Delhi District Court
In Re vs Secretary-Cum-Commissioner (Labour) on 14 July, 2022
IN THE COURT OF MR. SANJAY KUMAR
PRINCIPAL DISTRICT & SESSIONS JUDGE : WEST DISTRICT
TIS HAZARI COURTS : DELHI
Criminal Revision No. 32/2022
CNR No. DLWT01-001142-2022
In re:
Rajesh Gupta
S/o Kesar Singh Gupta
Director at M/s. NNS Online Pvt. Ltd.
Office at 25/10, Meri Dilli Housewife
East Punjabi Bagh
New Delhi-110026. ...... Petitioner/revisionist
Versus
1. Secretary-cum-Commissioner (Labour)
Department of Labour
Government of NCT of Delhi
5, Samnath Marg
Delhi - 110054. ......... Respondent No.1
2. Inspector Under Working Journalist & Other Newspaper
Employees Act, 1955
Office of the Joint Labour Commissioner (West District)
Labour Department, Govt. of NCT of Delhi
F-Block, Karampura
New Delhi-110015. ......... Respondent No.2
Date of Institution : 09.02.2022
Date of hearing arguments : 26.05.2022
Date of Order : 14.07.2022
Appearances:
Mr. Vidit Garg and Ms. Shipra Mishra, Advocates for the petitioner /
revisionist.
Mr. Manish Kumar Thakur, Inspecting Officer (West), Labour
Department/respondent no.1.
Mr. Atul K. Shrivastava, Ld. Addl. PP for the State.
CR No. 32/2022 Page 1 of 13
ORDER
1. This order shall decide the present Criminal Revision Petition filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (in short, 'Cr.P.C.'), whereby the petitioner / revisionist has assailed an order dated 28.09.2020 passed by Ld. MM (West) whereby summons were issued in a complaint case bearing No. 7621/2019.
2. Briefly stated, a complaint under Section 18 of the Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 (in short, 'said Act') was filed by the complainant / respondents herein against the accused others including accused No.1-Rajesh Gupta stating that the complainant is an Inspecting Officer and was posted in West District of Labour Department from 11.09.2018 to 07.03.2019 and Inspector within the meaning of Section 17B of the said Act and rules made thereunder. It is stated that the accused Sh. Rajesh Gupta, Managing Director; Sh.Akshay Gupta, Director; Mrs. Manju Gupta, Director; Sh. V. K. Jain, CEO; Sh. B. C. Joshi, Manager/HOD of M/s. N.N.S. Online Pvt. Ltd. (Holding Company) (Dainik Vyapar Kesari & N. N. S. Media Group) and M/s. N. N. S. Events & Exhibition Pvt. Ltd. is responsible for day to day affairs and business of the company / newspaper establishment, which is a news agency where daily newspaper / periodical public news / printed periodical work / public news is being published out under the control of the employer / management. It is further stated that M/s. N.N.S. Online Pvt. Ltd. (Holding Company) (Dainik Vyapar Kesari & N. N. S. Media Group) and M/s. N. N. S. Events & Exhibition Pvt. Ltd. are CR No. 32/2022 Page 2 of 13 a private limited company.
3. It is stated that in compliance of order dated 28.04.2015 in CONMT. PET. (C) No. 411/2014 in Avishek Raja & Ors. vs. Sanjay Gupta and In W.P.(C) No. 246/2011 between ABP vs. Union of India and in other connected matter and on receipt of a PGMS Complaint No. 2018094128 which was filed on 17.08.2018 by Sh. Chandra Prakash Pandey, complainant working as a News Coordinator alleging therein that arrears and payment as per Majithia Wage Bard Award recommendations has not been given by the management and to reinstate back in service. Thereafter, on his complaint, the then Labour Officer posted in West District Sh. A. K. Biruly issued notice dated 31.08.2018 directing both the complainants and the management to appear on 10.09.2018, on which date, the management was absent and the complainant was present. It is further stated that on the next date of hearing i.e. 17.09.2018 in the proceeding held before Sh. A. K. Biruly, the then Labour Officer, the management was absent and the complainant was present and informed that the management has failed to make the variable pay for the period w.e.f. 01.01.2008 to 10.11.2011 and the payment as per recommendation of Majithia Wage Board for the period 11.11.2011 to 30.06.2016.
