IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA WRIT PETITION NO.11799 OF 2015(GM-RES) BETWEEN:
M/S. BHARAT ELECTRONICS LTD JALAHALLI POST, BENGALURU-560013 BY ITS GENERAL MANAGER(HR) ... PETITIONER (BY SRI: SANDESH J CHOUTA, SENIOR ADVOCATE A/W SRI: ISMAIL M.MUSBA, ADVOCATE) AND 1. THE DY. CHIEF LABOUR COMMISSIONER (CENTRAL GOVERNMENT OF INDIA, "SHRAM SADAN"
YESHWANTHPUR INDL. SUBURB II STAGE, GORAGUNTEPALAYA, TUMKUR ROAD, BENGALURU-560022 2. BEL SC/ST WELFARE ASSOCIATION NO T-77/4-5.
BEL COLONY, JALAHALLI POST, BENGALURU-560013.
3. SRI VISHNUMURTHY S/O NARAYANA, MAJOR, R/A NO 266, T.M.COMPOUND, 2ND MAIN ROAD, 3RD CROSS, SHIVANALLI, BENGALURU-560010.
4. JALAHALLI POLICE STATION YESHWANTHPURA SUB-DIVISION, JALAHALLI POST, BENGALURU-560013 BY ITS SUB-INSPECTOR.
(BY SRI: B.PRAMOD CGC, FOR R1;
... RESPONDENTS SRI: K.SHANTHARAJ, ADVOCATE FOR R3;
SRI: VIJAYA KUMAR MAJAGE, ADDL. SPP FOR R4; VIDE ORDER DATED 28.9.2016 NOTICE TO R2 BY WAY OF PAPER PUBLICATION IS ACCEPTED) THIS WRIT PETITION IS FILED UNDER 226 AND 227 OF THE CONSTITUTION OF INDIA R/W SECTION 482 CR.PC PRAYING TO.{a}CALL FOR RECORDS IN THE CASE FROM THE OFFICE OF THE DEPUTY CHIEF LABOUR COMMISSIONER, BANGALORE [R-1] AND THE RECORDS PERTAINING TO THE PRIVATE COMPLAINT, PCR.NO.9459 OF 2014, FROM THE 7TH ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, BANGALORE.
{b}SET ASIDE THE ORDER DTD.28.3.2014 [ANNEX-Z] PASSED BY THE DEPUTY CHIEF LABOUR COMMISSIONER, BANGALORE, THE R-1 TO THE EXTENT OF THE PERMISSION TO PROSECUTE THE MANAGEMENT OF BHARAT ELECTRONICS LTD, THE PETITIONER HEREIN.c}SET ASIDE ORDER DTD.5.11.2014 IN THE PRIVATE COMPLAINT PCR NO.9459 OF 2014, [ANNEX-AA] IN THE FILE OF THE 7TH ADDITIONAL CHIEF METROPOLITAN MAGISTRATE BANGALORE WHEREIN THE HON'BLE COURT EXERCISING POWERS U/S.156[3] WAS PLEASED TO DIRECT R-4 TO INVESTIGATE THE MATTER AND SUBMIT REPORT. {d}QUASH THE FIR DTD.27.1.2015 IN CRIME NO.0020/2015 [ANNEX-AB] ISSUED BY THE JALAHALLI POLICE, YESHWANTHPURA SUB- DIVISION. BANGALORE.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R This petition is filed under Section 482 Cr.P.C. seeking to quash:-
1. The order dated 28.03.2014 passed by the Deputy Chief Labour Commissioner, Bengaluru, whereby the Deputy Chief Labour Commissioner has directed prosecution of the petitioner for the offence punishable under section 29 r/w 34 of Industrial Disputes Act,1947.
2. To quash the order dated 05.11.2014 whereby the learned Magistrate has directed the private complaint filed by respondent No.3 herein for investigation under Section 156(3) Cr.P.C.
2. Brief facts essential for disposal of the petition are as follows:-
Respondent No.3 herein, Sri.Vishnumurthy was working as Semi-skilled helper in Bharat Electronics Limited, Bengaluru during 22.11.1990 to 10.04.1993. He was removed from service by issuing a memo dated 17.03.1995. Respondent No.3 challenged his removal by filing a writ petition in W.P.No.7108/1994 and by order dated 15.12.1994, respondent No.3 was directed to approach Industrial Tribunal or Labour court for appropriate relief and accordingly, respondent No.3 raised a labour dispute which was adjudicated in Reference No.83/1995 and by order dated 24.09.2008, the reference was rejected. In the said order, it was observed that respondent No.3 failed to produce any convincing evidence to show that he was directly working under the petitioner BEL limited.
