Delhi District Court
Sh. Sabyasachi Dutta vs Mukesh Kumar on 17 October, 2012
IN THE COURT OF SH. ATUL KUMAR GARG, LD. ADDL.
SESSION JUDGE, DELHI
CR. No. 37/12
1. Sh. Sabyasachi Dutta
Manager ( PersonnnelOD)
Steel Authority of India Ltd.,
IISCO Steel Plant 7, the Ridge, Burnpur,
Distt. Burdwan, West Bengal.
2. Sh. M.K. Rout,
General Manager ( Personnel and Aministration),
Steel Authority of India Ltd.,
IISCO Steel Plant 7, the Ridge, Burnpur,
Distt. Burdwan, West Bengal.
3. Sh. Aloke Mukherjee,
Deputy General Manager,
Steel Authority of India Ltd.,
IISCO Steel Plant 7, the Ridge, Burnpur,
Distt. Burdwan, West Bengal. .......Revisionists
Vs
Mukesh Kumar
S/o Late Sh. Phool Singh Jatav,
R/o D2/5, Court Lane,
Raj Niwas Marg, Civil Lines,
New Delhi
CR no.37/12 1/14
Also At
SL22, Shastri Nagar,
Ghaziabad, UP ...... Respondent
ORDER
Revisional jurisdiction has been invoked by the revisionist assailing the order dt. 15.03.2012 whereby revisionists have been summoned to face the trial for the offence u/s 120 B IPC in criminal complaint no. 143/1/11 titled as Mukesh Kumar V. Sail & Ors. It has been averred by the revisionists that the respondent with similar allegation had filed a criminal complaint earlier against one of the accused named in the present complaint out of which the present revision petition arises and the trial court in the said case committed an irregularity by taking cognizance. The said order was set aside by the order dt. 04.05.2009 in Revision no. 40/08 passed by Sh. A.K. Kuhar, Ld. Addl. Session Judge. According to the revisionists, complainant was the employee of the accused no. 1 ( hereinafter SAIL ) before the trial court and due to his committing misconduct, accused no. 1 imposed major punishment as per rule of the company. However, by taking a lenient view, the resignation tendered by him was accepted and he was relieved from the services of SAIL w.e.f. 13.12.08. During his entire service period respondent herein was a non performer and often creating CR no.37/12 2/14 problems for his higher authorities. He made several allegations against the superior authorities which were unfounded on facts. Allegations of the complainant as per the complaint are that he was transferred to a department not of his choice and was treated differently in violation of rights of the schedule caste and schedule tribes employees. His promotion was also not considered by SAIL and that his wife suffered miscarriage in the process and that his leave application was not allowed by his senior officers and accused no. 3 i.e. Sh. S.P. Rao also reacted revengefully and penalized him by initiating disciplinary action on 08/10.05.2008 and made serious allegations of unauthorized absence against the complainant by flouting all the rules and restraining him from his right to private defence against his legitimate civil rights and imposed minor penalty after satisfying himself for the alleged guilt. He submitted that respondent had made several allegations regarding harassment given to him during his employment which was false and concocted. Ld. Trial court summoned the revisionist for the offence u/s 120 IPC.
He had assailed the impugned order on the ground that Ld. Trial court without application of mind has proceeded to pass the order taking cognizance u/s 120B IPC mechanically and solely on the basis of initial statement made by the complainant in his private complaint inspite of the fact that similar attempt made earlier against the same cause of action by the complainant wherein summoning order issued was set aside CR no.37/12 3/14 by Hon'ble Sh. A.K. Kuhar, the then Addl. Session Judge, Patiala House Courts in Crl. Revision no. 40/08 vide order dt. 04.05.2009. He further assailed the said order stating that taking cognizance u/s 120 B IPC is pre mature and illegal in absence of commitment of offence. The impugned order prese is illegal since the accused no. 1 being an artificial person is not capable of abatement / conspiring for the alleged offence. The allegation relating to a dispute arising out of the conditions of service or employment of the complainant by any stretch of imagination cannot be treated as an offence and for that matter the impugned order is opposed to law and liable to be set aside.
