Delhi High Court
Hero Motocorp Limited & Anr. vs State & Anr. on 30 May, 2018
Equivalent citations: AIRONLINE 2018 DEL 815, AIRONLINE 2018 DEL 604
Author: S. Muralidhar
Bench: S. Muralidhar, I.S. Mehta
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 17th May, 2018
Pronounced on: 30th May, 2018
+ Crl.M.A. 4041/2017 in CRL.M.C. 2451/2013
HERO MOTOCORP LIMITED & ANR. ....Petitioners
Through: Mr. Rakesh Tiku, Senior Advocate
with Ms. Arpan Wadhawan,
Advocate.
versus
STATE & ANR. ..... Respondents
Through: Mr. Piyush Singhal and Mr. Ashish
Aggarwal, Advocates for R-1.
Mr. Arunav Patnaik, Mr.Shikhar Saha
and Mr. Karun Pahwa, Advocates for
R-2.
+ Crl.M.A. 4047/2017 in CRL.M.C. 2462/2013
DEEPAK JAIN & ORS. ..... Petitioners
Through: Mr. Rakesh Tiku, Senior Advocate
with Ms. Arpan Wadhawan,
Advocate.
versus
STATE AND ANR. ..... Respondents
Through: Mr. Piyush Singhal and Mr. Ashish
Aggarwal, Advocates for R-1.
Mr. Arunav Patnaik, Mr.Shikhar Saha
and Mr. Karun Pahwa, Advocates for
R-2.
+ Crl.M.A. 4045/2017 in CRL.M.C. 2525/2013
CRL.M.C. 2451/2013 & connected matters Page 1 of 13
MANDEEP SINGH & ORS. ..... Petitioners
Through: Mr. Rakesh Tiku, Senior Advocate
with Ms. Arpan Wadhawan,
Advocate.
versus
STATE & ORS. ..... Respondents
Through: Mr. Piyush Singhal and Mr. Ashish
Aggarwal, Advocates for R-1.
Mr. Arunav Patnaik, Mr.Shikhar Saha
and Mr. Karun Pahwa, Advocates for
R-2.
CORAM: JUSTICE S. MURALIDHAR
JUSTICE I.S. MEHTA
JUDGMENT
Dr. S. Muralidhar, J.:
1. These are three applications - two by Hero Motocorp Ltd. („HML‟) (Petitioner No.1 and 5 respectively in Crl M.C. Nos. 2451 and 2462 of 2013) and one by Mandeep Singh (Petitioner No.1 in Crl M. C. No. 2525 of 2013)
-seeking initiation of „appropriate criminal proceedings‟ against Mr. Roop Darshan Pandey, Director of M/s Brain Logistics Private Limited („BLPL‟) (Respondent No.2) alleging that he has scandalized and lowered the authority of this Court and has prejudiced the due course of the pending judicial proceedings.
2. Crl. MCs 2451/2013 and 2462/2013 by HML and its directors and Crl M.C. No. 2525 of 2013 by Mandeep Singh the Proprietor of M/s Surya Enterprises and others are petitions against the State (Respondent No.1) and CRL.M.C. 2451/2013 & connected matters Page 2 of 13 BLPL under Section 482 of the Code of Criminal Procedure („Cr PC‟) questioning an order dated 4th January, 2013 passed by the learned Metropolitan Magistrate („MM‟), rejecting the status report of the police and directing, in the application filed by BLPL under Section 156(3) Cr PC, that the accused named in the complaint made by BLPL be summoned. The MM directed that an FIR be registered against the accused named in the complaint under Sections 406/420/467/469/471 and 120B of the Indian Penal Code („IPC‟).
3. The brief background to the said complaint by BLPL was that HML had engaged BLPL for providing Warehouse Operation Management and related services by entering into a Job Contract Agreement („JCA‟) on 12 th October 2001. Under the same JCA, BLPL was to provide warehouse management services within the premises of the factory of HML‟s Spare Parts Division at Gurgaon. From out of the agreed consideration paid by HML to BLPL, the latter was to pay the wages for the labour force provided by it and also provide payment of PF, Gratuity and other entitlements. According to HML, a regular PF Account had been opened by BLPL with the PF Authorities and each worker had been given a particular PF Account through which the PF amounts would be deposited for the benefit of the workers. BLPL was also required to comply with the other beneficial provisions provided by statutory law including the Factories Act, Payment of Minimum Wages Act, Bonus Act.
4. According to HML, it noticed sometime in 2005 that BLPL had been inflating the number of workers. In order to correct this anomaly, on 1st CRL.M.C. 2451/2013 & connected matters Page 3 of 13 December 2005 another agreement was entered into between the parties.
The system of BLPL receiving 10% service charges was given up. Instead, a fixed monthly remuneration of Rs.2 lacs (+ Rs.40,000/- as overhead expenses of manpower management) was adopted.
