H.P. Mudlappa Vs. H. Narayan - Court Judgment

Excerpt:
- labour & services. dismissal from service: [subhash b. adi, j] respondents-employees on strike in hospital - management charged them that they have gone on illegal and unjustified strike also alleged that they threatened other employees with dire consequence - labour court holding strike was illegal and unjustified but, found order of dismissal too harsh and directed reinstatement - management challenged the order in writ petition - held, strike in a hospital cannot be appreciated. strike in hospital cannot be compared with any strike in industry or factory. if leaders compel other employees not to attend duty, it is not only indiscipline but causes harm and inconvenience to hospital. untoward incident not happening is not a ground to hold strike is justified. labour court should have considered gravity of charge before exercising power under section 11-a of i.d. act. exercise of discretionary power under section 11-a is not justified. award of labour court in modifying punishment is not justified. accordingly quashed. - 10. per contra, learned counsel for the respondent assertively contends that the accused had personally appeared before court on 4-8-2008, but on which day the petitioner failed to appear; he failed to pay cost.orderjawad rahim, j.1. this petition by the complainant is directed against the order dated 22-8-2008 in c.c. no. 6966 of 2006 on the file of iv additional chief metropolitan magistrate, bangalore, dismissing the complaint for non-prosecution.2. petitioner, party-in-person is present. the respondent is represented by learned counsel, sri bhootaiah.3. heard.4. the petitioner, through his petition under section 200 of the criminal procedure code, 1973 sought to prosecute the respondent for the offence under sections 378, 379, 405, 406, 415, 417 and 420 of the indian penal code, 1860. the jurisdictional magistrate after recording sworn statement of the complainant, took cognizance by order dated 3-3-2006 and issued process against the respondent-accused in response to which he appeared.5. the case was adjourned for evidence before charge and continued in that state till 28-9-2007. thereafter, on 16-11-2007 noticing the absence of the accused as also complainant and non-availment of benefit given to the complainant for tendering evidence before charge, the petition was dismissed. the said order was challenged by the complainant before this court in cri. r.p. no. 1421 of 2007 and was disposed on merit by order dated 16-7-2008, setting aside the summary dismissal of the complaint and remitting the matter to the trial court for de novo consideration with a direction to both sides to appear before the court on 4-8-2008. the petitioner was saddled with cost of rs. 1,000/-.6. the petitioner's grievance is that he filed an application under section 309 of the cr.p.c. before the trial court enclosing a copy of the order of this court dated 16-7-2008 and personally appeared on 4-8-2008, the date fixed. he also tendered cost, but none was present on behalf of the respondent to receive it.7. the trial court directed the application to be put up before court on 12-8-2008. on that day, when he appeared the case was not called and was listed to 13-8-2008. on 13-8-2008, petitioner was present in person and offered to pay cost of rs. 1,000/-, but the accused was absent. consequently, the trial court adjourned the case ordering issuance of summons to the accused returnable by 10-9-2008.8. despite fixing the date as 10-9-2008, accused moved an application under section 309, cr.p.c. to advance hearing from 10-9-2008 to 22-8-2008. the trial court granted such request and took the case on board. noticing the complainant was not present, once again the complaint has been dismissed. against this order, the complainant is again before this court.9. the petitioner who is party-in-person, referring to the sequence of events in the proceedings before the trial court, submits that the trial court has committed a grave error in disobeying the direction of this court remanding the matter for de novo consideration and has seriously erred in ignoring the fact that the petitioner had personally appeared before court on 4-8-2008, fulfilling the direction in the order dated 16-7-2008. thus, he seeks to set aside the order.10. per contra, learned counsel for the respondent assertively contends that the accused had personally appeared before court on 4-8-2008, but on which day the petitioner failed to appear; he failed to pay cost. therefore, accused moved an application to take the case on board on 22-8-2008 and on that day, since the complainant was not present, rightly the petition was dismissed.11. keeping in mind what is urged, i have perused the impugned order dated 22-8-2008 and also lower court records called for.12. the first issue that needs to be addressed is, whether the petitioner had complied with the direction of this court issued in cri. r.p. no. 1421 of 2007, dated 16-7-2008. lower court records fully support the petitioner's