<: ^; IN THE HIGH COURT OF JUDICATUREAT BILASPUR W.P.No.S82^ / 2006 Petitioner / ^^^> ,•• \^^^--' ^i^" •-<^yy" <i<y- ,»,.-•' I^Sspondents 1) Ramesh Jayaswal S/o Shri Basant Lall Shaw, Aged about 41 years, Joint Managing Director, Jayaswals Neco Limited, Regd. Office at F-8 MIDC, Hingna Road, Nagpur - 16 (Steel Plant Division) Siltara, Raipur, PS Dharsiva, Distt. Raipur (C.G.) Versus The State Industrial Court, Chattisgarh - Through its President, Raipur, Distt. Raipur(C.G.) &. f 2) The Labour Court - Through its Presiding Officer, Raipur, Distt. Raipur (C.G.) 3) Pradeep Kumar Sengupta, S/o Shri N.N.Shah, Aged about 39 years, R/o G- 6, B.T.I. Colony, Shankar Nagar, Raipur ^<Jifl/8lT RET&nON UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA '»%?... ^FA ^ •o4 HIGH COXTItT OF CHHArTISGARH : BILASPVR SINGLE BENCH : HON'BLB SHRI SATI8H K. AGNIHOTRI, J WRIT^ETITICTI N0. 3823 OF 2006 Petitioner Raaiesh Jayaswal Respoadeats Versus The State Industrial Court, Chhattisgprh & <^hers ORDER (Dated _^_ Wovember, 200C) Sd/- Satish K. Agnihotri Judge g-11-2006 HIGH COURT OF CHHATHSGARH : BILASPim SINGLB BENCH: HON'BLB 8HRJ SATISH K. AGMIHOTRI, J WRIT PETITION N0. 3823 OF 2006 Petitioner Ramesli .Jayaswal Respoadeats Versus The State Indastrlal Coutt, Chhattisgarh 8s Others Present :- Shri P. Diwakar, Sr. Advocate wifh Shri P.K. Bhaduri, counscl for fhe petitioncr. Snit. Anju Ahuja, Dy. Govt. AdVocate for the respondents No. 1 and 2. Shri Pradeep Kumar Sengupta, respondent No,3, appears iu person. Shri N.K. Agrawal, Sr. Advocate appears as aBiicus citnae. ORDBR (Dated °1 November, 2006) The present petition filed uuder Article 226/227 of the Constitution of India, iaipugas fhe order dated 19-7-2006 (Aimexure-P/7) passed by the Industrial Court whereby fhe revision agaiast the order dated 20-2-2006 passed by the Judicial Magistrate First Class (ia short "JMFC"), Raipur, was disnussed. (2) Thc undlsputed facts, in nutsheU, are that the petitioner Ramesh Jayaswal is a iJoiiit Man^ing Director, Jayaswals Neco Limited, having its registered ofiBcc at Nagpur aad a Steel Plant at Ralpur. The resppndent No.3 namely Pradeep Kumar Sengupta, chaUenged the order of his termination dated 28-6-2002 before the Labour Court, Raipur, in case No. A-356/M.P.I.R. Act/2002. Thc Labour Court durmg pendency ^' ^A / .'0 of the case directed the petitioner hereia saad three others (non-appUcauts) to pay 50% of salaiy to the appUcaat Pradeep Kiuaar Sengupta (respondent No.3 hcrem) tiU disposal of fhc case in aa application fited under Section 84 of fhe MP/CG Industrial Relations Act, 1960 (for short "CGIR Act"). (3) Being aggrieved, fhe petitioner hereiu alongwith tturee other non-appUcants iu Labour Court, inoved the Industrial Court in appeal aad thereafier fhis Court in writ petition, which were rejected. (4) The respoadent No.3 filed a coinplamt (Annexure-P/4) under Section 91 read witli Sectiou 35 ofthe CGIR Act before fhe JMFC, Labour Court, Raipur, prayiag that fhe aon- appUcants be dealt with under provisious of Scction 91 of CGIR Act. It was furtlier prayed fhat the petitiotier be punished with payment of Rs.5000/- per day and fhree mouths imprisoruneiit for non-compliance of fhe order dated 3-3-2003 passcd by fhe Labour Court in case No.A-356/M.P.I.R. Act/ 2002. Notices were issued to fhe petitioner on 6-7-2004. (5) The petitioner did not appear ia peraon, but his appearaace was made through Advocate. The petitioaer filed aa application for exemption from personal attendance under Section 205 of the Code of Crimiafll Procedure, 1973 (in short "Cr.P.C.") for dispensing with personal attendaace ofaccused. JMFC by ordcr dated 4-1-2006 considered the appUcation of the petitioxier aad accepted the prayer subject to condition that the petitioner would appear before fhe JMFC on 20-2-2006 ^ aud execute a personal bond for a sum of Rs. 10.000/- and further deposit a sum. of Rs. 10,000/ - iu the Court. (6) On 20-2-2006, the petitfoner ffled anofher application uuder Section 317 of the Cr.P.C. for hplding fhe trial in the absence of fhe accused i.e. the petitioncr. The JMFC ater considermg the application adjouraed the matter to 21-3-2006 for coiapUauce of fhe order dated 4-1-2006 whereby fhe appUcation of the petitioner under Sectfon 205 of the Cr.P.C. was accepted subject to personal appearaace aad payment of Rs.10,000/- & productkin