The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND, RANCHI ---- Cr.M.P. No. 957 of 2019 ---- 1.M/s Alembic Pharmaceuticals Limited 2.Sanjay Sahai @ Sanjay Sahay 3.Chandrahas Shetty @ Chandrahas @ Sri Chandrahas Setty 4.Arvind Tripathi @ Arvind Kumar Laxmi Narayan Tripathi @ Sri Arvind Tripathy ….. ….. …… …… …. Petitioners -- Versus -- 1.The State of Jharkhand 2.The Labour Superintendent-cum-Inspector, Jamshedpur-2 3.Bihar and Jharkhand Sales Representative Union through its President .... Opposite Parties ---- CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioner :- For the State For the O.P.No.3 :- :-
Legal Reasoning
Thus, prima facie, it appears that there is no violation of sections 5 and 7 of Sales Promotion Employees (Condition of Service) Act, 1976. The Court has gone through the contents of the complaint petition. It is not disclosed as to how these petitioners are looking after the day-to-day affairs of the company and section 10 of the said Act speaks as under: “10.Offences by companies- (1) Where an offence under this Act has been committed by a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub- section shall render any such person liable to any punishment provided in this section if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in sub- section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of such offence and shall be liable to be proceeded against and punished accordingly. (3) For the purposes of this section,- (a) “company” means any body corporate and includes a firm or other association of individuals; and (b) “director”, in relation to a firm, means a partner in the firm.” 9. It is crystal clear from the above section that the person who is looking after the day-to-day affairs of the company can only be -6- Cr.M.P. No. 957 of 2019 prosecuted. There is no even single averment in this petition that these petitioners are looking after the day-to-day affairs of the company. The contention of the learned counsel for the O.P.No.3 with regard to section 473 of the Cr.P.C with regard to condonation of delay is not being accepted by this Court. The learned court has not condoned the delay and it has straightway taken cognizance and further the complainant has not filed any condonation petition for condoning the said delay. Admittedly, the case is registered under the Sales Promotion Employees (Condition of Service) Act, 1976 and the mode of cognizance is prescribed in the said Act itself and if that is there section 473 Cr.P.C is not attracted as held by the Hon’ble Supreme Court in the case of P.P. Unnikrishnan and Another v. Puttiyottil Alikutty and Another, reported in (2000) 8 SCC 131 and paragraph no.10 of the said judgment is quoted below: “10.The extension of period contemplated in the said section is only by way of an exception to the period fixed as per the provisions of Chapter XXXVI of the Code. Section 473 of the Code, therefore, cannot operate in respect of any period of limitation prescribed under any other enactment. Hence, we are unable to uphold the view adopted by the learned single Judge of the High Court that section 473 of the Code can appropriately be invoked by the complainant for circumventing the bar contained in section 64(3) of the K.P. Act.” 10. In that case, the Hon’ble Supreme Court was considering the Kerala Police Act in which six months provision was there of not taking cognizance if the case is filed after six months of the occurrence. Identical is the situation in the present case in light of section 11 of the Sales Promotion Employees (Condition of Service) Act, 1976. As such, the case of the petitioners is covered and accordingly, the Court negates -7- Cr.M.P. No. 957 of 2019 the argument of the learned counsel for the O.P.No.3 with regard to section 473 of the Cr.P.C. Further, there is no dispute with regard to section 8 of the said Act which meant for Inspectors as to how the Inspectors will be appointed and that mode is prescribed therein and if the O.P.No.3 has moved before the Inspector in light of section 8 it was incumbent upon the Inspector to file the case within the stipulated period of time and in view of that, the argument of the O.P.No.3 is also not helping the O.P.No.3. If any wrong or incorrect entry is made it was incumbent upon the concerned person to move before the competent authority of the management by way of filing petition for correction of the same and that has not been done, and further if it is not done, the remedies are there of taking steps either under the Industrial Disputes Act or bay way of filing appropriate suit if the employees are not coming under the definition of Workmen under the Industrial Disputes Act and that has not been done. 11. In view of above facts, reasons and analysis, to allow the present proceeding to continue further will amount to abuse of process of law. 12. Accordingly, entire criminal proceeding including the order taking cognizance dated 28.11.2017 arising out of Complaint Case No. 3513 of 2017 pending in the court of learned Judicial Magistrate First Class, Jamshedpur are quashed. 13.
