Modi Xerox Limited and Ors. Vs Ms. Niloo Makhija

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 CRIMINAL APPELLATE JURISDICTION

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 CRIMINAL WRIT PETITION NO.144 OF 2000

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 1. Modi Xerox Limited )
 254-D-2 Nyloc House )
 Dr.A.B.Road, Worli, )
 Mumbai 400 025. )
 2. Mr. Niquela Thomas )
 Sales Training & Mktg. )
 Manager. )
 3. Mr.Rohit Gupta )
 Customer Satisfaction )
 Manager. )
 4. Ms.Melita Reddy )
 Customer Satisfaction )
 Manager. )
 All at 254-D-2 Nyloc House )

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 Dr. A.B.Road, Worli, )

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 Mumbai 400 025. )

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 5. Shri Hamir Bakshi )
 Operations Manager )
 Modi Xerox Limited )
 215, M.V.Road, 3rd floor, )

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 Andheri (W), Mumbai-400069 ).... Petitioners

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 Versus

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 1. Ms Niloo Makhija )
 D-204 Kuber Apartments )
 Ambadi Main Road, )
 Vasai (W), Dist. Thane. )

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 2. The State of Maharashtra ).... Respondents

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 Mr.Rajesh Gehani for Petitioners
 Mr.R.S.Upadhyay for Respondent No.1

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 Mr.B.H.Mehta for Respondent No.2

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 CORAM : R.M.S.KHANDEPARKAR &
 P.V.KAKADE, JJ.
 DATE : 21ST MARCH, 2005

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 ORAL JUDGMENT : (Per Khandeparkar, J.)

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 1. Heard. Perused the records.

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 2. The Petitioners seek to challenge the complaint
 filed by the Respondent No.1 being Misc. Criminal
 Complaint (ULP) No.18 of 1999 along with the process
 issued by the Labour Court under Order dated 15.3.1999
 and confirmed by the Industrial Court by Order dated
 16.11.1999. The grievance of the Petitioners is that

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 the complaint does not disclose the offence so as to
 enable the Labour Court to take cognizance thereof under
 Section 48 of MRTU & PULP Act, 1971.

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 3. Few facts which are relevant for the decision in
 the matter are that the Respondent No.1 was transferred
 by Order dated 16.3.1998 from her initial posting at
 Andheri to the office of the Petitioners at Vashi. The
 same was sought to be challenged by way of Complaint
 No.319 of 1998, which was allowed by the Industrial

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 Court and the transfer Order was quashed by its Order
 dated 16.12.1998 and the Petitioners Company was

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 directed to allow the Respondent No.1 to work at Andheri
 on her usual allowance and status and was also directed
 to pay cost of Rs.1000/=. The Order of Industrial Court
 was sought to be challenged by way of Writ Petition
 being Writ Petition No.141 of 1999, which came to be
 admitted on 15.1.1999, however, no interim relief was
 granted. Consequently the order passed by the
 Industrial Court on 16.12.1998 continued to be
 enforceable. By Order dated 15.1.1999 issued by the
 Petitioner Company the Respondent No.1 was directed to
 report to her duties at Andheri. The Respondent No.1
 accordingly reported to her duties with effect from
 18.1.1999. The original posting of the Respondent No.1
 was as a Customer Relation Co-ordinator and she was
 sought to be transferred against the said post at
 Andheri. By advocate’s notice dated 5.2.1999 it was
 informed to the Petitioner Company that she had not been
 granted her original status as she was not paid with the
 allowances and she was not being allowed to do any work
 in the capacity as the Customer Relation Co-ordinator.
 The allegations in that regard were denied by the
 Petitioner Company by their letter dated 15.2.1999. The
 Respondent No.1 consequently filed a Criminal Complaint
 (ULP) No.18 of 1999 against the Petitioner Company and

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 in that she complained that though she had been allowed

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 to report to the office at Andheri, she was not being
 given the earlier status nor she was being allowed to do
 any work and she was being made to sit idle for most of
 the time. She also complained of having not received
 the amount of cost of Rs.1000/=. Verification of the
 Complaint was made on 24.2.1999 and process came to be
 issued pursuant to the Order dated 15.3.1999 fixing the
 hearing of the Complaint on 4.5.1999. Meanwhile the
 Petitioner Company filed Misc.Criminal Revision
 Application (ULP) No.2 of 1999 challenging the said
 process issued against the Petitioners in the said
 Complaint. By interim order dated 3.5.1999 the process
 issued against the Petitioners was stayed, however,
 after hearing the parties the Misc. Cri.Revision
 Application was dismissed by the Industrial Court by its
 Order dated 16.11.1999. Hence, the present Petition.

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 4. The process issued against the Petitioners and
 the Order passed by the Industrial Court are sought to
 be challenged on two grounds, firstly, that the
 complaint does not disclose necessary particulars so as
 to enable the Court below to take cognizance thereof
 under Section 48 of MRTU & PULP Act and secondly that

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 the complaint No.319 of 1998 was not filed against the
 Petitioner Nos.3, 4 and 5 and they were neither the
 parties to the proceeding before the Labour Court
 wherein the original order dated 16.12.1998 was passed,
 nor the present Complaint discloses how they can be held
 responsible for alleged non compliance of the said order
 dated 16.12.1998 passed by the Labour Court.