of a personal bond for a suin of Rs.10,000/-. Bailable warraat for a suia of Rs.20,000/- was accordiagty issued. The petitioner remamed absent throughout. (7) The trial Court, haviag exammed all fhe facts aad lookmg iato the conduct of the pctitfoner rejected fhe appUcation under Section 317 of fhe Cr.P.C. by order dated 20-2-2006 and directed issue of baUablc warraat for a siun of Rs.20,000/- for ensiuing presence on the next date ofheadng. (8) Bemg aggrieved by the oider dated 20-2-2006, the petitioner filed fhe revision under Section 397 read with Section 482 ofthe Cr.P.C. alongwlth Section 64(A) ofCGIRAct, on several grounds, inter atia, fhat the appMcaat (respondent No.3) has already been paid a sum ofRs.1,65,332/- pursuant to the orier dated 3-3-2003 passed by the Labour Court. It was contended in the revision application fhat fhe petitioner was not liable personaUy as the order of the Labour Court was to be coinplied with by non-appUcaats 1, 2 & 3 also and they ^\? have coinpUed wifh the ordcr by makmg payment of 50% of salary to the applicaat (respondent No.3). (9) The Industrial Court m Cri.M.Case No.04/C.G.I.R. Act/V/2006 by order datcd 19-7^2006 (Anncxure-P/7) disniissed the revision and coiifirraed the onler datal 20-2-2006 passed by the JMFC, Labour Court, Raipur. (10) The petitioner has impugned the oider dated 19-7-2006 p^sed by fhe Industrial Court whereby the order dated 20-2-2006 passed by the JMFC directmg for issue of baflable warraut for a sum of Rs.20,000/- was under consideration, was confirmed. (11) The petitioner has not challenged ftie order dated 4-1-2006 passed by JMFC, Labour Court, Raipur, whereby the application of the petitioner filed under Section 205 of the Cr.P.C. was allowed subject to prcsence of fhe petitioner on 20-2-2006 in the Court for executtag personal bond for a suin of Rs. 10,000/ - and for dcpositmg a siim of Rs, 10,000/ - ia the Court. (12) The order dated 20-2-2006, which was subject matter before fhe Industrial Court in revision i.e. Cri-M.Case No,04/C.G,I.R. Act/V/2006 (Annexure-P/7) only provided for issue of bailable warraat for a suia of Rs.20,000/-. Afiter fhe crmunal revision was disinissed the matter was listed before the JMFC, Labour Court on 20-7-2006. The petitioner fited one more appUcatioa under Section 317 of the Cr.P.C. The Court after hearmg the parties rejected fhe same in view of the fact '^^ that the order dated 4-1-2006 passed ia aa application undcr Section 205 of fhe Cr.P.C. was not coinpBed wifh. Warrant of arrest was issued for ensuring presence of the petitkaner on next date of hearmg i.e. 17-8-2006. The petitioner has not chatlenged fhe order dated 20-7-2006 before fhe Industrial Court. (13) Shri Diwakar, leamed Sr. counsel appearing with Slu-i P.K. Bhaduri, leamed counsel, submitted fhat fhe order oftbe Industrial Court is bad in law as tfae Labour Court has failed to appreciate that the total payment of 50% as directed by tfae Labour Court in order dated 3-3-2003, has ah-eady bcen paM to the appUcant/respondent No.3 by aon-applicants No.l, 2 & 3 who are th.e proper persons for makmg the payment He further subinitted fhat the presence of the petitioner in the pending trial before JMFC is not necessary for conduct of the trial. Learned counsel subniits fhat the pctitioner is ready aud wiUtug to pay even the iaterest on the amount paid by non- appUcants No.l, 2 & 3 after some delay. Learaed counsel furfher submitted fhat siuce the petitioner had coinplied wifh the order dated 3-3-2003 passed by fhe Labour Court fhcre is no reason to insist on presenee of fhe petfcdouer. The JMFC acted malaftde wlule dischargiug ofher accused on 4-11-2004 aad proceeded aysaD.at fhe petitioner for the same aBeged offence conuaitted by all the 4 non-appUcaats before fhe Labour Court. Learued counsel reUes upou the decisions of Supreine Court in the cases Amar Natli and other vs. State ot Haryaaa aad others1, Bliashar Industrles Ltd. vs. BMwaal Denlm Bt Apparels Ltd. and others2 and the decision of this Court in thc case of V.K. Punshi vs. State of M.P. (Now C.G.) & Others3. (14) Respondent No.3, fhe coinplainant, on fhe conta'aiy submitted fhat the petitioner 1a.as deliberately not complied with the order dated 4-1-2006 passed by the JMFC which aiaounts to underininiag the dignily a&d majesly of judicial process. The