5. According to HML, the problem continued with BLPL raising remuneration bills under both payment schemes thereby receiving extra payments. According to HML, it is only in 2009 that BLPL was confronted with the said double claim. In a meeting held on 28th October 2009, it was agreed that the excess payment received by BLPL would be recovered against its future entitlements. Thereafter, according to HML, the conduct of BLPL became dishonest and vindictive and relations between the two parties became strained, which also affected the morale of the work force. The contract had come to an end on 31st March, 2009 by efflux of time and thereafter the agreement continued on a month-to-month basis.
6. On 30th March, 2010, HML wrote to BLPL communicating the termination of the contract. The next agency that was engaged by HML to carry on the work earlier being performed by BLPL, was M/s Surya Enterprises, of which Mandeep Singh, the Petitioner in Crl. MC No.2525/2013 is the sole proprietor. More than 500 workers, who had earlier worked for BLPL, had been rendered jobless as a result of the termination of contract. These workers resigned from BLPL and joined M/s. Surya Enterprises, with similar wages and benefits and working in the same premises of HML where they were previously working for BLPL. Since these workers had joined M/s Surya Enterprises with effect from 1 st April CRL.M.C. 2451/2013 & connected matters Page 4 of 13 2010 and their salaries till that point were pending, HML decided to pay them the salaries for the period till 31st March 2010 directly. This was otherwise to be paid by BLPL and reimbursement sought. According to HML, the statutory dues for the period ending 31 st March, 2010 continued to be that of BLPL.
7. The further details of what transpired thereafter need not be discussed for the purposes of the present order. Suffice it to say that the dispute concerning the payment of the PF dues gave rise to arbitration proceedings initiated by BLPL. A former Judge of the Supreme Court was appointed as a sole arbitrator by the High Court of Punjab and Haryana by an order dated 27th April, 2012. In the arbitration proceedings, BLPL was the claimant and HML and the other Petitioners in these petitions were the Respondents.
8. It is stated that two years after the initiation of the arbitration proceedings, Mr. Roop Darshan Pandey, Respondent No.2, filed a complaint with the Station House Officer („SHO‟) PS Shakarpur on 20 th April, 2012 naming inter alia the proprietor of M/s. Surya Enterprises as accused. Six officials of HML were named as accused. The Managing Director of HML was also arraigned as an accused. The allegations in the complaint pertained to the alleged improper mode of disbursement of salary to more than 500 workers for the month ending 31st March, 2010. As already noted, by the order dated 4th January 2013 of the learned MM, summons were directed to be issued to the named accused.
9. On an application filed by BLPL, an order was passed by the learned MM on 6th January, 2013 calling for a status report. It is at that stage that the CRL.M.C. 2451/2013 & connected matters Page 5 of 13 present petitions were filed under Section 482 Cr PC. This Court while issuing notice on 14th June, 2013, directed that no coercive steps should be taken against the Petitioners till the next date. Even while these petitions were pending, the parties explored the possibility of settlement through mediation. However, no settlement was able to be reached.
10. According to the Petitioners, for invoking the jurisdiction of the MM at Karkardooma Courts, BLPL relied on a letter dated 16th November, 2010. This was on the letterhead of Surya Enterprises and addressed to the Regional Provident Fund Commissioner („RPFC‟). This, according to HML, was a forged, tampered and fabricated document. Consequently, a complaint was filed by HML against BLPL and Mr. Roop Darshan Pandey. FIR No.1001/2013 came to be registered in terms of an order passed by the learned MM in the application filed by HML under Section 156 (3) Cr PC. A charge-sheet was also filed in FIR No. 1001/2013 under Sections 465/468/471 IPC on 1st February, 2016 against BLPL and Mr. Pandey charging them with having committed forgery in respect of the said document.
11. The present applications were filed on 4th March 2017. The trigger was a complaint dated 10th February, 2016 filed by Mr. Roop Darshan Pandey with the Ministry of Law and Justice, Department of Justice, Government of India under the Centralized Public Grievance Redressal and Monitoring System („CPGRAM‟). A copy of the said complaint filed online by Mr. Pandey has been enclosed with the present applications as Annexure-C. The complaint is, inter alia, to the effect that the Senior Advocate representing CRL.M.C. 2451/2013 & connected matters Page 6 of 13 HML and one of the Judges of this Court "are known to each other" and that the Senior Advocate "openly claims that he has all his following high profile cases involving rich and powerful people managed" with the said learned Judge and that "date after date are contained by the senior advocate to drag and frustrate the cases". The details of two of the main cases i.e. Crl. Misc Nos. 2451/2013 and 2525/2013 were mentioned in the complaint. It was further requested that the Hon‟ble Chief Justice of India and the Chief Justice of this Court "be informed for fair enquiry" about this conspiracy immediately to meet the ends of justice. Certain documents were purportedly enclosed with the complaint.
