Achut Kumar Goswami and Others vs State of Assam

K. Lahiri, J.—The sole question for consideration is whether to secure the ends of justice and to prevent abuse of the process of the court, the proceeding pending against the Petitioners should be quashed or not? The allegations brought against the accused persons are in respect of the offences Under Sections 5 and 6 of the Essential Services Maintenances Act, 1981, for short, "the Act".

Shortly put, the prosecution case is that the Officer-in-charge of Rowriah out-post lodged an ejahar that on 9.12.82 a Bundh call was given by some Organisations and the Petitioners, who wore employees of the United Commercial Bank of Jorhat Branch, did not sign the attendance Register on that day and as such they were shown as absent in the Register. The Officer-in-charge of Jorbat Police Station, on receipt of the ejhar, registered a case, investigated the same and submitted a charge-sheet against the accused on the changes just, alluded. It may be stated here that the Bundh call was given by Organisations who had no convection with the Bank nor did the employees of the Bank join hands directly or indirectly with the sponsors of the Bundh. The positive and affirmative material available was that the accused did attend the Bank, but the only default committed by them was that being present in Bank they did not sign the Attendance Register, All the witnesses stated that the accused parsons did attend the Bank. Not a single witness has stated that the accused persons did not work on that day. The only material against them is that although they attended the Bank they did not sign the Attendance Register. Not a single witness has stated that the accused persons did not work or struck work on that day.

The Petitioner are facing trial Under Sections 5 and 6 of "the Act". Section 5 provides for penalty for instigating or inciting others to take part in, or acting in furtherance of a strike which is illegal under "the Act" The offence is committed by a person who instigates or incites others or acts in furtherance of a strike declared to be illegal. Mr. A.H. Saikia, learned Public Prosecutor being asked to show the existence of material as to whether the accused persons ever incited or instigated others to take part in any strike, learned Public Prosecutor has conceded that there is no such material. When learned Public Prosecutor was invited to place material to show whether the accused persons ever acted in furtherance of any strike, learned Public Prosecutor could not point out any material, The term "strike" has been defined in Section 2(1)(b) of "the Act" thus:

Definition: (1) In this Act, unless the context other-wise requires,�

(a) * * *

(b) "strike" means cessation of work by a body of persons while employed in any essential service acting in combination or a concerted refusal or a refusal under a common understanding of any number of persons who are or have been so employed to continue to work or to accept work assigned, and includes�

(i) refusal to work overtime where such work is necessary for the maintenance of any essential service:

(ii) any other conduct which is likely to result in or results in, cessation or substantial retardation of work in any essential service,

It is seen from the definition that cessation of work or substantial retardation of work by a body of parsons employed in any essential service is "sine qua non" of the offence. Under these circumstances, the crucial question necessary for determination is whether there was cessation of work or substantial retardation or work of the Bank on that date, which the prosecution was required to bring home. There is no material to show that the employees of the Bank in a body ceased to work or that there was substantial retardation of work. Not a single witness has stated that the accused did not perform their allotted duties on that date or did not perform the duties which they were supposed to do. The only imputation brought against the accused persons was that being present in the bank they did not sign the Attendance Register. There is positive evidence that the accused persons attended the Bank. There is no material that they did not perform their allotted duties and/or did not take their place allotted to them for work. The sole allegation is that they did not sign the Attendance Register. There is no material to show that there was "cessation of work by a body of persons while employed" in the Bank and/or "any employee refused to work". Further, there is no material that there was any retardation of work in the bank, not to speak of substantial retardation of work. Mr. A.H. Saikia, learned Public Prosecutor fairly concedes that there is no such material to show that there was any cessation of work or retardation of work in the bank by any act or action of the accused-Petitioners. As such, the essential ingredients of offence u/s 6 being absent the continuation of the proceeding would amount to abuse of the process of the Court.

The next offence alleged against the accused persons is u/s 5 of "the Act", which deals with penalty for commencing an illegal strike. Any person, who commences a strike which is illegal or goes or remains on or otherwise takes part in any such strike may be punishable with imprisonment for a term which may extend to six months. Mr. Saikia, learned Public Prosecutor has conceded that there is no material to show that the accused-Petitioner ever commenced a strike or went or remained on or otherwise took part in any "strike", as defined u/s 2(1)(b) of "the Act". In fact, not a single witness has stated that there was any "strike" in the bank. There is no evidence that there was cessation of work by a body of parsons acting in combination or in a concerted manner to work or to accept work assigned to them. In the absence of any evidence to show that the accused-persons did not work on that date or they did not accept work assigned to them, the question of prosecution of the accused-Petitioners u/s 5 of "the Act" does not arise. In the instant case, there is no material that "a body of persons while employed in the bank" ceased to work acting in combination or in a concerted manner, or, refused under a common understanding to continue to work or to accept work assigned to them. There is no material to show that there was cessation of work in the bank or substantial retardation of work by any act or action of the accused. Under these circumstances, when there is no material to establish the essential ingredients of the offences Under Sections 5 and 6 of "the Act" the continued proceedings in respect of the alleged offences which happened about 3 years ago would undoubtedly amount to abuse of the process of the Court, and, to secure the ends of justice, the proceedings against the Petitioner are quested u/s 482 of "the Code".

In the result, the petition is accepted.