Catholic Syrian Bank Ltd. & Others v. Labour Enforcement Officer (Central) & State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR FRIDAY, THE 26TH DAY OF SEPTEMBER 2014/4TH ASWINA, 1936 Crl.MC.No. 1998 of 2012 () --------------------------AGAINST THE COMPLAINT IN CC 2485/2011 of THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE, THRISSUR) PETITIONERS/ACCUSED 1 TO 3: ----------------------------------- 1. V.P.ISWARDAS, MANAGING DIRECTOR & CEO THE CATHOLIC SYRIAN BANK LTD., HEAD OFFICE, THRISSUR-20. 2. SIJO VARGHESE, SECRETARY, THE CATHOLIC SYRIAN BANK LTD., HEAD OFFICE, THRISSUR-20. 3. JACOB J.ARACKAL, 'ANUGRAHA', D-/24-2, SRI.CHITRA NAGAR, PANGODE THIRUVANANTHAPURAM-6. BY ADVS.SRI.K.ANAND (A.201) SMT.LATHA KRISHNAN RESPONDENTS/COMPLAINANT & STATE: -------------------------------------------- 1. LABOUR ENFORCEMENT OFFICER (CENTRAL) O/O.THE REGIONAL LABOUR COMMISSIONER (CENTRAL) KENDRIYA SHRAMSADAN, KAKKANAD, COCHIN-682030. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. ADDL.3.CATHOLIC SYRIAN BANK STAFF FEDERATION REPRESENTED BY THE GENERAL SECRETARY A.A.JOHNSON, AGED 57 YEARS, S/O.ANTHAPPAN, UDAYA BUILDINGS FLOOR NO.II, COLLEGE ROAD, THRISSUR (ADDL.R3 IS IMPLEADED AS PER ORDER DATED 8.7.14 IN CRL.M.A.NO.4922/12.) ADDL.R-R3 BY ADV. SRI.B.ASHOK SHENOY RADDL.R-R3 BY ADV. SRI.THOMAS P.MAKIL RADDL.R-R3 BY ADV. SMT.LAKSHMI B.SHENOY ADDL.R-R3 BY ADV. SRI.K.V.GEORGE ADDL.R-R3 BY ADV. SMT.C.G.PREETHA R1 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL R2 BY PUBLIC PROSECUTOR SRI.N.SURESH THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26-09-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 1998 of 2012 APPENDIX PETITIONERS' EXHIBITS:- ANNEXURE I : TRUE COPY OF COMPLAINT IN CC.2485/2011 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, THRISSUR. ANNEXURE II : TRUE COPY OF AWARD IN ID.268/06. ANNEXURE III : TRUE COPY OF COUNTER AFFIDAVIT IN WPC.7759/2010 FILED BY THE PETITIONER. RESPONDENTS' EXHIBITS: NIL // TRUE COPY // TKS P.S. TO JUDGE ## **C.T.RAVIKUMAR, J.** -----------------------------Crl.M.C.No.1998 of 2012 ------------------------------Dated 26[th] September, 2014 ## **ORDER** The petitioners who are persons holding respectively the posts of Managing Director & CEO, Secretary and General Manager (Operations) of The Catholic Syrian Bank Ltd. (for short `the Bank') which is a banking company within the definition of Banking Regulation Act filed the captioned Criminal Miscellaneous Case seeking quashment of Annexure-I complaint filed by the first respondent, in C.C.No.2485 of 2011 on the files of the Court of Judicial First Class Magistrate, Thrissur. The factual background that constrained the petitioners to come up with the captioned Crl.M.C. requires a succinct narration. The General Secretary of Catholic Syrian Bank Staff Federation raised a dispute and subsequently a reference was made by Central Government under Section 10(1)(d) of the Industrial Disputes Act 1947 for adjudication to the Central Government Industrial Tribunal-cum-Labour Court, Ernakulam. The reference was as follows:- “Whether the management of M/s.The Catholic Syrian Bank Ltd. is justified in (1) not taking special allowance for the purpose of fitment and (2) in altering the date of increment to the anniversary Crl.M.C.No.1998/2012 2 date of promotion, to the sub-staff on promotion to the clerical cadre? If not, to what relief the workmen are entitled to?” The reference culminated in Annexure-II award as per which the Central Government Industrial Tribunal-cum-Labour Court (for short `the Tribunal') found that the management was not justified in not strictly following Ext.W8 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 which attract special allowance for the purpose of fitment in the promoted post. However, the date of increment in the promoted post is the date of joining duty in the promoted post and not the date of original entry into service. The fact that the said award passed by the Tribunal has attained finality is not disputed before me. Subsequently, Catholic Syrian Bank Staff Federation took up the matter before the Assistant Labour Commissioner regarding the failure on the part of the said management in complying with Annexure-II award. Subsequently, the said Federation approached this Court by filing W.P.(C)No.7759 of 2010 seeking prosecution against the management of the Bank. It was in the meanwhile that the first respondent preferred Annexure-I complaint against the petitioners alleging non-implementation of Annexure-II Crl.M.C.No.1998/2012 3 award and thereby commission of an offence punishable under Section 29 read with Section 32 of the Industrial Disputes Act, 1947 (for short `the Act'). Essentially, the contention is that Annexure-I complaint does not make out a case against the petitioners and the allegations thereunder would not satisfy the ingredients of the offence under Section 29 of the Act. It is also stated that the management have fully implemented Annexure-II award and Annexure-I did not speak about the details as to how and why such allegation of non-implementation of Annexure-II award could be attributed on the petitioners. It is also stated that they are in total darkness regarding the part of the award which is yet to be implemented. It is the further contention that if at all there is any non-implementation the parties have to take recourse to the remedy to execute an award as provided under Section 33(c)(2) of the Act. It is also stated that Catholic Syrian Bank Staff Federation or none of its members came forward with an allegation of non-implementation of Annexure-II award against the management of the Bank. In short, the contention is that the Catholic Syrian Bank Staff Federation which is not a party to Annexure-II award got no _locus standi_ to raise any grievance relating non-implementation of the award. It is further stated that W.P.