4. It is stated that a notice dated 20.09.2018 was issued directing the management to appear on 15.09.2018 at 3.00 p.m., on which date, the then Labour Officer was on official duty and the management was absent and the complainant was present. It is stated that on the next date of hearing i.e. 25.09.2018, the then Labour Officer was on leave CR No. 32/2022 Page 3 of 13 and the management was again absent and the complainant was present. It is further stated that the management was show-caused vide notice dated 10.10.2018 as to why action be not initiated against the management under the provisions of the said Act and directed to appear on 17.10.2018. It is stated that on 16.10.2018, the undersigned being Inspecting Officer alongwith the then Labour Officer inspected the office of M/s. N.N.S. Online Pvt. Ltd. at around 5.15 p.m. and issued and served upon notice by hand which was duly received by one Sh. B. C. Joshi, HOD directing them to show the records as per the said Act which they failed to show during inspection and assure that the records shall be submitted as directed vide notice on 17.10.2019 at 11.00 a.m. It is further stated that on 17.10.2019 in the proceedings, the management was absent and the complainant was present and since the newspaper establishment failed to appear and submit the records as assured during investigation.
5. It is further stated that since none appeared from the management despite notice being received by hand, a show-cause notice dated 23.10.2018 was issued against the management directing them to appear on 30.10.2018, on which date, none appeared from the management and the complainant was present.; and that the proceeding was concluded for taking action against the management. It is stated that the complainant submitted a letter dated 04.12.2018 to the effected that all the directors as well as the holding and the sister concern companies have not been made party to this case; and that thereafter, an amended notice dated 04.12.2018 was issued to the management and all the accused persons but none appeared. It is CR No. 32/2022 Page 4 of 13 further stated that thereafter, an amended show-cause notice dated 26.12.2018 was issued directing to them to appear on 01.01.2019 which was duly served upon them by hand but none appeared on their behalf.
6. It is stated that despite giving ample opportunity, notices, summons, show-cause, their personal visit and having complete knowledge of those proceedings, the accused persons did not appear in those proceedings nor any response to the claims of the complainant was filed by them. It is further stated that they deliberately did not appear in those proceedings; and that the said acts of the management shows that all the complaints/claims filed by the complainant is admitted and accepted by the management; and that the management failed to produce the requisite statutory records as mentioned in the notices. It is stated that the accused persons have deliberately, intentionally failed to comply with the provisions and has contravened the provisions of Section 17B(2)(a)(b) and 17A of the said Act and Rules 37(I) to 37 (IV) of the said Rules; and that there fore, they are guilty of offence punishable under Section a8 of the said Act. It is further stated that in compliance of order dated 06.09.2019 of Ld. MM, the complainant vide letter dated 16.09.2019 was asked to furnish information/documents in respect of his employment with M/s. NNS Online Pvt. Ltd. which he has submitted. It is further stated tat the complainant had earlier filed a complaint dated 15.01.2019 in this regard before the Ld. Court and the same was disposed of vide order / judgment dated 06.09.2019. Hence, the present complaint.
CR No. 32/2022 Page 5 of 137. The Ld. MM vide the impugned order dated 28.09.2020, after hearing the arguments and perusing the relevant records including the statement of complainant's witnesses and written submissions filed by the complainant and also relying on the judgment Smt. Nagawwa vs. Veeranna Shival Ingappa Konjalgi decided on 23.04.1976, held that accused No.1 Rajesh Gupta being the Managing Director and accused No. 5 Sh. B. C. Joshi being the Manager/HOD as both these persons were responsible for day to day affairs of the concerned newspaper establishment are liable to be summoned for the offences under Section 18(1) of the said Act and they were accordingly summoned.
8. The impugned order has been assailed inter alia on the substantial questions which are as under :-
"a. Whether the summon issued against the accused person was according to correct legal procedure especially when there is no prima facie case has been made out against the petitioner.
b. Whether the present complaint has been filed within the period of limitation as provided by the said Act or the present complaint has been filed in consonance of Section 8 of the said Act? c. Whether the Ld. MM should have exercised its power conferred by Cr.P.C. to issue a summon against the petitioner?
d. That the Ld. MM has proceeded summoning order under a wrong notion and has erred in passing the impugned order."
