K.J. Vaidya, J.@mdashWhat indeed the ''Law'' alone can do to help redress the grievances of the aggrieved ones for whom it is ordinarily or specially meant for and made to deliver justice, when unfortunately, the same itself, sometimes stand by-passed, ignored and thereby victimised by no less authorities than the law enforcing agencies themselves, namely the Executives and the Judiciary��? For example, in the instant cases, the learned Magistrate himself, who because of his patent ignorance about the object of the Act and lack of social orientation and commitment to the cause and call-for social justice, acquitted the accused without any effective trial!!
1.1. It is quite known that ordinarily ''Law'' is enacted with a view to regulate and govern the relation between person and person, person and the group of persons, between group of persons inter-se as well as between all these groups of persons and the State, for the redressal of the grievances and for getting justice. Over and above this ordinary law, there are certain statutes which are enacted with some social object to protect and enhance the social justice of those needy sections of the society like the labourers or working class who are just unequal to their rich and influential mighty opponents. Notwithstanding the existence of such laws on the statute-books, there are instances where one find it (''Law'') as if often heard of complaining of being let-down more by its own enforcing agencies in its ultimate search and quest for the truth and justice, rather than any other else offenders. This very same grievance, in the instant cases, is found as if whispering into the ears of this Court clamouring for redressal and justice for the wrong done to it by the learned Magistrate. In the instant cases as can be seen from the discussion that follows that the social justice is as if has been deserted by no less an authority than the learned Magistrate himself where he is found to be in the dock and the ''aggrieved law'' praying for the justice. The obvious question that would arise under such circumstances is ''whether any Court of law and justice can permit itself to-be so passive and unaccountable to any accused going unpunished by premature acquittal merely because of the alleged ground that the complainant was absent when the cases were called out? The further material question that arises is ''whether such matters of vital labour importance can be permitted to be reduced into the game of mere technicalities and ''''hide and seek'' between the accused, witnesses, complainant, etc., etc., with the helping hands of the process serving agencies and that too before the very Court which has taken cognizance of the offence-to defeat the Justice? If indeed it is the duty of every citizen to honour and observe the law of the land, and in the event of some default or violation being committed of the same, he is accountable for the same, is it also not the duly of the law enforcing agencies as well to enforce and implement the said Law ''in its true spirit'' so that it reaches its desired cherished goal, and here to, in the event of any default or violation of the same, rendering themselves accountable? It is not the duty of the learned Magistrate to see that the law passed by the Parliament is fully and effectively implemented so as to deliver the desired fruits to the people as intended to by it? If indeed ''Law'' was to write its own autobiography, the way in which it somehow gets huddled and muddled and ignored by persons and authorities around its enforcement, implementation and interpretation, none of us should ever raise our eye-brows in surprise if it concludes the final chapter with the figure of accusation more towards its enforcing agencies rather than ordinary citizen violating it!! These are some of the most disturbing thoughts often arising these days causing grave concern and anxiety to us, as they are not only found to be challenging the very foundation of the existence of the ''Rule of Law'' which indeed is a matter of pride, that being our basic culture under our Constitution, but even the wisdom and effectiveness of the labour legislation is often set at naught by premature acquittals, as the one recorded in the instant cases. The problems surfaced above are the matter for prime consideration in the judgment which follows hereinafter.
2. In order to understand and appreciate the aforesaid introductory observations and further to evaluate the alleged patent illegalities committed by the learned Magistrate in irresponsibility disposing of these cases, it is necessary first of all to refer to some of the relevant facts and circumstances of the case and the attending ''Rojkam'' proceedings of the trial Court having bearing on the issues involved.
