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Judgment
B.N. Srikrishna, J.—This writ petition raises and interesting question of law as to whether a person who was a minor on the date when an alleged offence u/s 48(1) of the Maharashtra recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, (hereinafter referred to as ''the Act'') was committed, can be tried by the Labour Court under the provisions of the Act.
By this writ petition under Article 226 of the Constitution of India the petitioner challenges an order dated 28th September, 1993 made by the Presiding Officer, 2nd Labour Court, Thane, who dismissed her application for deleting her name from the proceedings before it.
The petitioner is the daughter of 3rd Respondent and was born on 12th September, 1974. At the material time, she was still a minor studying in the high school. Though she was a manor, she and her father were Proprietors of a Powerloom business in Bhiwandi. The 1st respondent filed Complaint (ULP) No. 163 of 1992 before the Industrial Court at Thane, in which the Industrial Court made an interim order dated 20th March 1992 to the following effect :-
"The Respondents are hereby directed to deposit in the Court within three weeks from the date hereof, a sum equivalent to 50% of the wages of the concerned employees from 1st October, 1989 till date of his order".
The petitioner and her father, Ramchandra Jain (3rd respondent) were both respondents to the said Compliant. On 7th August 1992, the 1st Respondent filed Miscellaneous Complaint (ULP) No. 132 of 1992 before the 2nd Labour Court, Thane, alleging inter alia, therein that the 3rd Respondent and the petitioner had deliberately refused to comply with the biding interim order of the Industrial Court dated 20th March, 1992 made in Complaint (ULP) No. 183 of 1992 and thereby had committed an offence punishable u/s 48(1) of the Act. The 1st respondent prayed that the Labour Court should take cognizance of the offence, issue process against the 2nd and 3rd Respondents and punish them in accordance with law. The 2nd Labour Court, Thane, tool cognizance of the offence alleged in the said miscellaneous Complaining (ULP) No. 132 of 1992 and on 18th August, 1992 issued a notice to the 3rd Respondent and the petitioner which was made returnable on 7th September, 1992. Both the petitioner and her father (3rd Respondent) appeared before the due date. The petitioner applied to the Labour Court to dismiss the compelling against her in as much as she was less than 18 years of age on 7th August, 1992 on which date the complaint has been filed and taken cognizance of. The Labour Court accepted the fact that, as on the date of filing and cognizance of the complaint, the petitioner had no completed 18 years. However, relying on Section 27 of the Criminal Procedure Code, 1973, it took the view that, in as much as the petitioner was admittedly more than 16 years of age, she could be tried before the regular Criminal Court and also the Labour Court exercising criminal jurisdiction. In this view of the matter, the Labour Court dismiss the application made by the petitioner. Being aggrieved thereby, the petitioner is before this Court.
Despite notice of this writ petition having been duly served on the respondents, none of the respondents has appeared before the Court.
Shri S. S. Pakale, learned Advocate for the petitioner, pointed out that u/s 40 of the Act, the Labour Court has been invested with all powers under Criminal Procedure Code, 1973, of a presidency Registrar of Greater Bombay and Magistrate, First Class, elsewhere and is required to follow the procedure laid down Chapter 22 of the Code of Criminal Procedure in the trial of offence under Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, as if the trial was a summary trial in which appeal lies. He also pointed out Section 40 prescribes in terms that the rest of the provisions of the Criminal Procedure Code, shall, so far as may be apply to such trial. Mr. Pakale urged that, while the learned Judge was right in looking into provisions of the Criminal Procedure Code in order to ascertain the limits of his jurisdiction in the trial of an offence u/s 48(1) of the Act, he fail to take notice of the overriding provisions of the Juvenile Justice Act, 1986, which take away the jurisdiction of the regular Criminal Courts to try Juveniles and invest the said power only in Juvenile Courts.
The preamble to the Juvenile Justice Act, 1986 (Act No. 53 of 1986) provides, "An Act to provide for the care, protection, treatment development and rehabilitation of neglected or delinquent Juvenile and for the adjudication of the certain matters relating to, and disposition of, delinquent Juveniles".
Section 2(e) defines "delinquent juvenile" as under :-
"(e) ''delinquent juvenile'' means a Juvenile who has been found to have committed an offence".
The expressions "juvenile" is defined in Section 2(h) as under :-
"(h) ''Juvenile'' means a boy who has no attained the age of 16 years or a girl who has not attained the age of 18 years".
The expression "Juvenile Court" is defines in section 2(i) as under :-
(i) ''Juvenile Court'' means a Court constituted u/s 5."