Upon filing of this revision petition notice was issued to the respondent and trial court record was summoned. As per trial court record a complaint u/s 120/120B/166/167/218/312/409/500/506 r.w.s 34 IPC and u/s 7 & 10 of the protection of Civil Rights Act was filed by the respondent herein against seven persons including revisionists herein stating that accused no. 1 is a Government Statutory Company under control of the Ministry of Steel, Government of India. The key officials of the accused no. 1 at the time of revengeful commission of offence are Sh. S.K. Roongta, Chairman, SAIL, Sh. S.P. Rao, Managing Director, Sh. Sudip Saha, General Manager (Power & Energy), Sh. Aloke Mukherjee, Deputy General Manager (CM&WS), Sh. M.K. Rout, General Manager (Personnel & Administration), Sh. Sabyasachi Dutta, Manager (Personnel CR no.37/12 4/14 OD). These officers are revengeful to him while he was in the employment of SAIL. Accused SAIL had its subsidiary "The India Iron & Steel Company Ltd. The subsidiary company IISCO had now been dissolved into its parent company / accused SAIL on 16.02.2006 to become a unit in the name of "IISCO Steel Plant". He had joined the accused no. 1 company as Management Trainee ( Administration), EO grade, on 10.06.1991 at its unit Rourkela Steel Plant, and was posted in IISCO, after his selection in the marketing discipline on 19.08.1991. During the probation period of one year, the complainant underwent ten months training in Marketing discipline and was confirmed as Sales Executive, E1 grade w.e.f. 10.06.1992 and subsequently posted to various stations namely Batala ( Punjab, in 1992), Chandigarh ( in 1995), Burnpur (West Bengal, in 1996) and Delhi in 2000 and was also promoted within marketing discipline as per terms of employment, the last promotion being for the post of Sales Manager, E4 grade w.e.f. 30.06.2004. He narrated his grievances stating that his promotions were delayed by some of the officials in the past for the sole reasons of his belonging to the schedule caste community, and particularly by not only hating and intentionally flouting the constitutional policy and the Government of India instructions on reservation in promotions for SCs/STs but also by deliberately assessing him poorly despite exceptional record of achieving Rs. 16.99 crores sales within first three months as Incharge of Batala CR no.37/12 5/14 Branch, particularly after joining terrorist prone Punjab boarder areas with a special entitlement of three Air Travel tickets availed during 1993 which was granted to the complainant as a partial fulfillment to his safety purpose after his under protest joining letter dt. 05.01.93. He continued and excellence with 31534 MT pig iron sale to clear entire stock next year as the material dispatched were suspended from Oct, 1994 till winding up of the Batala Branch in 1995. However, his promotion to senior Sales Manager, E2 grade, was delayed by eliminating all SCs/STs in the batch of 1991 and promoting all 36 general category candidates. The complainant's protest representation dt. 18.11.95 led him to face severe consequences and illegal major penalties, though partially rectified and settled by the accused company on 10.02.98. However, in subsequent revenge and intentional flouting of the reservation policy for SCs/STs the complainant's further promotions were delayed for deliberately disheartening him, despite better results and the appreciation letter dt. 22.04.2002. His representation dt. 13.10.2003 for his due promotion w.e.f. 30.06.2001 and the series of follow up letters and the legal forums fetch no results, except to their admission after 4 ½ years on 05.03.08 that most of the instruction on reservation in promotion for SC/STs are not available in the accused company despite the mandate on their implementation in the accused company. Complainant filed the complaint bearing no. 1037/06 at Patiala House court whereby Ld. Magistrate had CR no.37/12 6/14 taken the cognizance and summoned the accused persons in CC 1037/96 and accordingly accused no. 5 ( Sh. Aloke Mukherjee) by arraying with others accused persons and by flouting his legal obligation as the reporting officer for the complainant, flouted all rules and procedure and therefore, without any efforts on restoring his civil rights regarding contract terms in marketing discipline continued causing further injury and annoyance to the complainant in revenge by assigning him tasks in illegal terms of Civil Engineering / maintenance. He further narrated about the harassment meted out to him by SAIL management when her wife was on family way. According to him accused Sh. S.P. Rao finally and revengefully concluded in his order dt. 12.12.08 and imposed minor penalty to the complainant after satisfying himself for the alleged guilt of the complainant. He further submitted that he was compelled to resign while indicating brief of all the compelling circumstances on revoking the contract of employment. However, looking for such an opportunity but to obtain his consent in civil engineering / maintenance discipline, he was further called to serve for at least three months without any dispute in civil engineering / maintenance discipline. In this regard letter of accused no. 7 Sh. Sabyasachi Dutta and accused no. 6 Sh. M.K. Rout could only add fuel to his injuries and by arraying with each other, accused no. 3 Sh. S.P. Rao in the capacity of discipline Authority and as the guardian of complainant's fundamental rights against the accused company, finally CR no.37/12 7/14 allowed in a most revengeful manner out of his extreme hatred feelings towards the complainant to illegally impose major penalty of terminating his service vide order dt. 28.01.09 of the accused company on alleged grounds of voluntary abandonment of service. Accused no. 2 Sh. S.K. Roongta in the capacity of AppellatecumReviewing Authority also upheld the minor penalty in his order dt. 13.08.09 for exercising his legal rights and to cause insult to injuries by further annoying and damaging reputation of the complainant against justified rights, dispute the setback of miscarriage on 16.04.08 as such he had filed the complaint with prayer with the court to take cognizance of the offence punishable u/s 120/120B/166/167/218/312/409/500/506/34 IPC and u/s 7 & 10 of the Protection of Civil Rights Act.