3. Few relevant facts: According to the complainant Mr. C.M. Bhatia, Factory Inspector, Ahmedabad, when he in company of other two Factory Inspectors, viz., Mr. K.K. Patel and Mr. V. B. Solanki on 23-2-1988 visited ''The Viramgam Textile Mills (NTC)'' situated at Viram-gam of which the respondent-0.P. Gohil was occupier, they came to know that on 21-2-1988 at 7-05 hours a fatal accident had taken place in the said mill premises, as a result of which the pressure vessel in an air-compressor tank suddenly got exploded shattering into pieces one of which flung and bitted one Ibrahimbhai Ismailbhai at his work causing his death. On making further inquiries, it was also learnt that the respondent had contravened certain important provisions of the Rules 61 (1)(c)(i), 61(1)(d), 61(1)(6), 111 and 103(2) of the Gujarat Factories Rules, 1963 (for short ''Rules'') punishable u/s 92 of the Factories Act, 1948 (for short ''Act''). On the basis of these facts, Factory Inspector Mr. C.M. Bhatia filed five criminal complaints before the learned J.M.F.C, Viramgam, which ultimately came to the registered as Criminal Cases Nos. 437 of 1988 to 441 of 1988 by issuing summons to the respondent making it returnable on 7-6-1988. Thereafter, all these cases as usual went on merrily adjourned from time to time till 14-12-1989 for about 18 months when even before recording the plea, the respondent came to be acquitted by the learned Magistrate principally on the ground of complainant remaining absent when the cases were called out and some other ancilliary grounds as stated under:
(i) In these cases, right from 7-6-1988 summons to the accused have been issued (however) till 13-12-1989, the same have not been served upon him;
(ii) throughout this period, the complainant has failed to give correct address of the accused to serve the summons upon him;
(iii) That on behalf of the complainant, his clerk has remained present and stated that the complainant is absent but he has not given any report or filed reasons as to why he was absent;
(iv) The learned Advocate appearing for the Management of ''Viramgam Textile Mills (NTC)'' has submitted a purshis at Exh. 3 stating therein that the accused-0.P Gohil has been dismised from service, w.e.f. 7-6-1988 and that he does not know anything about his whereabout for the purpose of giving address.
4. Mr. D.K. Trivedi, the learned P.P. while challenging the impugned judgments and orders of acquittal submitted that the same are patently illegal and perverse and have resulted into serious failure of justice, as the ''Rojkam'' proceedings available on the record do not justify reasons for acquittal given by the {earned Magistrate. The learned Public Prosecutor while making good his submission has produced a certified copy of the ''Rojkam'' proceedings of the Criminal Case No. 437 of 1988, which is now even otherwise available before this Court as the R & P of the said cases have been called for. The learned P.P. further submitted that five criminal complaints came to be filed for the alleged contravention of the Rules resulting into death of one Ibrahimbhai Ismailbhai and that the same were consolidated together and were fixed for hearing as per the ''Rojkam'' proceedings of Criminal Case No. 437 of 1988. Mr. Trivedi after reading the ''Rojkam'' proceedings further submitted that right from the date complaints came to be filed before the learned Magistrate, on 11-5-1988, all these cases have been adjourned from time to time for about 19 times and to be exact, after the summons were ordered to be issued against the respondent they were adjourned for 18 times. Out of all these dates upto 9-12-1988, the accused was absent as the summons did not return either served or unserved. Further, out of the said 18 adjournments, on two different dates i.e., on 28-3-1989 and 15-4-1989, these cases could not proceed due to strike call given by the learned Advocates. Thus, out of 16 different dates, complainant was present on 12 different dates before the Court. Not only that but on 9-12-1988, 13-1-1989, 17-2-1989, 10-3-1989 and thereafter also on 26-7-1989 and 22-8-1989, both the complainant as well as the accused were very much present before the Court and yet for whatever reasons, the cases were not proceeded with by the learned Magistrate and were adjourned. Thereafter on 11-10-1989. the complainant was present but the accused was absent. As the summons were yet to be served and on that ground, the learned Magistrate adjourned the case to 15-11-1989. On 15-11-1989 also, the complainant was present and the accused was absent as the summons had not returned either served or unserved. Now, the very fact that as the ''Rojkam'' proceedings shows that the respondent had earlier remained present before the Court, he was supposed to be aware of the next date of hearing. Not only that but the Rojkam proceedings of 13-12-1989 clearly show that the accused was absent but his learned Advocate was present. Now who was that learned Advocate? No. V.P. is found in the R & P and that means that the purshis Exh. 3 filed by the management to that extent is prima facie doubtful. Thereafter, the cases were adjourned to 14-12-1989, The learned P.P. submitted that taking into consideration the overall picture the emerges from the Rojkam proceedings, it is very clear that the learned Magistrate has not exercised the ordinary care in conducting these cases wherein because of gross negligsncs of the respondent only that the pressure vessel exploded causing fatal accident costing a precious human life. Therefore, in that view of the matter, these were not the cases which could ever have been taken lightly as appears to have been done in the instant cases. On the basis of the aforesaid submissions, Mr. Trivedi finally urged that taking into consideration the gravity and seriousness of the offences and the manner in which these matters came to be disposed of by passing impugned orders of acquittal, per se have resulted into serious miscarriage of justice calling for instaneous interference at the hands of this Court by quashing and setting aside the same and remanding it to the trial Court.
