Jammu & Kashmir High Court
Anoop Slathia & Anr. vs State And Ors. on 26 October, 2018
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
1
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CRMC No. 442/2018, IA Nos. 01/2018 &02/2018
Date of order:- 26.10.2018
Anoop Slathia and Anr. Vs. State of J&K and ors.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For the Petitioner(s) : Mr. Dheeraj Nanda, Advocate.
For the Respondents(s) : Mr. Rajnesh Oswal, Advocate.
i/ Whether to be reported in : Yes/No
Press/Media
ii/ Whether to be reported in : Yes/No
Digest/Journal
1. The instant petition has been filed under Section 561-A Cr. P.C, praying for invoking of the inherent jurisdiction of this Court for quashing the order No.CHQ/Clt/J-730/17-14144 dated 06.10.2017 and Preliminary Verification No.187/2017 registered with Police Station Crime Branch, Jammu.
2. In the instant petition, it has been stated that the petitioners are the employees of Sterlite Technologies Limited (hereinafter referred to as "STL") and currently posted at its Office at Jammu. STL is a company incorporated under Companies Act, 1956, having its registered office at E-1, MIDC Industrial Area, Waluj, Aurangabad, Maharashtra 431136 and branch offices inter alia at 2nd Floor, Budhal House, above SBI Building, Trikuta Nagar, Jammu (J&K). The employer-company of the petitioners is a leading manufacturer of Optical Fibre, Telecommunication and Information Technology Solution Software and exporter of Optical Fibre to overseas markets. The Union Government earmarked Network for Spectrum (in short, "NFS) Project involved the laying, installation and commissioning of 9500 kms Optical Fiber Cables (OFC) in various parts of Jammu and CRMC No. 442/2018 a/w IA Nos. 01/2018 & 02/2018 Page 1 of 8 2 Kashmir, which is of High National importance, being implemented executed by Bharat Sanchar Nigam Limited (BSNL). For the effective implementation of the project in the State of Jammu and Kashmir, BSNL awarded the contract for installation and commissioning of OFC to STL. Pertinently, owing to the large scale of the operations involved in the said project, it was imperative that STL has to complete its portion of the project within the timelines specified by BSNL. For integration of the OFC and operation and maintenance of the project executing vendors/contractors were engaged by STL, who were respectively assigned works to be executed on different sections of the said project (categorized as LINK/s) as per the terms and conditions settled between them beforehand.
3. It is stated that different contractors under STL further engaged Sub-
Contractors under them as per their convenience and exigency. Similarly, the Proforma-Respondent, who claims to be sole proprietor of M/S Mohd. Ayub Khan, was engaged as its Sub-Contractor on Link-6130 of the said project by J. Tech. Integrated I.T. Solution, the Contractor (through T V Sundaram Iyengar & Sons Pvt. Ltd.) [hereinafter referred to as "J Tech (TVS"], the execution partner of STL. After the closure of arrangement between STL and TVS, STL made full and final payments for the works done by Proforma-Respondent under J Tech. (TVS). The proforma- respondent continued to carry on as Sub-Contractor now under M/S Ericsson India Pvt. Ltd., as per the novated documents with TVS, however, following handing over of the project by M/S Ericsson back to STL, a tripartite settlement was arrived at amongst STL; Ericsson and the Proforma- Respondent, duly recorded in the Minutes of Meeting (Annexure-A) dated 06th October, 2016, an Agreement in the shape of "Letters of Intent for OFC Laying in Jammu Region for Link ID-6130" came to be executed between the Proforma-Respondent and Sterlite Technologies Limited vide LOI No. STL/NFS/MAK/2016-17/01 (Annexure-B) dated 06th October, 2016, duly CRMC No. 442/2018 a/w IA Nos. 01/2018 & 02/2018 Page 2 of 8 3 consented to and executed by the Proforma-Respondent, the terms and conditions whereof are operative and binding between the parties thereto, including the operation of Clause 9 thereof, which is being reproduced hereunder:-
"9. Jurisdiction:- Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under LCIA India Arbitration Rules, which Rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be Mumbai. The language to be used in arbitration shall be English. The governing law of the contract shall be the substantive law of India."
