Patna High Court - Orders
Sri Ashok Srivastava vs State Of Bihar & Anr on 19 July, 2013
Author: Mandhata Singh
Bench: Mandhata Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.21535 of 2013
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Sri Ashok Srivastava, S/o Ram Ratan Srivastava, Asst. Personnel Manager,
Times Publishing House Ltd., Patna, having its office at Fraser Road, P.S.
Kotwali, Town District - Patna
.... .... Petitioner/s
Versus
1. The State of Bihar
2. Sri Rajendra Prasad Mandal, Dy. Labour Commissioner Patna,
Government of Bihar
.... .... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Sanjay Singh
Mr. Sanjay Kumar Ojha
For the State : Mr. Dr. Mayanand Jha, A.P.P
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CORAM: HONOURABLE MR. JUSTICE MANDHATA SINGH
ORAL ORDER
3 19-07-2013Heard learned counsel for the petitioner and learned counsel for the State.
This application is filed for quashing the order dated 19.08.1994 passed by the Chief Judicial Magistrate, Patna in connection with Case No. 851 (M) of 1994 whereby and wherein cognizance has been taken under Section 20 of the Industrial Dispute Act, 1947 but stated as "Production Act"
against the petitioner on the basis of a complaint lodged by the opposite party no.2 for alleged violation of Section 18(2) of the Industrial Disputes Act, 1947.
2. Same prayer made by this petitioner vide Cr. Misc. No. 17251 of 1994 was dismissed explaining that the case was ordered to be heard along with Cr. Misc. No. 17174 of Patna High Court Cr.Misc. No.21535 of 2013 (3) dt.19-07-2013 2 1994 but due to some mistake while Cr. Misc. No. 17174 of 1994 decided and allowed. Cr. Misc. No. 17251 of 1994 was left to be decided, rather remained pending and later dismissed which petitioner could know after years when process was issued against him.
3. The claim of the complainant, in brief, is that an Industrial dispute was raised by Times of India News Paper Employees Union at Patna before the Managing Director of M/s Benett Coleman Co. Ltd. Patna, for which a conciliation proceeding was initiated, of which notice was given to the Manager. Further, allegation was that during the pendency of the conciliation proceeding, the management had retrenched 21 workmen, but in course of further enquiry, the aforesaid management took the plea that the retrenchment were not done by it, but by the Management of M/s Excel Publishing House Limited. The complaint petition further states that the Employees Union had made it clear in course of Enquiry that M/s Benett Coleman & Co. Ltd in order to avoid legal hurdles, on paper had created three other companies, namely, M/s Excel Publishing House Ltd. Patna, M/s Times Publishing House Limited, claiming that the management of all those companies was same and it was also alleged that, if the curtain was raised Patna High Court Cr.Misc. No.21535 of 2013 (3) dt.19-07-2013 3 the mask over the affair would have been unveiled so much so that in course of enquiry it also came out that the registered office of all those companies was same and that they had same telephone and telex numbers. On this basis complaint, petition is filed against all the aforesaid companies and their officials, including the present petitioner.
4. In course of arguments, learned counsel for the petitioner has mainly relief upon two grounds, firstly that the M/s Times Publishing House Limited is a separate public limited company incorporated under the Companies Act of 1956, and so is M/s Excel Publishing House Ltd. Patna and admittedly the retrenchments related to M/s Excel Publishing House Limited, hence only that company could have been a party to the conciliation proceeding and no legal liability can be attached to the petitioner company, which has a separate entity in the eyes of law.
5. Second point taken by the learned counsel was that the impugned order dated 12.08.1994, by which the learned Chief Judicial Magistrate, Patna had taken cognizance of the offence was recorded in cursory manner, absolutely without any application of mind, so much so that cognizance of the offence was taken under section 31(1) of the Production Act, whereas Patna High Court Cr.Misc. No.21535 of 2013 (3) dt.19-07-2013 4 there is no such Act.
6. In so far as the first point is concerned, my attention has been drawn towards notice by which it was Excel Publishing House Limited which had submitted before Secretary to the Government of Bihar in the Government of Labour and Employment at Patna, notice under Form-P, as envisaged under Clause (c) of Section 25 (F) of the 1947 Act, stating therein that they had decided to retrench 21 workmen with effect from 04.04.1994 for the reasons explained in the annexure, also giving the description of the employees sought to be so retrenched. My attention has also been drawn towards different letters so retrenched employees have been given notice of retrenchment along with draft of compensation amount.
7. Learned A.P.P., appearing for opposite party nos. 1 and 2, did not deny the claim that M/s Times Publishing House Limited and M/s Excel Publishing House Ltd., were registered as separate companies, but only has pointed out the submissions as made in the complaint petition in that regard.
8. While making the present petitioner accused in the complaint case, the grounds given by the complainant was that it was employee‟s union which has made it clear that the companies had the same management and were created by M/s Patna High Court Cr.Misc. No.21535 of 2013 (3) dt.19-07-2013 5 Bennet Coleman & Co. Ltd. also claiming that if curtain was raised then camouflage would be lifted. This in the opinion of this Court is vague statement on the face of registration of the two companies as separate entities. Simply because they were using the same building and used the same telephone and telex numbers cannot legally make the companies to be one and under same management. Therefore, it is found that while roping in the petitioner‟s company, in the complaint petition vague and untenable grounds for that had been taken. On this ground alone, in my opinion, the petitioner is entitled to the relief, as prayed for.
9. In so far as second ground is concerned, after going through impugned order it will appear that the format or order was printed or typed in which by hand only the provision of law and the next date fixed in the cases for appearance as well the word „Cognizance‟ were written. This practice of the lower courts has been deprecated in several decisions of this Court as such practice does not indicate application of judicial mind of the Magistrate taking cognizance of offence.
10. Matter earlier also was taken into consideration by a Bench of this Court vide order dated 14.08.2001 passed in Cr. Misc. No. 17489 of 1994. This court has also taken the Patna High Court Cr.Misc. No.21535 of 2013 (3) dt.19-07-2013 6 same view.
11. That the judicial mind to the matter was not applied would also be manifest from the fact that the cognizance has been taken under Section 31(i) of the „Production Act‟, whereas it should have been Industrial Dispute Act. On this ground also the order of cognizance is fit to be quashed.
12. In the result, this application is allowed and the order of cognizance dated 12.08.1994 or 19.08.1994 whichever is correct date in so far as the present petitioner is concerned, and further proceeding in that regard in Case No. 851(M) of 1994, against in so far as the present petitioner is concerned, are hereby quashed.
(Mandhata Singh, J.) Shail/-