petitioner, it appears, feels that hc is big enough aad he cannot be subjected to auy jurisdiction before tfae JMFC. Respondent No.3 further subautted that titus petition t>e dismissed wifh heavy costs. (15) Leamed counsel appeaiing for the State, on fhe contraiy, submitted that the petitioner has failed to comply wifh the undertakiag given by fhe coiuisel at fhe time of hearing of appUcation under Section 205 of fhe Codc of Criminal Procedure. Lcamed counscl further submitted that the petitioner has flouted judicial ordcts passed by fhe Labour Court aad Industrial Court ou several occasions. (16) Having heard leamed couasel for the petitioner, it is evident that the petitioner bas not honoured the order dated 4-1-2006 whereby the application of the petitioner under Section 205 offhe Cr.P.C. was ordered subject to the condition that the petitioner would remaia prcsent on 20-2-2006 and execute a persoual bond for a Stun of Rs. 10,000/ - aad further 1AIR 1977 SC 2185 3 (2001) 7 SCC 401 3 2004(2) CGLJ 55 0 15>* > deposituig a sum of Rs. l0,000/- in fttc Court. On the next date of hearing i.e. 20-2-2006 when the petitioner failed to comply with the conditions graated in the order dated 4-1-2006, fhe JMFC issued bailablc warrant for a suin of Rs.20,000/- directing fhe petitioner to be present on 21-3-2006. It inust bc inade clear fhat the ordcr dated 4-1-2006 whereby fhe appUcation of the petitioner uader Section 205 of fhe Cr.P.C. was aUowed subject to some conditions was not chaltenged in any Court. On. 21-3-2006 the petitioner agaui icinaiaed absent aad iirformed the Court of JMFC fhat pendfaig revision before thc Industrial Court, fhe order dated 20-2-2006 for issuiag baUable warraat be stayed. In the meantuae, fhe petitioner filed one more appUcation under Sectton 317 of fhe Cr.P.C. for Sraating absence of the petitioner ia enquiry or trial pending before the JMPC. The JMPC by order dated 20-7-2006 rejecting the appUcation on the grouad that fhe petitioner has not complied wifh the earlier orders dated 4-1-2006 & 20-2-2006 aad arrest warraat was issucd accordingly to remain present on 17-8-2006. The impugned order dated 20-7-2006 is under consideration iu this petition. The decisfon of fhe Supreine Court ia fhe case ofAinar Nath (suprs^1 is not appUcable in the facts of fhe present case as thc main issue iavolved in the said case was as to whether order passed by fhe Magistrate refusing personal appearauce is iaterlocutoiy or final, It is no longcr res integra that order passed by (he Magistrate in appUcations under Sections 205 & 317 of the Cr.P.C. is not an iateriocutory ordcr for fhe purpose of filiag revision against fhe said order. —- ^ > (17) The Supreme Court ia the casc of Bhaskar ladustrles Ltd. (supra)2 (at para 8) observed as under : *S. The interdict contained in Section 397(2) of the Code of Crirmnal Procedu.re ffbr short "the Code') is that the powers of revision shall rwt be exerdsed. in relation to any interlocutory order. Whether an order is inferlocutory or not, cannot be dedded by merely lookmg at the order w merely because the arder zoaa passed. at the interlocutory stage. The safe fest laid dawn by this Caurt ihrough a series of dedsions is this: if the contention of the petitioner who moves the superior Caurt in revision, as against the order under challenge is upheld, wculd the crirmnaS proceedings as a whole cuhninale ? Ifihey wauld, then the order is not interlocutory in spiie of the fact that it was passed during cmy interlocutorg stage.' (18) It is true that fhe oifence iavolved ia the iiistaut case is triabte as sumiaons case and is not serious ia Biature wherein fhe presence of the accused is not very inuch uecessaiy lookmg iato fhe facts and circuiastances of the case, The Supreme Court in ttie case of Usha K. PiUd vs. RaJ K. Srintvas aad others4 while deating wifh fhe dispensation of pcrsonal presence of the accused observed that even in cases where the personal presence of the accused has been dispensed with Section 205(1) or Section 317 of the Code fhe M^istrate can dispcnse wifh the mandatoiy requirement of clause (b) ofSection 313(1) only in a sununons-case Le. a case ofher than a warraat-case. Suminoiis-case and warraut-case has defined in. the Cr.P.C. as under : °2(w) 'summons-case' mecms a case relating to an offerwe, and nof being a warrant-oase; 2(x) 