contention that he had appeared before the trial court on 4-8-2008. the application filed by the complainant under section 309, cr.p.c. bears endorsement of the learned trial judge which is a testimony in itself about his presence. it reads thus:complainant: advocate-in-person.put up on 12-8-2008sd/-4-8-2008thereafter the case was not called by the court on 12-8-2008, but called on 13-8-2008 and the following note is made:complainant: advocate: party-in-person.petitioner to pay cost of rs. 1,000/- as per order of hon'ble high court in cr. r.p. no. 1421 of 2007, dated 16-7-2008 and is ready to pay the cost, but accused absent. issue summons to the accused by 10-9-2008.this shows that the petitioner was personally present on 13-8-2008 and also his readiness to pay cost.13. it is pertinent to note that the case has been advanced from 10-9-2008 to 22-8-2008 without intimation to the petitioner and the learned trial judge records as follows.:accused present. complainant/petitioner before high court in cri. r.p. no. 1421 of 2007 is absent and has not appeared on 4-8-2008 as directed by the high court. it is clear that the petitioner/complainant though permitted to lead evidence before charge, no representation is made for the petitioner/complainant. further to cost of rs. 1,000/- as ordered by the high court is paid by the petitioner. in the above circumstances, there is no ground to proceed with the case against the accused and accordingly the accused is discharged. the complaint is dismissed under section 203, cr.p.c. intimate the high court of this order.this observation is obviously against the fact situation.14. despite disposing of the case in the manner aforesaid, learned trial judge has again called the case on 10-9-2008 and has passed the following order:on 13-8-2008 this case was posted to this date i.e., 10-9-2008. no party appeared before this court. the order dated 22-8-2008 is held proper and this case is dismissed. intimate the order dated 22-8-2008 to the high court as it was directed to be disposed of within six months from 4-8-2008.it is thus clear from the noting in the order sheet that the learned judge has not examined the records and has recorded against facts. the fact that the petitioner had appeared before court on 4-8-2008 and again on 13-8-2008 has been totally ignored. apart from this, the learned trial judge has submitted incorrect report to this court on 16-9-2008 which reads as follows:respected sir,sub: reporting order passed in c.c. no. 6966 of 2006 on the file of this court - reg.with reference to the above subject, a specific direction was given by the hon'ble high court of karnataka, bangalore, in its cr. r. p. no. 1421 of 2007 as the lower court order dated 16-11-2007 is set aside on payment of cost of rs. 1,000/- imposed to the petitioner/complainant and the trial court to conclude the matter within six months from 4-8-2008. but the complainant did not appear before this court nor deposited the cost imposed by the hon'ble high court. hence once again case stands dismissed as the complainant has not complied to the order of the hon'ble high court of karnataka, bangalore.hence, this is for your kind information. yours faithfully,sd/-from the facts, it is therefore, clear that the learned trial judge has acted totally arbitrarily in a slip short manner without applying his mind to the facts judiciously. the fact that the petitioner had appeared on 4-8-2008 has been deliberately omitted while passing the order dated 22-8-2008 and i find nothing wrong in the submission of the petitioner that the learned trial judge has shown partisan and biased approach in dealing with this matter.15. the order passed in cr. r.p. no. 1421 of 2007 speaks for itself that this court remanded the matter to the trial court to be disposed of on merits within 6 months. compliance report was therefore, expected. the report is again factually incorrect and is indicative of indifference of the trial judge in intimating facts which are not true. it is highly deprecated because this court is made to act on the report submitted with regard to proceedings in c.c. no. 6966 of 2006. if this conduct is to be ignored, it may amount to allowing the process of law to be frustrated and encourage trial court judges to indulge in defiance.16. in the circumstances, i find full merit in the contentions of the petitioner. the impugned order is set aside. the matter is remanded to the trial court for de novo consideration after giving opportunity to the petitioner to lead evidence before charge, as ordered earlier in cr. r.p. no. 1421 of 2007.17. having noticed facts discussed above, in order to keep judicial discipline, it is necessary that the explanation of the concerned presiding officer be called as to under what circumstances an incorrect report was sent to this court. the same to be submitted within 3 weeks. registry to carry out the directions indicated in this order. both parties are directed to appear before the trial court on 3-3-2009. registry to send the lower court records within two days.

