Dismissed

Girish Kanchan v. State of U.P.and 2 Others

Allahabad HC21 Aug 2019A482/35074/2016

Case brief

AI extract

What is this about?

High Court dismissed five connected applications under Section 482 Cr.P.C. filed by Girish Kanchan against summoning orders in Section 29 Industrial Disputes Act cases. Court held Tribunal awards attained finality and non-compliance attracted Section 29 Act.

What did the court decide?

Summoning orders in all five complaint cases are not liable to be quashed; applications are dismissed.

Girish Kanchan Vs State of U.P.and 2 Others — Civil Procedure and Limitation | Allahabad HC (2019)

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RESERVED ON : 31.07.2019 DELIVERED ON: 21.08.2019

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Case :- APPLICATION U/S 482 No. - 35074 of 2016 Applicant :- Girish Kanchan Opposite Party :- State Of U.P.And 2 Others Counsel for Applicant :- Tarun Varma,Praveen Kumar Srivastava Counsel for Opposite Party :- G.A.,Mahesh Kumar,Tapan Kumar Mishra

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CONNECTED WITH

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Case :- APPLICATION U/S 482 No. - 35076 of 2016 Applicant :- Girish Kanchan Opposite Party :- State Of U.P.And 2 Others Counsel for Applicant :- Tarun Varma,Praveen Kumar Srivastava Counsel for Opposite Party :- G.A.,Mahesh Kumar,Tapan Kumar Mishra

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AND

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Case :- APPLICATION U/S 482 No. - 35077 of 2016 Applicant :- Girish Kanchan Opposite Party :- State Of U.P.And 2 Others Counsel for Applicant :- Tarun Varma,Praveen Kumar Srivastava Counsel for Opposite Party :- G.A.,Mahesh Kumar,Tapan Kumar Mishra

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AND

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Case :- APPLICATION U/S 482 No. - 35078 of 2016 Applicant :- Girish Kanchan Opposite Party :- State Of U.P.And 2 Others Counsel for Applicant :- Tarun Varma,Praveen Kumar Srivastava Counsel for Opposite Party :- G.A.,Mahesh Kumar,Tapan Kumar Mishra

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AND

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Case :- APPLICATION U/S 482 No. - 35079 of 2016 Applicant :- Girish Kanchan Opposite Party :- State Of U.P.And 2 Others Counsel for Applicant :- Tarun Varma,Praveen Kumar Srivastava Counsel for Opposite Party :- G.A.,Mahesh Kumar,Tapan Kumar Mishra

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Hon. Om Prakash-VII, J.

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1. All the aforesaid applications are connected with each other and also a common question is involved in all the applications, therefore, they have been heard together and are being decided by a common judgment.

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2. The aforesaid applications were filed U/S 482 with the prayer for quashing the orders dated 17.5.2016 passed by the Chief Judicial Magistrate, Jhansi in case nos. 816 of 2016; 817 of 2016; 818 of 2016; 819 of 2016 and 820 of 2016 (Labour Enforcement Officer, Jhansi Vs. Girish Kanchan), under Section 29 of the Industrial Disputes Act (hereinafter referred to as the Act) whereby registering a case against the applicants process of summons have been issued. Further prayer has been made for staying the proceedings of the aforesaid complaint cases.

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3. Factual matrix of the aforesaid applications are as follows :

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4. In all the aforesaid applications except Application U/S 482 No. 35077 of 2016, opposite party no. 3 were workmen of the railway department working at North Central Railway, Jhansi. In Application U/S No. 35077 of 2016, opposite party no. 3 Munni Devi is the wife of deceased Mahesh Prasad, who was also a workman. After some time they also got status of temporary employee but they were retrenched by the employer, therefore, they approached Central Government Industrial Tribunal-cum-Labour Court, Lucknow (hereinafter referred to as the Tribunal) for redressal of their grievances. The Tribunal after affording opportunity to the parties vide orders dated 10.7.2002 allowed the prayer made by the workmen concerned namely Sher Khan; Siraj Khan; Mahesh Prasad; Shiv Kumar and Majid Khan and relief was granted in their favour to the effect that aforesaid workmen are entitled for reinstatement with full back wages with other service benefits, assuming that there existed

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no termination at any point of time. It also appears that orders dated 10.7.2002 passed by the Tribunal were challenged through writ petition nos. 6631 of 2002; 6630 of 2002; 6597 of 2002; 6632 of 2002; 6596 of 2002 and 6665 of 2002 and all the aforesaid writ petitions were dismissed on merits on 23.7.2014. It further appears that after dismissal of aforesaid writ petitions, complainant sent several notices to the present applicant to comply with the awards passed on 10.7.2002. Since no compliance was made at the end of the applicant, complainant after obtaining sanction from the competent authority filed aforesaid complaints before the Chief Judicial Magistrate, Jhansi taking recourse to the provisions of Section 29 of the Act. Chief Judicial Magistrate, Jhansi registered all the complaints taking cognizance and issued summons to the applicant. It also appears that applicant appeared in compliance of the summons issued in the aforesaid complaints and obtained bail. It is also evident from the record that review petitions were also filed before the court to review the orders passed in aforesaid writ petitions but the same were also dismissed. Thus on the basis of aforesaid factual backdrop dispute between the parties has to be decided.