4. That as the Proforma-Respondent failed to live up to his commitments and obligations under the said LOI and cared not to mend his way despite repeated communications of caution made by STL in this regard, moreover, his Sub-Contractors were approaching STL for paying of arrears of their payments payable by Proforma-Respondent to the Sub-Contractors and further, hampering the completion of work on the said link, STL besides making the payment to them, being liable as Principal Employer on behalf of the Proforma-Respondent, finally, in exercise of the option available to it under the said LOI terminated the same communicating him vide email to the effect made by the petitioner on behalf of STL made on the email address of the Proforma-Respondent on 22nd February, 2018. The balance of the work assigned to the Proforma-Respondent on the Link-6130 was not completed by STL on its own. However, the Proforma-Respondent tried to raise a dispute while serving a Notice (Annexure-C) through his counsel on the Principal of STL, making all sorts of allegation and raising demand claim of arrears of payment against STL. The said notice was followed by the service of summons on the petitioners from the Authority under Payments of Wages Act, Poonch (Ld. ALC) issued on the basis of an application filed by the Proforma-Respondent, trying to invoke its jurisdiction under Section 15 of CRMC No. 442/2018 a/w IA Nos. 01/2018 & 02/2018 Page 3 of 8 4 the Payment of Wages Act for recovery of Rs. 32,00,000-00/- under the Act. The petitioners, who are figuring as non-applicant Nos.1 and 2 in the array of parties of the said application, have caused their appearance in the said matter before ALC through counsel and have filed their preliminary objection jointly along with another respondent (all being the employees of STL), questioning the maintainability of such application, citing the express Clause 9 of the LOI, restricting the dispute resolution through agreed mode of Arbitration. The said matter is pending for disposal before ALC. Petitioners were summoned to appear in the office of the Police Station Crime Branch through the medium of Notices purportedly been issued under Section 160 Cr. P.C, issued vide its CBJ/DySP/NHS/PV/187/2017 (Annexure-F) dated 27th October, 2017 purportedly under case registered vide No. 187/2017 of Crime Branch, Jammu, to which the petitioners and the other employees of the company did cause their appearance and apprised the respondent No.4 regarding whatever they knew about the controversy and including about the pendency of the case filed by one of the contractors of STL, namely, Mr. Ayub Khan in the Court of learned Assistant Labour Commissioner, Poonch.
5. It is further stated in the instant petition that despite the fact that the said Investigating Officer was requested to provide a copy of the Complaint pursuant to which the said Preliminary Verification has been initiated and despite the fact that he was apprised of the pending litigation between the parties, yet he instead kept compelling and pressing upon the petitioners to furnish before him certain documents and information, which was to their collective prejudice and disadvantage. At this stage, the STL had no option, but to write the respondent No. 4, a detailed letter vides its No. STL/5235 dated 30th October, 2017, requesting therein for providing a copy of the Complaint and further apprising him about the pendency of the said case before the learned Assistant Labour Commissioner, Poonch. It is worthwhile CRMC No. 442/2018 a/w IA Nos. 01/2018 & 02/2018 Page 4 of 8 5 to mention here that no such copy of the Complaint or allegation, as may have been made against the petitioner of STL was either been made available or shared by the petitioners, but on the other hand, the petitioners was slapped with yet another Notice (Annexure-H) issued by the respondent No. 4 on 19th January, 2018, issued under Section 160 Cr. P.C, asking upon the petitioners to attend his Office on 20th January, 2018. So the entire exercise by the respondent-Police after being apprised of the said factual aspect of the matter reflected all the characteristics of coercion and undue harassment of the petitioners and other employees of STL in order to coerce it to succumb to the ploy of the said contractor (Proforma-Respondent) in successfully abusing the process of the Respondent-Police Agency. So compelled by the circumstances of undue pressure and harassment created by the respondent No.4 at the instance of the Proforma-Respondent, the petitioners were left with no option, so an application was filed through petitioner No.1 before the Court of learned Chief Judicial Magistrate, Jammu, praying for taking cognizance of the facts and circumstances of the matter, as aforementioned, which fall short of making any cogent reason and assuming jurisdiction vested in the Respondent-Police Station.
