Dismissed

V.P.Iswardas v. the Labour Enforcement Office (Central)

Kerala HC4 Nov 2019Crl.MC/1206/2018

Case brief

AI extract

What is this about?

The High Court dismissed a second petition under Section 482 Cr.P.C. seeking quashing of proceedings. The court held that the petitioners raised the same contentions in an earlier dismissed petition and that the new evidence did not constitute a change in circumstances. The court ruled that exercising power to reconsider the same materials without changed circumstances is an impermissible review b

What did the court decide?

The petition for quashing the complaint and subsequent proceedings is dismissed as an abuse of the process of the court.

V.P.Iswardas Vs the Labour Enforcement Office… — Civil Procedure and Limitation | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

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MONDAY, THE 04TH DAY OF NOVEMBER 2019 / 13TH KARTHIKA, 1941

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Crl.MC.No.1206 OF 2018

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AGAINST THE ORDER IN CC NO.2485/2011 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,THRISSUR

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PETITIONERS/ACCUSED NOS.1 TO 3:

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1 V.P.ISWARDAS MANAGING DIRECTOR & CEO,THE CATHOLIC SYRIAN BANK LTD.,HEAD OFFICE, THRISSUR-20.

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2 SIJO VARGHESE SECRETARY, THE CATHOLIC SYRIAN BANK LTD.,HEAD OFFICE, THRISSUR-20.

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3 JACOB J. ARACKAL 'ANUGRAHA', D/24-2, SRI. CHITRA NAGAR, PANGODE, THIRUVANANTHAPURAM-06.

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BY ADVS. SRI.P.VIJAYA BHANU (SR.) SRI.AJEESH K.SASI SRI.C.JAYAKIRAN SMT.MITHA SUDHINDRAN SMT.POOJA PANKAJ SRI.P.M.RAFIQ SRI.M.REVIKRISHNAN SRI.V.C.SARATH SRI.VIPIN NARAYAN

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RESPONDENTS/COMPLAINANT & STATE:

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1 THE LABOUR ENFORCEMENT OFFICE (CENTRAL) OFFICE OF THE REGIONAL LABOUR, COMMISSIONER (CENTRAL),KENDRIYA SHRAMSADAN, KAKKANAD, COCHIN686030.

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2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.

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ADDL.R3 IMPLEADED

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ADDL. CATHOLIC SYRIAN BANK STAFF FEDERATION R3 REPRESENTED BY THE GENERAL SECRETARY JERIN K JOHN,AGED 35 YEARS, SON OF K P JOHNSON,UDAYA

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BUILDINGS FLOOR NO II,COLLEGE ROAD,THRISSUR

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IS IMPLEADED AS ADDL.R3 AS PER ORDER DATED 09.04.2018 IN CRL.M.A NO.3445/2018 IN CRL.M.C 1206/2018

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R1 BY SRI.SUVIN R.MENON, CGC R1 BY SRI.N.NAGARESH ASSISTANT SOLICITOR GENERAL R3 BY ADV. SRI.B.ASHOK SHENOY R3 BY ADV. SRI.K.V.GEORGE

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R3 BY ADV. SRI.P.N.RAJAGOPALAN NAIR R3 BY ADV. SRI.P.S.GIREESH R3 BY ADV. SRI.RIYAL DEVASSY R2 BY SMT M K PUSHPALATHA-PP

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26.10.2019, THE COURT ON 04.11.2019 PASSED THE FOLLOWING:

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Crl.MC.No.1206 OF 2018

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R.NARAYANA PISHARADI, J

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************************ Crl.M.C.No.1206 of 2018

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Dated this the 4^th day of November, 2019

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O R D E R

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This is a petition filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') for quashing Annexure-A complaint and all further proceedings pursuant thereto in the case C.C.No.2485/2011 on the file of the Court of the Judicial First Class Magistrate-I, Thrissur.

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The petitioners are accused 1 to 3 in the aforesaid case. The offence alleged against them is under Section 29 read with 32 of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act').

