1978) 4 SCC 224: 1978 SCC (L&S) 509 : (1979) 1 SCR 1009]. In the Excel Wear case [(1978) 4 SCC 224: 1978 SCC (L&S) 509 : (1979) 1 SCR 1009] it has been held that the classification is reasonable. We see no reason to take a different view.
26. We, therefore, hold that the amended Section 25-O is not ultra vires the Constitution. We hold that it is saved by Article 19(6) of the Constitution.
15. In view of this judgment, the reliance upon Excel Wear (supra) was wrongly placed as it dealt with the un-amended provision, which does not arise for consideration in the present case.
16. It was submitted that the Courts have stayed the reference made to the Labour Court regarding the violation of Section 25(O) and the criminal proceedings are not maintainable on the same facts. A reference was made to the orders passed in ::: Downloaded on - 26/02/2024 20:30:05 :::CIS 22 CWP No. 2895 of 2022 and CWP No. 898 of 2021. This submission is not acceptable. Copy of the reference (Annexure P-13) shows that it .
was regarding the violation of Section 25 and relief and compensation to the aggrieved workmen; whereas, the present complaint has been filed regarding the violation of Section 25(O) punishable under Section 25(R) of the Industrial Disputes Act.
17. Professor Glanville Williams explained in his celebrated book Learning the Law (Tenth Edition Steven and Sons) that the facts by themselves cannot determine civil or criminal liability. The same set of facts may give rise to criminal or civil liability. The distinction between the two is not the nature of the act but the nature of proceedings that are taken to seek the redressal. It was observed:
"The distinction between a crime and a civil wrong, though capable of giving rise to some difficult legal problems, is in essence quite simple. The first thing to understand is that the distinction does not reside in the nature of the wrongful act itself. This can quite simply be proved by pointing out that the same act may be both a crime and a civil wrong. Occasionally at a bus station, there is someone who makes a living by looking after people's impedimenta while they are shopping. If I entrust my bag to such a person, and he runs off with it, he commits the crime of theft and also two civil wrongs--the tort of conversion and a breach of his contract with me to keep the bag safe. The result is that two sorts of legal proceedings can be taken against him; a prosecution for the crime, and a civil action for the tort and the breach of ::: Downloaded on - 26/02/2024 20:30:05 :::CIS 23 contract. (Of course, the plaintiff in the latter action will not get damages twice over merely because he has two causes of action; he will get only one set of damages.) To take another illustration, if a railway signalman, to dumb .
forgetfulness a prey, fails to pull the lever at the right moment, and a fatal accident occurs on the line, his carelessness may be regarded as sufficiently gross to amount to the crime of manslaughter, and it is also the tort of negligence towards the victims of the accident and their dependents and a breach of his contract with the Railway Executive to take due care in his work. It will be noticed that this time, the right of action in tort and the right of action in a contract are vested in different persons.
These examples show that the distinction between a crime and civil wrong cannot be stated as depending upon what is done, because what is done may be the same in each case.
The true distinction resides, therefore, not in the nature of the wrongful act but in the legal consequences that may follow. If the wrongful act is capable of being followed by what are called criminal proceedings, that means that it is regarded as a crime (otherwise called an offence). If it is capable of being followed by civil proceedings that means that it is regarded as a civil wrong. If it is capable of being followed by both, it is both a crime and a civil wrong. Criminal and civil proceedings are (in the normal case) easily distinguishable: the procedure is different, the outcome is different, and the terminology is different.
18. The Hon'ble Supreme Court also held in Randheer Singh v. State of U.P., (2021) 14 SCC 626: 2021 SCC OnLine SC 942, that a given set of facts may make out a civil wrong as well as the criminal ::: Downloaded on - 26/02/2024 20:30:05 :::CIS 24 offence and merely because the civil remedies available is no ground to quash the criminal proceedings. It was observed:
.
"34. The given set of facts may make out a civil wrong as well as a criminal offence. Only because a civil remedy is available may not be a ground to quash criminal proceedings. But as observed above, in this case, no criminal offence has been made out in the FIR read with the charge sheet so far as this appellant is concerned. The other accused Rajan Kumar has died."
19. A similar view was taken in V.Y. Jose (supra) relied upon observed:-
r to by the learned counsel for the petitioners wherein it was "16. There cannot, furthermore, be any doubt that only because civil law can be taken recourse to would not necessarily mean that criminal proceedings should be barred as has been opined by this Court in Pratibha Rani v. Suraj Kumar [(1985) 2 SCC 370: 1985 SCC (Cri) 180]."