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5. Heard Shri Praveen Kumar Srivastava, learned counsel for the applicants, Shri Rajendra Prasad Yadav, Advocate holding brief of Shri Mahesh Kumar, learned counsel for the opposite party no. 2 and learned A.G.A. 6. Submission of learned counsel for the applicants is that entire proceedings of the aforesaid complaints are abuse of process of law. Applicant was not responsible in any way to comply with the awards. After dismissal of the review petitions process to challenge the orders passed in writ petitions is underway. Provisions of Section 29 of the Act is not applicable in the present matter. Applicant was posted at the time of filing

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of the complaints on the post of Divisional Commercial Manager (Catering, North Central Railway) (earlier Central Railway, Jhansi) but subsequently was transferred on different posts at different places and he cannot be held responsible for the breach of the directions contained in the awards. Learned counsel appearing for the applicant has also referred to the definition of railway servant defined under Section 2 of the Railways Act, 1989 as also provisions of Section 188 of the Railways Act. Further reliance has been placed on the provisions of Section 33 of the Act.

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7. Learned counsel appearing for the applicants also placed reliance on the law laid down in the case of Amal Kumar Jha Vs. State of Chhattisgarh and another reported in (2016) 6 SCC 734 and further submits that applications be allowed and the proceedings of the aforesaid complaint cases be quashed against the applicants.

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8. Learned counsel appearing for the concerned workmen and their legal representatives as well as learned A.G.A. argued that awards dated 10.7.2002 have attained finality as writ petitions, review applications both have been dismissed. Directions contained in the awards dated 10.7.2002 have not been complied with by the applicants. At the time of filing of the complaints applicant was responsible to comply the awards dated 10.07.2002. Since he failed to comply with the directions contained in the awards, therefore, provisions of Section 29 of the Act clearly attracted in the present matter. Complaints were filed by the complainant after obtaining permission/sanction from the competent authority. Referring to the initial order passed in the applications as well as in the aforesaid writ petitions, it is further argued that despite assurance given to the court to comply the awards, same were not complied with. A prima facie case is made out. There is no illegality, infirmity or

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perversity in the summoning orders.

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9. I have considered the rival submissions and have gone through the entire record. 10. As is evident from the record of the aforesaid applications, the Tribunal had passed the awards in favour of the workmen on 10.7.2002 which were notified on 16.7.2002. Applicant approached High Court through the aforesaid writ petitions on 27.11.2002 but all the writ petitions were dismissed on 23.7.2014. Review applications were also filed but the same were also dismissed on 15.12.2017. Nothing is on record to show that awards dated 10.7.2002 passed in favour of the workmen were at any point of time quashed, set aside or modified. It is also evident that awards dated 10.7.2002 passed in favour of the workmen have attained finality. Mere recommendation of the Assistant Solicitor General for filing the S.L.P. before the Hon'ble Supreme Court, it will not be sufficient to held that awards dated 10.7.2002 have not attained finality. Although in the writ petitions Impleadment Applications were moved and notices were issued but on this ground also it cannot be held in the present matters that awards passed in favour of the workmen were not executable at the end of applicant. Since awards dated 10.7.2002 have attained finality, applicant was posted as Divisional Commercial Manager (Catering, Central Railway, Jhansi) at the time of filing of the complaints, he himself has approached this Court by filing writ petitions and also review applications, thus, submissions raised by learned counsel appearing for the applicant that applicant has been transferred from the post of Divisional Commercial Manager (Catering, Central Railway, Jhansi) is not sufficient to quash the summoning orders passed in the present complaint cases. On the day of filing of the complaints applicant was posted on the post stated above and was responsible to comply

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with the awards but he failed to comply, therefore, in the opinion of the court provisions of Section 29 of the Act clearly attracted in the present matters. If the initial orders passed in the present applications at the time of issuing notices as well as orders dated 27.11.2002 at the time of admission of aforesaid writ petitions are taken into consideration then also despite assurance given to the court applicant did not comply with the directions given in the awards dated 10.7.2002. Since there is breach of term of the awards dated 10.7.2002, the provisions of Section 29 of the Act clearly attracted in the present matter. Process issued against the applicant in the aforesaid complaint cases for the reasons discussed herein above cannot be termed to be illegal.

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11. Since Section 29 of the Act is the peculiar provision for breach or settlement of the award, therefore, applicant cannot be exonerated on the ground of want of prosecution under Section 197 Cr.P.C.. Applicant does not get any help from the law laid down in the case of Amal Kumar Jha (Supra) as the facts of the present matters are entirely different with the facts of the case of Amal Kumar Jha (Supra).

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12. For the reasons discussed herein above, the proceedings of the aforesaid complaint cases are not liable to be quashed and applications being devoid of merits are liable to be dismissed and are hereby accordingly dismissed.

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13. Office is directed to place copies of this order on the record of Application U/S 482 Nos. 35076 of 2016; 35077 of 2016; 35078 of 2016 and 35079 of 2016. Order Dated : 21-08-2019. Sachdeva.

Girish Kanchan v. State of U.P.and 2 Others

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Girish Kanchan v. State of U.P.and 2 Others

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