TaxTMI 
TaxTMI 
2006 (12) TMI 226
X X X X Extracts X X X X
X X X X Extracts X X X X
....ters allotted to them by the complainant-company during their employment. As the fact and law points are common in all these appeals, the counsels' request for hearing them together and disposing them by this common judgment was accepted. 2. All the appeals were admitted by this Hon'ble Court (Coram : H.B. Antani, J.) vide order dated 3-3-2006 and the same were expedited. 3. Facts leading to filing of the present appeals in brief deserve to be set out as under. 4. The original complainant "Indian Rayon and Industries Ltd. (hereinafter referred to as 'the company' for short) is a registered company under the Act and it has its registered office at Veraval. The complainant had allotted staff quarters to the respective respondents for residential purpose during their employment with the complainant company. The complainant-company terminated the services of respondents with effect from 7-10-2002. On termination of their service, the respondents" ex-employees were required to hand over peaceful and vacant possession of their respective staff quarters owned by the complainant-company and allotted to them as residential accommodation during their employment with the company. The....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ginal complainant-company has preferred these appeals under section 378 of the Code. 5. The facts, which are relevant for examining this appeals deserve to be set out in tabular form as under : Sr. Name of Criminal Criminal Criminal Date of Status of No. Respondent Appeal No. Appeal Case filing of respondent (High No. No. com- in SCA No. Court) (Sessions plaint of Court) 1. J.J. Mulia 379/2006 11/2004 347/03 11-02-2003 Petitioner No. 27 2. J.V. Bapodara 380/2006 17/2004 787/02 15-5-2002 Not a party 3. Pankaj J. 381/2006 6/2004 292/03 5-5-2003 Petitioner Dhandhusariya No. 16 4. M. P. Sonaria 382/2006 3/2004 288/03 5-2-2003 Petitioner No. 23 5. H. H. Thakar 383/2006 4/2004 289/03 5-2-2003 Petitioner No. 09....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of the Act is enacted for the purpose of preventing an employee and ex-employee of the company from wrongfully withholding company's property. Tenor of the judgment of the Sessions Court indicates that the Sessions Court has travelled beyond its jurisdiction and considered the legality and validity of the termination and, therefore, the orders impugned in these present, appeals being perverse, the same deserve to be quashed and set aside. Shri Naik has submitted that the pendency of the labour dispute before the Labour Court, in itself cannot be ground for quashing the order of conviction as it is done by the Sessions Court in its order under challenge in these appeals. Shri Naik has relied upon the decision of the Apex Court in case of Shubh Shanti Services Ltd.v. Manjula S. Agarwalla [2005] 5 SCC 30^1 and submitted that the pendency of the other proceedings including civil proceedings cannot be valid ground for setting aside conviction nor can the same be ground for withholding company's property when the relationship of employer and employee has been severed. The severing of relationship and its legality cannot be the subject-matter of criminal Court's jurisdiction. The proceed....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hwa and Shri Lakhani, learned counsel appearing for the respondents original accused have vehemently opposed the present acquittal appeals. It is contended on behalf of the respondents that these being acquittal appeals under section 378 of the Code, the Court has a very limited scope for interfering with the order of acquittal, unless and until it is aptly demonstrated by the appellant that sustaining the acquittal would result into miscarriage of justice, the order of acquittal need not be interfered with. The counsel for the respondents have submitted that essential ingredients for bringing home guilt on the part of the accused for commission of offence under section 630 of the Act is wrongful withholding, or wrongfully obtaining or knowingly making misapplication of the property. Thus, the trial court before convicting the accused has to come to a conclusion on the fact and circumstances on record the concerned employees who are accused of wrongful withholding of company's property, have in fact, withheld the property wrongfully. While examining the aspect of wrongfully withheld property, the court is duty bound to take into consideration the attending circumstances and, theref....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rmitted to nullify the reference by terminating the services of the workmen without obtaining permission of the concerned body before whom the dispute about wage revision is pending. It is in order to save the workman from this kind of retaliation that the Legislature has enacted section 33(1) of the Act providing that during pendency of any conciliation proceedings before a Conciliation Officer or a Board of any proceeding before an arbitrary or a Labour or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned, in such dispute, the conditions of service applicable to them immediately before the commencement and such proceedings or for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workman concerned with such dispute save with the express permission in writing of the authority before which the proceeding is pending. The above provisions cannot be applied in the case like the present one where there was no pending industrial dispute when the employee was dismissed from service. Upon such dismiss....
