D.G. Deshpande, J.
1. All these Revision Applications involve common question, therefore they have been disposed of by this common judgment, by consent.
2. These Revisions were for admission and at that time it was decided finally, therefore initially oral arguments of Mr. Shamrao G. Samant learned counsel for the petitioners-accused and Mr. Yande on the otherwise for respondent No. 1 were heard. Then both the counsels gave comprehensive written notes of arguments with case laws and on that basis all these Revision Applications are being disposed of.
3. Petitioners in all these Revision Applications were accused before the trial Court i.e. Additional Chief Metropolitan Magistrate, 19th Court, Esplanade, Mumbai, under Section 630 of the Companies Act. The complaints were filed by respondent No. 1 against them for refusal to vacate the premises. The Magistrate found them guilty and by his Common Order dated 24th August, 2000 ordered them to hand over possession of the premises to the respondent No. 1, in addition to the imposition of fine of Rs. 100/- on each of the petitioners-accused.
4. Petitioners accused challenged that order by filing Appeals but the Additional Sessions Judge, Greater Mumbai dismissed those Appeals on 27th September, 2001, hence these Revision Applications.
5. In the meantime, these petitioners-accused had filed writ petition before this Court vide Writ Petition No. 752 of 2001 in which Justice Palkar passed an Order on 18th August 2001 giving certain directions to the Sessions Judge.
6. Admitted facts are that the respondent No. 1 is the owner of the premises i.e. the Company registered under the Companies Act and all the Petitioners-accused are occupants of the Company premises either as employee of the respondent No. 1 or legal heirs of the original employee of the respondent No. 1. They are occupying those premises pursuant to an agreement entered into between the employer and the employee. Respondent No. 1 gave notice to them to vacate the premises. The notices were received by them i.e. by their employees or their legal heirs who were occupying those premises. All of them failed to vacate the premises, therefore, prosecutions were launched against them by filing separate complaints.
7. Before the trial Court, appellate Court and before this Court similar points have been raised by the petitioners-accused. From the oral submissions made by Mr. Shamrao Samant initially and from his written submissions the Petitioners accused are challenging both the orders of the Courts below on the following grounds:--
(1) That offences under Section 630(1)(a) are different offences. The trial Court did not particularise whether the petitioners- accused are guilty under Section (1)(a) or (1)(b) or both;
(2) That the petitioners-accused had not acquired property wrongfully therefore cannot be prosecuted because acquiring property wrongfully is the gist of offence under Section 630(1)(a);
(3) There was no breach of agreement by the petitioners-accused at any time that the petitioners-accused were in employment continuously right from the beginning and unless their services were terminated and terminal benefits granted, their occupation of the premises could not be held to be illegal or unauthorised;
(4) That the employees were given residential accommodation by the Company for smooth and proper functioning of the Mill and unless Mill - respondent No. 1 makes out a case that the premises are required for the bona fide of other workers, the petitioners-accused cannot be asked to vacate the premises;
(5) That Section 630 of the Companies Act is not properly interpreted by both the Courts below and the object of incorporating Section 630 in the Companies Act is as enunciated by the Supreme Court was totally lost sight of;
(6) That the policy of the Maharashtra Government to grant protection to the occupants because there are directions and resolutions of the Government to that effect and therefore the proceedings against the accused under Section 630 were untenable;
On the other hand it was contended on behalf of the respondent No. 1 as under:--
(i) that as per the agreement between the company and the employees they were bound to vacate the premises when called upon, that there was no necessity to terminate the employment and then call upon the petitioners-accused to vacate the premises;
(ii) that scope and object to Section 630 of Companies Act has been conclusively decided by the Supreme Court in 1995 Supreme Court Cases (Cri) 590, Abhilash Vinodkumar Jain (Smt.) v. Cox and Kings (India) Ltd. and Ors.);
(iii) That both the Courts below that is the trial Court as well as the appellate Court did not commit any error of law and concurrent findings of fact and also concurrent findings of law does not entitle the petitioners-accused to file these Revision Applications;
(iv) That the Government decision to protect the workers in Mills with reference to their occupied premises cannot come in the way of the legal right conferred upon the Company;
(v) That closure of the Mill - respondent No. 1 does not affect the right of the Company under Section 630 of the Companies Act because the Mill respondent No. 1 exist as such and consequently the Revision applications were liable to be dismissed.
Section 630 of the Companies Act reads as under;
'630. (1) If any officer or employee of a company -
(a) wrongfully obtains possession of any property of a company; or
(b) having any such property in his possession, wrongfully withholds it or knowingly applies it to purposes other than those expressed or directed in the articles and authorised by this Act;
he shall, on the complaint of the company or any creditor or contributory thereof, be punishable with fine which may extend to one thousand rupees.
