HONOURABLE SRI JUSTICE S.RAVI KUMAR
+ CRIMINAL PETITION No.13574 OF 2013
% Dated 4-7-2014
Between:
# Y.Rajeev Reddy.
And:
Petitioner.
$ The State of Andhra Pradesh through Public Prosecutor of High Court at Hyderabad and others.
… Respondents.
! Counsel for the petitioner : SRI B.VIJAYSEN REDDY.
^ Counsel for respondents 1 and 2 : PUBLIC PROSECUTOR.
< GIST:
>HEAD NOTE:
? Cases referred:
[1]
(2006) 6 SCC 548
HONOURABLE SRI JUSTICE S.RAVI KUMAR CRIMINAL PETITION No.13574 OF 2013 Dated 4-7-2014 Between:
Y.Rajeev Reddy.
And:
Petitioner.
The State of Andhra Pradesh through Public Prosecutor of High Court at Hyderabad and others.
…Respondents.
HONOURABLE SRI JUSTICE S.RAVI KUMAR CRIMINAL PETITION No.13574 OF 2013 ORDER:
This Criminal Petition is filed to quash proceedings in S.T.C.No.498 of 2013 on the file of the XII Additional Metropolitan Magistrate, City Criminal Courts, Red Hills, Nampally, Hyderabad.
Brief facts leading to this petition are as follows:
Second respondent herein lodged a complaint under Section 34 of Industrial Disputes Act contending that in the petitioner establishment, there is existing trade union called as “Hotel Amrutha Castle Employees Union” being registered under Register No.B-2875 under the Trade Unions Act on 20-3-2013 and the Union members hoisted a flag of the union in front of the main gate of Amrutha Castle on 30-3-2013 and Sri K. Ganesh Reddy who was elected as president working as Purchase Manager was transferred to Country Club, Mumbai and this action of management would amount to unfair labour practice as defined in the Industrial Disputes Act, 1947. (herein after referred to as “ Act, 1947”) and thereby, committed an offence punishable under the provisions of the Act, 1947.
Heard both sides.
The main grounds urged for quash are:
Firstly, that there is no material to show that the unfair labour practice is observed in the establishment of “Hotel Amrutha Castle”. According to petitioner, his establishment has no knowledge about the union registered under the name “Hotel Amrutha Castle Employees Union” as no such information was given in accordance with the provisions of Trade Unions Act, 1926. According to petitioner, a procedure is prescribed to recognize Trade union by any establishment and without proper intimation as required under law, the management cannot be attributed with knowledge of registration of Trade Union. According to petitioner, it is mandatory that formation of an union and election of office-bearers has to be intimated in accordance with the procedure laid down under Trade Union Act and Rules, to the management and mere hoisting union flag by itself cannot be considered as knowledge or intimation to the management.
Second contention of petitioner is that the complaint is not filed against the establishment but it is in individual name and nothing is mentioned in the complaint or in the cause title as to how the petitioner is concerned with the management of the hotel.
According to petitioner, this complaint cannot be filed in the individual capacity since “Hotel Amrutha Castle” is a company and there is a prescribed procedure to prosecute a company.
Next contention of the petitioner is that even according to the complainant, by virtue of flag hoisting, petitioner had knowledge of the registration of union and on the same day, union President is transferred to Mumbai and this amounts to unfair labour practice, but the transfer order is passed on 28-3-2013 and the same was within the knowledge of Sri Ganesh Reddy who was transferred and as he refused to take personal notice, transfer orders are sent by registered post on 30-3-2013, therefore, contention that transfer of Ganesh Reddy is unfair labour practice cannot be accepted. It is further contended that the union filed a suit challenging transfer orders and if really, the provisions of Act, 1947 are applicable, they have to question those orders in the Labour Court but not in a civil court and therefore, there is no prima facie material attracting violation of provisions of Act, 1947.
The other contention of the petitioner is that the said Ganesh Reddy is not a worker and he is only a supervisor and therefore, he do not fall under the purview of provisions of the Act.
The next contention of the petitioner is that Commissioner of Labour, Hyderabad accorded permission to Deputy Commissioner of Labour-II to prosecute management of “Hotel Amrutha Castle” but the complaint is filed by Assistant Commissioner of Labour-III which is in contravention of the sanction order. It is further contended that even sanction is to prosecute Management of Hotel Amrutha Castle whereas complaint is filed against Sri Y.Rajeev Reddy without describing his designation or his connection with the said “Hotel Amrutha Castle”.
After filing of this petition, R.3-Union has come on record and which is impleaded at the request of Union as per orders in Crl.M.P.No.3337 of 2014.
On the other hand, it is the contention of the 3rd respondent that management has knowledge about the registration of the union and transfer is only for the reason that he was elected as President. It is contended that as per the procedure, an inspection has to be made before considering the request of union for registration and from the record, registration was on 20-3-2013 and therefore, the official must have visited the hotel prior to 20-3-2013 and thereby, the management had knowledge and as the transfer order is subsequent to registration, it falls under unfair trade practice.
The next contention of the 3rd respondent is that Sri Ganesh Reddy is transferred to Country Club, Mumbai whereas he is employee of “Hotel Amrutha Castle” and as the transfer was not to the same establishment, this would disclose the mala fide nature of the management. The other contention of the respondent is that designation is not the criteria and petitioner is employer of Ganesh Reddy and therefore, objection of the petitioner is not tenable.
The other contention of the 3rd respondent is that whether the petitioner has knowledge of the union that was newly formed is a matter of evidence which can be proved during trial and as there is prima facie material showing “unfair trade practice”, second respondent rightly filed a complaint and that there are no grounds to quash the same.