5. Now, at the very outset, it must be stated that the submissions made by the learned P.P. have considerable force and therefore merit acceptance. The disposal of all these cases by way of premature acquittal is not only painful and stunning but if such practice is not strongly deprecated and set-right in time by giving appropriate guidelines, the future prospects of the labour laws in our State would be quite bleak. Whenever Parliament passes any statute, more particularly such special statutes pertaining to the labour welfare, it is clearly the duty of the Court alongwith the Executives to effectively implement and enforce it to its logical conclusion. May be at the end of the trial, after appreciating the evidence brought on record, the accused if found to be entitled to any benefit of reasonable doubt he may be given the same, but to acquit him without any trial whatsoever is a charity which is not permissible under any law and indeed is something totally unthinkable. No Court worth the name can ever be permitted to cross this well defined limits while dispensing with the criminal justice in the matter of labour laws. Taking into consideration the facts and circumstances of the instant cases, it is so apparent that the learned Magistrate has not only treated these cases quite cursorily but the manner in which the same have been disposed of manifestly reflects upon his total unconcerned approach, attitude and patent lack of commitment to the cause and call of social justice. It is indeed difficult to understand as to how the learned Magistrate afforded to remain oblivious of the fact that it was only because of sheer negligence on the part of the respondent that a precious human life was lost in the factory premises itself. How indeed the learned Magistrate could ever think to give a clean bill to the respondent by such premature acquittals more particularly when the ''Rojkam'' proceedings clearly show that on several occasions both the respondent as well as the complainant were very much present before the Court yet cases were not proceeded with? In fact, such premature acquittals clearly demonstrate the lack of will and duty on the part of the learned Magistrate to enforce and implement the provisions of the labour welfare legislation. It further appears that the complainant remained present before the Court on most of the dates and yet merely because on 14-4-1989 he could not remain present (even the accused was not present on that day), the cases came to be thrown off by the learned Magistrate, as if as pointed out by the learned P.P. that he was waiting for complainant to commit some such default in order to register five acquittals!! Such quick way of disposal shown in labour cases involving fatal accident is not only illegal and unjust but has resulted into serious failure of justice. Moreover, it further projects an image of unbecoming of a Magistrate. This clearly reflects upon the sense of duty and respect for law on the part of the learned Magistrate. It may be stated that when the Parliament enacts any law and more particularly the Labour Welfare Legislation, it has some special reasons, mission and mandate behind it. Therefore, not only that any employer or occupier can be permitted to commit breach of such laws but even the law enforcing agencies cannot be permitted to trifle with the same as in some cases the complainants do and in the present cases, unfortunately, the learned Magistrate has done! In the instant cases, the complainant remained present on most of the dates but supposing for whatever reasons he was quite recalcitrant and not appeared before the Court, then even taking into consideration the fact that a precious human life of a worker was lost in a fatal accident due to breach/contravention of rules regarding the safety measures of the workers, the learned Magistrate should not have helplessly and passively looked at the situation and readily granted the premature acquittal. Absence of the complainant after filing the complaint in such type of important cases is altogether a separate issue by itself. In absence of justifiable reasons that by itself can be a misconduct on the part of complainant for which department must take appropriate departmental proceedings. For that the learned Magistrate should have taken appropriate coercive measures to enforce his presence before the Court at any cost including drawing the attention of the higher officers regarding his negligence in attending the Court on a fixed date by issuing bailable warrants, if the need be, even by issuing non-bailable warrant awarding costs, and if the need be, awarding examplary costs to any of the side who is responsible for protracting the trial, but under no circumstances, the learned'' Magistrate can be permitted to prematurely acquit the accused without actual trial. If this special care of standing hand in hand with the Parliament in effectively translating into action the object and spirit of the Act is not taken by the learned Magistrate, it simply means he has failed in his duty to enforce the law. The cases under the Factory Laws or for that purpose any other labour laws are the cases wherein ordinarily two or three witnesses are required to be examined. For such a small trial, how much time it was to take? Not much, and yet we find these types of cases and trials are meaning-lessly protracted. In such cases, the learned Magistrate should feel duty bound to record the plea of the accused immediately on his making appearance before the Court. Under no circumstances the recording of the plea should be adjourned as it does not take much time. Thereafter also the Court must give due priority to these types of cases as stated above and should see that the trial is expeditiously