X X X X Extracts X X X X
X X X X Extracts X X X X
....under section 33(2)(b) of the I.D. Act, 1947 and order passed by the Labour Court, Junagadh in Reference Case Nos. 14/2003 to 27/2003 and 30/2003 to 40/2003, wherein the Court has stayed the proceedings of reference vide order dated 17-11-2005. Shri Pahwa has candidly admitted before this Court that none of these documents form part of the record and proceedings either of the trial court or of the appellate court and for the first time, these documents have been relied upon by the respondents in support of the decision of acquittal. Shri Pahwa has also fairly admitted before this Court that on account of approval application, the Labour Court has stayed the very references vide its order dated 17-11 -2005 and this order of staying the reference has not been challenged by the respondents-workmen. Shri Pahwa has submitted that due to such anomalous situation, the workmen could not have obtained the stay and/or prohibitory orders permitting them to retain the quarters in question. 12. It is submitted on behalf of the respondents-accused that the proceedings in the Labour Court are pending and, therefore, the termination being per se illegal, the withholding of quarter cannot be sai....
X X X X Extracts X X X X
X X X X Extracts X X X X
....question cannot be said to be wrongfully withheld by the accused-present respondents. 13. Shri Pahwa and Shri Lakhani, learned counsel appearing for the respondents has also placed reliance upon the decision of this Court in case of Ronson Industrial Engineers (P.) Ltd. v. State of Gujarat 2002 (1) GCD 616 and submitted that this Court did not interfere with the order of acquittal passed by the learned Magistrate when the arbitrary termination of service was under challenge before the Labour Court by way of reference. Shri Pahwa has submitted that in the instance case also, the termination of the service being arbitrary, the same is challenged by way of Reference and during the pendency of the Reference, it was not open to the employer to ask the employees to vacate the quarters and, therefore, the order passed by the learned Sessions Judge setting aside the conviction is absolutely just, proper and does not call for any interference. Shri Pahwa has also relied upon the provisions of section 33 of the Industrial Disputes Act, 1947 (hereinafter referred to as the 'I.D. Act' for short) and submitted that the termination in this case cannot be said to have taken effect for want of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... under :- "2. The licensee at whilst in the employment of the company at Veraval and for the sole purpose of the licensee being more conveniently situated in such employment is hereby permitted by the company to occupy as a licensee during the term of his employment in the company at Veraval the aforesaid accommodation or such other accommodation as may be given to the licensee at the company's discretion. 5. The occupation of the aforesaid premises by the licensee is a condition of his continuing employment with the company at Veraval and such occupation shall forthwith cease upon his employment being terminated by the company or his death, or on his leaving such employment or when the company decides to discontinue his license. Notice given by the company to the licensee termination of employment shall be deemed to be sufficient notice of revocation of this license. In case employee leaving the employment of the company or his death, no notice of revocation of license would be necessary. In other case a week's notice of termination of license shall be considered adequate, sufficient and legal. 7. This license for accommodation hereby given shall not or shall not be deeme....
X X X X Extracts X X X X
X X X X Extracts X X X X
....to undergo 6 months imprisonment. 17. The decision of this Court in case of Yogeshkumar Kantilal Shah (supra) is of no avail to the present respondents. It deserves to be noted that in the aforesaid case, this Court has noted in para 7 of the judgment that since the Reference was delayed, the petitioner was required to approach the High Court by filing Special Civil Application No. 2615 of 1986. The petitioner also prayed for interim relief against the eviction from the flat in question. The petitioner's request for protecting his possession was declined by the Labour Court and, therefore, his prayer was rejected. Therefore, the petitioner had filed Special Civil Application No. 5749 of 1986, which was placed before this Court and the counsel appearing for the company-respondent assures the Court that status quo would be maintained pending admission and that is how the possession of the flat in question was protected and ultimately, it was noticed by the Court that the possession of the flat was handed over to the company. In view of these facts, the revision application was allowed and the conviction and sentence was set aside. In the instant case, it is even noticed by the app....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ragraph, wherein these lines are mentioned, would show unequivocally that Shri Pahwa's reading is incorrect. It is expedient therefore to set out at the cost of repetition para 9 of the said judgment as under : ". . .the petitioner's continued retention of the quarters could not be said to be wrongful in view of the provisions of section 33(1) of the I.D. Act, we find that the argument is misconceived. The said provisions intend to prohibit the employer from altering the conditions of service of workmen who have already raised an industrial dispute with respect to some other conditions of their service in existence. If workmen of a unit have raised an industrial dispute about wage revision, the employer cannot be permitted to nullify the reference by terminating the services of the workmen without obtaining permission of the concerned body before whom the dispute about wage revision is pending. It is in the order to save the workman from this kind of retaliation that the Legislature has enacted section 33(1) of the Act providing that during pendency of any conciliation proceedings before a condition officer or a Board of any proceeding before an arbitrator or a Labour Court or T....