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 5. As regards the first ground of challenge, bare

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 reading of the Complaint discloses that by the order
 dated 16th December, 1998 the Labour Court had
 specifically directed the Petitioner Company to transfer
 the Respondent No.1 to her original post at Andheri and
 to allow her to work at Andheri on her usual allowances
 and status besides paying cost of Rs.1000/=, however,
 the Respondent No.1 was being made to sit idle for most
 of the time and she was not paid the allowances in terms
 of the said order nor the cost amount. The specific
 averment in that regard in para 2 read "The Complainant
 states that although she has been allowed to report for
 work at Andheri her usual work, allowances and status
 has not been given to the complainant. The complainant
 further states that although the complainant was doing
 the work of Customer Relation coordinator her earlier

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 work was not being assigned to her and she is required
 to sit idle for most of the time." Undoubtedly therefore
 these averments disclose the basic facts which are
 required to take cognizance in terms of Section 48 of
 MRTU & PULP Act. Undisputedly the provisions under
 Section 48 relate to the proceedings which can be
 initiated by the aggrieved party in case of non
 compliance of the Order passed by the Labour Court under
 Section 30 of the said Act. Undisputedly the Order
 dated 16.12.1998 was passed in exercise of powers under
 Section 30 of the said Act and by the said Order, it was
 specifically directed to retransfer the Respondent No.1
 to her earlier post at Andheri with a specific direction
 to allow her to work at Andheri on her usual allowances
 and status besides payment of cost of Rs.1000/=. The
 complaint on the face of it discloses that though the
 Respondent No.1 was allowed to join the Andheri Office,
 she was not allowed to do any work as Customer Relation
 Coordinator, the work which she was carrying out prior
 to her transfer from Andheri to Vashi. The complaint
 also discloses non payment of the allowance which was
 required to be paid as also the cost amount. Being so,
 the basic ingredients disclosing the offence in terms of
 Section 48 of the Act are clearly revealed from the

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 contents of the complaint. Merely because further

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 details are not disclosed, it cannot be said that no
 sufficient materials are disclosed before the concerned
 Court for issuance of the process in the matter under
 Section 48 of MRTU & PULP Act. The first ground of
 challenge therefore fails and is being rejected.

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 6. With regards second ground of challenge
 undisputedly the Order dated 16th December, 1998
 discloses that the Petitioner Nos.1 and 2 were parties
 to the said proceedings. The other petitioners were not
 parties to the said proceedings. Undisputedly the order
 dated 16.12.1998 passed under Section 30 of the Act was
 in the form of direction to the Company to restore the
 position at the office at Andheri which the Respondent
 No.1 was holding prior to her transfer to Vashi.
 Undoubtedly there was no order passed by the Labour
 Court in exercise of powers under Section 29 of the said
 Act so as to hold that the said Petitioners are also
 responsible for non compliance of the said Order. In
 any case para 3 of the Petition to which attention was
 drawn while contending that the same discloses the
 necessary averments to hold that the said Petitioners
 were responsible for non compliance of the order dated

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 16.12.1998, in fact it does not disclose any fact as
 such which can reveal the responsibility of the
 remaining petitioners for non compliance of the order
 dated 16th December, 1998. Merely because the
 Petitioner no.3 is a Director, it cannot be presumed
 that he was incharge of the day to-day affairs of the
 Petitioner Company in relation to the distribution of
 the work at Andheri Office or that he was incharge for
 due compliance of the order passed by the Labour Court
 or the order in question. In the absence of specific
 averments disclosing the facts which could reveal the
 responsibility of Respondent No.3 to comply with the
 said order on behalf of the company and the
 consequential criminal liability, mere submission that
 Respondent no.3 in his capacity as Director was required
 to implement the order would not be sufficient to
 arraign him as an accused in a criminal complaint for
 non compliance of the Order dated 16th December, 1998.

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 7. As regards the Petitioner Nos.4 and 5 are
 concerned the averments in para 3 are mere submissions.
 Neither averments disclose that any of the said
 petitioners was incharge of the management of the office
 at Andheri or in relation to the distribution of the

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 work in the Andheri Office nor it discloses that either

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 of them being responsible in any manner for not giving
 work to the Respondent No.1 or for non payment of the
 allowances or the cost in terms of the order dated 16th
 December, 1998. Mere submissions regarding failure on
 the part of the said Petitioners cannot be sufficient to
 arraign them as the accused in the criminal complaint
 for non compliance of the order. Being so, in the
 absence of actual foundation being led for accusing the
 Petitioners Nos.3 to 5 being responsible for non
 compliance of the Order dated 16th December, 1998 the
 Petitioners are justified in contending that no process
 could have been issued against the said Petitioners.

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 8. The Petition therefore partly succeeds. The
 process issued against the Petitioner Nos.1 and 2 cannot
 be found fault with and therefore as far as challenge to
 the process against the Petitioner Nos.1 and 2 is
 concerned, the same is rejected. However, the process
 issued against the Petitioner Nos. 3 to 5 is hereby
 quashed and complaint against the Petitioner Nos.3 to 5
 stands dismissed. Rule is made absolute in above terms
 with no order as to costs.

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 (R.M.S.Khandeparkar,J.)

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 (P.V.Kakade,J.)

Modi Xerox Limited and Ors. v. Ms. Niloo Makhija

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Modi Xerox Limited and Ors. v. Ms. Niloo Makhija

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