(2) The Court trying the offence may also order such officer or employee to deliver up or refund, within a time to be fixed by the Court, any such property wrongfully obtained or wrongfully withheld or knowingly misapplied, or in default, to suffer imprisonment for a term which may extend to two years.'
8. Emphasis of Mr. Shamrao Samant counsel for the petitioners-accused was that none of the petitioners-accused before this Court has wrongfully obtained possession of any property of the Company. There is no dispute about this proposition because the property of the Company came in possession of the petitioners-accused employer pursuant to the agreement between the parties, therefore Section 630(1)(a) will not apply, but it will be Section 630(1)(b) which applies in the instant case which provides that having any such property in his possession the employee wrongfully withholds it. Admittedly, the residential accommodation came in possession of the petitioners-accused-employees by virtue of their employment and under an agreement but their possession becomes illegal or wrongful when the accused even in spite of notice to that effect refuses to deliver back the possession. Therefore, in a case under Section 630 what the Court has to see is whether an employee or officer of the company wrongfully obtains possession of any property of the company under Section 630(1)(a) or having any such property in possession wrongfully withholds it.
9. Mr. Shamrao Samant counsel for the petitioners-accused contended that the use of the word in Sub-section (1)(b) 'having any such property in his possession' is with reference to Sub-section (a) and therefore unless the company proves that the possession was wrongfully obtained, no company can succeed in getting possession of its property even under Section (1)(b).
10. It is not only difficult to accept this contention of Mr. Shamrao Samant but the same has to be rejected outright because if Section 630(1)(a) is controlled by (i)(b), then there was no purpose in making two separate provisions. Section (1)(a) and (1)(b) are meant for two different contingencies and (b) cannot be interpreted as an inseparable part of (1)(a). Both the Sub-sections (1)(a) and (1)(b) are required to be interpreted separately, otherwise the very purpose of the Act will be frustrated. Therefore, (1)(b) can be invoked when having entered into possession lawfully it is wrongfully withheld by an employee.
11. It is true that in Sub-section (b) of Section 630(1) the words are 'having any such property in his possession' are used. But since Sub-sections (a) and (b) are separated by the word 'or' it is clear that two contingencies are covered by Section 630, namely Officer or employee of a company wrongfully obtaining possession of any property of a company or secondly having such property in his possession wrongfully Withholding it. If argument of Mr. Samant is accepted then no company will be able to recover property given to its employee whenever there is refusal on the part of the employee to deliver it back. Such an interpretation which frustrate the entire object and purpose of Section 630 cannot be accepted. The gist of Sub-section (1)(a) is wrongfully obtaining of property and the gist of Sub-section (1)(b) is wrongfully withholding it and refusal to hand over back the property to the company by an employee after demand by the company amounts to wrongfully withholding of the property. Counsel for the respondents in this regard places reliance on : (1988)IILLJ202SC , Baldev Krishna Sahi v. Shipping Corporation of India Limited and Anr., wherein the Supreme Court considered the scope and effect of Sub-section (1) or Section 630. Supreme Court had taken into consideration the judgment of Calcutta High Court in Amritlal Chum v. Devi Ranjan Sha (1987) 61 Company Cases 211, wherein it was held that words 'any such property' in Section 630(1)(b) relate to property specified in Clause (a) viz. property of a company wrongfully taken possession of by a present officer or employee of the company. Supreme Court also took into consideration the view of the Bombay High Court in this regard :
'8. Section 630 of the Act which makes the wrongful withholding of any property of a company by an officer or employee of the company a penal offence, is typical of the economy of language which is characteristic of the draughtsman of the Act. The section is in two parts. Sub-section (1) by Clauses (a) and (b) creates two distinct and separate offences. First of these is the one contemplated by Clause (a), namely, where on officer or employee of a company wrongfully obtains possession of any property of the Company during the course of his employment, to which he is not entitled. Normally, it is only the present officers and employees who can secure possession of any property of a company. It is also possible for such an officer or employee after termination of his employment to wrongfully take away possession of any such property. This is the function of Clause (a) and although it primarily refers to the existing officers and employees, it may also take in past officers and employees. In contrast, Clause (b) contemplates a case where an officer or employee of a company having any property of a company in his possession wrongfully withholds it or knowingly applies it to purposes other than those expressed or directed in the articles and authorised by the Act. It may well be that an officer or employee may have lawfully obtained possession of any such property during the course of his employment but wrongfully withholds it after the termination of his employment. That appears to be one of the functions of Clause (b). It would be noticed that Clause (b) also makes it an offence if any officer or employee of a company having any property of the company in his possession knowingly applies it to purposes other than those expressed or directed in the articles and authorised by the Act. That would primarily apply to the present officers and employees and may also include past officers and employees. There is therefore no warrant to give a restrictive meaning to the term 'officer or employee' appearing in Sub-section (1) of Section 630 of the' Act. It is quite evident that Clauses (a) and (b) are separated by the word 'or' and therefore are clearly disjunctive.
