R.C. Khulbe, J
1. For the reasons stated, the recall application (MCRC 10/19) is allowed. The order dated 10.1.2019, dismissing the petition for non-prosecution, is
hereby recalled. The petition is restored to its original number.
2. With the consent of the parties, the matter is finally heard and disposed of.
3. This petition, under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter to be referred to as ‘the Code’) has been filed by the
petitioners challenging the summoning order dated 21.12.2011 passed by the Chief Judicial Magistrate, Udham Singh Nagar in Criminal Case No.4445
of 2011, and with a further prayer to quash the entire proceedings of the aforesaid criminal case.
4. The facts of the case are that a complaint was filed by the Labour Enforcement Officer, Kashipur before the Court below with the allegations that
the applicants have closed their factory without obtaining the prior permission from the State Government, and also without following the procedure as
laid down under Section 6W of the U.P. Industrial Disputes Act, 1947 (hereinafter to be referred as ‘the Act’).
5. Heard learned Counsel for the parties and perused the material available in the file.
6. Before proceeding any further, it is relevant to mention Section 6W(1) of the Act which reads as under: -
“6-W. Procedure for closing down an undertaking -An employer who intends to close down an undertaking of an industrial establishment shall, in
the prescribed manner, apply, for prior permission, at least ninety days before the date on which the intended closure is to become effective, to the
State Government, stating clearly the reasons for the intended closure of the undertaking and a copy of such application shall also be served
simultaneously on the representatives of the workmen in the prescribed manner:
Provided that nothing in this sub- section shall apply to an undertaking set up for the construction of buildings, bridges, roads, canals, dams or for other
construction work.â€
7. From a perusal of sub-section (1) of Section 6W of the Act, it is clear that whenever an employer intends to close down an undertaking of an
industrial establishment, he shall, in the prescribed manner, apply at least ninety days before the date on which the intended closure is to become
effective. It is also the duty of the employer to simultaneously serve a copy of such application on the representatives of the workmen in the
prescribed manner.
8. It is argued by learned Counsel for the applicants that as per Section 16 of the Act, the prior sanction of the District Magistrate is essential before
taking the cognizance. However, in the present case, no such sanction was obtained and the complaint was filed without following the procedure as
laid down under the Act.
9. Section 16 of the Act envisages that no Court shall take cognizance of any offence punishable under this Act except on a report in writing of the
facts constituting such offence made by the District Magistrate or by a public servant other than a District Magistrate with the previous sanction in
writing of the District Magistrate. Sub-section (2) of Section 16 provides that no Court inferior to that of a Magistrate of the first class shall try any
offence punishable under this Act.
10. From a perusal of the aforesaid section, it is evident that before filing any complaint under this Act, the prior sanction of the District Magistrate is a
must, and the District Magistrate will authorize any public servant to file a complaint before the competent Magistrate.
11. From the order dated 21.12.2011, it appears that the said complaint was filed on that very day before the Chief Judicial Magistrate and it was
registered on that day; and on the basis of that complaint, cognizance was taken and summons were issued for 19.3.2012.
12. From a perusal of the complaint signed by the Labour Enforcement Officer, Kashipur, it is clear that neither any date is mentioned in the
complaint, as to when it was written by the complainant-Labour Enforcement Officer, Kashipur, nor any date is mentioned as to when the concerned
District Magistrate has given his sanction for filing the complaint.
13. From a perusal of the complaint, it is also clear that simply the word ‘ ’ is written which shows that the concerned District
Magistrate did not apply his mind before granting the sanction, and even from a perusal of the word ‘sanction, it is not clear that the District
Magistrate had authorized the Labour Enforcement Officer, Kashipur to file the present complaint under Section 16 of the Act.
14. On a perusal of this complaint, it is also clear that although the word ‘sanction’ has been used, but in fact, it is no sanction in the eyes of law
because what material was placed before the District Magistrate by the Labour Enforcement Officer is not on record.
15. Apart from that, on a perusal of the record, it does appear that the Union of the said Factory had already published a notice for strike in the
establishment which shows that it was not the intention of the petitioners to close down the establishment, while from a perusal of the record, the facts
reveal that the Union of the concerned labourers had already given a notice to the petitioners for abstaining from work.
16. That apart, there is no evidence available on record to show, prima facie, that the petitioners had closed down the establishment illegally.
17. Since the complainant- Labour Enforcement Officer, Kashipur did not follow the procedure as laid down under the Act, hence the cognizance
taken by learned Chief Judicial Magistrate, Udham Singh Nagar vide order dated 21.12.2011 is not sustainable in the eyes of law.
18. For the aforesaid reasons, the petition is allowed. The impugned cognizance order dated 21.12.2011 as well as the entire proceedings of Criminal
Case No.4445 of 2011, State v. Surya Roshni Ltd., pending before the Court of Chief Judicial Magistrate, Udham Singh Nagar, are hereby quashed.
19. Pending application, if any, stands disposed of.
