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Judgment
D.G. Deshpande, J.—Heard Mr. Jagtap for the petitioner in both the petitions, so also Usha Kejariwal and Mr. Rajput learned APPs for the State/respondents. Nobody is present for the respondent Nos. 1 to 4 in petition No. 976 of 1993. Also heard Mr. Desai for respondent Nos. 1 to 5 in petition No. 977 of 1993.
The petitioners in both these petitions are the inspectors of Security Guards appointed by the Board constituted under the Maharashtra Private Security Guards (Regulation of Employment and Welfare) Act, 1981, [herein after referred to as the ''Act of 1981'']. The said petitioners visited the establishments of the respondent No. 1 under the said Act of 1981 and found that the respondent No. 1 had not complied with the provisions of the said Act of 1981 and a Scheme framed thereunder and since default on the part of respondent No, 1/employer continued in spite of request, the petitioners filed private complaints against them before the Judicial Magistrate First Class, Thane. So far as Writ Petition No. 976 of 1993 is concerned, it was filed against the Palghar Taluka Society Industrial Cooperative Estate Ltd. and three others and so far as Writ Petition No. 977 of 1993 is concerned, it was filed against M/s. Gopal Anand Rasayan and four others. However, later on both the petitioners, in their respective cases, applied to the Magistrate u/s 257 of the Criminal Procedure Code for permission to withdraw the complaints on the ground that the accused in their respective complaints had complied with the provisions of the said Act of 1981 and the scheme. The petitioners/complainants annexed the letters which they had received from the Board along with their applications. However, when the said applications u/s 257 of the Criminal Procedure Code came up for hearing, the concerned Magistrate rejected the same on the ground that if on the date of filing of the complaints the employer/respondents had not complied with the provisions of the said Act of 1981, then subsequent compliance by the employer/respondents would not give any right to the Board or to the petitioners to withdraw the complaints. He, therefore, rejected the applications in both the cases, and hence, these writ petitions.
It was contended by Mr. Jagtap who appeared for the petitioners/ complainants in both the matters that Maharashtra Private Security Guards (Regulation of Employment and Welfare) Act, 1981, was brought into existence to protect the interest of the persons who were employed as security guards by different industrial units or establishments because number of malpractices were prevalent in this field and certain agencies, which were acting as agents for appointing security guards in the factories or establishments, were exploiting their situation to the detriment of the persons employed a security guards. And therefore, with a view to curb these malpractices and for making better provisions in respect of terms and conditions of the employment for security guards this Act was brought into force and in 1981 a Scheme, as envisaged by the Act, was also formulated by the Government of Maharashtra. Therefore, according to Mr. Jagtap, object of this Act is that whoever wants to employ anybody as a security guard, has to register himself with the Board constituted under this Act of 1981 and thereafter appoint security guards who are on the role of the Board as prescribed. Mr. Jagtap also contended that the Board constituted under this Act is a statutory Board, and according to him Deputy Commissioner of Labour i.e. a person holding responsible office, is appointing as chairman and all the decisions to prosecute or to withdraw the prosecution are taken by the Chairman with full responsibility. According to Mr. Jagtap, it is true that respondents in both the petitions i.e. the employers had initially not complied with the provisions of Act of 1981, and therefore, prosecution was launched. However, upon insistence by the Board and the Inspectors appointed there under both the employers i.e. respondent No. 1 in both these petitions had complied with the provisions of this Act of 1981 after which only the original complainants, who are the petitioners, applied to the Magistrate for permission to withdraw the complaints.
According to Mr. Jagtap, the decision to withdraw the complaints is taken by the Board with full responsibility and only after the employers complied with the requirements of this Act 1981 fully to the satisfaction of the Board and once that is done. The Board does not see any point in prosecuting the employers or in the complaints filed. Letter .to that effect is produced by Mr. Jagtap. The same is taken on record and marked in for identification.
Mr. Jagtap also contended that since the object of this Act was to safeguard and protect the interest of the security guards, continuation of the prosecution was not in the interest of the security guards or in the interest of the Board to whom duty of enforcing the provisions of the Act was entrusted because if the employer decided, he could avoid the implementation of the provisions of this Act by paying fine which was not more than Rs. 500/- as provided by Clause 39 of the Scheme framed under the said Act. And therefore, in this background, when respondent No. 1 in both these petitions had complied with the provisions of this Act of 1981 and the Board was satisfied about that, then only the complainants who were the inspectors appointed by the Board applied to the Magistrate for the permission to withdraw the complaints, the same should have been permitted by the Magistrate and there were no reasons for the Magistrate to reject the applications.
On the other hand, it was contended by Usha Kejariwal that if on the date of filing of the complaints the employers respondent No. 1 had not complied with the provisions of this Act, then subsequent compliance could not be considered as sufficient for withdrawing the complaints. She also contended (hat if such a course was allowed and permitted by the Court then there would be no purpose in prosecuting the employers and tendency of flouting the appreciation of said Act would increase.
I have given my anxious consideration to the submissions made by both the Advocates. Clause 39 of the Scheme prescribed penalties and it lays down that whoever contravenes the provisions of Clause 14, 26 or 27 shall, on conviction be punished with imprisonment for a term of three months or with fine which may extend to rupees five hundred or with both where such contravention is a first contravention. This clause also provides more sentence in subsequent contravention. Clause 14 is about registration of employer with the Board. Clause 26 is about obligation of registered employers and Clause 27 is about restriction on employment.