6. The Respondent-State filed its Report vide No. CBJ/NHS/18/3611 (Annexure-K) dated 19th February, 2018 before the Court of learned CJM, Jammu, wherein it was learnt for the first time that the respondent No. 2 in exercise of power vested in it, has accorded approval for initiating preliminary enquiry into the written complaint filed by the Proforma-Respondent against the petitioners vide its No. CHQ/Clt/J-730/ 17-14144 dated 06th October, 2017, which has been initiated and entrusted to the respondent No. 4. The said matter was disposed of by the learned CJM, Jammu in his wisdom, as dismissed after taking the said report on the record of said File No. 910/Cr vide Order dated 19th February, 2018 while directing the applicant to co-operate with the Investigating Officer. On being harassed CRMC No. 442/2018 a/w IA Nos. 01/2018 & 02/2018 Page 5 of 8 6 by the respondent No.4, i.e., Investigating Officer, Police Station, Crime Branch, Jammu, the petitioner approached his superior in the organization of Crime Branch, who in turn assured that there will not be any further calling of the petitioners by the I.O., unless the I.O. in the case serves upon them a questionnaire by 31st January, 2018. The respondent No. 4 has yet again slapped on the petitioner No.2 a Notice (Annexure-L) purportedly issued under Section 160 Cr. P.C dated 23rd March, 2018 to appear before him on 27th March, 2018 in connection with PV No.187/2017, which was being investigated by him under Chapter XIV of the Code of Criminal Procedure. Followed by service of another Notice on 06th June, 2018, issued by the respondent No. 4, addressed to the petitioner No. 2, commanding him to appear before him on 08th June, 2018, copy of which was not provided to the petitioner No. 2. As such, the harassment and mental torture by the respondent-police has become perpetual. It is stated that the oppression of the petitioners at the hands of the State Agency-Respondent herein is a continuous and unabated, as the entire process of taking cognizance of the Complaint by the respondent No. 2, which squarely does not fall under the domain of the Crime Branch as per the Scheme of SRO 202 of 1999 dated 03rd June, 1999 and further abuse of process by the respondent no. 4 in the name of conducting so called preliminary verification and further on account of reluctance of the learned CJM, Jammu to take cognizance of the issues raised before him by way of the said application, the petitioners are not left with no option, but to approach this Court by way of instant petition, praying for invoking its extraordinary inherent jurisdiction u/s 561-A Cr. P.C.
7. Accordingly, it has been prayed to quash the PV on the grounds that Crime branch has no power to conduct PV in terms of SRO 202, as offence does not fall in said SRO; that crime branch has exceeded the jurisdiction in calling the petitioners as matter is pending before ALC, Poonch; that pendency of PV has caused mental harassment; that there is arbitration clause in LOI, so CRMC No. 442/2018 a/w IA Nos. 01/2018 & 02/2018 Page 6 of 8 7 PV is not maintainable; that Crime branch is calling the record in order to assist the complainant.
8. In support of his contention, learned counsel for the petitioners has placed reliance upon the decision of the Hon'ble Supreme Court dated 12th November, 2013 passed in SLP (Crl.) No. 5986 of 2006 and connected matters titled, "Lalita Kumar Vs. Govt. of U.P and ors.
9. I have considered the rival contentions. The counsel for respondents has taken a plea that this petition is premature as no FIR has been registered.
10. From the perusal of latest status-report filed, it reveals that a complaint was filed by one Mohd. Ayub Khan stating therein that he is a contractor by profession; BSNL had allotted work of providing and laying of underground NFS cable network in Rajouri to M/s Sterlite business partner of M/s Ericson; the proprietors of Ericson and M/s Sterlite had allotted work in favour of the applicant for an amount of Rs.60 lacs for providing and laying of underground NFS cable networking in Rajouri as per agreement executed with the undersigned. The applicant took over to execute the allotted work and at least 95% of the work has been executed successfully and was entitled to receive running payments from the Sterlite to complete the work successfully but unfortunate enough Suvesh Pahwa for Sterlite and Anoop Slathia for Sterlite had demanded an amount of Rs.1 lac as commission for releasing due payment which he denied on the plea that the rates quoted by him at lower side and he was unable to meet their demand.
11. Bare perusal of these allegations, it is evident, that allegation of forgery of agreement/minute of meeting dated 06.10.2016; demand of money for release of payment have been made against petitioners, which is cognizable offence. The PV is being conducted by Dy.S.P of Crime Branch on the direction of IGP Crimes. It is duty of police to inquire the matter, whenever some complaint with regard to commission of cognizable offences is made out; in present case despite the fact that complaint has been lodged, P.V has CRMC No. 442/2018 a/w IA Nos. 01/2018 & 02/2018 Page 7 of 8 8 been initiated; in that P.V petitioner has been called for verifying the allegations leveled in complaint. Purpose of P.V is only to verify the truthfulness of allegations made in complaint. Disputed question of facts cannot be considered in this petition. Further, it is not the case of petitioners that there is some law engrafted in any law, which bar jurisdiction of police to conduct PV. Petitioners have made bald assertion that as per SRO 202, Crime Branch has no power to conduct the PV (preliminary verification), but neither copy of SRO has been annexed nor it has been produced during arguments. Petitioners are at liberty to place all facts narrated in this petition before inquiry officer, who shall consider the same during concluding inquiry. Till today no formal FIR has been registered. So this petition is pre mature. It is dismissed. However, petitioners may file fresh petition, if needed in future; petitioners shall co-operate the respondent-Crime Branch in completing the PV. Respondents shall not harass the petitioners illegally.
(Sanjay Kumar Gupta) Judge Jammu 26.10. 2018.
Ram Krishan CRMC No. 442/2018 a/w IA Nos. 01/2018 & 02/2018 Page 8 of 8