X X X X Extracts X X X X
X X X X Extracts X X X X
....his, it deserves to be noted that the prosecution and defense have not led any evidence whatsoever in respect of tendency of the proceedings before the Labour Court. However, for the first time in the present proceedings, Shri Pahwa has invited this Court's attention to the application for approval and submitted that as the approval itself was required to be obtained, the termination of the employee-present respondents cannot be said to have taken effect so as to enable the company ordering eviction and/or invoking section 630 of the Companies Act. The provisions of section 33(2) enables the employer to discharge and/or terminate the services of the employee and the only condition precedent is to pay one month wages and apply to the authority for approval but pending approval, it has not envisaged any relationship of employer or employee to subsist. From the date of termination, the wages and other facilities are coming to an end and in case, approval is not granted then only the employee is required to be reinstated, all the benefits should be available to him. Section 33(1) and section 33(2) are couched in altogether different language and, therefore, Shri Pahwa's submission in t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tatives of the employee or the officer concerned continuing in occupation of the property of the company after the death of the employee or the officer." (p. 740) 22. It deserves to be noted that the Apex Court has also referred this very paragraph in case of Shubh Shanti Services Ltd. (supra). Thus, the respondents, i.e., original accused cannot profitably relying upon the cardinal principles of criminal jurisprudence and submit that though they have not led any evidence in support of their case, their attempt to raise doubt in the case of prosecution should have been sufficient for their acquittal. This being misconceived the same deserves to be rejected. 23. The perusal of the decision of the appellate Court impugned in this appeals, indicate that it was contended that pendency of service proceedings in itself cannot be considered to be bar against the company's right to resume possession and ask the respondents to vacate the quarters given during tenure of their employment. This contention appears to have been negatived by the learned Sessions Judge on the ground that pendency of proceedings against the arbitrary order of termination cannot be brushed aside and it was a r....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... was ordered to be maintained till 21-1-2003. As it is shown in the tabular form, the present employee at Sr. Nos. 2 and 14 were not party to that petition and, therefore, in their respect, the complaint had been filed on 15-5-2002 and 31-12-2002 respectively, whereas, in case of other accused, the complaint came to have been filed only in the month of February, 2002, i.e., after the expiry of stay. Shri Pahwa has submitted that thereafter no prohibitory order enabling the respondent to retain the quarters have been granted by any Court. 25. The decision in case of Ronson Industrial Engineers (P.) Ltd. (supra ) would also be not in any way helpful to the respondents as it is clearly mentioned by this Court in para 6 of that judgment that employee in question was ordered to be reinstated and against this backdrop in the acquittal appeal, this Court had declined to interfere with the order of acquittal, which was passed by the learned JMFC. 26. In fact the decision in case of Pravinbhai Ganeshbhai Chaudhary (supra) would help the case of the complainant-company. The relevant paragraphs read as under : "12. In the facts of the instant case also, it is apparent that after the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the deceased-employee to sale that flat, which was in Blue Heaven Society. The Civil Suit No. 7 of 1995 was filed by the heirs of the deceased-employee, i.e., wife and daughter against the appellant-company on 23-12-1994 for specific performance of the contract, wherein, interim relief in terms of statement that plaintiff would not be disturbed without resorting to due process of law, had been granted, yet, the Apex Court observed that the pendency of civil suit would not deprive the company in absence of any prohibitory order from enforcing its right to institute proceedings under section 630 of the Companies Act and, therefore, this decision would rather help the case of the appellant. 28. The decision of the Apex Court in case of Maratt Rubber Ltd. v. J.K. Marattukalam [2000] 9 SCC 547^1 also would be applicable to the case of the present complainant that the pendency of civil proceedings would not come in way of invoking section 630 of the Act. The civil proceedings or labour proceedings would, therefore, not come in the way of invoking section 630 of the Act. 29. The lower appellate Court has misdirected itself in appreciating the facts before it. The Appellate Court's ....