(C)No.7759 of 2010 filed by the said Federation seeking a direction to the Regional Labour Commissioner to take steps to initiate Crl.M.C.No.1998/2012 4 prosecution against the petitioners is pending. I may hasten to add that the learned counsel for the third respondent submitted that the said writ petition was subsequently dismissed as infructuous taking note of the fact that prosecution proceedings for non-implementation of Annexure-II award have already been initiated against the third respondent therein, the Catholic Syrian Bank Ltd. and that is the subject matter of the captioned Crl.M.C. In this case, the question to be decided is whether the petitioners have brought out a case to persuade this Court to invoke the inherent power under Section 482 Cr.P.C. to quash Annexure-I complaint in C.C.No.2485 of 2011 and all further proceedings based thereon pending before the Court of Judicial First Class Magistrate, Thrissur. 2. I have heard the learned counsel for the petitioners, the learned Assistant Solicitor General, the learned Public Prosecutor and also the learned counsel appearing for the third respondent. 3. I have already adverted to the contentions raised by the petitioners to mount challenge against the proceedings initiated based on Annexure-I and against its continuation. As noticed hereinbefore, the core contention of the petitioners is that Annexure-I complaint does not Crl.M.C.No.1998/2012 5 make out a case of commission of offence under Section 29 of the Act against the petitioners. Per contra, the learned Assistant Solicitor General, the learned Public Prosecutor as also the learned counsel appearing for the third respondent contended that in case of nonimplementation of an award a prosecution in terms of the provisions under Section 29 of the Act would lie and essentially, the question whether the concerned person committed a breach of any terms of the settlement of award is a matter for the trial court to adjudicate upon and therefore, such a question cannot be gone into in this proceedings. This contention was virtually taken up by them taking into account the precise case of the petitioners that the management of the Bank have fully complied with Annexure-II. 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. In fact, that is the first point to be considered in the trial. I have already taken note of the fact Crl.M.C.No.1998/2012 6 that the position that Annexure-II award attained finality is not at all disputed by any of the parties. A perusal of Annexure-II award would reveal that the Tribunal passed an award and when it attained finality the management of the Bank are bound to take steps for implementing the terms of the award thereunder. In other words, going by the award, those subordinate staff who obtained promotion to the further posts and are eligible for the benefit of Ext.W8 circular No.221/83, are to be disbursed with the benefits flowing from the award. True that the petitioners have taken up a contention that Catholic Syrian Bank Staff Federation, the union which is a party to Annexure-II award, or any of its members had at no point of time raised allegation of non-implementation of the award against the management of the Bank. A scanning of Annexure-II award would reveal that the Tribunal did not state that the fruits of the award could be granted only to any particular workman or members of any particular union. The learned counsel appearing for the third respondent brought to my attention that in paragraph 5 of the award the Tribunal observed that the reference contains a general dispute applicable to the employees of the Catholic Syrian Bank as well. That apart, the specific finding in paragraph 10 entered by the Tribunal was also brought to my notice and the same reads thus:- Crl.M.C.No.1998/2012 7 “Counting of special allowance if adopted by the bank it has to be applied uniformly to all persons who are working in the subordinate cadre and discharging duties ” of a permanent nature which attract special allowance. (emphasis added) Bearing in mind the said observation and the finding referred above the operative portion of the award has to be looked into. There is no room for any doubt with respect to the fact that the award was passed with a clear intention to make it applicable to all persons who are working in the subordinate cadre and discharging duties of a permanent nature which would attract the special allowance and who are entitled to the benefit of W8 circular referred as such in that proceedings upon satisfaction of the conditions in W8 circular. In the said circumstances, I am of the considered view that merely because the reference was made at the instance of some other union shall not be a ground for holding that the third respondent which also represents some members in subordinate staff of the Bank and entitled to get the benefit of W8 circular, is not having _locus standi_ to take up the grievance relating non-implementation of Annexure-II award. In other words, the