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The case against the petitioners is based on Annexure-A complaint filed by the Labour Enforcement Officer. The facts of the case are stated in the complaint as follows:

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"The Central Government Industrial Tribunal vide its Award dated 6.7.2007 in ID case No.268/2006 held that "the management of the Catholic Syrian Bank is not justified in not strictly following bank's circular No.221/83 and not taking into account special allowance of those subordinate staff who are discharging duties of a permanent nature, which is attached to their post and

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which attract special allowance for the purpose of fitment in the promoted post." The employer was asked vide notice No.17(1)/2008-D2 dated 04.05.2010 to implement the Award in respect of these employees failing which to show cause as to why legal action should not be initiated against them. The management of Catholic Syrian Bank submitted its reply vide letters dt.23.9.2009 and 18.5.2010 which was not satisfactory. Besides, the Catholic Syrian Bank Staff Federation vide its letter dt.20.08.2009 informed the Regional Labour Commissioner (C) Cochin that the bank management failed to implement the said award and requested him to take legal action against the bank management as per Sec.29 of the Industrial Disputes Act, 1947. Thus the employer failed to implement the award which is punishable under Sec.29 of the Industrial Disputes Act, 1947. Hence the complaint."

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On the basis of the aforesaid complaint, the court below has taken cognizance of the offence punishable under Section 29 read with 32 of the Act against the petitioners.

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The petitioners have prayed for quashing Annexure-A complaint and the proceedings against them on the ground that the complaint does not contain necessary facts to attract the offence punishable under Section 29 read with 32 of the Act and also that they had complied with the award of the Industrial Tribunal.

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Heard the learned counsel for the petitioners and the

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Crl.MC.No.1206 OF 2018

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additional third respondent and also the learned Public Prosecutor.

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The petitioners had earlier filed a petition as

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Crl.M.C.No.1998/2012 under Section 482 of the Code for the same relief. As per the order dated 26.09.2014, this Court dismissed Crl.M.C.No.1998/2012. The aforesaid order of this Court was challenged before the Hon'ble Supreme Court in S.L.P.(Crl) No.8954/2015 but the special leave petition was dismissed by the Hon'ble Supreme Court in limine.

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The contentions now raised by the petitioners for quashing the complaint against them had been raised by them in Crl.M.C.No.1998/2012. This Court had considered those contentions

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in the order in Crl.M.C.No.1998/2012. This Court had stated as follows:

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“A perusal of Annexure-I complaint would reveal that to make out the case that the management of the Bank in which the petitioners are persons holding posts concerned with its management have committed the offence under Section 29 of the Act necessary documents were also annexed. In such circumstances and on a perusal of the provisions under Section 29 of the Act I am of the considered view that the question whether a person has committed breach of any of the terms of a settlement or award binding on him is a matter for the trial court to adjudicate upon.”

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It was also observed by this Court as follows:

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Crl.MC.No.1206 OF 2018

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“Section 29 of the Act makes it clear that in order to attract the offence under Section 29 of the Act the court should consider whether a person who is bound by the award concerned could be said to have prima facie committed breach of any terms of the award. Therefore, essentially, the question whether all the directions or terms of Annexure-II award were already complied with or any part of the award remains to be complied with or to be implemented, could be taken up and brought to the notice of the learned Magistrate.”

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Inspite of the aforesaid clear findings made by this Court,

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the petitioners have approached this Court with a second petition for the same relief, without any change in the circumstances of the case. Now, what the petitioners plead is that one M.A.Rappai had filed application under Section 33(2)(c) of the Act to recover amount from the bank on the basis of the award but it was held in that case that a person like him is not entitled to get the benefit of the award. Annexure-E order passed by the Industrial Tribunal in this regard is produced to contend that there is a change in the circumstance.

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On the basis of Annexure-E order, it cannot be found that there is a change in the circumstances. In the first place, Annexure-E order dated 23.05.2012 was in existence on the date of passing of the order by this Court in Crl.M.C.No.1998/2012. In the second place, whether the bank had complied with the award or not is a matter to

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be decided by the trial court and it cannot be decided by this Court on the basis of Annexure-E order passed in the case of a particular individual.

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True, successive applications under Section 482 of the Code are maintainable on change of circumstances (See Anil Khadkiwala

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v. State : AIR 2019 SC 3583).