Trial court had given opportunity to the complainant to lead its witnesses. After hearing the arguments and considering the material evidence on record, trial court vide order dt. 15.03.2012 summoned the accused persons for the offence u/s 120B IPC holding that there is prima facie sufficient material on record. Against the above said impugned order, revision petition has been filed by the revisionist Sh. Sabyasachi, M.K. Rout and Aloke Mukherjee stating that the above said order of summoning is illegal, improper and incorrect. Accused no. 1 being an artificial person is not capable of abatement / conspiring for the alleged offence. The allegation relating to a dispute arising out of the conditions CR no.37/12 8/14 of service or employment of the complainant by any stretch of imagination cannot be treated as an offence and for that matter the impugned order is opposed to law and liable to be set aside. Moreover, he had submitted that section 120 B is not substantiative offence without stating as to what offence was conspired by the revisionist, order of summoning of revisionists cannot be said to be legal and proper.
On the other hand respondent had moved an application for maintainability of the revision petition as the same is barred u/s 397 (2) of Cr.P.C. According to revisionists, the summoning order is not an interlocutory order. He further stated that the order is perfectly passed by Ld. Magistrate.
I have heard the arguments at bar. The first leg of arguments of the respondent that the revision petition is not maintainable and barred u/s 397 (2) Cr.P.C has no merits. Summoning of accused in criminal case substantially affects the rights of the person and Hon'ble Supreme court of India in 2009 in judgment titled as Dhariwal Tobacco Products Limited and Others V. State of Maharashtra and Another, has held that indisputable issuance of summons is not an interlocutory within the meaning of section 397 of the Code. The reference has been made by the Hon'ble court in that case of Amarnath V. State of Haryana, where it has been mentioned that it was only with the passing of the impugned CR no.37/12 9/14 order that the proceedings started and the question of appellants being put up for trial arose for the first time. This was undoubtedly a valuable right which the appellants possessed and which was being denied to them by the impugned order. It is difficult to hold that the impugned order summoning the appellants straightaway was merely an interlocutory order. In view of the decision given by the Hon'ble Apex court in Dhariwal Tobacco Products Ltd., the application moved by the respondent is hereby dismissed.
In order to appreciate the fact, order passed by the Ld. MM is required to be reproduced here:
CC No. 143/1/11 Mukesh Kumar V. SAIL & Ors.
PS: Lodhi Colony 15.03.12 Present:Complainant in person.
In brief, the case of the complainant is that he was employed as management trainee (Administration) with the accused i.e. Steel Authority India Ltd. The complainant mentioned that he belongs to the scheduled caste community.
Due to this reason, the accused persons being the holders of powerful and responsible post in the accused company harassed and deliberately CR no.37/12 10/14 caused loss / injury to the complainant.
It is alleged by the complainant that on several occasions he was denied promotion because of caste back ground.
When the wife of the accused was in the family way, she suffered a miscarriage. Due to this reason the complainant was required to apply for leave. It is alleged that the accused persons, in pursuance of criminal conspiracy concealed the leave applications of the complainant and the complainant was reported to be unauthorizedly absent from duty. Subsequently, departmental inquiry was initiated against the complainant and minor penalty was imposed. It is further alleged that during the department proceedings the complainant repeatedly requested for the supply of his leave application to him but the same were denied. Ultimately the services of the complainant were terminated without following the due process.
The complainant examined himself as CW1.
CR no.37/12 11/14 Arguments on summoning heard.
With permission of the court, the complainant filed brief notes of written arguments. At para no. 6 of the written arguments the complainant has enumerated the wrongful deeds committed against him by all the accused persons.
In view of the allegations levelled in the complaint, the arguments advanced by the complainant and the material placed on record, there is prima facie sufficient material on record to summon the accused persons for the offence punishable u/s 120B. Issue summons to all the accused persons on filing PF for next date.
Complainant is directed to file PF within 7 days.
Put up on 24.04.2012 for appearance of the accused persons.
(RAJINDER SING) MM04(South): Saket Courts:
15.03.2012 It appears that the Ld. MM had summoned the accused on CR no.37/12 12/14 the ground that he was harassed by the revisionists as well as other persons arrayed in the complaint when his wife was on family way.
Accused persons have been summoned for the offence u/s 120 B IPC. Section 120 B IPC provides punishment for a criminal conspiracy. It is reproduced herein:
Section 120B IPC: Punishment of criminal conspiracy.(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
Section 120A IPC defines the criminal conspiracy. Proviso CR no.37/12 13/14 of the above said section makes it clear that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. But here in the present case Ld. MM has failed to state anything in his order that for what offence accused persons had entered in an agreement to commit an illegal act. Accused persons have been summoned only u/s 120 B IPC. Moreover, if one perused the entire complaint and evidence, then it appears that it is a dispute of the respondent in regard to his employment and service condition and has nothing to do with the alleged offence either of the accused persons.
In view of the above discussions, I am of the view that the impugned order for summoning to revisionist as well as of other persons in the complaint passed by the Ld. MM is improper, illegal and incorrect. Therefore, order dt. 15.03.2012 is set aside and recalled. Revision petition is allowed. Trial court record alongwith a copy of this order is sent back. Revision file is consigned to record room.
Announced in the open court on 17.10.2012 (ATUL KUMAR GARG) ASJ Saket Courts, N. Delhi CR no.37/12 14/14