over after recording the evidence. Further the learned Magistrate should see that both the complainant as well as the accused are made to appear before the Court so as to enable the trial to proceed. Once the learned Magistrate takes upon himself to activate, the cases are bound to be decided expeditiously. The learned Magistrate must know that once the cognizance of any offence is taken, he is supposed to do justice and justice means substantial justice and not a formal and/or technical one as sought to be easily made out in the instant cases. It is the duty of the learned Magistrate in such cases to see that neither the accused nor the complainant is permitted to throw dust in his eyes by delaying tactics while conducting the trial. When the Parliament passes any law, it has to be fully and effectively implemented and the responsibility of this effective implementation does not only rest on the heads of the Executives, but the same as well rests and perhaps rests more heavily upon the Courts doing justice. It is apparently because of some unconcerned approach and lack of commutment to the social/labour welfare legislations enacted by the Parliament, the same, as to some extent stood frustrated delivering no desired fruits to the people to the extent they are ordinarily expected to. Not to cooperate with the legislative will and mandate in effectively implementing and enforcing the law and to let it down by short-circuiting the trials on some technical grounds, as has been done in the instant cases, is perhaps far more greater and aggravated form of violation of law than those committed by the employer or occupier of the factory.
6. Turning to the principal ground of acquittal, the learned Magistrate in these cases has acquitted the accused on the ground that when the cases were called out, the complainant was absent. No doubt, Section 256 of the Code does vest some discretion in the learned Magistrate to acquit the accused if the complainant is found to be absent when the cases are called out. But this discretion is not unfattered and absolute one as it appears to have been taken by the learned Magistrate, as the same has been duly qualified and circumscribed by the phrase, viz., unless for some reason he thinks proper to adjourn the hearing of the case to some other date" (emphasis supplied). Now this most material part of the section (under the emphasis supplied) is clearly ignored by the learned Magistrate in the facts and circumstances of the case. In the present case, it is an undisputed fact that the complainant was absent when the cases were called out. But for whatever reasons the learned Magistrate become oblivious to the fact that previously on almost all the dates the complainant was present before the Court. Not only that but earlier on 4 to 5 occasions, both the complainant and the accused were present before the Court and yet the cases were not proceeded with. The matter does not rest here as one precious life of a worker came to be lost on the floors of the Mills itself because of criminal negligsnce of disregarding the rules of safety under the Rules. Now despite all the glaring weighty tell-tale facts which should have ordinarily formed a part of thinking, discretionary process of the mind of the learned Magistrate to adjourn the hearing of the cases to some other dates, the same have not been conveniently found favour with. This is not dons and had indeed this been done, the unfortunate accident of premature acquittal could have possibly been averted. Thus, the discretion exescised by the learned Magistrate in acquitting the accused on the face of it cannot be said to be a judicial one being patently perverse and illegal, the same needs to be at once quashed and set aside. Apart this, there are four other ancillary grounds also which appears to have weighed upon the learned Magistrate while acquitting the accused as set-out above in last part of para 3 of this judgment. In this regard, it may be stated that ground Nos. 1 and 2 are found to be patently false as not borne out at all from the record as submitted by the learned P.P. Assuming that the said grounds are true, there is nothing further on the record to indicate as to what steps were taken by the learned Magistrate of his own to enforce the presence of the accused before the Court. In a case where one of the worker lost his life because of the alleged negligence on the part of the respondent owner/occupier of the Mills in not complying with the relevant safety rules under the Rules, the learned Magistrate was not supposed to act as a disinterested by-stander, idly watching the game as if this type of litigation was a sport! Why indeed the learned Magistrate felt himself helpless in not bringing this fact to the notice of the officer superior to the complainant by pointing out the failure of the complainant, for doing the needful? In fact, both the grounds 1 and 2 are more or less excuses rather than the reasons for acquittal in absence of anything on the record to show that the learned Magistrate had activated himself and taken desired interest in deciding the case on merits for delivering the substantial justice. Similarly also the ground No. 3 also have no substance. Whether the complainant had given a report or not, that was immaterial. Nothing prevented the learned Magistrate to enforce the presence of the complainant in order to do the substantial justice. Similarly, turning to the last ground No. 4 it may be stated that it is really strange and quite surprising that the learned Magistrate has straightway accepted the purshis Exh. 3 submitted on behalf of the management of the respondent-Mill wherein it has been stated that the respondent-Mr. O.P-Gohil has been dismissed from service with