Section 257 of the Criminal Procedure Code on which reliance was placed by the petitioners before the Trial Court in support of their applications for withdrawal provides as:-
If a complainant, at any time before a final order is passed in any case under this Chapter, satisfies the Magistrate that there are sufficient grounds for permitting him to withdraw his complaint against the accused, or if there be more than one accused, against all or any of them, the Magistrate may permit him to withdraw the same, and shall thereupon acquit the accused against whom the complaint is so withdrawn.
The section therefore gives liberty to apply for withdrawal of the complaint and if the Magistrate is satisfied about sufficiency of the grounds, then Magistrate may allow withdrawal of the complaint.
It is true as argued by APP Usha Kejariwal that when the complaint in both these cases was filed, there was no compliance by respondent No. 1 i. e. they did not get registered themselves with the Board as provided by Clause 14 and consequently clauses 26 and 27 did not apply. If the scheme and Clause 14, 26 and 27 are carefully considered, it is clear that respondent No. 1 could be said to have committed an offence under Clause 26 and 27 only, if they are registered employers, because Clause 26 imposes obligations on registered employers to accept the obligations of the scheme and Clause 27 imposes certain restrictions on the registered employers. Therefore, unless respondent No. 1 in both these petitions get themselves registered, they cannot be held guilty of committing breach of Clause 26 and 27 of the Scheme. Therefore, the only offence that appeared to have been committed by respondent No. 1 at the time of filing of the complaint was breach of Clause 14 which casts obligations on every employer to register himself with the Board.
Therefore, in this background, if the complaints, applications for withdrawal and the provisions of Section 257 or the Criminal Procedure Code are seen together, then it becomes clear that the complainant/ petitioners under the directions of the Board were fully competent to withdraw the complaint.
So far as reasoning of the Magistrate that on the date of the complaints an offence was committed and subsequent rectification cannot be looked into is concerned, it has to be seen that the offences are triable as summon cases because punishment prescribed under Clause 39 of the Scheme is less than two years and they can even be tried as summarily as provided u/s 260 of the Criminal Procedure Code. In fact, Section 206 of the Criminal Procedure Code also empowers the Magistrate to issue special summons in cases of petty offence and the Magistrate can issue such summons u/s 206 in respect of an offence if he comes to the conclusion that, offence u/s 260 can be tried summarily. Offence of breach of Clause 39 of the Scheme was the offence which could have been tried by the Magistrate summarily and for which Magistrate could have issued special summons in cases of petty offence u/s 206 of the Criminal Procedure Code.
Considering the Scheme of Chapter XX which prescribed procedure for trial of summons cases by Magistrates and considering the fact that the specific provision is made in this Chapter to allow withdrawal of complaint, it is clear that the Legislature wanted that the complainants i. e. those who initially proceeded in respect of summons case i. e. the offence punishable less than two years should have power to withdraw the complaint because of very nature of the offence and punishment prescribed therefrom, and therefore, in exercise of such power, the complainants in instant case i.e. the petitioners in both these petitions applied to the Magistrate for withdrawal of the complaints and if the Board, constituted under the Act of 1981, satisfied itself that the employer - respondent No. 1 had complied with the provisions viz. they got themselves registered with the Board as required by the Act of 1981, then the Magistrate should have permitted withdrawal of the complaints.
It is true that when such applications are made, the Court has to see, whether there are sufficient reasons for withdrawal. But nothing is there on record to satisfy that withdrawal of the complaints in both the cases is mala fide. To the contrary, Mr. Jagtap appearing for the Board through the petitioners contended that the Board acts responsibly and it was in the interest of security guards that application for withdrawal of the prosecution or complaint was made.
Counsel for the M/s. Gopal Anand Rasayan i.e. the respondent No. 1 in Petition No. 977 of 1993, supported this argument and contended that his employer has complied with the requirements of the Act of 1981 i. e. got himself registered and has employed the security guards from the panel maintained by the Board.
Mr. Jagtap appearing for the petitioners has made similar statement in respect of the Palghar Taluka Society i. e. respondent No. 1 in Petition No. 976 of 1993.
In view of all these facts, I am unable to agree with the submissions made by Usha Kejariwal, the APP for the State and with the reasoning given by the Magistrate in rejecting the applications. It has to be said that the applications for withdrawal are filed by the Board after due deliberation and consideration of all the circumstances and also considering the consequences of such applications. There are no mala fides in those applications and interest of the security guards for which the Act Is legislated is not at all adversely affected. To the contrary, it is well protected. Therefore, even from the angle of public interest, the permission should have been granted by the Magistrate. For all these reasons both the petitions are required to be allowed. Hence the order:-
ORDER
Both these petitions are allowed.
Impugned order of the Magistrate dated 20.3.1993 In C.C. No. 964 of 1990 is set aside and permission to withdraw the complaint is granted to the petitioner in Petition No. 976 of 1993.
Similarly impugned order of the Magistrate dated 20.3.1993 in C.C. 8287 of 1986 is set aside and permission to withdraw the complaint is granted to the petitioner in Petition No. 977 of 1993.
Rules in both these petitions are made absolute.
No order as to costs.