Calcutta High Court
Tata Tea Ltd. vs Fazlur Rahman on 5 December, 2000
Equivalent citations: [2001]104COMPCAS718(CAL)
JUDGMENT
1. In spite of notice nobody appears on behalf of the opposite party.
2. This revisional application is directed against an order dated 20-12-1999, passed by the learned Chief Judicial Magistrate, South 24 Parganas, Alipore, in Case No. C-502 of 1999 thereby rejecting the application of the present petitioner praying for a direction upon the accused to vacate the bungalow which is the property of the petitioner and which the accused opposite party is illegally and wrongfully withholding after the termination of service.
3. The present petitioner filed a petition of complaint against the accused opposite party under Section 630 of the Companies Act, 1956 ('the Act') in the court of the learned Chief Judicial Magistrate, South 24 Parganas, Alipore, on 20-2-1999. The allegation made in the petition of complaint is that Tata Tea Ltd. is a public limited company within the meaning of the Companies Act. The company appointed the accused opposite party as an assistant manager and provided him with free housing accommodation while he was posted as assistant manager in Sagmoo Tea Estate, Police Station Kaliabor, Nawgaon, Assam. The company, vide its letter dated 12-6-1998, revoked with effect from 15-6-1998, the contract of employment of the accused opposite party and terminated his service by the said letter. It was alleged that in spite of the receipt of the said letter the accused failed and neglected and/or refused to hand over the vacant possession of the said bungalow to the company. Since the termination of service of the accused by the complainant-company with effect from 15-6-1998, there has been no relationship of employer and employee between the complainant-company and the accused. The accused had no legal right to use or occupy the said bungalow along with furniture and fixtures. As such the accused is in wrongful possession of the said bungalow. It was alleged that in the aforesaid manner the accused has committed an offence punishable under Section 630 for which he should be tried and punished according to law.
4. On receipt of the petition of complaint the learned Magistrate took cognizance of the offence and issued process against the accused opposite party. The opposite party appeared through his learned advocate and he was allowed to be represented by his learned advocate under Section 205 of the Code of Criminal Procedure.
5. On 12-7-1999, the complaintant/petitioner filed an application in the court of the learned Chief Judicial Magistrate praying for a direction upon the accused opposite party to vacate the said bungalow and to deliver the possession of the same to the petitioner-company. In the said application it was stated that the accused opposite party was wrongfully withholding the possession of the said bungalow and was wilfully and deliberately delaying the matter and the case would prolong for a long time. Such delay is causing extreme difficulties to the complainant-company, which is not able to allot the said bungalow to other officers of the company. It was also stated that the accused opposite party in this way was frustrating the provisions of Section 630.
6. The said application under Section 630(2) was rejected by the learned Magistrate and against such order of rejection the petitioner came up before this Court in revision.
7. Mr. Pradip Ghosh, the learned advocate appearing for the petitioner, submits that after termination of service by the complainant-company, vide its letter dated 12-6-1998, the accused opposite party has no right to occupy the said bungalow. As the said bungalow is the property of the complainant-company, which the accused has been wrongfully withholding after the termination of his service, the learned Magistrate should have allowed the application under Section 630(2) and directed the accused opposite party to vacate the same and to deliver possession of the said bungalow to the complainant-company. Mr. Ghosh points out that the accused opposite party filed a civil suit, being Title Suit No. 54 of 1998, in the court of the learned Civil Judge No. 1, Junior Division, Nawgaon, challenging the termination of his service and praying for a declaration that the order of revocation of his service dated 12-6-1998, was illegal and void. The learned Civil Judge, Kaliabor, Nawgaon, by his order dated 21-8-1999, dismissed the said suit. Against the said order the accused opposite party filed Civil Revision No. 366 of 1999 in the Hon'ble Gauhati High Court. The Hon'ble High Court at Gauhati by an order dated 13-10-1999, issued a rule but refused to stay the said order. Mr. Ghosh also brings to the notice of this court by producing an order of the Gauhati High Court that the said civil revision preferred by the accused opposite party was dismissed by the High Court at Gauhati by its judgment and order dated 15-2-2000.