effect from 2-6-1988 and that his whereabouts were not known to the management. Now, this on face of it is totally unacceptable for the simple reason that since the criminal cases were pending in respect of the alleged contraventions of rules in Mill, resulting into a fatal accident, it was the duty of the management to have complete address of the allegedly dismissed employee. Secondly, it is difficult to believe that the management had no address of the respondent, as the respondent being an employee he must have some continued account regarding some claims like P.F., Bonus, or any other financial lien or liabilities. Further, the learned Magistrate should not have straightway accepted the purshis Exh. 3 without (i) the alleged order of dismissal of respondent Mr. O.P. Gohil brought on record; (ii) by getting it produced before him by the concerned officer appearing on behalf of the respondent-Mills, either on affidavit or examining him on oath. If this sort of care is not taken by the Courts, it could easily be mislead into any illegal and unjust orders. In short none of the above auxiliary grounds relied upon by the learned Magistrate has any substance worth the name to utilize them for acquittal in favour of the accused.
7. In view of the aforesaid discussion, it is very clear that the impugned orders of acquittal being patently illegal and perverse has resulted into serious failure of justice warranting this Court to quash and set aside the same by once again remanding to the trial Court for disposing of the same on merits.
8. Now, the way in which the instant cases came to be shockingly thrown off under the pretext of complainant being absent when the cases were called-oui, is quite alarming. Such disposals have as if become quite chronic disease and looking to the vulnerability of its relapsing tendency, endangering the labour justice, in future, this Court feel that the learned Magistrates would indeed do well if they henceforth belter commend themselves to the following Seven Commandments:
(i) That he is also to certain extent the Trustee of the beneficiaries; namely the Labour Laws, and therefore, must evince that special interest and take necessary care in matter of implementation, enforcement and interpretation of the law in its proper perspective for delivering the real and substantial justice to none too enviable poor class of the society, namely, the workers. For this, the learned Magistrate shall have to play a role of an activist-trustee and not that of mere idle trustee in name and on paper only, as the distinct from the passive on-looker. This is to say that the Labour Laws are to be implemented interpreted and enforced in a way that perfectly protect the object of the Act and interest of the workers thereby.
(ii) That it is his further duty to clearly understand the underlying object and the spirit of the concerned Labour Laws. These are the pole-stars indicating correct direction of the destination where the Courts are to pilot the ship of justice in the interest of labourers, without which it is likely to wondered away. Accordingly, it is the first and foremost duty to implement and enforca the same true to its spirit. For example, the learned Magistrate is supposed to know what are the object of the said Act. For this, reference may be made to a decision of Supreme Court rendered in case of Bhikusa Yamasa Kshatriya (Pri) Ltd. v. Union of India and Anr., reported in AIR 1963 SC 1592, wherein at para 9 it has been observed as under:
9. The Factories Act, as the preamble reeities, is an Act to consolidate and amend the law regulating labour in factories. The Act is enacted primarily with the object of protecting workers employed in factories against industrial and occupational hazards. For that purpose it seeks to impose upon the owners or the occupier certain obligations to protect workers unwary as well as negligent and to secure for them employment in conditions conducive to their health and safety. The Act requires that the workers should work in healthy and sanitary conditions and for that purpose it provides that precautions should be taken for the safety of workers and prevention of accidents. Incidental provisions are made for securing information necessary to ensure that the objects are carried out and the State Governments are empowered to appoint Inspectors, to call for reports and to inspect the prescribed registers and with a view to maintain effective supervision. The duty of the employer is to secure the health and safety of workers and extends to providing adequate plant, machinery and appliances, supervision over workers, healthy and safe premises, proper system of working and extends to giving reasonable instructions. Detailed provisions are therefore made in diverse chapters of the Act imposing obligations upon the owners of the factories to maintain inspecting staff and for maintenance of health, cleanliness, prevention of overcrowding and provision for amenities such as lighting, drinking water, etc. etc. Provisions are also made for safety of workers and their welfare, such as restrictions on working hours and on the employinent of young persons and females, and grant of annual leave with wages. Employment in a manufacturing process was at one time regarded as a matter of contract between the employer and the employee and the State was not concerned to impose any duties upon the employer, It is however now recognised that the State has a vital concern in preventing exploitation of labour and in insisting upon proper safeguards for the health and safety of the workers. The Factories Act undoubtedly imposes numerious restrictions upon the employers to secure to the workers adequate safeguards for their health and physical well-being.