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But, here the attempt of the petitioners is to get the earlier order of this Court in Crl.M.C.No.1998/2012 reviewed by filing this petition, that too, without any change in the circumstances. In this connection, the dictum laid down by the Supreme Court in Symrikhia

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v. Dolley Mukherjee : AIR 1990 SC 1605 may be noticed. The Apex Court has held as follows:

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“The learned counsel for the appellant contended before us that the second application under Section 482 Cr.P.C was not entertainable, the exercise of power under Section 482, on a second application by the same party on the same ground virtually amounts to the review of the earlier order and is contrary to the spirit of Section 362 of the Crl.P.C and the High Court was, therefore, clearly in error in having quashed the proceedings by adopting that course. We find considerable force in the contention of the learned counsel. The inherent power under Section 482 is intended to prevent the abuse of the process of the court and to secure ends of justice. Such power cannot

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be exercised to do something which is expressly barred under the Code. If any consideration of the facts by way of review is not permissible under the Code and is expressly barred, it is not for the Court to exercise its inherent power to reconsider the matter and record a conflicting decision. If there had been change in the circumstances of the case, it would be in order for the High Court to exercise its inherent powers in the prevailing circumstances and pass appropriate orders to secure the ends of justice or to prevent the abuse of the process of the Court. Where there is no such changed circumstances and the decision has to be arrived at on the facts that existed as on the date of the earlier order, the exercise of the power to reconsider the same materials to arrive at different conclusion is in effect a review, which is expressly barred under Section 362.”

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The Supreme Court proceeded to hold as follows:

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“The inherent jurisdiction of the High Court cannot be invoked to override bar of review under Section 362. It is clearly stated in Sooraj Devi v.Pyare Lal, (1981) 1 SCC 500 : (AIR 1981 SC 736) that the inherent power of the court cannot be exercised for doing that which is specifically prohibited by the Code. The law is therefore clear that the inherent power cannot be exercised for doing that which cannot be done on account of the bar under other provisions of the Code. The court is not empowered to review its own decision under the purported exercise of inherent power. We find that the impugned order in this case is in effect one reviewing the earlier order on a reconsideration of the same

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materials. The High Court has grievously erred in doing so.”

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In the aforesaid circumstances, the prayer in the petition cannot be allowed. The present petition filed, without any change in the circumstances since the dismissal of the earlier petition, is a clear abuse of process of the court.

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Consequently, the petition is dismissed.

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Sd/- R.NARAYANA PISHARADI, JUDGE

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jsr/01/11/2019

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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ANNEXURE A	TRUE COPY OF THE 1ST RESPONDENT HE THE JUDICIAL MAGI I, THRISSUR.	COMPLAINT PREFERRED BY THE REIN BEFORE THE COURT OF STRATE OF THE FIRST CLASS-
ANNEXURE B	TRUE COPY OF THE	AWARD IN I.D. 268 OF 2006.
ANNEXURE C	TRUE COPY OF THE CRIMINAL M.C. NO. THIS HONOURABLE C	ORDER DATED 26.09.2014 IN 1998 OF 2012 PASSED BY OURT.
ANNEXURE D	TRUE COPY OF THE S.L.P. (CRIMINAL) BY THE HONOURABLE	ORDER DATED 06.11.2015 IN NO. 8954 OF 2015 PASSED SUPREME COURT OF INDIA.
ANNEXURE E	TRUE COPY OF THE C.P.NO. 1 OF 2009 GOVERNMENT INDUST COURT, ERNAKULAM.	ORDER DATED 23.05.2012 IN PASSED BY THE CENTRAL RIAL TRIBUNAL-CUM-LABOUR
ANNEXURE F	TRUE COPY OF THE IN O.P. NO. 15934 HONOURABLE COURT.	JUDGMENT DATED 05.01.2007 OF 1997 PASSED BY THIS

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RESPONDENTS EXHIBITS: NIL

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TRUE COPY

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P.A TO JUDGE

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LSN

V.P.Iswardas v. the Labour Enforcement Office (Central)

Case brief

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V.P.Iswardas v. the Labour Enforcement Office (Central)

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