3. It was also noted that respondent No.3 failed to prove that his service conditions and wages were similar to that of regular workman and therefore, it was held that respondent No.3 was not entitled to any relief under the reference. Said order was challenged in W.P.No.9343/2009 and by order dated 30.07.2009, the award passed by the Labour Court was quashed and the matter was remitted back to the Labour Court for disposal in accordance with law after affording opportunity to the parties. This order was challenged by the petitioner in W.A.No.1966/2010 and by order dated 27.12.2010, the Appellate Court passed the following order:-
“The writ appeal is allowed. The matter be placed before a learned Single Judge for disposal of the writ petition on merits afresh.”
4. The learned Single Judge took up the matter afresh and by order dated 22.02.2011 passed the following order:-
(i) The writ petition is partly allowed;
(ii) The impugned award is modified directing the respondents to reinstate the petitioner without any backwages. However, petitioner is entitled for continuity of service only for retiral benefits.
(iii) The writ petition in so far as it relates to the endorsement dated 16.10.2009 at Annexure ‘L’ is hereby dismissed.”
5. Since the said award was not implemented and respondent No.3 was not reinstated, respondent No.3 sought permission of the competent authority making an application under Section 34 of I.D. Act and by the impugned order dated 28.03.2014, the Deputy Chief Labour Commissioner, Bangalore accorded permission for prosecution of the petitioner herein as well as accused No.2 under Section 29 r/w 34 Industrial Disputes Act. In the mean-while, respondent No.3 filed a private complaint seeking prosecution of the petitioner and accused No.2 under Section 29 r/w 34 of I.D. Act. On receiving the complaint, the learned Magistrate by order dated 05.11.2014 directed the matter for investigation under section 156(3) Cr.P.C., The order reads as under:-
“Heard. The complainant has filed private complaint against the accused for the offence punishable under section 29 r/w 34 of ID Act. Perused the complaint.
There are prima-facie materials against the accused. Hence, acting under section 156(3) Cr.P.C. the I.O. of Jalahalli P.S. Bengaluru is directed to investigate into the matter and submit the report to this Court on or before 28.01.2015.”
6. Learned counsel for the petitioner referring to the findings recorded by the learned Single Judge in W.P.No.9343/2009 at the outset would submit that this Court has recorded a categorical finding that respondent No.3 was not directly employed by the petitioner herein. The finding recorded by the labour Court in this regard has not been interfered by this Court. Under the said circumstances, merely because in the operative portion of the order, both the respondents were directed to reinstate the third respondent without any backwages, there being no effective award against the petitioner herein, the competent authority could not have granted permission for prosecution of the petitioner. Further, he submits that the material on record clearly indicates that third respondent was neither appointed nor worked under the petitioner, therefore, the question of petitioner either reinstating the third respondent or failing to abide by the award does not arise at all, as such no offence is committed by the petitioner either under Section 29 of I.D. Act. Referring to the said provision, learned counsel would submit that no effective award having been passed against the petitioner herein, no offence has been committed by the petitioner under section 29 of ID Act. Under the said circumstances, the competent authority could not have accorded permission for prosecution of the petitioner. The impugned order passed by the Deputy Chief Labour Commissioner indicates that sanction order has been passed without even looking into order passed by learned Single Judge and findings recorded by learned Single Judge and without considering any material to ascertain whether said material constitute any of the offences under section 29 of ID Act. The impugned order passed by Deputy Chief Labour Commissioner, on the face of it, smacks of non-application of mind. Therefore, on this ground alone, permission accorded for the prosecution of the petitioner is liable to be set aside.
7. Dilating on this point, learned senior counsel appearing for the petitioner further submitted that even the learned Magistrate has failed to apply his mind to the facts of the case. The offence alleged against petitioner even if accepted as committed by the petitioner, the same is a non cognizable offence. The learned Magistrate therefore could not have referred the said complaint for investigation under section 156[3] of Cr.PC without forming an opinion as to whether said offence was cognizable or non-cognizable. The mechanical and casual manner in which the learned Magistrate has referred the complaint for investigation speaks of total non application of mind and therefore on this ground also, the impugned order passed by the Learned Magistrate dated 5.11.2014 is liable to be quashed.
8. Refuting the above submissions, learned counsel for Respondent No.3 would submit that the order dated 22.02.2011 passed by this Court in Writ Petition No.9343/2009 in unmistakable terms, directs the respondents therein, namely the petitioner herein and accused No.2 to reinstate the respondent No.3. If for any reason the operative portion of the order was not in conformity with the contents of the order, it was open for petitioner to seek clarification or modification of the said order so as to absolve him of his obligation under the order. That having not been done, petitioner cannot now seek to contend that they are not liable to comply with the orders passed by this court. Under such circumstances, permission accorded by the Deputy Chief Labour Commissioner as well as direction issued by the learned Magistrate for investigation under section 156[3] of Cr.