(iii) That he must be constantly alive and bear in mind the gravity and seriousness of the offance alleged against the accused and the consequential severity of sentence that may entail in the event of offence being proved against him. Accordingly, in the instant cases also, the learned Magistrate ought to have seen that the sentence provided for contravention of certain provisions under the Rules as well as Act are provided in Section 92 of the Factories Act which reads as under
92. General penalty for offences-Save as is otherwise expressly provided in this Act and subject to the provisions of Section 93 if in, or in respeet of, any factory there is any contravention of the provisions of this Act or of any rules made thereunder, or of any order in writing given thereunder, the occupier and manager of the factory shall each be guilty of any offence and punishable with imprisonment for a term which may extend to (two years) or with fine which may extend to (one lakh rupees) or with both, and if the contravention is continued after conviction;
with a further fine which may extend to (one thousand rupees) for each day on which the contravention is so continued:
Provided that where contravention of any of the provisions of Chapter IV or any rule made thereunder or u/s 87 has resulted in an accident causing death or serious bodily injury, the fine shall not be less than (twenty-five thousand rupees) in the case of an accident causing serious bodily injury.
Explanation: In this Section and Section 94 "serious bodily injury" means an injury which involves or in all probabilities will involve, the permanent loss of the use of or permanent injury to, limb or the permanent loss of or injury to sight or hearing or the fracture of any bone, but shall not include the fracture of bone or joint (not being fracture of more than one bone or joint) of any phalanges of the hand or foot.
(iv) That he should further know that the justice means substantial justice and not mere formal or technical one and accordingly the only judicial way to do the same is to opt for the substantial justice rather than to slip down to do the technical or pseudo justice.
(v) That further, he should also be constantly on the look-out as not to allow himself to fall in the trap or the strategy schemingly set-out by the accused. For example, (a) like protracting the trial proceedings, converting it into a ridiculous game of ''hide and seek'' between the accused, complainant and the witnesses, (b) thereafter, after tiring out the complainant and the prosecution witnesses, makirsg them to commit some default in appearing before the Court and ultimately succumbing to the irressistable temptation of cheap, effortless orders of acquitting the accused u/s 256 of the Code on the ground, namely, "that the complainant was absent when the cases are called out, and/or the cases have become old and/or though the enough opportunity was given to the prosecution, it has not kept the witnesses present before the Court, etc., etc." (e) to lightly accept the mischievous ''plea of guilty'' tendered by the accused without referring even to the relevant provisions of the sentence provided under the Act. If the statute has prescribed minimum sentence than in that case that minimum sentence has got to be imposed for the simple reason that if the same is not imposed for whatever reasons than in the event of the complainant carrying the matter to the High Court for enhancement of the sentence, there as usual, the accused may rake up a false plea that he pleaded guilty under some inducement by way of plea-bargaining and under the circumstances his sentence cannot be enhanced and the matter be remanded for de novo to trial, etc. Under such circumstances, it can be seen that the accused has to lose nothing because the time-lag between the original plea of the accused at the trial and by the time matter is referred back to the trial Court by way of remand, the prosecution case gets sufficiently weakened being consumed by the passage of time either because of the memory of the witnesses getting impaired or the witnesses won over or not available, or some documents lost, etc. etc. Thus, the time wasted stands as the time-gained by the accused in defeating the justice. This entire aspect of problem of plea-bargaining the Court has got to bear in mind in order to see that the justice is not defeated because of trickeries of the accused.