'warrant-case1 means a case relating to an offence punishable with death, intprisonment 4(1993)3SCC208 ^ fm life or imprisonment for a term exceeding two ,.» years;' (19) The puaAsh-Dient provided under Section 91 of the CGIR Act is inaximum three monfhs aad with fine extendable up to Rs.5000/ - or with both. This is a suimnons case. (20) The Supreme Court in the case of Chaadu Lal Chandraker vs. Pnran Mal and another5, granted exemptiou fi-om personal appearaace ia suimnons case wherein the accused gave imdcrtaldng that he would not raise the question of prejudicc, if auy, caused to Tiim on account of his aon- examiaation at subsequent stage of trial, in appeal or revision. Th.e Supremc Court ia the case of BasavaraJ R. Patil aad others vs. State of Karnataka and others6, by majority observed fhat hls physical presence in fhe Coiut on accoiuit of justifying exigency caa be ordered in an appUcation accoiupanied by aa afGdavit swom to by the accused him.self contamiag the following maters : "(a) A rtarration offacts io satisfy the Caurt of his rea] difficulties to be physioally present in Caurtfor giving such answers. (b)An assurarwe that rw prejudice wculd be caiised to him, in cmy nuwmer, by dispensing with his personal presenoe during such questioning. (c) An underiaking that he would nat rcdse any grievance on thcct score at any stage ofihe case." (21) The decision of Orissa H^h Court ia ttie case of Raghuaath Das and others vs. Hari Mohan Pani7, cited t>y leamed counsel for fhe petitioner bas no relevance to the present case as the High Court has held that it is a matter 1988 (Supp) SCC 570 <> (2000) 8 SCC 740 7 1988 Cri.L.J. 1573 10 '•t' f'-p'. > betweea the Court and the accused. So far as a prosecution initiated on coinplaint, the Magistrate white issuing suminons has also power to direct the appearance of an accused fhrough a Lawyer without personalty appeanng. In the present case fhe petitioner Iias never appeared before the Court despite clear orders passed on several occasions to appear in tfae Court aad to execute a bond. (22) The Calcutta High Court in the case of AJit Kr. Chakraborthy aad othCTS vs. Serampore MunicipaUty8, cited by leamed counsel for the petitioner, wlule consideruig fhe appearance of the petitioner in aa appUcation uiider sub-section (1) ofSection 205 offhe Cr.P.C., laid emphasis on the discretion of the Magistrate to grant exemption from. personal attendaace. (23) The Orissa H^h Court in the case ofK. Narayan Patra vs. Goplnath Sahu9, cited by leamed counsel for the petitioner, held as under ; '4........As words 'if he sees reason so to do' indicate power ainferred by Sec. 205(1) is discretionary, and no hard andfast rule can be laid dawn. The question as to when such discretion has to be exerdsed has to be considered after giving due oonsideration in the attendartt drcumstarwes. No sweeping generalvsa1.ion can be Tna.de. Courts should be generous in exempting accused persons from personal appearance. Such appearance is the rule in ariminal cases of a serious nature, involving moral turpitude, and punishable with imprisonment for some length of time. Court should consider the nature ofaberration alleged, prima fade material far accepiance of sucfi alfegation, possibility of mala fide allegation, prejudice if any Hkely to be catised if personal 6 1989 Cri.L.J. 523 9 1991 Cr.L.J. 3219 11 •<_ > attendance is not made. Court has (o weigh 1'nconreni'ence likely to be caused to accused ifhe is required to be absent fram. his vacation, profession, ira.de, occupation and ocdling far attendan.ee in Court, agcmvst prejudice Ukety to be oaused (/ he does not appeccr in Court. Whenever personal attendance is insisted upon, there is iindubitatily some ha.rassment to the wxused; and fhe Courts have to see that this harassment is no< ou( ofproportion to the seriousness of the allegation, the severity of possible puniahment on convifdwn, nature ofallegations as they stand out primafade. As indioaied above, no hard. andfast rule can be laid dovm. but the Court is expected to exerdse its discretion after seeing full picture.......' (24) The Or^sa H^h Court ia fhe case of Kaveri aBas Benga and anothe* vs. The State10, citcd by learaed counsel for fhe petitioner, held as under : 4........The exceptions are contained in Sections 205, 292, 292, 293, 299 and 317. While dealing