9. The High Court of Calcutta in Amritlal Chum case obviously fell into an error in seeking to curtail the ambit of Section 630(1)(b) by giving a restrictive meaning to the term 'officer or employee' which must take its colour from the context; in which it appears. The whole object of enacting Sub-section (1) of Section 630 is the preservation of the property of a company by the creation of two distinct offences by Clauses (a) and (b) which arise under different sets of circumstances, and it would be rendered nugatory by projecting Clause (a) into Clause (b). There is also no warrant for the construction placed by the High Court of Calcutta on the words 'any such property' occurring in Clause (b) as applicable to such property of a company, possession of which is wrongfully obtained by an officer or employee of the company i.e. refers to the whole of Clause (b). According to plain construction, the words 'any such property' in Clause (b) relate to any property of a company as mentioned in Clause (a).'
Ultimately, the petition filed by the employee before the Supreme Court was dismissed and he was given one month's time. Similar view is taken by Supreme Court in : (1996)IIILLJ354SC , Smt. Abhilash Vinodkumar Jain v. Cox and Kings Ltd. and Ors., and observed as under :--
'Section 630 of the Act which makes the wrongful withholding of any property of a company by an officer or employee of the company a penal offence, is typical of the economy of language which is characteristic of the draughtsman of the Act. The Section is in two parts. Sub-section (1) by Clauses (a) and (b) creates two distinct and separate offences. First of these is the one contemplated by Clause (a), namely, where an officer or employee of a company wrongfully obtains possession of any property of the company during the course of his employment, to which he is not entitled. Normally, it is only the present officers and employees who can secure possession of any property of a company. It is also possible for such an officer or employee after termination of his employment to wrongfully take away possession of any such property. This is the function of Clause (a) and although it primarily refers to the existing officers and employees, it may also take in past officers and employees. In contract, Clause (b) contemplates a case where an officer or employee of a company having any property of a company in his possession wrongfully withholds it or knowingly applies it to purposes other than those expressed or directed in the articles are authorised by the Act. It may well be that an officer or employee may have lawfully obtained possession of any such property during the course of his employment but wrongfully withholds it after the termination of his employment. That appears to be one of the functions of Clause (b). It would be noticed that Clause (b) also makes it an offence if any officer or employee of a company having any property of the company in his possession knowingly applies it to purposes other-than those expressed or directed in the articles are authorised by the Act. That would primarily apply to the present officers and employees and may also include past officers and employees. There is therefore no warrant to give a restrictive meaning to the term officer or employee appearing in Sub-section (1) of Section 630 of the Act. It is quite evident that Clauses (a) and (b) are separated by the word 'or' and therefore are clearly disjunctive.
Number of other judgments were cited by the petitioners in support of the aforesaid contentions but in my opinion the aforesaid two judgments of the Supreme Court are sufficient to meet the arguments of Mr. Samant and therefore for these reasons it cannot be accepted that Sub-section (b) of Section 630(1) is qualified by Sub-section (a) of Section 630(1). Both are different and distinct offences and therefore it is not necessary for the respondents to come up with a case that the petitioners before this Court have obtained wrongful possession of the property. They can succeed if they show that even if the property so obtained wrongfully in the beginning by virtue of employment by the petitioners or their ancestors they subsequently refused to deliver possession whereof when demanded by giving notice to them on behalf of the Company.
12. The next contention of Mr. Samant was that there was no breach of agreement by the petitioners at any time because they were in employment continuously right from the beginning and their services were not terminated by the Company at any time, therefore the company does not get any right to get back the possession of the premises. So far as agreement between the company and the petitioners is concerned, the same was not referred to by Mr. Samant during his arguments and it was not shown that company had ever agreed that they will not claim the possession from the employee till his services are terminated and therefore that aspect cannot be considered neither such a point appears to have been raised before the trial Court as well as in the appellate Court. Continuation of employment does not give a right to the employee to retain possession unless there is a contract to that effect between the parties. Admittedly, the property belongs to the company. It was given to the employees because they were in service. Mill is closed long back and therefore the company/mill served a notice upon the petitioners claiming back the possession and therefore in that context it was obligatory upon the petitioners to deliver back the possession. Refusal to deliver back possession to the Company of the premises by the applicants amount to wrongfully withholding of the property of the company.
13. In this regard it was argued by Mr. Samant that company can take back property from the employees only for the purpose of giving the same to other employees who were waiting in queue for getting the residential accommodation. He contended that since the company has closed down i.e. mill has closed down, there are no employees in waiting and therefore, there is no question of company taking the premises from the petitioners and giving it to their employees and consequently the company cannot get back the possession. I do not find any reason to accept this submission, firstly, there is no agreement between the parties to that effect that company has a right to get back possession of the property will depend only upon the company agreeing to give premises to its other employees, and secondly Section 630 of the Companies Act does not give such a right to the employee nor there is any provision in the Companies Act which gives an employee a right to retain the property on the above pretext.
