Full Judgment
R.N. Biswal, J.
1. The petitioner called in question the adverse remarks passed by the learned S.D.J.M. Panposh at Rourkela in 2 (C) CC Case No. 29 of 2006 being unwarranted and uncalled for.
2. Heard learned Counsel for the parties.
3. The facts giving rise to filing of the writ petition is that on 5.10.2005 at about 9.30 A.M., the petitioner, who was working as Asst. Director/ Inspector of Factories and Boilers Rourkela Zone-ll inspected M/s. Delhi Coach Body Builders situated at Rourkela in presence of the owner thereof and found that the factory was running with the aid of 14 persons and 7.5 KW electricity power without obtaining any factory license as required under law. The shed with equipments was being used as a factory, without obtaining prior approval of plan. Since the opp. party refused to comply with the same, notice was sent to him by Regd. Post with A.D. on 11.11.2005 directing him to furnish documents, as per the list therein for grant of registration within 15 days. The petitioner again sent reminders on 25.11.2005 for furnishing requisite documents, but to no effect. So on 10.1.2006 he instituted the aforesaid case against the opp.party, before learned S.D.J.M. Panposh at Rourkela. As an abundant caution, the petitioner also filed an application for condonation of delay.
4. Learned S.D.J.M. Panposh at Rourkela vide order dated 16.1.2006 refused to take cognizance of the offence on the ground that the complaint was not filed within three months of the detection of the offence as required under Section 106 of the Factories Act and he deprecated the action of the petitioner stating as follows:
The action of the complaint by delayed launching of prosecution is strongly deprecated. The complainant has himself to blame for the delay as per his own admission.
5. Learned Counsel for the petitioner submitted that when the accused did not comply with the order, the petitioner issued notice to him by registered post with A.D. on 11.11.2005 directing him to furnish documents as per the list therein for grant of registration within fifteen days. When it was not complied with, the petitioner again issued notice on 25.11.2005 for furnishing requisite documents, but to no effect. Ultimately, on 10.1.2006, which was within three months from the date of issuing the last notice the case was filed. As an abundant caution, he also filed a petition to condone the delay on the ground that due to delay in official process, the case could not be filed earlier. So, learned S.D.J.M., ought not to have passed the aspersion against the petitioner. Learned Counsel for the petitioner further submitted that the said aspersion was unwarranted and uncalled for and the same was not made for just decision of the case. As such the same should be expunged.
6. In support of his submission, he cited the decision in the case of Tessta Setaivad and Anr. v. State of Gujarat and Ors. : AIR 2004 (SC) 1979, wherein the Apex Court held that when the caustic observation made was uncalled for, the High Court ought not have made such observation. He further cited the decision in the case of Prabha Mathur and Anr. v. Pramod Aggarwal and Ors. : (2008) 9 Supreme Court Cases 469, where the Apex Court held that adverse observations imputing mens rea should not be made against a person without issuing notice to him. Admittedly, in the present case, notice was not issued to the petitioner before passing the aforesaid caustic remark. The caustic remarks passed by the learned S.D.J.M. was also not required for just decision of the case.
7. Therefore, under such circumstances, the caustic remarks passed against the petitioner as quoted earlier are expunged and deleted from the judgment of the learned S.D.J.M., Panposh at Rourkela and consequentially be treated as having never existed.
8. Accordingly, the writ petition is allowed.