9. The main grounds on the basis of which the present revision petition has been filed are that the Ld. Trial Court while passing the impugned order has acted with undue haste and has passed the CR No. 32/2022 Page 6 of 13 impugned order without due application of judicious mind and in a mechanical manner. It is stated that the impugned order of the Ld. MM is based on conjectures and surmises and cannot stand the test of judicial scrutiny being erroneous in law and contrary to the rules of procedure prescribed by the Hon'ble High Court; and that the complaint filed is nothing but a vendetta and vengeance and was with a view to extort money from the revisionist company. It is stated that the complainant without verifying locus of Mr. Chandra Prakash filed criminal complaint before the Ld. Trial Court; and that the Ld. Trial Court while passing the impugned order has completely ignored the direction of the Hon'ble High Court which were issued for safeguarding the constitution guarantee in respect of personal liberty of a citizen. It is further stated that the Ld. Trial Court overlooked the time periods of the false allegations levelled by the respondent against the petitioner and thus, the said order is liable to be set aside.
10. It is stated that Ld. Trial Court has entirely ignored the facts while passing the impugned order with regard to the contradictions and improvements in the statements and vague allegations levelled against the petitioner by the responded or his family members which are baseless and after thoughts. It is stated that the impugned order is not sustainable in law; and that the Labour Officer has no authority to investigate the present case without taking permission from the concerned officer; and that the former employee Sh. Chandra Prakash Pandey, who had voluntarily resigned from the petitioner's company, cannot combine with the IO as both have different entities which reflect that there is secret connection between them. It is further stated that CR No. 32/2022 Page 7 of 13 no other employee who made any complaint that the they are not complying with the relevant procedure and keeping relevant documents and at the time of the termination of the responded, has never made any complaint regarding wrongful termination and not complying with the relevant documents. It is further stated that as per Section of the said Act, the complaint is required to be filed within one month but the same is not filed within the period of limitation; and that whenever the concerned officer visited the said premises, the management has shown all the relevant documents required to be maintained by the management and on being demanded, same are showed and after examining the documents, also assured that it is a routine visit and refused to prepare seizure memo. It is thus prayed that the impugned order may be set aside as summoning the petitioner is not sustainable in law.
11. I have heard the counsel for Revisionist Mr. Vidit Garg, Mr. Atul K. Shrivastava, Ld. Addl. PP for the State and Mr. Manish Kumar Thakur, Inspecting Officer (West), Labour Department/respondent no.1 and have perused the record.
12. The Revisionist assailed the impugned order on the grounds as discussed hereinabove. The main ground taken that Mr. Chandra Prakash Pandey had resigned on 01.12.2013 and ceased to be employee of the revisionist company; has no locus-standi and the complaint is filed beyond the limitation period. It is pertinent to mention here that the complainant/respondent examined four witnesses namely CW1 Mr. Manish Kumar Thakur, Inspecting Officer (West), Labour CR No. 32/2022 Page 8 of 13 Department, CW2 Ex-Labour Inspector Sh. Chandra Has Singh, CW3 Sh. A.K. Biruly, Deputy Labour Commissioner (West) and CW4 Sh. Chander Prakash Pandey Former Employee of the revisionist company. The complainant also produced the documents with regard to proceedings conducted by Labour Office. The Ld. Trial Court in detail discussed all the facts and official record and proceedings. In the Revision, the Revisionist failed to challenge the proceedings and records produced before the Ld. Trial Court in which the Revisionist being the Director of NNS Online Pvt. Ltd. was duty bound to produce the records as per Section 17 of the Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955.
13. The law is well settled with respect to the powers of Magistrate to take cognizance of an offence u/s 190 Cr.PC or Section 204 Cr.PC, upon a complaint. In R.R. Chari V State of Uttar Pradesh, 951 CrI LJ 775 the question before the Supreme Court was as to when cognizance of the offence could be said to have been taken by the Magistrate under Section 190 of the Code. It was observed as under:-
"It is clear from the wording of the section that the initiation of the proceedings against a person commences on the cognizance of the offence by the Magistrate under one of the three contingencies mentioned in the section. The first contingency evidently is in respect of non-cognizable offences as defined in the Criminal Procedure Code on the complaint of an aggrieved person. The second is on a police report, which evidently is the case of a cognizable offence when the police have completed their investigation and come to the Magistrate for the CR No. 32/2022 Page 9 of 13 issue of a process. The third is when the Magistrate himself takes notice of an offence and issues the process. It is important to remember that in respect of any cognizable offence, the police, at the initial stage when they are investigating the matter, can arrest a person without obtaining an order from the Magistrate. Under Section 167(b) of the Criminal Procedure Code the police have of course to put up the person so arrested before a Magistrate within 24 hours and obtain an order of remand to police custody for the purpose of further investigation, if they so desire. But they have the power to arrest a person for the purpose of investigation without approaching the Magistrate first. Therefore in cases of cognizable offence before proceedings are initiated and while the matter is under investigation by the police the suspected person is liable to be arrested by the police without an order by the Magistrate."