14. Counsel for the petitioners Mr. Samant also relied upon the same judgment of Supreme Court in : (1996)IIILLJ354SC Smt. Abhilash Vinodkumar Jain v. Cox and Kings (India) Ltd. and Ors., and particularly following observations of the Supreme Court in para 18 in support of his contention:
'If an employee or a past employee or anyone claiming the right of occupancy under them were to continue to 'hold' the property belonging to the company, after the right to be in occupation has ceased for one reason or the other, it would not only create difficulties for the company, which shall not be able to allot that property to its other employees, but would also cause hardship for the employee awaiting allotment and defeat the intention of the legislature.'
From the aforesaid observation, Mr. Samant tried to contend that unless the company is required to allot the residential premises to its other employees, it cannot claim back possession of the Company's property from the applicants. With respect, I am unable to agree with Mr. Samant. Repeatedly in the aforesaid judgment the Supreme Court has said that broader, liberal and purposeful construction of Section 630 has to be made for furtherance of the object and purpose of the legislation and construe it in a wider sense to effectuate the intendment of the provision. The judgment has to be taken as a whole and therefore, the contention of Mr. Samant has to be rejected.
15. Mr. Samant then made submissions on the Policy of the Maharashtra Government to grant protection to the occupants because of different directions and resolutions of the Government to that effect. In support of his contention he relied upon some proceedings in Legislative Assembly and the Statement made by the Government in that regard. Another star question in the Assembly and the decision of the Government in that regard, and letter from the Co-operation and text Department of Mantralaya dated 19-12-2001 and Exhibit 'B' to Revision Applications which is another letter from Industry, Power and Labour Department of the Mantralaya dated 7-2-2001 and a Gazette Notification of the Urban Development Department dated 20-3-2001. All these submissions were made by Mr. Samant before the trial Court as well as before the appellate Court but they were rejected. Taking one by one the star question in Vidhan Sabha by Shri Gangadhar Patle, a Member of the Vidhan Parishad and the statement made by the Government in that regard, and the star question of Jayant Patil and the statement of the Chief Minister in that regard can at the most be said to be intention of the Government, firstly to form a Committee and a Sub-Committee and Policy decision of the Government to protect interest of the labourers. These all are of recommendatory nature and that too the Government has stated that if the owner of a cotton mill wants to develop or redevelop the land then only they can be asked to reserve 225 sq. ft. of carpet area for the occupants in the chawl of the mill. The letter dated 19-12-2001 is addressed to Police by Chief Secretary of the Government of Maharashtra wherein the Chief Secretary has informed the Police Officer that occupants of the chawl of the mills could not be evicted and if any such action is taken, police should not help the owners of the mill. Another letter of Co-operation and Textile Department dated 10-1-2001 is also issued by Principal Secretary to the Government of Maharashtra and is addressed to General Managers of Mukesh Textile Mill, Century Mill Textile India Ltd., The Bombay Dying (Spring Mill) Mfg. Co. Ltd. and Modern Textile Mill Ltd., it refers to the meeting of the delegation of Girni Kamgar with Chief Minister on 15-12-2001 and the intention of the Government that protection should be given to those occupants and they should not be evicted. There is some reference to modify the D.C. Regulation 58 as per which management is bound to give alternate accommodation to the tenants residing in chawl when the development of the lands occupied by chawl is to be carried out by the mills.
16. As against this it was contended by counsel for the respondents that there is nothing on record to show that the petitioners-complainants wants to develop the land of the mill. Secondly, according to him the recommendations of the Government or the Committee formed by the Government as stated above cannot have the force of law. Thirdly, he contended that it does not in any way take away the right conferred upon the Companies under the Companies Act by virtue of Section 630 and therefore Firstly there is no statutory right upon the petitioners-accused to continue to occupy the premises and secondly they cannot get any protection. It is an admitted fact that there is nothing on record to suggest that respondents company is going to develop the land or redevelop it and secondly rights conferred by the Companies Act under Section 630 upon the Companies are not taken away by any of those circulars etc. relied upon by Mr. Samant. Therefore, this aspect also cannot be considered in favour of the petitioners-accused. For all these reasons, I pass the following order:
ORDER
All the Criminal Revision Applications are dismissed. Rule discharged in all the revisions. Orders of the trial Court dated 24-8-2000 and 7-4-2001 and that of the Appellate Court dated 27-9-2001 are confirmed.
Four weeks time granted to the petitioners-accused to pay fine and vacate the premises on humanitarian grounds.
Parties to act on an ordinary copy of this order duly authenticated by the Sheristedar of this Court.
Certified copy expedited.