The General Manager, Empee Distilleries Limited, Mevalurkuppam vs State

A. Ramamurthi, J.—Petitioner / accused has filed this petition u/s 482 of Criminal Procedure Code to quash the proceedings in Crime

No.63 of 2002 launched by the respondent.

The case in brief is as follows:- One Mr. Mohan was working as permanent workman under M/s.Empee Distilleries Limited. During the course

of employment, he committed theft of some articles and for which a criminal case was launched in C.C.No.290 of 1993 on the file of Judicial

Magistrate No. II, Tiruvellore and the learned Magistrate acquitted the accused on 10.04.2000 on the ground that the charge has not been proved

for an offence u/s 381 IPC. The employee stopped reporting for duty on 21.12.1992 and remained unauthorisedly absent. The management did

not take any disciplinary action for the unauthorised absence from 1992 as they were under the bona fide impression that the employee was not

interested in working in the company any more. Even after the acquittal by the Court, the employee did not report for work. Since the officers,

who were dealing with the case, had left the services of the company, it was not pursued further. The management had since initiated disciplinary

action against the employee, now the employee had filed a complaint for alleged offences under sections 406 and 420 IPC and it was referred to

the respondent and on the basis of which the first information report has been registered. The defacto complainant had stated that the terminal

benefits had not been settled to him and as such, the petitioner has committed criminal breach of trust and misappropriation of money. The

purported proceedings by the respondent under the General Law, namely, Indian Penal Code invoking sections 406 and 420 IPC is nothing but an

abuse of process of law and is not maintainable and as such, it is liable to be quashed.

Learned Magistrate had no jurisdiction whatsoever in view of the fact that the issue in question has to be agitated only by means of an industrial

dispute and the jurisdiction of the Civil Court or Criminal Court to entertain a case of this kind is impliedly ousted. The issue relating to the non

employment and the employee without proving that the company has illegally terminated his service, is not entitled to claim any benefit. The nature

of dispute raised by the employee is nothing but an industrial dispute and agitation should be only under the Industrial Dispute Act and as such, the

proceedings are liable to be quashed.

Learned Government Advocate (Criminal Side) contended that there was non employment for the defacto complainant. He was acquitted by

the Criminal Court for the offence u/s 381 IPC and in spite of that, the terminal benefits payable to the employee have not been settled by the

management and under the circumstance, the complaint given by the defacto complainant for the offences under sections 406 and 420 IPC is

proper and correct and there is no reason to quash the proceedings.

Heard the learned counsel for the parties.

It is not in dispute that the defacto complainant was employed in the petitioner company and for the offence of theft which took place on

21.12.1992, the petitioner company gave a complaint to the police and after investigation, a charge sheet was laid u/s 381 IPC before the Court of

Judicial Magistrate No.2, Tiruvellore in C.C.No.290 of 1993. It is also not in dispute that the defacto complainant was found not guilty u/s 381

IPC and he was acquitted giving benefit of doubt on 10.04.2000. The defacto complainant filed a complaint before the court alleging that the

management has failed to give the terminal benefits due to him and thereby committed criminal breach of trust and misappropriation of his funds.

This complaint was referred to the respondent u/s 156(3) of the Code of Criminal Procedure and as such, the respondent had registered a case in

Crime No. 63 of 2002 for the offences under sections 406 and 420 IPC. The petitioner company has filed the present petition invoking section

482 of the Code of criminal Procedure to quash the proceedings on the ground that it is an abuse of process of law.

Learned counsel for the petitioner stated that even assuming that the defacto complainant is entitled to get any money, the quantum of amount

has to be determined and there should be some material to show that the management had misappropriated the amount or committed criminal

breach of trust. The only remedy available to the complainant is to proceed under the Industrial Dispute Act for deciding the quantum of amount.

Simply because the criminal case ended in acquittal, there is no bar for initiation of disciplinary proceedings against their employee. Further more, it

is stated that on and after the alleged criminal complaint relating to the occurrence on 21.12.1992 the employee has not reported for duty and even

after the acquittal of the criminal case, he has not offered to serve the company and moreover, these things can be decided only under Industrial

Dispute Act. He also relied upon section 2(k) of Industrial Dispute Act and by which any dispute or difference between the employee and

employer or between workman and workmen connected with employment or non-employment or the terms of employment of with the conditions

of service of any person has to be decided. Now, there is no material to show that the workman offered to serve in the company and he was not

given employment. From the averments in the complaint, it is evidently clear that the nature of dispute raised by the employee is nothing but an

industrial dispute and adjudication will be only under the relevant provisions of the said Act and the criminal complaint on the issue cannot be

entertained by the Court.

The Industrial Dispute Act is a self contained code which provides for remedy to a workman who has been denied employment or terminated

from service. For instance, even if an award is passed directing reinstatement and backwages by a Labour Court, if the management fails to

implement the same, the only remedy available to the employee is to approach the machinery provided under Industrial Dispute Act for

enforcement of the award and he cannot invoke the provisions of Criminal Procedure Code for filing a criminal complaint. When this being the

position of law, simply because the criminal case ended in acquittal, for non payment of any terminal benefits it is not open to the employee to file a

criminal complaint and moreover, the investigating authorities also have no locus stand to investigate the same. The employee has not filed any

record to show that he had raised any industrial dispute or any award was passed. The act of the management cannot be construed as a criminal

breach of trust or misappropriation of any money. Further more, acquittal in criminal case does not confer automatic right upon for the employee

for reinstatement of service and even then, the employee has to approach the machinery provided under the Industrial Dispute Act and seek for

appropriate orders. The findings of the Criminal Court may have some value, but certainly it is not a binding force on the Labour Court. The

Labour Court based on the facts and circumstances of the case notwithstanding the acquittal of the employee by the criminal court may still refuse

to grant relief to the employee. When such being a position of law, the question of employee maintaining any complaint before the Criminal Court

as if alleged violation of sections 406 and 420 IPC is an improper one and will lead to dangerous consequences.

It is settled position of law that in order to constitute criminal breach of trust, several ingredients have to be established. Similarly, the ingredients

of offence of cheating also has to be prima facie made out. The averments in the complaint if taken in to as a correct one, even then they do not

constitute an offence of criminal breach of trust or cheating.

Learned counsel for the petitioner also relied on the decision reported in Senior Supdt. of Post Offices ..vs.. . Gopalan 2000 (1) L.L.N. 92 for

the principle that acquittal of employee in criminal proceedings will not conclude departmental proceedings on the same charge.

Reliance is also placed on S.W. Palanitkar and others Vs. State of Bihar and another, that it was held that in a case of criminal breach of trust,

Mens rea is a necessary ingredient without which a breach of trust may not result in criminal breach of trust. The principles enunciated in these

decisions are applicable to the case on hand. Having regard to the facts and circumstances of the case, I am of the view that the complaint given by

the employee before the Court is nothing but an abuse of process of law and as such, it has to be necessarily quashed.

For the reasons stated above, the petition is allowed and the proceedings initiated against the petitioner company by the respondent is hereby

quashed. Consequently, Crl.M.P.No.2916 of 2002 is closed.