8. The moot question is whether during the pendency of the prosecution concerned the court can invoke Section 630(2) to get a company bungalow vacated and restored to the company.
9. Mr. Ghosh, the learned advocate of the petitioner, relies on a judgment of this Court in Metal Box India v. State of West Bengal[1997] (II) C.H.N. 423. In deciding the said case the learned single judge of this Court relied upon two judgments of the Hon'ble Apex Court, one is in Abhilash Vinod kumar Jain v. Cox and Kings (India) Ltd. [1995] 84 Comp. Cas. 1 (Bom.) and Baldev Krishna Sahi v. Shipping Corpn. of (India) Ltd. [1988] 63 Comp. Cas. l. In the said judgment it was held by this Court as follows :
"In Baldev Krisha Sahi's case (supra) also the officer of the company was being prosecuted as an accused and the outer limit fixed by the Apex Court for disposal of the criminal case pending before the Magistrate was longer than that which was fixed for the officer accused to vacate the company's property. The pendency of the criminal case did not deter the Apex Court to give direction for delivery of the property even before the trial was directed to be concluded. The only difference between Baldev Krishna Sahi's case (supra) and the present case is that here it is the company who has approached this court under Section 482 of the Criminal Procedure Code and article 227 of the Constitution for a direction to deliver the property while in Baldev Krishna Sahi's case (supra) it was the accused officer of the company who approached the Supreme Court in a special leave petition. In the circumstances, it would be in consonance with the Apex Court's decision in Baldev Krishna Sahi's case (supra) to pass an order under Section 630(2) directing respondent No. 2 to vacate the flat even before the Magistrate formally disposes of the criminal case against respondent No. 2.
Indeed, the company's right to retrieve the property is quite explicit here particularly when respondent No. 2 has not yet come forward with a definite stand to resist the company's claim and I really do not find any sufficient reason as to why I am not to rely on this decision of the Apex Court in Baldev Krishna Sahi's case (supra) and direct respondent No. 2 to deliver back the company's property."
10. In the present case it appears that the main intention for the accused opposite party is to drag the proceedings for an indefinite period. Repeated prayers for adjournments were made before the learned Magistrate and, ultimately, by his order dated 7-2-2000, the learned Magistrate directed warrant of arrest to be issued against the opposite party. By the said order the opportunity granted to the accused opposite party under Section 205 of the Code of Criminal Procedure was also withdrawn. From the subsequent orders dated 3-4-2000, 2-5-2000, 30-5-2000, 7-7-2000 and 24-8-2000, it appears that the warrant of arrest could not be executed against the accused opposite party. The learned Magistrate could not proceed any further with the case.
11. The accused opposite party filed a suit before the Civil Judge, Junior Division, challenging the termination of service and the said suit was dismissed. Against such order of dismissal a revision was preferred in the High Court at Gauhati and the said revisional application was also dismissed. In such circumstances, the company's right to retrieve the property is quite explicit. It is in consonance with the view of the Apex Court to pass an order under Section 630(2) to direct an employee or past employee to vacate the flat or to restore the company's property to the company even before the Magistrate trying the case under Section 630(1) formally disposes of the criminal case against such employee.
12. In view of the discussion made above and relying upon the judgments referred to above, I am of the view that this is a fit and proper case for invoking the inherent power of this Court under Section 482 to direct the accused opposite party to vacate the bungalow concerned in favour of the petitioner-company under Section 630. The accused opposite party is hereby given one month's time to vacate the bungalow. The learned Chief Judicial Magistrate, 24 Parganas (South), Alipore, is also directed to proceed with the trial of the criminal case and to dispose of the same with utmost expedition. The present application is accordingly allowed. The impugned order dated 20-12-1999, is hereby set aside.