Cipla Ltd. Vs. Cipla Employees' Union and Ors. (20.08.1999 - BOMHC) - Court Judgment

Excerpt:
- code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam]. - this clearly reflects a vindictive and victimising attitude on the part of the company's officers.1. the original petitioners (the respondents) before us have filed the present civil application praying to speak to minutes of order dated july 19, 1999 passed by us. hereinafter the parties would be referred to as 'the union' and 'the company' (the original petitioners and the respondents respectively).2. we have again heard both the learned counsel for some time. in spite of our detailed order it appears that the company has not accepted the letter and spirit of our order and has deliberately tried to misunderstand it. our attention is drawn to a letter dated july 28, 1999 addressed by the company to one of the machine operators (original petitioner no. 2). by the said letter, though he was admittedly a machine operator, he was allotted the work of cleaning of acid shed racks, boxes and carbouys and its area and acid shed. in the said letter it is alleged that he refused to do that work and remained idle for the entire day. it appears that even thereafter the company kept on insisting upon him to do that work only and it displayed warning orders on the notice board. it is clear from the record that shri pingle was a machine operator and his main duty and work is that of a machine operator. we have in our order made it abundantly clear that a machine operator should clean the 'cubic area' of the machines, that is, the surrounding place of the machine where the machine operator works. to clean the surrounding area of the machine is not his principal or main duty but it is only an incidental or ancillary work and, therefore, according to us it was also the work required to be done by the machine operator himself. even the learned counsel shri cooper for the company had unequivocally and categorically made a statement which we have recorded in our order that a machine operator will be required to do the aforesaid incidental work of cleaning the cubic area that is the surrounding place of the machine only and nothing else. we have no manner of doubt that the management of the company must have read the order and must also have understood the same. it appears that some of the officers are trying to make the issue of work as a hollow prestige issue and they appear to suffer from an ego problem and they appear to be bent upon to break the spirit and back of the employees at any cost. had it not been so we would not have been called upon to waste our time once again on the very same issue. it is very unfortunate that the company should have transferred a machine operator to some other department or place and to have called upon him to do the work of 'cleaning of acid shed racks, boxes and carbouys and its area in acid shed' which was definitely not his duty or his work as a machine operator. this clearly reflects a vindictive and victimising attitude on the part of the company's officers. there is no dispute of any nature that the machine operators are ready and willing to do the cleaning work of cubic area during the pendency of the complaint. it appears that the company has not been able to imbibe the spirit of mutual co-operation as reflected in our order. we do not find anything which is vague or which requires any clarification. the union appears to have been constrained to approach us once again particularly because the company has transferred or shunted off some of the active employees encase requiring them to do only the cleaning work without assigning them the principal or main duty of their respective posts or designations. it appears that the officers of the company have mala fide shifted the employees from their usual main work to some other places requiring them to do only the work of cleaning and sweeping. this was not the order which we had passed.3. while recording the statement of shri cooper, the learned counsel appearing for the company we had asked him for more than once, may be, half a dozen times that a machine operator would not be required to clean and sweep the area or floor except the surrounding area of his machine and shri cooper had repeatedly told us that was correct. when he made this statement he did so after obtaining instructions from the officers who were personally present in the court it appears that someone from amongst them is trying to play mischief to continue to brew the problem in the company. the company is trying to misread and misconstrue the order by shifting the usual machine operators and other workers from their usual and main duty requiring them to do the only incidental part of work of cleaning and sweeping.4. we, therefore, make the civil application absolute in terms of prayer clause (a) which reads as under: (a) that this honourable court be pleased to speak to the minutes of order dated july 19, 1999 to clarify as under:'only those who are categorised as machine operators and who are actually given the work of operating the machines should be called upon to clean only the cubic area surrounding the machine and nothing else'.5. since the industrial court is seized of the matter and has adjourned the complaint to september 17, 1999. we feel that such industrial unrest cannot be allowed to continue for a long period. we direct the industrial court to dispose of the complaint as expeditiously as possible within a period of six months from today. the industrial court is directed not to grant any unnecessary and unjustified adjournment to any of the parties. both the parties shall request the industrial court to pre-pone the date from september 17, 1999, if possible for the court.6. civil application is disposed of as above. the company shall pay a cost of rs. 5000.00 to the petitioner no. 2 within two weeks from today.