Judgment:
ORDER

Jawad Rahim, J.

1. This petition by the complainant is directed against the order dated 22-8-2008 in C.C. No. 6966 of 2006 on the file of IV Additional Chief Metropolitan Magistrate, Bangalore, dismissing the complaint for non-prosecution.

2. Petitioner, party-in-person is present. The respondent is represented by learned Counsel, Sri Bhootaiah.

3. Heard.

4. The petitioner, through his petition under Section 200 of the Criminal Procedure Code, 1973 sought to prosecute the respondent for the offence under Sections 378, 379, 405, 406, 415, 417 and 420 of the Indian Penal Code, 1860. The jurisdictional Magistrate after recording sworn statement of the complainant, took cognizance by order dated 3-3-2006 and issued process against the respondent-accused in response to which he appeared.

5. The case was adjourned for evidence before charge and continued in that state till 28-9-2007. Thereafter, on 16-11-2007 noticing the absence of the accused as also complainant and non-availment of benefit given to the complainant for tendering evidence before charge, the petition was dismissed. The said order was challenged by the complainant before this Court in Cri. R.P. No. 1421 of 2007 and was disposed on merit by order dated 16-7-2008, setting aside the summary dismissal of the complaint and remitting the matter to the Trial Court for de novo consideration with a direction to both sides to appear before the Court on 4-8-2008. The petitioner was saddled with cost of Rs. 1,000/-.

6. The petitioner's grievance is that he filed an application under Section 309 of the Cr.P.C. before the Trial Court enclosing a copy of the order of this Court dated 16-7-2008 and personally appeared on 4-8-2008, the date fixed. He also tendered cost, but none was present on behalf of the respondent to receive it.

7. The Trial Court directed the application to be put up before Court on 12-8-2008. On that day, when he appeared the case was not called and was listed to 13-8-2008. On 13-8-2008, petitioner was present in person and offered to pay cost of Rs. 1,000/-, but the accused was absent. Consequently, the Trial Court adjourned the case ordering issuance of summons to the accused returnable by 10-9-2008.

8. Despite fixing the date as 10-9-2008, accused moved an application under Section 309, Cr.P.C. to advance hearing from 10-9-2008 to 22-8-2008. The Trial Court granted such request and took the case on board. Noticing the complainant was not present, once again the complaint has been dismissed. Against this order, the complainant is again before this Court.

9. The petitioner who is party-in-person, referring to the sequence of events in the proceedings before the Trial Court, submits that the Trial Court has committed a grave error in disobeying the direction of this Court remanding the matter for de novo consideration and has seriously erred in ignoring the fact that the petitioner had personally appeared before Court on 4-8-2008, fulfilling the direction in the order dated 16-7-2008. Thus, he seeks to set aside the order.

10. Per contra, learned Counsel for the respondent assertively contends that the accused had personally appeared before Court on 4-8-2008, but on which day the petitioner failed to appear; he failed to pay cost. Therefore, accused moved an application to take the case on board on 22-8-2008 and on that day, since the complainant was not present, rightly the petition was dismissed.

11. Keeping in mind what is urged, I have perused the impugned order dated 22-8-2008 and also lower Court records called for.

12. The first issue that needs to be addressed is, whether the petitioner had complied with the direction of this Court issued in Cri. R.P. No. 1421 of 2007, dated 16-7-2008. Lower Court records fully support the petitioner's contention that he had appeared before the Trial Court on 4-8-2008. The application filed by the complainant under Section 309, Cr.P.C. bears endorsement of the learned Trial Judge which is a testimony in itself about his presence. It reads thus:

Complainant: Advocate-in-person.Put up on 12-8-2008Sd/-4-8-2008

Thereafter the case was not called by the Court on 12-8-2008, but called on 13-8-2008 and the following note is made:

Complainant: Advocate: Party-in-person.

