IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI MONDAY, THE 04TH DAY OF NOVEMBER 2019 / 13TH KARTHIKA, 1941 [CASE NUMBER] AGAINST THE ORDER IN CC NO.2485/2011 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,THRISSUR PETITIONERS/ACCUSED NOS.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-06. 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 RESPONDENTS/COMPLAINANT & STATE: 1 THE LABOUR ENFORCEMENT OFFICE (CENTRAL) OFFICE OF THE REGIONAL LABOUR, COMMISSIONER (CENTRAL),KENDRIYA SHRAMSADAN, KAKKANAD, COCHIN- 686030. 2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. ADDL.R3 IMPLEADED ADDL. CATHOLIC SYRIAN BANK STAFF FEDERATION R3 REPRESENTED BY THE GENERAL SECRETARY JERIN K JOHN,AGED 35 YEARS, SON OF K P JOHNSON,UDAYA [CASE NUMBER] 2 BUILDINGS FLOOR NO II,COLLEGE ROAD,THRISSUR 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 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 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 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26.10.2019, THE COURT ON 04.11.2019 PASSED THE FOLLOWING: [CASE NUMBER] 3 [ENTITY], J [CASE NUMBER] Dated this the 4th day of November, 2019 ORDER
This is a petition filed under [SECTION] of the [ACT] (hereinafter referred to as 'the Code') for quashing Annexure-A complaint and all further proceedings pursuant thereto in the case [CASE NUMBER] on the file of the Court of the Judicial First Class Magistrate-I, Thrissur.
2. The petitioners are accused 1 to 3 in the aforesaid case. The offence alleged against them is under [SECTION] of the [ACT] (hereinafter referred to as 'the Act').
3. 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:
"The Central Government Industrial Tribunal vide its Award dated 6.7.2007 in [CASE NUMBER] 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 [CASE NUMBER] 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 [SECTION] of the [ACT]. Thus the employer failed to implement the award which is punishable under [SECTION] of the [ACT]. Hence the complaint."
On the basis of the aforesaid complaint, the court below has taken cognizance of the offence punishable under [SECTION] of the Act against the petitioners.
4. 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] of the Act and also that they had complied with the award of the Industrial Tribunal.
5. Heard the learned counsel for the petitioners and the [CASE NUMBER] additional third respondent and also the learned Public Prosecutor.
6. The petitioners had earlier filed a petition as [CASE NUMBER] under [SECTION] of the Code for the same relief. As per the order dated 26.09.2014, this Court dismissed [CASE NUMBER]. The aforesaid order of this Court was challenged before the Hon'ble Supreme Court in [CASE NUMBER] but the special leave petition was dismissed by the Hon'ble Supreme Court in limine.
7. The contentions now raised by the petitioners for quashing the complaint against them had been raised by them in [CASE NUMBER]. This Court had considered those contentions in the order in [CASE NUMBER]. This Court had stated as follows:
"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] of the Act necessary documents were also annexed. In such circumstances and on a perusal of the provisions under [SECTION] 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."
It was also observed by this Court as follows:
[CASE NUMBER] "[SECTION] of the Act makes it clear that in order to attract the offence under [SECTION] 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."
8. Inspite of the aforesaid clear findings made by this Court, 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 [ENTITY] had filed application under [SECTION] 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.
9. 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 [CASE NUMBER]. In the second place, whether the bank had complied with the award or not is a matter to [CASE NUMBER] 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.
10. True, successive applications under [SECTION] of the Code are maintainable on change of circumstances (See [PRECEDENT]).
11. But, here the attempt of the petitioners is to get the earlier order of this Court in [CASE NUMBER] 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 [PRECEDENT] may be noticed. The Apex Court has held as follows:
"The learned counsel for the appellant contended before us that the second application under [SECTION] [ACT] was not entertainable, the exercise of power under [SECTION], 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] of the [ACT] 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] is intended to prevent the abuse of the process of the court and to secure ends of justice. Such power cannot [CASE NUMBER] 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]."
The Supreme Court proceeded to hold as follows:
"The inherent jurisdiction of the High Court cannot be invoked to override bar of review under [SECTION]. It is clearly stated in [PRECEDENT] 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 [CASE NUMBER] materials. The High Court has grievously erred in doing so."
12. 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.
Consequently, the petition is dismissed.
[ENTITY], JUDGE jsr/01/11/2019 [CASE NUMBER] APPENDIX PETITIONER'S/S EXHIBITS:
ANNEXURE A TRUE COPY OF THE COMPLAINT PREFERRED BY THE 1ST RESPONDENT HEREIN BEFORE THE COURT OF THE [ACT].
ANNEXURE B TRUE COPY OF THE AWARD IN [CASE NUMBER].
ANNEXURE C TRUE COPY OF THE ORDER DATED 26.09.2014 IN [CASE NUMBER] PASSED BY THIS HONOURABLE COURT.
ANNEXURE D TRUE COPY OF THE ORDER DATED 06.11.2015 IN [CASE NUMBER] PASSED BY THE HONOURABLE SUPREME COURT OF INDIA.
ANNEXURE E TRUE COPY OF THE ORDER DATED 23.05.2012 IN [CASE NUMBER] PASSED BY THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, ERNAKULAM.
ANNEXURE F TRUE COPY OF THE JUDGMENT DATED 05.01.2007 IN [CASE NUMBER] PASSED BY THIS HONOURABLE COURT.
RESPONDENTS EXHIBITS: NIL TRUE COPY P.A TO JUDGE LSN