iirifh an appliccction for diapensing with the personal attendance the Court shouldrwt tdke too techmwtl or stringent view. Tke approach should be to see whether personal appearance is absolutely necessary for purpose of the case. That does no( appeccr to have been done in the instant case. It is, hawever, true that in the charge-sheet, pefitioners h£we been shown as absconders. Leamed cxiunsel for petiiioners submitted that the petifioners are mcaried wojnen and were residing luith their respective in-lccws, and there was no scope of their absconding or fteeing from.justiix." (25) Decision of tfais High Court in the case of V.K. PuasU (supra)3, reUed on by the petitioner, is not applicable to the facts of the present case as the questioa raised aud decided in the said case was as to wtiether an order reqiurmg personal attendauce of accused is not aa interlocutory order. Ttiis H^h Court observed as under : el6........It is within the powerv of a Magistrate cmd in his judicial discretion to dispense vrith the 10 1995 Cr.L.J. 224 12 ^ <, > personal appearcmce of an aocused either throughaut or at any particular sfage of such proceedings in a surmnons case, ifihe Magistrale finds that insisfence of his personal presence would iiself inflict enomwus suffering or tribulations on him, cmd the comparative advantage would be less. Such discretion need be ^ exerdsed only in rare msiancea where due to the far distanoe at which. the aocused resides OT acrries on business ar on cuxxiunt of any physical or other good reasons ihe Magistrate feels that dispensing with the personal attendance of fhe accused would anly be in ihe interesta ofjustice. 21. Hawever, as per the provisions of sub-section 2 of Sedion 205 and sitb-section 2 of Section 317 of the Cr.P.C. discretion has been given to the Court that if the Magistrafe considers the personal attendance of fhe aocusednecessaryfor reasons to be recorded, he oan enforoe such attendance of the cuxused and this discretion as per settled law the Magistrdte must exerase in a judiaous manner. When Magistrate feels thatfor parti<Mlar reason and particular purpose the personal attendan.ee of the accused is necessary in the case, therefore, after assigmng the reason as to why the presenoe oflhe accused is required ort fhat day, he can wiihin his righls order for enforcmg such attendarux ofthe accused" (26) On perusal of the orders passed by fhe JMFC, it appears fhat the Magistrate has not examiaed fhe facts and circumstances of the case while rejecting the appUcations of the petitioner ffled under Sections 205 8s 317 of the Cr.P.C. This beiiig a sunuaons case the Magistrate ought to have considered atl (he relevant facts while decidmg the applications under Sections 205 & 317 of the Cr.P.C. It appears that while dealmg wifh the applicatuns filed by fhe petitioner under Sections 205 & 317 of the Cr.P.C., the Court has taken stringent view. The Court ought to have seen as to whefher personal appearance is absolutely necessary for piurpose ofthe case. Hence the impugned orders dated 19-7-2006 passed by fhe Industrial Court and 20-7-2006 passed by the JMFC, 13 ^ J- Labour Court, Raipur are perverae aad deserve to be set aside. The petitioner is exempted froin personal appearance subject to fiting of an affidavit swom to by fhe petitioner hiraseU" contaiaing the foUowing conditions : "(a) A nctrratian offacts to satisfy the Court of his real difficuWes to be physioally present in Courtfor giving such answers. (b) An assurance ihai rw prejudice would be caused to him, in any manner, by dispensing itrith his personal presence during suc/t questioning. (c) An undertdking that he wauld rwt raise any grievance on ihat soore at any stage of fhe case.' (27) The petitioncr is accordiagly directed to appear through Advocate before the JMFC, Labour Court, Raipur, on 1st December, 2006 and file appropriate afiGdavit of undertakiug as stated above. The JMFC is directed to proceed with. fhe inatter on inerit without beuig influenced by aay observattons made hereitiabove. It is made clear that if personal appearance of fhe petitioner/accused in the casc, at any particular stage, is required aud it is felt judiciatfy & absolutely necessary, the Court shall be at Uberly to do so. (28) Ttus petition is accordiugty aUowed. No order as to costs. GOWRI Sd/- Satish K. Agnihotri Judge