JUDGMENT V.N. Mehrotra, J.
1. This revision has been filed against the judgment dated August 23, 1994 by Shri O.P. Garg, District Judge, Allahabad dismissing the appeal filed by the present applicant against the judgment dated June 4, 1994 passed by Shri R.A. Kaushik, Special Chief Judicial Magistrate, Allahabad in complaint case No. 751 of 1991.
2. The brief facts of the case are that Renus-gar Power Company Limited filed a complaint against the accused R.Antony under Section 630 of the Companies Act, 1956 alleging that on the basis of the appointment letter dated March 12, 1970 the accused started working as an employee of the Company since March 19, 1970. It was further alleged that quarter No. I-13/6 which was owned by the company was allotted to the accused by order dated June 15, 1983 and declaration dated August 20, 1983. The qureter was allotted to the accused in accordance with the terms and conditions of his service. The services of the accused were terminated by an order dated December 15, 1990. He was served several notices requiring him to vacate the quarter and the last notice was given on December 24, 1990 but he has not vacated the same. Hence the complaint.
3. The accused in his statement before the trial court said that the order dismissing him from service was illegal and against that order proceedings are pending before the Industrial Court. The accused admitted that the quarter belong to the company and was allotted to him. In his statement under Section 313 Cr.P.C. the accused further stated that the quarter was owned by the company but was constructed after taking loan.
The complainant examined witnesses and produced documents in support of its case. While the complaint was still pending Renusa-gar Power Company Limited was amalgamated with Hindalco Industries Limited by order of this Court passed on March 31, 1992. That order provided that the successor company could continue the legal proceedings initiated by the predecessor company. The learned Special Chief Judicial Magistrate, Allahabad convicted the accused under Section 630(1)(b) of the Companies Act, 1956 and directed the accused to hand over the possession of the quarter to the complainant by July 19, 1994. The learned Magistrate also directed the accused to pay compensation at the rate of Rs. 500 per month from January 1, 1991 to the date of vacation of the quarter. It was also provided that in the case the quarter was not vacated within the time allowed the accused will undergo rigorous imprisonment for a period of one year.
4. The accused filed appeal against this judgment which was dismissed by the sessions judge, Allahabad by order dated August 23, 1994. The accused then filed the present revision. It came up for hearing before Hon'ble C.A.Rahim., J., who allowed it by order dated August 31, 1994 on the preliminary ground that after amalgamation of the complainant company with the Hindalco Industries Limited it was necessary for the successor company to step into the shoes of the complainant company by filing a petition seeking permission to continue the proceedings under Section 302 Cr.P.C. otherwise it will fall under the mischief of Section 256 Cr.P.C. It was further observed that where such permission was not taken the case becomes non-est because of the want of complainant and it must have been terminated under Section 256 Cr.P.C. with these observations the revision was allowed and the judgments by both the courts below were set aside and the accused was acquitted under Section 256 Cr.P.C. Against this order, the complainant filed S.L.P. before the Hon'ble Supreme Court of India. That S.L.P. was allowed by order dated May 2, 1995 with the following observations.
"While issuing notice to the respondent in this matter, we had required of the appellant company to implead the successor company as a co-appellant. The same has been done. We have heard learned counsel for the parties on such impleadment. We take the view that a successor company is a necessary and properparty to this kind of aproceeding. We, therefore, allow impleadment. Thus, we have now before us two appellants - the predecessor and the successor company. Now, there is no impediment in the pursuit of the complaint and for maintenance of the conviction if merited in accordance with law. As a sequence we have no difficulty now in upsetting the impugned order of the High Court and remitting the matter back to it for re-consideration, of the matter on its own merit. We order accordingly."
5. The matter has now been heard by me, as directed by the Hon'ble Supreme Court. Shri Te-jpal, who has appeared on behalf of the accused applicant has raised several points during his argument in support of his contention that the judgments by the Courts below were liable to be dismissed. I will first take up the points which were inititally pleaded on behalf of the accused applicant during the trial or before the appellate Court. The first point relates to the non impleadment of the successor company before the trial court even after the amalgamation of the complainant company with the successor company. The learned counsel for the revisionist has argued that due to this non-impleadment the complaint was liable to be dismissed under Section 256 Cr.P.C. as it must be held that the predecessor company ceased to exist and there was no complainant to pursue the complaint after the complainant company so ceased to exist. Shri Gopal Chaturvedi, who has appeared on behalf of the other opposite party - complainant had argued that this question has been finally decided by the Supreme Court after the successor company was impleaded as a party before that Court. It has also been argued that as the successor company was entitled to continue the proceedings initiated by the predecessor company in accordance with the scheme of amalgamation approved by this Court, the complaint could not have been dismissed under Section 256 Cr.P.C.