said question could be raised by any union representing any of the beneficiaries of W8 circular working in the Bank or by the concerned beneficiary of Annexure-II award or any particular individual beneficiary. Admittedly, C.C.No.2485 of 2011 is to Crl.M.C.No.1998/2012 8 be tried as a summons case and in the said circumstances it has to be tried in accordance with the provisions under Chapter XX of the Code of Criminal Procedure. A perusal of Section 29 of the Act would undoubtedly reveal that the trial court is bound to consider the question whether the allegations in Annexure-I complaint raised against the petitioners would constitute an offence for the purpose of Section 29 of the Act in the light of the provisions under Section 251 Cr.P.C. I am fortified in my view by a decision of this Court in **Kamala Rajaram** v. **State of Kerala (2005 (3) KLT 617).** The relevant portion of paragraph 6 of the said decision reads thus:- “It is a summons case. Procedure prescribed under Chapter XX has to be followed. There is no question of framing any charge at the stage of S.251 Cr.P.C. There is only the requirement of reading over the particulars of offence to the indictee. A formal framing of charge is not required; but certainly the particulars of offence of which he is accused must be stated to the accused and his plea has to be recorded. Notwithstanding the fact that the formal requirement of framing of a charge is not there, the section pre-supposes that the learned Magistrate must consider whether such allegations are raised which amount to an offence. If no offence is made out, then there is no particulars of offence which ave to be read over to the accused and therefore proceeding cannot proceed beyond S.251 Cr.P.C. This appears to be implied from a reading of S.251 Cr.P.C. which I extract below:- ## “ **Substance of accusation to be stated** : Crl.M.C.No.1998/2012 9 When in a summons case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make, but it shall not be necessary to frame a formal charge.” 4. In the said circumstances, it is evident that though in a case which is to be tried after following the procedures prescribed under Chapter XX a formal framing of the charge is not required, it is mandatory to read out the particulars of the offence to the indictee. It also makes it mandatory to record the plea of the accused after reading out the particulars of the offence. The said procedures to be followed in a summons case by virtue of Chapter XX of the Code, more particularly Section 251, pre-supposes that the learned Magistrate has to consider whether such allegations raised would amount to an offence alleged against the concerned accused. If those allegations do not make out an offence then there would not be any particulars of any offence to be read over to the accused and if that be the position the proceedings could not be continued beyond the stage of Section 251, Cr.P.C. 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 Crl.M.C.No.1998/2012 10 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. If it could be established that by virtue of compliance with all the terms of Annexure-II award nothing remains to be implemented then it is a case where the court should enter into a finding after consideration of the allegations as to whether there is breach of any terms of award so as to compel the accused persons to face the trial. In other words, if the materials produced before the court are insufficient to attract an offence under Section 29 of the Act then it is a case where no offence under Section 29 is made out and in such event there would not be any particulars of the offence which is to be read over to the accused. If that be the case, there would not be any reason to proceed beyond the stage of Section 251, Cr.P.C. The sum and substance of the above discussion is to the effect that such contentions are to be taken up by the parties before the trial court and if the trial court on perusal of the allegations and materials finds that such allegations are made out in the complaint to attract an offence under Section 29 of the Act and the particulars of the offence could be read over to the accused based on such allegations and materials then and then only the court should proceed beyond the stage of Section 251, Cr.P.C. The learned counsel appearing for the Crl.M.C.No.1998/2012 11 petitioners vehemently argued that this is a case wherein the allegations and materials in Annexure I complaint do not make out an offence under Section 29 of the Act. I am of the view that in view of the nature of the terms of Annexure II award a factual finding to unearth the position is necessary to consider the question whether it is fully implemented or not. At the same time, what should be the action which could be taken for implementation of the award is very clear from the award itself. In other words, to comply with the terms of the award the benefits of special allowance to all persons who are entitled to get the benefit of W8 circular, referred as such in Annexure II, have to be disbursed to all persons working under the Bank who are entitled to the same. For the foregoing reasons I do not find any reason to abruptly terminate the proceedings in C.C.No.2485 of 2011 on the files of the Court of Judicial First Class Magistrate, Thrissur at this stage. This petition is, accordingly, liable to fail and therefore, it is dismissed. Sd/C.T.RAVIKUMAR Judge TKS