PC do not warrant interference by this Court. Further, he submits that petitioner himself having admitted in the memorandum of petition that order passed by this Court has reached finality, there is no reason to accede to the prayer made in the petition.
9. Learned counsel for Respondent No.1 has sought to justify the order passed by Deputy Chief Labour Commissioner contending that said order is in accordance with the directions issued by this Court in Writ Petition No.9343/2009 and hence sanctioning authority has not committed any error or illegality. Further, he submits that a reading of the impugned order reflects that the sanctioning authority has considered all the material placed before him and only after satisfying himself, has accorded the permission which does not warrant interference by this Court.
10. I have considered the rival submissions and have perused the records. No doubt, in the operative portion of the order in Writ Petition.No.9343/2009, this Court has directed respondents therein namely, petitioner herein and Accused No.2 to reinstate the respondent No.3 petitioner without any back wages, but in the said order a clear finding is recorded that Respondent No.3 herein was not directly employed by petitioner herein. In paragraph-10 of the above said order in Writ Petition No.9343/2009, it is recorded as under:
“10. Petitioner in the course of his evidence, admits that he do not have the appointment order or the dismissal order issued by the first respondent. The petitioner further admits that first respondent pay wages to their employees through cheques and credit the same to the account of employee but the petitioner has not produced any piece of evidence in this connection to show that his salary was paid by the respondent. Petitioner also has not produced any wage slips nor any other documents in support of his contention that he was directly employed by the first respondent. Therefore, the conclusion of the Labour Court that petitioner is not directly employed by the first respondent is supported by evidence on record and I find no justifiable ground to interfere with the same.”
11. Having come to the above conclusion, in paragraph-11 of the aforesaid order, this Court has held that Respondent No.3 was working as a Contract Labourer in the establishment of Respondent No.2. In view of this finding Respondent No.3 having been appointed by respondent No.2, namely, BEL SC/ST Welfare Association, he cannot be reinstated by petitioner. Even otherwise the facts on record clearly disclose that Respondent No.3 was employed by Accused No.2 on daily wages. Therefore, the said order cannot be implemented by both the respondents. It is trite law that Court passes a workable and enforceable order. The order in question is capable of being implemented only by respondent No.2 namely BEL SC/ST Welfare Association. Under the said circumstances, without getting the ambiguity in the operative portion of the order in Writ Petition No.9343/2009 clarified, the sanctioning authority could not have accorded permission for prosecution of petitioner. Having regard to the specific finding recorded by this Court, the said order could not have been implemented by both Accused Nos. 1 and 2. Without considering this fact, the sanctioning authority has blindly accorded permission to prosecute both Accused Nos.1 and 2 for non implementation of the said Award. Since Respondent No.1, namely, Deputy Chief Labour Commissioner has failed to take into consideration the findings recorded by this Court in Writ Petition No. 9343/2009, the permission accorded by sanctioning authority for prosecution of the petitioner cannot be sustained and is liable to be quashed.
12. For the same reason, the order passed by the learned Magistrate directing investigation under section 156[3] of Cr.PC also cannot be sustained. Offence alleged against petitioner is non cognizable offence which is punishable with maximum imprisonment upto six months. The provisions of ID Act do not specify as to whether said offence is cognizable or non- cognizable. Under the said circumstances, in view of Schedule-I of Cr.PC, offence alleged against petitioner being non cognizable offence, the same could not have been directed to be investigated by Police without compliance of requirements under section 155 of Cr.PC. In that view of the matter, order passed by the learned Magistrate directing investigation under section 156[3] Cr.P.C. also deserves to be quashed.
13. It is now well settled that power of the High Court under Section 482 CR.P.C could be exercised, i) to give effect to an order under the code;
ii) to prevent abuse of the process of Court, and iii) to otherwise secure ends of justice.
14. In the instant set of facts, having regard to the specific finding recorded in Writ Petition No.9343/2009 that respondent No.3 was a contract labourer in the establishment of Respondent No.2, it would be travesty of justice to direct the petitioner to reinstate him in the company run by the petitioner. Therefore, in order to secure the ends of justice, it is necessary to quash the impugned orders insofar it concerns the petitioner.
Consequently, petition is allowed. The impugned order passed by the Deputy Chief Labour Commissioner dated 28.03.2014 and the order passed by the learned Magistrate dated 5.11.2014 directing investigation under section 156[3] of Cr.PC are quashed only insofar as the petitioner herein, namely, Accused No.1 is concerned. It is made clear that authorization of sanction issued by Chief Deputy Labour Commissioner for prosecution of Accused No.2 shall stand and proceedings shall be continued against respondent No.2/accused No.2 in accordance with law.
In view of disposal of the main matter, I.A.No.1/19 for vacating stay does not survive for consideration. Accordingly, it is dismissed.
Sd/- JUDGE *mn/- AN/-