12. The CPGRAM portal lays down a list of „Subjects/Topics which cannot be treated as grievances‟. One of these categories is „Court related/sub- judice matters‟. There is a declaration by the Respondent No.2 to the effect that "I agree that my grievance does not fall within the above listed categories". The Applicants/Petitioners point out that this was a false declaration.
13. The grievance of the Applicants/Petitioners is that acting on the said online complaint, the Ministry of Law and Justice sent an Office Memorandum („OM‟) dated 23rd March 2016 forwarding the complaint to the Secretary General of the Supreme Court of India, who in turn forwarded it to the Secretary, Bar Council of India by a communication dated 24th March, 2016. Copies of these communications have also been enclosed. It was further forwarded by the Deputy Registrar of the Supreme Court of India to the Bar Council of India („BCI‟). The BCI took up the matter and CRL.M.C. 2451/2013 & connected matters Page 7 of 13 sent a copy of the OM dated 23rd March, 2016 to the concerned senior counsel for his comments.
14. It is stated that the said communication was opened in the office of the senior counsel; it was read by his staff and junior colleagues and, therefore, he had to unnecessarily face embarrassment. It is contended that since the matter had reached the BCI, the reputation of the senior counsel was extensively damaged since in particular he had earlier been a member and Chairman of the Bar Council of Delhi. It is contended that the conduct of Mr Pandey is per se "defamatory and scandalous" as allegations have also been made against a Judge of this Court. The said learned Judge, it is pointed out, had no occasion to hear the petition on merits, except on one date, when it was adjourned on request. It is stated that by adopting this method, the Respondent No.2 is not only intimidating the Judges but also the senior counsel and thus preventing the law from taking its own course.
15. In these applications filed on 4th March 2017, notice was issued by the learned Single Judge of this Court on 10 th March, 2017. On that day itself, the counsel appearing for the Respondent No.2 accepted notice. Thereafter, the matters were continuously heard by the learned Single Judge for some time.
16. A reply was filed by the Respondent No.2 to the said application on 19 th April, 2017. It was not denied that the complaint had in fact been lodged with the CPGRAM since the deponent had a genuine grievance. It is stated in paragraph 2 of the reply that "It is surprising that a complaint filed in the Grievance Redressal Cell in accordance with legal procedure is being CRL.M.C. 2451/2013 & connected matters Page 8 of 13 construed by the Applicants herein as contempt of Court, which is contrary to law."
17. It was claimed in paragraph 3 of the reply that "the actions of the Respondent No.2 or the Deponent do not fall within the definition of „criminal contempt‟ under Section 2 (c) of the Contempt of Courts Act, 1971" and that he had not published anything which could scandalize or lower the authority of the Court or obstruct its proceedings. In paragraph 4, it was claimed that the complaint was made in good faith and it was not against the judiciary and it did not have the effect of lowering the dignity or integrity of the Court or scandalizing the Court and that allegations of criminal contempt against a person cannot be made casually without being supported by strong and convincing material.
18. In paragraph 5 of the reply, it was stated that under Section 15 of the Contempt of Courts Act, 1971 („the Act‟), this Court may take cognizance of the case of criminal contempt only on a motion made by the Advocate General, or such Law Officer as the Central Government may by notification specify. Since no such consent had been obtained by the Petitioners before filing the applications, they should not be proceeded with further. It was further stated that as per Section 18 of the Act, every case of criminal contempt under Section 15 "must be heard by a Bench of not less than two Judges". It was, therefore, contended that the applications were not maintainable.
19. In paragraph 6 of the reply, it was stated that the complaint was made by Mr. Pandey on the CPGRAM way back on 10th February, 2016. However, CRL.M.C. 2451/2013 & connected matters Page 9 of 13 the present applications were filed only on 4th March, 2017 i.e. more than a year after the complaint was made. Under Section 20 of the Act, which deals with limitation, "No Court shall initiate any proceedings for contempt, either on its own motion or otherwise, after the period of expiry of one year from the date on which the contempt is alleged to have been committed." It was contended that since the applications were barred by limitation, they ought not to be entertained.
20. The learned Single Judge who heard these applications on 8th May 2017, directed that the matter be placed before the Division Bench hearing criminal contempt petitions. Thereafter, the matter was listed before the Division Bench of this Court.
21. In the meanwhile, Respondent No.2 filed two affidavits of apology, unconditionally withdrawing all his allegations and undertaking not to repeat in future any act which would lower the dignity of the judiciary. The first affidavit was dated 16th August, 2017 and the second affidavit was dated 12th September, 2017.