Learned Public Prosecutor supported the submissions made on behalf of 3rd respondent.
Now the point that would arise for my consideration in this petition is whether the proceedings in S.T.C.No.498 of 2013 on the file of XII Additional Chief Metropolitan Magistrate, City Criminal Courts at Nampally, Hyderabad are liable to be quashed?
POINT:
It is not in dispute that a procedure is contemplated to inform the management about registration of any Trade Union and in this case, there is no written intimation to the management or to the petitioner about the Union that was registered on 20-3-2013. When a procedure is contemplated with regard to intimation, it is for the prosecution to show at least prima facie that the management has knowledge of the fact that a trade union was registered. Here, the prosecution contended that as flag hoisting was done on 30-3-2013, that itself is an information and knowledge to the management but by no stretch of imagination, it can be considered that hoisting a union flag is an acknowledgment or intimation to the management that Sri Ganesh Reddy has been elected as its president. As per procedure the details of president and other office bearers are to be intimated to Management.
One of the contention raised on behalf of the petitioner is that the provisions of Act, 1947 are not applicable since Sri Ganesh Reddy is not a workman within the meaning of Section 2(s) of Act, 1947.
It is useful to extract Section 2(s) of Act, 1947 for better understanding.
“(s) ‘workman’ means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, sales promotion, operational, clerical or supervisory work or any work for the promotion of sales for hire or reward, whether the terms of employment be expressed or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person.
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950) or the Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service or as an officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature. A.P.Act No.22 of 2008, w.e.f. 23-8-2008, vide G.O.Ms.No.72 LET & F Lab-1, Department dated 23-8-2008.”
From the material, it is clear that Sri Ganesh Reddy has been discharging Supervisory, Administrative and Managerial functions in the “Hotel Amrutha Castle”, Hyderabad and that he got promotion as Manager in January, 2005 and since that time, he had been working as Purchase Manager. I n ANAND REGIONAL COOP.OIL SEEDS GROWERS’ UNION LTD., v.
[1]
SHAILESHKUMAR HARSHADBHAI SHAH ( )
Honourable Supreme Court held that not only the nature of work but also the terms of appointment in the job are relevant considerations to decide whether the employee worked in Supervisory capacity or workman. Here, as seen from appointment letter dated 16-5-2002, it is clear that the said Ganesh Reddy is appointed as Executive- Stores and purchase in Stores and Purchase Department in May, 2002, and that in May, 2005 on the basis of his performance, he is promoted as Assistant Manager- Purchase in which his nature of duties are incorporated which are all of a supervisory nature and which conditions are not disputed. Subsequently, he is promoted as Manager and discharging the duties in that capacity.
When Sri Ganesh Reddy as Manager discharging Supervisory Administrative and Managerial functions, he cannot be termed as workman as per definition referred above.
Further, if really, he is a workman and provisions of Act, 1947 are applicable to him, he would have approached Labour Court challenging the transfer orders but the very approach to a civil court is a prima facie proof that even Ganesh Reddy is sure that the provision of Act, 1947 are not applicable to him.
As seen from the proceedings of the Joint Commissioner of Labour, Hyderabad dated 2-8-2013, Deputy Commissioner of Labour-II, Hyderabad is authorized to file charge sheet against the management of “Hotel Amrutha Castle” for adopting unfair labour practice but the complaint is filed by Assistant Commissioner of Labour-III against one Sri Rajeev Reddy and nothing is mentioned either in the complaint or in the cause title as to how petitioner is concerned with management of hotel “Hotel Amrutha Castle”. One of the contention of 3rd respondent is that since Rajeev Reddy is employer of Sri Ganesh Reddy, non-mentioning of designation is not material. But the said contention cannot be accepted because the very proceedings of Joint Commissioner of Labour indicate that prosecution has to be launched against the management of “Hotel Amrutha Castle” but not against any individual. So when Hotel Amrutha Castle is a company, the said company has to be prosecuted through person representing that establishment. A plain reading of complaint would indicate that the petitioner is prosecuted in his individual capacity though the alleged violation is attributed to the management of “Hotel Amrutha Castle”.
One of the contention of the respondent is that Sri Ganesh Reddy is an employee of “Hotel Amrutha Castle” and he cannot be transferred to Country Club which is not the establishment in which Sri Ganesh Reddy joined. According to petitioner, this Country Club and “Hotel Amrutha Castle” are not separate managements and they both are under the name “Best Western Amrutha Castle””.
Admittedly, Sri Ganesh filed suit challenging transfer orders and this aspect is a subject matter of that suit. Further, as seen from the material papers, transfer is on administrative grounds.
To prosecute any establishment for adopting unfair Labour practice, the prosecution must prima facie show the malafide intention of the management. Here, there is absolutely no material fulfilling this requirement.
On a close scrutiny of the material, I am of the view that no prima facie offence is made out against the petitioner attracting the penal provisions of the Act, 1947 and therefore, the proceedings are liable to be quashed.
For the reasons mentioned supra, proceedings in S.T.C.No.498 of 2013 on the file of the XII Additional Metropolitan Magistrate, City Criminal Courts, Red Hills, Nampally, Hyderabad are quashed.
Accordingly, this Criminal Petition is allowed.
As a sequel to the disposal of this petition, the Miscellaneous Petitions, if any, pending, shall stand dismissed.
JUSTICE S.RAVI KUMAR Dated 4-7-2014.
Note:
L.R.copy to be marked. BO.
Dvs.
HONOURABLE SRI JUSTICE S.RAVI KUMAR Dvs CRIMINAL PETITION No.13574 OF 2013 Dated 4-7-2014
[1] (2006) 6 SCC 548