Arguments
--- Mr. Alok Kumar Sinha, Advocate Mr. Raunak Sahay, Advocate Mr. Azimuddin, Advocate Mr. Uday Choudhary, Advocate ---- 14/13.05.2024 Heard Mr. Alok Kumar Sinha, the learned counsel for the petitioners, Mr. Azeemuddin, the learned counsel for the respondent State and Mr. Uday Choudhary, the learned counsel appearing on behalf of the O.P.No.3. 2. This petition has been filed for quashing of the entire criminal proceeding including the order taking cognizance dated 28.11.2017 arising out of Complaint Case No.3513 of 2017 pending in the court of learned Judicial Magistrate First Class, Jamshedpur. 3. The complaint case was filed alleging therein by letter dated 29.05.2015 the Bihar Jharkhand Sales Representative Union made a complaint against M/s. Alembic Pharmaceuticals Limited stating -1- Cr.M.P. No. 957 of 2019 that the company was not maintaining Form A (Appointment Letter), Form B, C, D, etc. as per the provisions of ’the S.P.E. Act’. Upon direction given by the Deputy Labour Commissioner the then Labour Superintendent had initiated proceeding and had corresponded with the Management. During the proceeding the reply of the management dated 28.10.2015 was made available to the union which was replied by the union by its letter dated 28.11.2015. Enclosing a copy of the union’s reply dated 28.11.2015 the office of the Labour Superintendent vide its letter mo.1010 dated 08.04.2016 had issued Show cause to the management which was replied by the management by letter dated 02.05.2016. During the course of the proceeding the management showed compliance on other issues except on the issue of appointment letter not being in proper format, as a result of which the Labour Superintendent again vide its letter no.2948 dated 22.12.2016 issued Show cause to the management which was replied by the management by letter dated 13.02.2017. That the appointment letter was not as per Form A and the management was incorporating 22 service conditions from its own side which was reflective of the appointment letter not being in accordance with the Act and Rules. The management all the time tried to prove that Medical Representative does not come in the category of workman. That it is thus clear that the appointment letter issued by the management is not as per the format prescribed by the Government as a result of which Sales Promotion Employees are deprived from claiming the status of workman and are deprived from the benefit provided by Section 6 (1), (2), (3), (4), (5) and (6) of ’the S.P.E. Act’. The reply submitted by the management was unsatisfactory -2- Cr.M.P. No. 957 of 2019 and violative of Section 5 and corresponding Rule 22(1). That the court is therefore requested to take note of the violations against the accused persons named in Clause 3 by taking cognizance under Section 11 and punish the accused persons. The complainant is a public servant under Section 21 of the Indian Penal Code and as such the complainant be exempted from appearing on each date.” 4. Mr. Sinha, the learned counsel appearing on behalf of the petitioners submits that the petitioner nos.2 and 3 are no more employed and the petitioner no.1 is the company and they are presently working with some other organization. He submits that so far other petitioners are concerned they are the high officials of the company and even they are not residing at Jamshedpur and they are residing in Maharashtra and Gujarat respectively. He draws the attention of the Court to complaint petition and submits that the alleged offence is said to be of dated 11.09.2016 wherein the complaint was instituted on 28.11.2017. He submits that in light of sub section 2 of section 11 of the Sales Promotion Employees (Condition of Service) Act, 1976 the cognizance can only be taken within six months from the date on which the offence is alleged to have been committed. He further submits that so far as section 5 and 7 of the said Act is concerned, it is not attracted in the case as the compliance is there. By way of drawing attention of the Court to section 5 read with Form-A under Rule 22 (1) of Sales Promotion Employees (Condition of Service) Rules, 1986, he submits that letter of appointment form is there in the nature of Form-A and speaks of adding of other conditions of service. He further submits that section 7 of the said Act is also not attracted as the petitioner company -3- Cr.M.P. No. 957 of 2019 is maintaining the maintenance Registers. Lastly, he submits that in view of section 10 of the said Act, the person who is responsible for day to day affairs of the company on the date of alleged occurrence can only be prosecuted. By way of referring the contents of the complaint petition, he submits that there is no averment how these petitioners were looking after the day-to-day affairs of the company. On these grounds, he submits that the entire criminal proceeding may kindly be quashed. 5. The learned counsel appearing on behalf of the respondent State submits that the allegations are there of not maintaining Form-A in light of section 5 read with Rule 22 (1) of the said Rules. He submits that even the Register is not being maintained properly. 6. Learned counsel appearing on behalf of the O.P.No.3 vehemently opposed the prayer on the ground that if any delay is there that is on the part of the petitioners as in 2015 itself the Union has raised the objection before the Labour Department and the Labour Department has called upon the petitioners to file reply and they have delayed in the matter and that is why some delay has occurred. He submits that there is violation of section 5 read with Rule 21 (C) of the Rules and in view of that, the case is made out. He draws the attention of the Court to the counter affidavit filed on behalf of the O.P.No.3 and submits that even Form-C which is service-book is not being maintained properly. According to him, the date of appointment is wrongly mentioned against some of the employees in Form-C and in view of that the case is made out. On these grounds, he submits that this Cr.M.P may kindly be dismissed. He also by way of referring section 473 Cr.P.C submits that in view of provisions made therein, the delay can be condoned by the learned court and cognizance can be taken. He further -4- Cr.M.P. No. 957 of 2019 submits by way of referring section 8 of the said Act that in view of that appointment of Inspectors the O.P.No.3 has moved before the appointed Inspector for the grievance. 7. In view of the above submission of the learned counsels appearing on behalf of the parties, the Court has gone through the materials on record and finds that in the complaint petition it is disclosed that date of occurrence is said to be dated 11.9.2016 whereas the compliant case has been filed on 28.11.2017. The mode of cognizance is prescribed in section 11 of the Sales Promotion Employees (Condition of Service) Act, 1976 which speaks as under: “11.Cognizance of offences- (1) No Court inferior to that of a Metropolitan Magistrate or a Magistrate of the first class shall try any offence punishable under this Act. (2) No Court shall take cognizance of an offence under this Act, unless the complaint thereof is made within six months of the date on which the offence is alleged to have been committed.” 8. Looking to the above section it is crystal clear that there is bar of taking cognizance of offence if the complaint is not made within six months of the date on which the offence is alleged to be committed wherein in terms of the complaint petition, six months period comes to an end on 11.3.2017 and further the said limitation period is described in Special Law itself. Thus, filing of the complaint was delayed and in view of that section, the Court was not required to take cognizance of the offence. Further section 5 speaks of issue of appointment letter. Rule 22(1) is made in light of section 5 and Form -A is prescribed therein. What will be stated in the letter of appointment is there however clause 9 further speaks of other conditions of service can be added by the employer. Section 7 speaks of maintenance of Register and in the -5- Cr.M.P. No. 957 of 2019 complaint itself the averment is there that they are maintaining the Register in light of Section 7 read with Rule 23 (a), (b), (c) and (d).
Decision
Cr.M.P. No.957 of 2019 is allowed and disposed of. ( Sanjay Kumar Dwivedi, J.) SI/, A.F.R. -8- Cr.M.P. No. 957 of 2019