22. On 20th March, 2018, the Court separated out the main petitions, since their disposal was getting delayed on account of the pendency of these applications. The Court then noted in paragraphs 7 to 12 of the order dated 20th March, 2018 as under:
"7. A preliminary objection has been raised by Mr. Patnaik on the basis of the decision in Bal Thackrey v. Harish Pimpalkhute (2005) 1 SCC 254 and a decision of this court in VLS Finance Ltd. v. High Court of Delhi (decision dated 24th May, 2010 in W.P.(C) No.7610/2007) to the effect that even if this Court were to take suo CRL.M.C. 2451/2013 & connected matters Page 10 of 13 motu action, cognizance cannot be taken and notice cannot be issued to the contemnor without the papers being first placed before the Chief Justice of this Court on the Administrative Side and without orders being passed by the Chief Justice for then placing the papers before the nominated Bench dealing with Criminal Contempt matters.
8. Mr. Tiku, however, submits that this is not the correct legal position as far as this Court taking suo motu notice of contempt is concerned. According to him, even in terms of Section 15 (1) of the Contempt of Court Act, 1971 if the Court chooses to take suo motu action, i.e., if it chooses to take action "on its own motion" then all it has to do is specify, in terms of Section 15(3), "the contempt of which the person charged is alleged to be guilty.
9. Mr. Tiku has further drawn attention of this Court to the decision of the Supreme Court in Amicus Curiae v. Prashant Bhushan (2010) 7SCC 592 where it appears that the Supreme Court has observed that suo motu cognizance can be taken by the Court had the Petitioners prayed for it "even without the consent of Attorney General but that such a recourse should be confined to rare occasions only".
10. Mr. Patnaik, at this stage submits that he would like to file a detailed note of submissions by referring to all the relevant decisions.
11. Both the parties are directed to file their respective written note of submissions on this point before the next date. These Criminal Miscellaneous applications (and not the Criminal Miscellaneous Cases in which they have been filed) will be listed separately before this Division Bench on 26th April, 2018.
12. These applications be treated as part-heard."
23. On the first question whether the contempt petition is barred by limitation in terms of Section 20 of the Act, the reply of Mr Tiku on behalf of the Applicants is that although the complaint was filed online on 10 th February 2016, action was taken on the said complaint by the Ministry only CRL.M.C. 2451/2013 & connected matters Page 11 of 13 on 23rd March, 2016 and it was only then that the actual scandalizing of the judiciary took place.
24. The Court is unable to agree with the above submission. When the complaint was filed online on 10th February 2016, it was already available to be seen by anyone in the Ministry dealing with such complaints. If it is the contention of the Petitioner that this act itself constituted contempt, then clearly the date of the commission of the contempt was 10 th February, 2016 and not 23rd March, 2016. In any event, as far as the Petitioners are concerned, Respondent No.2 committed contempt on 10th February, 2016 when he filed the complaint containing the allegedly scandalous allegations on line on the CPGRAM. . That date cannot be postponed only because the Ministry took more than a month to actually send a further communication to the Secretary General, Supreme Court of India.
25. There is no scope for condoning the delay in filing the present applications seeking to invoke the jurisdiction of this Court under Section 15 of the Act. Section 20 of the Act makes it clear that the complaint has to be filed within one year from the date on which the contempt is alleged to have been committed. The jurisdiction of the Court to initiate any proceedings for contempt thereafter "either on its own motion or otherwise" is taken away. With the present applications having been filed on 4th March, 2017 i.e. more than one year after 10th February 2016, the question of entertaining them on the basis of the complaint made by the Respondent No.2 on the CPGRAM on 10th February, 2016 does not arise.
26. The Court finds merit in the contention of Mr. Patnaik, learned counsel CRL.M.C. 2451/2013 & connected matters Page 12 of 13 for Respondent No.2, that the procedure that has been evolved by this Court for entertaining petitions under Section 15 of the Act in Anil Kumar Gupta v. K. Subba Rao ILR 1978 (1) Del 1 has received the imprimatur of the Supreme Court in P.N. Duda v. P. Shiv Shankar AIR 1988 SC 1208 and subsequently in Bal Thackrey v. Harish Pimpalkhute (2005) 1 SCC 254. The Court agrees, therefore, that the Petitioners ought to have first placed the papers before the Chief Justice of this Court on the administrative side and it was thereafter for the Chief Justice to decide whether suo motu contempt proceedings under Section 15 of the Act should be initiated against the contemnors.
27. The consequence of accepting the above submission would be for this Court to direct these petitions to be placed on the administrative side before the Chief Justice. However, in view of its decision that these applications are time barred in terms of Section 20 of the Act, there is no point in adopting that course.
28. The applications are accordingly dismissed as time barred.
S. MURALIDHAR, J.
I.S. MEHTA, J.
MAY 30, 2018 rd CRL.M.C. 2451/2013 & connected matters Page 13 of 13