6. It is not disputed that under the scheme of amalgamation as approved by this Court, the successor company could continue all the legal proceedings initiated by the predecessor company which were pending at that time. So the right of the successor company to continue the present proceedings could not be challenged. However, the difficulty was that as the successor company did not get itself impleaded whether in such circumstances the complaint should have been dismissed and the accused acquitted. As mentioned earlier, Hon. C.A. Rahim J. accepted the contention by the accused on this point. But against that the complainant filed S.L.P. and impleaded the successor company with the permission of the Hon'ble Supreme Court. After such impleadment the above mentioned observations were made by the Hon'ble supreme court. According to these observations made by the Hon'ble Supreme Court it is obvious that there was no impediment in the pursuit of the complaint and for maintenance of the conviction if merited in accordance with law. After these observations the Supreme Court set aside the order earlier passed by this Court. So after this decision by the Hon'ble Supreme Court the revisionist cannot be permitted to raise the plea of non impleadment of the successor company again. The learned counsel for the revisionist has argued that the judgment by the Hon'ble Supreme Court was not in accordance with the provisions of Section 256 Cr.P.C. and so it should be held to per incuricum. I am, however, unable to accept this contention. The judgment by the Hon'ble Supreme Court is binding on this Court and this Court has no jurisdiction to consider the validity of the judgment and the directions contained in the same.
7. On a consideration of these facts I am of the view that now it cannot be asserted that the complaint was liable to be dismissed for non im-pleadment of the successor company at the stage of trial.
8. The second point which had been raised by the accused during the trial was that the order dismissing him from service was illegal and the same was challenged before the Industrial Court where the matter was still pending. It is argued that due to the pendency of the proceedings before the Industrial Court the applicant - accused was still a 'workman' and he could not be evicted from the quarter in question under Section 630 of the Companies Act. It has not been disputed before me that the accused was dismissed from service but against that order he had initiated proceedings before the Industrial Court and those proceedings were pending . In such circumstances can it be said that the complaint under Section 630 of the Companies Act, 1956 was not maintainable.
9. The learned counsel for the applicant has referred to Clause (a) of the Section 2 of the U.P.Industrial Disputes Act, 1947, in support of his argument that the definition of "workman" includes an employee who has been dismissed, discharged or retrenched and in respect of whom an industrial dispute was pending."
It is true that the definition of workman includes any such person who has been dismissed, discharged or retrenched in respect of which an industrial dispute was pending, but he is so included in the definition of 'workman' only for the purposes of any proceedings under the Industrial Disputes Act, as has been mentioned in this clause. This clause does not mention that such a person will continue to be a 'workman' for the purposes of any proceeding under the Companies Act also.
10. The learned counsel for the applicant has also referred to Section 6-E of the Industrial Disputes Act, in support of his argument that during the pendency of proceedings before a Labour Court or Tribunal in respect of an industrial dispute no employer could alter to the prejudice of the workman concerned in such dispute the conditions of service applicable to him before the commencement of such proceedings. This Section also does not refer to the right of the company to get the employee evicted from the quarter allotted to him as a term of his service after he had been dismissed or his services have otherwise come to an end. Such a right has been provided under Section 630 of the Companies Act.
11. It is true that an industrial dispute relating to the dismissal of the accused was pending before the Industrial court, but the order of dismissal has neither been set aside nor suspended. That order is still in force and will remain in force till it is set aside by the competent authority. In the circumstances it cannot be said that merely because an industrial dispute relating to the dismissal of the applicant was pending, the company could not file a complaint under Section 630 of the Companies Act. This question also came up for decision before the Madras High Court in the case P.V.George v. Jayems Engineering Company Private Limited (1990) 2 Comp L.J. 62 (Mad). It was held that the proceedings initiated by the employee challenging his dismissal from service were altogether distinct and different from prosecution launched by the company under Section 630 of the Companies Act. It was also observed that different considerations would prevail regarding the decision in respective cases and that pendency of proceedings challenging the order of dismissal can, by no stretch of imagination, be construed as a bar against the institution of criminal proceedings under Section 630 of the Companies Act.
