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PETITIONER: ASHOK KUMAR JAIN AND OTHERS

       Vs.

RESPONDENT: THE STATE OF BIHAR AND OTHERS

DATE OF JUDGMENT08/12/1994

BENCH: RAY, G.N. (J) BENCH: RAY, G.N. (J) HANSARIA B.L. (J)

CITATION:  1995 SCC  (1) 516        JT 1995 (1)   150  1994 SCALE  (5)187

ACT:

HEADNOTE:

JUDGMENT: G.N.RAY, J.: 1.    The appellants in these criminal appeals arc Chairman, Managing   Director  and  other  senior  officials  in   the management  of  the  Rohtas  Industries  Limited  a  company registered under the Indian Companies Act and engaged in the manufacture  and sale of variety of products namely  cement, vanaspati,   paper  asbestos,  cement  products   etc.   The factories owned by the company were situated  at Dalmianagar in  the  district  of Rohtas,  Bihar,  wherein  about  15000 workers were engaged. The Company had a contract with  Bihar State  Electricity  Board  for the supply of  25000  KVA  of electricity   and  the  Company  was  to  pay  75%  of   the electricity  charges irrespective of the fact  whether  such supply  for  running its factories and  establishments  were made.  The  case  of  the Company is  that  due  to  chronic shortage  of  power supply ever since 1981  varying  between 11.5  to  7.3 MW. of electricity per  diem,  the  productive activities   of  the  Company  suffered   immensely.    The. Electricity: Board made demand for payment of Bill including enhanced  fuel surcharge for the period 1977-80 and  1980-81 which stood at Rs. 72,61,010,70.00.  The Company moved  writ petitions  in  Patna High Court for  quashing  supplementary Bills but such writ petitions were dismissed. The  Company’s attempt to clear dues of the Electricity 151 Board  by  instalments also failed. The  Board  disconnected electric   connection   to  the  Company’s   factories   and establishments for which the Company suffered a serious  set back. The Company resorted to lay off of its workers without obtaining  prior permission of the concerned authority.  For such  action  of  lay  off, complaints  were  filed  by  the Superintendent  of  Labour,  Dalmianagar  before  the  Chief Judicial  Magistrate’  Sasaram who took  cognizance  of  the offence  under  Section 25-M read with Section 25-O  of  the Industrial Disputes Act. The appellants moved the Patna High

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Court   for  quashing  the  complaint  by  challenging   the maintainability  of  the said criminal cases  by  contending that Section 25-M in so far as it required permission tO lay off   was  ultra  vires  the  Constitution  of  India.   The appellants  also  contended that lay  off  was  necessitated because  of  power failure on account  of  insufficient  and irregular supply of power by the Electricity Board and  some other  reasons  beyond  the control of the  Company  or  the appellants. It was also contended that the appellants  could not  be held an employer for the purpose of prosecution  for the offence under Section 25-M read with Section 25-Q of the Industrial Disputes Act.  The High Court of Patna held inter alia that the Section 25-M was ultra vires the  Constitution and  the complaint prima facie disclosed offence  under  the said  provisions. Hence, taking of cognizance by  the  Chief Judicial  Magistrate  could not be held illegal  or  invalid warranting  quashing  of  the  complaint.  The  High  Court, however, held that it was only just and proper in the  facts and  circumstances  of the case, that the  Magistrate  would hold  enquiry  under  Section 202 of the  Code  of  Criminal Procedure for the purpose of ascertaining as to whether  the appellants  or any one of them could be held to be  employer so  that  they  could be summoned to  stand  trial  for  the aforesaid offence. The High Court therefore allowed the said applications  for quashing the criminal proceedings only  to the extent indicated above. 2.     Against  the aforesaid decisions of  the  High  Court special  leave petitions were moved before this Court  which have  been  admitted giving rise to these  appeals.  Further proceedings and prosecution of the criminal cases have  been stayed by this Court on 22.2.1985. Mr. Jain, learned  Senior Advocate appearing for the appellants has contended that the vires  of Section 25-M(2) cannot be upheld for  the  reasons indicated  by  this  Court  in Excel  Wear’s  case.  He  has submitted that Madras High Court has held the said provision as  constitutionally  invalid  and  the  appeal  from   such decision is pending disposal before this Court. That  apart, lay  off  became  inevitable on  account  of  power  failure occasioned  by  short supply and irregular supply  of  power seriously  affecting productive activities. In the facts  of the  case it is more than evident that the lay off  was  not motivated or unjustified but such lay off had to be resorted for  compulsive  circumstances  beyond the  control  of  the company and its management including the appellants. He  has submitted  that the Company became sick beyond  revival  and all attempts to revive have failed. The Company is no longer in  the  management of the factories and  productive  units. Even if the vires of Section 25-M is upheld, in the facts of the  case, there is no difficulty in finding that there  was no  lack  of  bonafide on the part of the  Company  and  its management  in resorting to lay off. Such action had  to  be taken  to save the Company from being permanently sick.  The situa- 152 tion  was  so  grave that the management felt  the  need  of immediate   lay  off  without  waiting  for  permission   as contemplated  under Section 25-M. That apart,  Section  25-O was declared ultra vires by this Court in Excel Wear’s  case and constitutional validity of Section 25-M for the  reasons indicated  in Excel Wear’s case was seriously  doubted.   In the  aforesaid  circumstances, the lay  off  without  taking prior  permission  cannot be held to be per se  illegal  and unjustified  and mala fide. The liability of the  appellants for  being prosecuted under Section 25-M read  with  Section 25-Q,  in any event, are doubtful. AS a matter of fact,  the

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High  Court  has directed the Chief Judicial  Magistrate  to first  ascertain  the  liability of  the  appellants  before proceeding further with the criminal cases. In view of order of stay granted by this Court, such enquiry has not yet been held.   After  such  a long lapse  of  time,  resumption  of enquiry  and  the criminal proceedings will  not  serve  any practical  purpose  but the appellants are bound  to  suffer irreparable  loss  and  prejudice  because  of  the  changed circumstances  and  long  lapse  of  time.   Mr.  Jain   has submitted  that  the  criminal cases should  be  quashed  to secure  ends of justice.  He has submitted that  such  power has  been exercised by this Court when the ends  of  justice demanded  such  quashing  although  the  criminal  case  was validly instituted and was otherwise maintainable. 3.      As  the  question  of  vires  of  Section  25-M   of Industrial  Disputes Act was involved in these  appeals  and also  a  Civil Appeal No. 807 of 1982  (arising out  of  the decision of Madras High Court), all these matters were heard analogously. We have upheld the vires of Section 25-M in the decision  rendered in Civil Appeal No. 807 of  1982.  Hence, the  contention  that  Section 25-M being  ultra  vires,  no prosecution  on  account of violation of the  provisions  of Section 25-M is maintainable, cannot be accepted. 4.    It however appears to us that there is enough force in the contention of Mr. Jain that in the special facts of  the case and in the altered scenario, the enquiry as directed by the  High  Court  need not be made and  the  criminal  cases instituted  against the appellants need not be  pursued  any further.   Such  course of action in our view  is  not  only within  the  scope and ambit of Section 482 of the  Code  of Criminal Procedure but in the special facts of the case will also secure the ends of justice. We, therefore, allow  these appeals and quash the criminal cases instituted against  the appellants  for  the alleged violation of  Section  25-M  of Industrial Disputes Act, 1947. 153