14. The Supreme Court in Fakhruddin Ahmad V State of Uttaranchal, (2008) 17 SCC 157 also held as under:-
"Nevertheless, it is well settled that before a Magistrate can be said to have taken cognizance of an offence, it is imperative that he must have taken notice of the accusations and applied his mind to the allegations made in the complaint or in the police report or the information received from a source other than a police report, as the case may be, and the material filed therewith. It needs little emphasis that it is only when the Magistrate applies his mind and is satisfied that the allegations, if proved, would constitute an offence and decides to initiate proceedings against the alleged offender, that it can be positively stated that he has taken cognizance of the offence. Cognizance is in regard to the offence and not the offender."CR No. 32/2022 Page 10 of 13
15. The Supreme Court also observed in S.K. Sinha, Chief Enforcement Officer vs. Videocon International Ltd., (2008) 2 SCC 492 held as under:-
"The expression 'cognizance' has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means 'become aware of' and when used with reference to a Court or a Judge, it connotes to take notice of 'judicially'. It indicates the point when a Court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed. 'Taking cognizance' does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings. Taking of cognizance is thus a sine qua non or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance."
16. In Sanjit Bakshi vs State of NCT of Delhi & Anr CRL.M.C. 4177/2019 & CRL M.A.34231/2019 decided on 19 May, 2022, the Hon'ble High Court of Delhi observed as under:-
"Cognizance implies application of judicial mind by the Magistrate to the facts as stated in a complaint or a police report or upon information received from any person that an offence has been committed. It is the stage when a Magistrate applies his mind to the suspected commission of an offence. The cognizance of an offence is stated to be taken once the CR No. 32/2022 Page 11 of 13 Magistrate applies his mind to the offence alleged and decides to initiate proceeding against the proposed accused. The Court before taking cognizance needs to be satisfied about existence of prima facie case on basis of material collected after conclusion of investigation. The magistrate has to apply his mind to the facts stated in the police report or complaint before taking cognizance for coming to the conclusion that there is sufficient material to proceed with the case. Taking of cognizance is a judicial function and judicial orders cannot be passed in a mechanical or cryptic manner. It is not only against the settled judicial norms but also reflects lack of application of judicial mind to the facts of the case. It is equally important to note that at time of taking cognizance a Magistrate is not required to consider the defence of the proposed accused or to evaluate the merits of the material collected during investigation. It is not necessary to pass a detail order giving detailed reasons while taking cognizance. The order taking cognizance should only reflect application of judicial mind."
17. Now applying the principles of law in the present facts and circumstances, in my opinion, the Ld. Trial Court applied its mind and on the basis of the testimony of the above examined complainant's witnesses and documents brought before the Ld. Trial Court, legally concluded that prima-facie offences u/s 18 (1) and 18 (1A) of the Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 are made out against the two proposed accused persons and one of them is the Revisionist Rajesh Gupta.
CR No. 32/2022 Page 12 of 1318. On the basis of above observations and discussions, I do not find any illegality, infirmity or error in the impugned order dated 28.09.2020 of Ld. Trial Court. Hence, the Revision Petition stands dismissed.
19. Trial Court Record be sent back alongwith a copy of this order for information and record.
20. File be consigned to the Record Room.
Digitally signedSANJAY by SANJAY KUMAR KUMAR Date: 2022.07.14 22:23:54 +0530 Announced in the open Court (SANJAY KUMAR) th on 14 July, 2022 Principal District & Sessions Judge(West) Tis Hazari Courts: Delhi CR No. 32/2022 Page 13 of 13