12. In view of the above discussion, it is held that the complaint under Section 630 of the Companies Act was not barred due to the pendency of the Industrial dispute before the Industrial Court.
13. The learned counsel for the applicant has then contended that the quarter in question was not the property of the company but was constructed after taking loan from the State Government and was mortgaged to it and so the company could not initiate the proceedings under Section 630 of the Companies Act but the proceedings could be initiated by the authority concerned under the U.P. Industrial Housing Act.
14. Shri Chaturvedi arguing on behalf of the opposite party stated that the question which is now sought to be raised on behalf of the applicant was never raised before the trial court or the appellate court and should not be permitted to be raised in revision. The learned counsel has referred to the decision in the case State of U.P. v. Prakash Chand, 1986 A.CC. 558 and also to the decision in the case Gurdit Singh v. State 1970 Cr.L.J. 1205 in support of his contention.
15. In my view the contention which the learned counsel for the applicant has now sought to raise in this revision should not be permitted to be raised at the stage of revision when no such assertion was made before the courts below. Apart from this, there is nothing to show that the quarter in question is not owned by the company. On the contrary, the accused had in his statements in the trial court clearly admitted that the quarter was owned by the company and was allotted to him and in his second statement he only alleged that the company had constructed it after taking loan. Even if it is believed that the quarter was constructed by the company after taking loan it will be the property of the company and will not become the property of the person who had given the loan.
16. The learned counsel for the applicant has filed some documents purporting to be the annual reports of the Renusagar Power Company Limited and Hindalco Industries Limited. He has referred to the fact that in the annual report it has been mentioned that houses were constructed for the employees after taking loan from the State Government and that the houses were mortgaged with the State Government as security for the loan. These documents in no way connect the quarter in dispute to the houses mentioned in these reports. Further, even if the quarter in question had been constructed after taking loan from the State Government and the same was mortgaged with the State Government the company did not cease to be the owner of the same. The provisions of the U.P. Industrial Housing Act could not be applicable to the quarter in dispute.
17. The learned counsel for the applicant has further argued that the proceedings should have been initiated under the Public Premises Act by the Labour Commissioner in order to get the quarter vacated. I am, however, unable to accept this argument. The quarter in question cannot be said to be "public premises" as the same did not belong to the State Government nor there is any material to show that it was owned by a company in which not less than 51% of the paid up share capital was held by the State Government
18. The learned counsel has then argued that in respect of one Nand Kishore proceedings have been initiated by the LabourCommissioner under the Public Premises Act in respect of quarter said to be owned by the Hindalco Industries Limited. In my view it is not relevant for the purposes of deciding the present revision to find out as to whether the proceedings had been initiated against another employee for evicting him under the Public premises Act.
19. The learned counsel forthe applicant has then argued that the court of Special Chief Judicial Magistrate, Allahabad had no jurisdiction to proceed with the complaint as the cause of action had arised in district Mirzapur from which district Sonbhadra was later carved out.
20. The learned counsel for the opposite party has argued that question of territorial jurisdiction was never raised on behalf of the applicant in the courts below nor it was pleaded that the holding of trial at Allahabad had caused any prejudice to the accused. It has further been argued that the court of special Chief Judicial Magistrate, Allahabad was competent to proceed with the complaint as it was a specially empowered court of Magistrate 1st Class and, in the alternative, it has been argued that even if there was lack of territorial jurisdiction then the same was an irregularity durable under Section 462 Cr.P.C.
21. Section 622 of the Companies Act, 1956 provides that no court inferior to that of a Presi dency Magistrate or of a Magistrate 1st Class shall try any offense against this act. Thus a com plainant under Section 630 of the Companies Act can be tried by a court not inferior to that of a Presidency Magistrte or of a magistrate 1st Class. The Court of Special Chief Judicial Magistrate 1st Class was created at Allahabad by notification dated September 16, 1982 publish ed in U.P. Gazette, Extra-Ordinary, dated Sep tember 16, 1992. Under this notification the special court so constituted was empowered to try cases arising under 12 enactments specified in the schedule. The Companies Act, 1956 has been mentioned at Serial No. 11 of the schedule.