20. Therefore, it is not correct to say that the same facts may not give rise to civil and criminal liability.
21. Reliance was placed upon the following observations in V.Y. Jose (supra):-
"28. A matter which essentially involves a dispute of a civil nature should not be allowed to be the subject matter of a criminal offence, the latter being not a shortcut of executing a decree which is non-existent. The superior courts, to maintain purity in the administration of justice, should not allow abuse of the process of court. It has a duty in terms of ::: Downloaded on - 26/02/2024 20:30:05 :::CIS 25 Section 483 of the Code of Criminal Procedure to supervise the functioning of the trial courts."
22. These observations will not assist the petitioners .
because the Hon'ble Supreme Court was concerned with the case which essentially involved a dispute of a civil nature and held that it should not be permitted to turn into a criminal offence. In the present case, Section 25(O) provides the procedure for closing down the undertaking. Section 25(R) provides the penalty for closing down an undertaking in violation of Section 25(O). An illegal closing down can amount to retrenchment/layoff which has been dealt with in Sections 25(M) and 25(N) of the Industrial Disputes Act. Thus, an illegal closure of the undertaking can create civil rights in favour of the workman, as well as, it can expose the management to criminal liability. These are two separate and distinct and merely because the civil proceedings have been stayed by the High Court cannot mean that criminal proceedings cannot continue.
23. Section 25(O)(4) provides that an order of appropriate Government granting or refusing to grant permission shall be subject to the provision of Sub-Section 5 and shall be final and binding on all the parties. In the present case, the Labour ::: Downloaded on - 26/02/2024 20:30:05 :::CIS 26 Commissioner passed an order pursuant to the application made by the management under Section 25(FFA) that 150 workers were .
working in the Establishment and it cannot be closed by serving a notice under Section 25(FFA) of the Industrial Disputes Act. The management was advised to apply for prior permission at least 90 days before the date of the intended closure in the prescribed form.
Therefore, the competent authority rejected the notice issued by the management under Section 25 (FFA) and advised the management to apply under Section 25(O) of the Industrial Disputes Act. The petitioners specifically asserted in Para 10 of the petition that the notice was pasted on the notice board on 06.07.2020 that the final settlement amount would be transferred to the workmen by the evening of 06.07.2020 and the experience certificate would be given on 07.07.2020. Thus, the petitioners have not disputed that they had closed the undertaking w.e.f.
06.07.2020. It was also specifically mentioned in the complaint that the petitioner had closed the factory w.e.f. 06.07.2020 despite the issuance of the letter by the Labour Commissioner; hence, the complaint clearly shows that the petitioners had not complied with the provisions of Section 25(O) of the Industrial Disputes Act.
::: Downloaded on - 26/02/2024 20:30:05 :::CIS 2724. It was submitted that the Labour Inspector had submitted a report initially stating that 86 workers were employed .
in the establishment, which was subsequently revised to 150 workmen. This was not permissible. This submission invites this Court to record a finding on the merits of the complaint, which is not permissible. It was laid down by the Hon'ble Supreme Court in State of Maharashtra v. Maroti, (2023) 4 SCC 298: 2022 SCC OnLine SC Cr.P.C. cannot rexamine to 1503 that the High Court exercising the power under Section 482 of the truthfulness, admissibility of the evidence. It was observed:
sufficiency and
21. If FIR and the materials collected disclose a cognisable offence and the final report filed under Section 173(2)CrPC on completion of investigation based on it would reveal that the ingredients to constitute an offence under the POCSO Act and a prima facie case against the persons named therein as accused, the truthfulness, sufficiency or admissibility of the evidence are not matters falling within the purview of exercise of power under Section 482CrPC and undoubtedly they are matters to be done by the trial court at the time of trial. This position is evident from the decisions referred to supra.
22. In the decision in M.L. Bhatt v. M.K. Pandita [M.L. Bhatt v. M.K. Pandita, (2023) 12 SCC 821: 2002 SCC OnLine SC 1300: JT (2002) 3 SC 89], this Court held that while considering the question of quashing of FIR the High Court would not be entitled to appreciate by way of sifting the materials collected in course of investigation including the statements recorded under Section 161CrPC.
