SOUMENDU MAJUMDAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) Complaint Case No.C/1-603/97 pending before Sri K.K. Singh, Judicial Magistrate of First Class, Jamshedpur having given rise to the above mentioned three applications under Section 482 of the Code of Criminal Procedure, the said applications are being disposed of by this common judgment.

(2.) Shorn of all verbose short facts of the case as contained in the petition of complaint filed by opposite party No. 2 which has been numbered as C/1-603/97, are that pursuant to Section 150 of a tripartite wage agreement dated 29.11.1973 signed by M/s. Tata Engineering and Locomotive Co. Ltd. (in short to be stated as TELCO) and the TELCO workers Union, a trade union registered under the Trade Union Act, the Management of TELCO was required to deduct from each and every member of the said Union a monthly sub-scription @ Re. 1/- from their salary through pay-roll system and remit the same to the account of the Union at Bank of India, TELCO branch by the 25th day of every month. According to the complainant, the management of TELCO deducted sub-scriptions from the pay of its workers who were members of the Union Re. 1/- per month up to the month of August, 1995 and, thereafter, the management of TELCO started deducting subscription from the workers @ Rs. 5/- per month at the behest of Gopeshwar, the General Secretary of the Union who is the sole petitioner before this Court in Criminal Misc. No. 4866/98R. However, the management of TELCO did not remit the amount of subscription/ deducted from the workers, that too, in its entirety by the 25th day of every month in terms of Section 150 of the tripartite agreement of 1973. They remitted the amount of subscription with considerable delay and at times the Management did not remit the entire amount of subscription to the Bank account of the Union, as was deducted from the salary of the workers. Thus, during the relevant period, that is, since May 1973 till the making of the complaint sometime in 1997, the management of TELCO withheld and criminally misappropriated huge amount to the extent of Rs. 3,27,600/-. In the petition of complaint, the complainant/ opposite party No. 2 further alleged that the management of TELCO had intentionally made haphazard disbursement of the Union-fund to facilitate Mr. Gopeshwar, the General Secretary of the Union to swallow the same at his pleasure. In the complaint, it was also alleged by the complainant that Mr. Gopeshwar in collusion with other office bearers of the Union, more particularly, the Treasurer thereof withdraw huge amount, precisely Rs. 12,41,027.90 un-authorisedly, without permission of the Executive Committee between June, 1975 and October, 1985. He further withdraw in the like fashion another amount of Rs.24,37,805.85 between 1986 and 20th May, 1997. Thus, the General Secretary and Treasurer of the Union spent the above mentioned amount, besides a sum of Rs.2,04,588-00 received by them on behalf of the Union from another source, for purposes other than permissible under the constitution of the Union and Trade Union Act.

(3.) It appears that on 11.5.1987 one Kunwar Pratap Singh had filed a complaint in the Court of Chief Judicial Magistrate at Jamshedpur against M/s. Gopeshwar, Sispal Singh and Prashant Mukherjee charging them with criminally misappropriating huge amount to the extent of Rs. 35 lakhs, approximately, collected from the members of the Union from the year 1970 till April, 1987 in the capacity of the General Secretary and Treasurers of the workers' union and cheating its members. On such complaint, the Magistrate had taken cognizance of offence under Sections 406 and 420 of the Indian Penal Code (in short IPC) against the said three office bearers of the Union. The accused persons in that case filed an application under Section 482 of the Code of Criminal Procedure in this Court which was registered as Crim. Misc. No. 3682/87R for quashing the entire criminal proceeding including order of taking cognizance of the abovementioned offences against them on the ground that the allegations were vague and offences of criminal misappropriation/criminal breach of trust and cheating were not made out. On hearing both the parties, a learned Single Judge of this Court allowed the application and quashed the entire criminal proceeding based on the complaint filed by Kunwar Pratap Singh on 11.5.1987 observing that on the facts stated in the petition of complaint, offence under Sections 406 and 420 IPC were not made out. Against the order made by this Court in Crim. Misc. No. 3682/87R, Kunwar Pratap Singh filed a petition for special leave to appeal before the Apex Court which was dismissed on 15.11.1989. While dismissing the special leave petition, the Apex Court, however, observed that it shall be open to the petitioner to make his specific allegation before the Registrar of Trade Unions, Bihar and in the event of such an allegation being made before him, the Registrar of Trade Union shall initiate an enquiry and find out whether the allegation so made it true. It further appears that thereafter some members of the workers union approached the Registrar of trade unions by making a written complaint on 25.1.1990 and in terms of the order of the Apex Court, an enquiry started on 17.8.1990 and it was completed by 30.11.1997. After conclusion of the enquiry, the Assistant Labour Commissioner lodged a prosecution against TELCO and its officers under Section 34(1) of the Industrial Disputes Act 1947 which was registered as C/1-2 Case No. 391/98. It shall be appropriate to mention here that the management challenged the initiation of the proceeding by filing an application under Section 482 of the Code of Criminal Procedure, which was registered as Crim. Misc. No. 5210/98R and a learned Single Judge of this Court set-aside the order of cognizance taken by the Judicial Magistrate and directed further enquiry and fresh order in accordance with law. It shall be meet to mention here that during the pendency of the enquiry under the orders of the Registrar of trade union, Kunwar Pratap Singh approached the Apex Court by filing' Crim. Misc. petition No.63637/93 for starting contempt proceeding against the officers concerned for wilful disobedience of the order of the said Court inasmuch as the required enquiry was not completed and action taken on the basis thereof. The Apex Court dismissed that criminal miscellaneous petition observing that if there are any remedies available to the petitioner, it is always open to him to pursue the remedies available at law.