The Special Court constituted under this notification was conferred with the jurisdiction to try cases arising under these enactments;" in any lo cal area within the State of U.P." Subsequently another notification dated August 7, 1987, pub lished in the U.P. 1 Gazette of the same date, was issued by which another Special Court of Special Judicial Magistrate 1st Class was created at Kanpur. Jurisdiction in respect of some of the districts was conferred on the special court cre ated at Kanpur while the jurisdiction in respect of other districts mentioned in the notification remained with the special court at Allahabd. As will be clear from this notification it has specifi cally mentioned that it was passed in "continu ation and partial modification of notification dated September 16, 1982. Thus the earlier notification was not superseded by the subsequent no tification but it continued and was only partially modified by the subsequent notification. When this notification was issued the territory now form ing part of district Sonbhadra was included in district Mirzapur in respect of which the special Court at Allahabad had jurisdiction. The contention by the learned counsel for the applicant is that after the notification dated August 7, 1987 was enforced district Sonhhadra was carved out in respect of certain areas of district Mirzapur and as there was no subsequent notification conferring jurisdiction in respect of district Sonbhadra on special court at Allahabad, that court could not decide the cases arising out of district Sonbhadra.
22. I have considered the argument by the learned counsel for the applicant. I am, however, unable to accept the same. As mentioned earlier, the second notification was passed in continuation and partial modification of the earlier notification. The earlier notification continued and was only partially modified by the second notification. The Special Court at Allahabad had jurisdiction in respect of all the local areas within the State of U.P. under the first notification. In respect of some of the local areas a special court was created at Kanpur. Even after the creation of district of Sonbhadra by taking out some area from Mirzapr it cannot be said that the Special Court at Allahabad ceased to have jurisdiction in respect of that area. Further, assuming that the second notification did not apply to district Sonbhadra as it was created after the second notification was issued, we can revert back to the first notification under which all the local areas within the State of U.P. lay within the jurisdiction of Special Court at Allahabad. It is difficult to accept that the newly created district of Sonbhadra will no lie within the jurisdiction of any of the Special Courts mentioned in the second notification. Further, even if it is for a moment accepted that the Special Court at Allahabad had no jurisdiction to try the complaint in question as the cause of action arose in district Sonbhadra even then unless the applicant is able to plead and establish that the trial by the Special Court at Allahabad had in fact occasioned failure of justice. The trial by the special Court at Allahabad cannot be said to be illegal nor the finding recorded by it can be set aside merely on the ground of lack of territorial jurisdiction. Reference may be made to the provisions of Section 462 Cr.P.C. in this regard.
23. In the present case the applicant did not even raise the plea of lack of territorial jur-sidction before the trial court or lower appellate court but has raised it before this Court for the first time. The applicant has not even alleged that there was any failure of justice or he was in any way prejudiced by holding the trial at a wrong place. Reference may be made in this regard to the decision in the case Smt. Raj Kumari v. Dev Raj AIR 1977 SC 1101 where it was observed that where a Magistrate has the power to try a particular case and the controversy relates solely to its territorial jurisdiction then the provisions of Section 531 Cr.P.C. (Corresponding to Section 462 of the new Cr.P.C.) will be applicable.
24. The learned counsel for the applicant has argued that the question is not one of lack of territorial jurisdiction but is that of lack of inherent jurisdiction. I am, however, unable to accept this argument. As mentioned earlier, the complaint in question could be tried by a Magistrate Ist Class and as the court created at Allahabad is presided over by a Magistrate Ist Class there cannot be any question of lack of inherent jurisdiction. The objection could be as regards the lack of territory jurisdiction and in case the Special Court lacked the territorial jurisdiction to try this complaint, the error of irregularity would be curable under Section 462 Cr.P.C. unless it is asserted and proved that it hud occasioned failure of justice. In view of the above discussion, it is held that ihe special Court which tried this matter had jurisdiction to entertain and decide the Complaint under Section 630 of the Companies Act. 1956 filed by the complainant. It is further held that even if that court lacked territorial jurisdiction even then the judgment passed by It cannot be set aside as it was neither alleged nor proved by the applicant that it had resulted in failure of justice.
On a consideration of the arguments advanced by the learned counsel for the parties, I am of the view that this revision has no force and is accordingly dismissed.