::: Downloaded on - 26/02/2024 20:30:05 :::CIS 2823. In the decision in Rajeev Kourav v. Baisahab [Rajeev Kourav v. Baisahab, (2020) 3 SCC 317 : (2020) 2 SCC (Cri) 51], a two-judge Bench of this Court dealt with the question as to the matters that could be considered by the High Court in .
quashment proceedings under Section 482CrPC. It was held therein that statements of witnesses recorded under Section 161CrPC being wholly inadmissible in evidence could not be taken into consideration by the Court while adjudicating a petition filed under Section 482CrPC. In that case, this Court took note of the fact that the High Court was aware that one of the witnesses mentioned that the deceased victim had informed him about the harassment by the accused, which she was not able to bear and hence wanted to commit suicide. Finding that the conclusion of the High Court to quash the criminal proceedings, in that case, was on the basis of its assessment of the statements recorded under Section 161CrPC, it was held that statements thereunder, being wholly inadmissible in evidence could not have been taken into consideration by the Court while adjudicating a petition filed under Section 482CrPC. It was also held that the High Court committed an error in quashing the proceedings by assessing the statements recorded under Section 161CrPC.
25. Similar is the judgment of the Hon'ble Supreme Court in Manik B. Vs. Kadapala Sreyes Reddy and another 2023 LiveLaw(SC) 642, wherein it was observed:
"6. Whether the testimony of the witnesses is trustworthy or not has to be found out from the examination-in-chief and cross-examination of the witnesses when they stand in the box at the stage of such trial.
7. Such an exercise, in our considered view, is not permissible while exercising the jurisdiction under Section 482 of Cr.P.C.
8. The scope of interference, while quashing the proceedings under Section 482 Cr.P.C. and that too for a serious offence ::: Downloaded on - 26/02/2024 20:30:05 :::CIS 29 like Section 302 of the Indian Penal Code is very limited. The Court would exercise its power to quash the proceedings only if it finds that taking the case at its face value, no case is made out at all.
.
9. At the stage of deciding an application under Section 482 of Cr.P.C. it is not permissible for the High Court to go into the correctness or otherwise of the material placed by the prosecution in the charge sheet. The High Court by the impugned order has done exactly the same."
26. Therefore, this Court cannot record a finding regarding the correctness or otherwise of the complaint.
27. In any case, the petitioners had sent an email (Annexure P-2) to the Joint Labour Commissioner, who directed the Labour Officer to conduct an inquiry. The Labour Officer conducted an inquiry, which was not found to be satisfactory and the Labour Commissioner directed the Labour Officer to conduct a fresh inquiry after associating the workmen, as well as, the petitioners.
This means that the initial report of the Labour Officer was not accepted by the Labour Commissioner; hence, the Labour Commissioner was within his jurisdiction to order a fresh inquiry into the matter. In these circumstances, no fault can be found with the action of the Labour Commissioner and no advantage can be derived from a report submitted by the Labour Officer.
::: Downloaded on - 26/02/2024 20:30:05 :::CIS 3028. It was submitted that the complaint only reproduces the contents of the letters and does not mention the facts. It is true that .
the complaint is not happily drafted; however, it has reproduced the letters and the notices issued to the petitioners, in which, it was mentioned that the factory of the petitioners had more than 100 employees and could not be closed without following the procedure under Section 25(O) of the Industrial Disputes Act. It also annexes that r the to the order passed by the Labour Commissioner in which it was mentioned management was required to permission under Section 25 (O) of the Industrial Dispute Act. It is obtain undisputed that the factory was closed without following the procedure laid down under Section 25(O) and the only question for determination is whether the number of employees is more than 100 or not. Two reports submitted by the Labour Officer were also mentioned in the complaint. The Labour Officer had written in the first report that 86 employees were working in the factory and in the second that 150 workers were working in the factory. Copies of these reports were annexed to the complaint; therefore, the complaint mentions sufficient facts to apprise the petitioners that they have violated Section 25 (O) of the Industrial Dispute Act punishable under Section 25 (R) of the Industrial Disputes Act and ::: Downloaded on - 26/02/2024 20:30:05 :::CIS 31 no advantage can be derived from the fact that the complaint is not happily drafted.
.
29. Reliance was also placed upon the judgment of this Court in Rakesh Sisodia (supra); however, it deals with the bail and is not relevant to the present case.
30. No other point was urged.
31. Therefore, the complaint discloses the commission of an offence punishable under Section 25(R) of the Industrial Disputes Act and the same cannot be quashed.
32. Consequently, the present petition fails and the same is dismissed. Parties through their respective Counsel are directed to appear before the learned Trial Court on 22.03.2024.
33. The observation made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.
(Rakesh Kainthla) Judge 26th February, 2024 (Saurav Pathania) ::: Downloaded on - 26/02/2024 20:30:05 :::CIS