Petitioner to pay cost of Rs. 1,000/- as per order of Hon'ble High Court in Cr. R.P. No. 1421 of 2007, dated 16-7-2008 and is ready to pay the cost, but accused absent. Issue summons to the accused by 10-9-2008.

This shows that the petitioner was personally present on 13-8-2008 and also his readiness to pay cost.

13. It is pertinent to note that the case has been advanced from 10-9-2008 to 22-8-2008 without intimation to the petitioner and the learned Trial Judge records as follows.:

Accused present. Complainant/petitioner before High Court in Cri. R.P. No. 1421 of 2007 is absent and has not appeared on 4-8-2008 as directed by the High Court. It is clear that the petitioner/complainant though permitted to lead evidence before charge, no representation is made for the petitioner/complainant. Further to cost of Rs. 1,000/- as ordered by the High Court is paid by the petitioner. In the above circumstances, there is no ground to proceed with the case against the accused and accordingly the accused is discharged. The complaint is dismissed under Section 203, Cr.P.C. Intimate the High Court of this order.

This observation is obviously against the fact situation.

14. Despite disposing of the case in the manner aforesaid, learned Trial Judge has again called the case on 10-9-2008 and has passed the following order:

On 13-8-2008 this case was posted to this date i.e., 10-9-2008. No party appeared before this Court. The order dated 22-8-2008 is held proper and this case is dismissed. Intimate the order dated 22-8-2008 to the High Court as it was directed to be disposed of within six months from 4-8-2008.

It is thus clear from the noting in the order sheet that the learned Judge has not examined the records and has recorded against facts. The fact that the petitioner had appeared before Court on 4-8-2008 and again on 13-8-2008 has been totally ignored. Apart from this, the learned Trial Judge has submitted incorrect report to this Court on 16-9-2008 which reads as follows:

Respected Sir,

Sub: Reporting order passed in C.C. No. 6966 of 2006 on the file of this Court - Reg.

With reference to the above subject, a specific direction was given by the Hon'ble High Court of Karnataka, Bangalore, in its Cr. R. P. No. 1421 of 2007 as the lower Court order dated 16-11-2007 is set aside on payment of cost of Rs. 1,000/- imposed to the petitioner/complainant and the Trial Court to conclude the matter within six months from 4-8-2008. But the complainant did not appear before this Court nor deposited the cost imposed by the Hon'ble High Court. Hence once again case stands dismissed as the complainant has not complied to the order of the Hon'ble High Court of Karnataka, Bangalore.

Hence, this is for your kind information. Yours faithfully,Sd/-

From the facts, it is therefore, clear that the learned Trial Judge has acted totally arbitrarily in a slip short manner without applying his mind to the facts judiciously. The fact that the petitioner had appeared on 4-8-2008 has been deliberately omitted while passing the order dated 22-8-2008 and I find nothing wrong in the submission of the petitioner that the learned Trial Judge has shown partisan and biased approach in dealing with this matter.

15. The order passed in Cr. R.P. No. 1421 of 2007 speaks for itself that this Court remanded the matter to the Trial Court to be disposed of on merits within 6 months. Compliance report was therefore, expected. The report is again factually incorrect and is indicative of indifference of the Trial Judge in intimating facts which are not true. It is highly deprecated because this Court is made to act on the report submitted with regard to proceedings in C.C. No. 6966 of 2006. If this conduct is to be ignored, it may amount to allowing the process of law to be frustrated and encourage Trial Court Judges to indulge in defiance.

16. In the circumstances, I find full merit in the contentions of the petitioner. The impugned order is set aside. The matter is remanded to the Trial Court for de novo consideration after giving opportunity to the petitioner to lead evidence before charge, as ordered earlier in Cr. R.P. No. 1421 of 2007.

17. Having noticed facts discussed above, in order to keep judicial discipline, it is necessary that the explanation of the concerned Presiding Officer be called as to under what circumstances an incorrect report was sent to this Court. The same to be submitted within 3 weeks. Registry to carry out the directions indicated in this order. Both parties are directed to appear before the Trial Court on 3-3-2009. Registry to send the lower Court records within two days.