The expression "offence" is defined by Section 2(n) to mean an offence punishable under any law for the time being in force.
Section 7 of the Juvenile Justice Act, 1986, provides as under :-
"7. Powers of Board and Juvenile Court - (i) Where a Board of a Juvenile Court has been constituted for any area, such Board or Court shall notwithstanding anything contained in any other as for the time being in force but same as otherwise expressly provided in this Act, have power to deal exclusively with all proceedings under this Act relating to neglected Juveniles or delinquent Juveniles, as the case may be :
Provided that a Board or a Juvenile Court may, if it is of opinion that it is necessary so to do having regard to the circumstances of the case, transfer any proceedings to any Juvenile Court or Board, as the case may be :
Provided further that where there is any difference of opinion between a Board and a Juvenile Court regarding the transfer of any proceedings under the first proviso, it shall be referred to the Chief Metropolitan Magistrate or, as the case may be, the Chief Judicial Magistrate for decision, and in a case where the District Magistrate is functioning as a Board or a opinion shall be referred to the Court of Session, and the decision of the Chief Metropolitan Magistrate or chief Judicial Magistrate or, as the case may be, the Court of Session on such reference shall be final.
(2) Where no Board of Juvenile Court has been constituted for any area, the powers conferred on the Board or the Juvenile Court by or under this Act shall be exercise in that area, only by the following namely,
(a) the District Magistrate; or
(b) the Sub-Divisional Magistrate; or
(c) any Metropolitan Magistrate of Judicial Magistrate of the first class, as the case may be.
(3) The Powers conferred on the board or Juvenile Court by or under this Act may also be exercised by the High Court and the Court of session, when the proceeding comes before them in appeal, revision or otherwise."
By an Act of Parliament made in the year 1986, the provisions of Section 27 of the Criminal Procedure Code, 1973, have been overridden and, in so far as the trial of the delinquent Juvenile is concerned, a special forum has been created therefore with exclusive jurisdiction. The jurisdiction of all Courts other than the Courts constituted u/s 7 of the Juvenile Justice act, 1986 has been barred in so far as the matters relating to Juveniles are concerned. In view of the definition of ''Juvenile'' contained in Clause (h) of Section 7, it is obvious that the petitioner, who was a girl who had not attained the age of 18 years as on the material date was a ''Juvenile'' and ''delinquent Juvenile'' within the meaning of Clause (e) of section 2 and, therefore, the exclusive power of trying her for the alleged offence vested in the forum specially created u/s 7 of the Juvenile Act, 1986. Even if no Board or Juvenile Court was constituted in the concerned area, the Courts enumerated in Clauses (a), (b) and (c) of Section 2 of Section 7 Juvenile Justice Act had to exercise the powers conferred on the Board or Juvenile Court.
Mr. Pakale also drew my attention to Section 24 of Juvenile Justice Act. This Section provides that notwithstanding anything contained in section 223 of the Code of Criminal procedure, 1973, or in any other law for the time being enforce, no Juvenile shall be charged with or tried for, any offence together with a person who is not a Juvenile. Sub-section (2) of Section 24 of the Juvenile Justice Act, 1986, provides, if a Juvenile is accused of an offence for which u/s 223 of the Code of Criminal Procedure, 1973, or any other law for the time being in force such Juvenile and any person who is not a Juvenile would, but for the prohibition contained in Sub-section (1), have been charged and tried together, the Court taking cognizance of the offence shall direct separate trials of the Juvenile and the other person". Hence, it is obligatory upon the Court taking cognizance of the offence, the try the Juveniles separately, even if otherwise under any other law, the Juvenile and another offender were liable to be tried together.
In view of these overriding provisions of the Juvenile justice Act, 1986, the petitioner''s contention ought to have been upheld by the Labour Court. The Labour Court''s order dated 29th September, 1993 impugned in the writ petition is, therefore, erroneous and contrary to raw and hence liable to be interfered with.
In the result, the writ petition is allowed. The impugned order of the Labour Court dated 28th September, 1993, made in Miscellaneous Complaint (ULP) No. 132 of 1992, is hereby quashed and set aside. It is held that the petitioner is not liable to be tried or the offence alleged against her by any forum other than the forum contemplated u/s 7 of the Juvenile Justice act, 1986. It is directed that the Labour Court should dismiss Miscellaneous complaint (ULP) No. 132 of 1992 as against the petitioner as not maintainable.
Rule is accordingly made absolute with no order as to costs.
Issuance of certified copy of this judgment is expedited.