(vi) that while issuing summons to the accused or the complainant and for that purpose to any other witnesses, as the case may be, he should see that the same is expeditiously served and for that purpose, he should personally monitor the process serving agency and keep constant eye on the ''process serving register''. Accordingly, in the first instance while issuing the summons to the accused, it is advisable to send it by registered A.D. post and also by direct service, to be served through the complainant who may serve it either himself or with the help of Police Officer of the concerned area, if need be. This alertness on the part of the Court would foil the usual mischievous ways of avoiding the service of the Court summons for quite good time by none too unknown practices adopted by the accused and witnesses of ''pay the tip and keep away'' as much as possible from the Court.
(vii) that further while granting adjournments to the parties also, the Court must exercise extreme restraint by bringing upon the parties all its weight to see that cases begin and proceed in the right earnest and ultimately terminate as early as possible. In such type of cases, like the present one, where only one or two witnesses are to be examined, not to dispose of the trial within a reasonable time, that is to say six months, in absence of reasonable explanation, is something very serious which the learned Magistrates should not forget. In case parties are recalcitrant and cool in co-operating with the Court proceedings, the Court should not feel helpless in using coeracive methods at its command of issuing: in the first instance bailable warrant and in the second instance non-bailable warrants, awarding cost, even sometimes exemplary cost, for maintaining the Court disciplines and to ascertain their presence before the Court.
(viii) In case, for whatever reasons, if the complainant also becomes defaulter and does not remain present before the Court than coercive methods to ensure his presence should not be spared for making him giving evidence before the Court. The complainant cannot be permitted to simply throw the complaint in the lap of the Court and thereafter to disappear or keep distance from the Court. His evidence is indeed the foundation stone on the basis of which prosecution is expected to construct the super-structure. Thus, examination of the complainant is absolutely essential in these cases. Under the circumstances, if need be, the learned Magistrate must draw attention of the officers superior to the complainant by inviting their attention to the negligence and defaults committed by him in appearing before the Court or for not keeping the witness or producing documents before the Court or not furnishing correct address of the accused or the witnesses, as the case may be.
(ix) He should also know that (a) the enactment of any law or for that purpose any special law, (b) existence of the Courts, and (c) filing of the complaints before the Court, are neither show-pieces nor idle formalities. All these exist for fair, quick and inpartial justice. If everything is allowed to remain at a formal stage only, like any beautiful but lifeless printed picture on the canvass, than it is nothing but rank-hypocracy in the name of justice-such cosmetic justice has no meaning at all.
It is only when the learned Magistrate follow the aforesaid nine commandments with the religious sanctity that one can expect to reach the goal of justice. In substance, in all cases like the present one, the Court has to decide the same on merits without leaving the matters half-way. In such cases, to grant premature acquittals is also an offence of no less gravity. Once the complaint is filed, cognizance is taken, process issued than but for some rare and exceptional circumstances, the Court must proceed ahead to give verdict accordingly either in favour of the accused or against him, as warranted by law and evidence on record. This means neither the complainant can be permitted to keep calculated distance from the Court by turning cool after filing complaint nor the accused in his turn can be permitted to play the game of ''hide and seek'' by seeking adjournments after adjournments ingeniously protracting and obstructing the trial and ultimately thereby defeating the justice. In fact even the learned Magistrate also cannot be permitted to remain cool, watching, idling away the time, shutting his eyes to the effective implementation of law which he is duty bound to honour, enforce and uphold aloft.
9. Likewise the learned Magistrates, the complainants who are statutory functionaries are also the Trustees of the Labour Laws as well as of the working classes and accordingly they too are also required to play quite alive, sensible, positive and active role in discharging their duties. They also in the light of the aforesaid discussion would do well if they commend themselves to the following commandments while discharging their duties:
(i) that under the Labour Laws and/or for that purpose any other social laws, he is the custodian of workers'' interest and therefore must play a role of crusader identifying himself with the cause of labour class and take all necessary care to ensure that the statutory provisions and the rules made thereunder are carried out properly and in event of any default launch prosecution against the factory owners and/or occupiers under Chapter X of the Act.
(ii) he should also not forget that mere filing of the complaint in the Court by itself his duty under the statute towards the working class does not come to an end. In fact his duty before the Court is to see that (a) the summons issued by the Court to the accused and the witnesses are served expeditiously, (b) witnesses and relevant documents are kept present before the Court on the dates of hearing, (c) regularly attend the proceedings before the Court and in case of his inability to attend take appropriate steps to inform the Court regarding the same, etc., etc.
10. The department in its turn also, in order to have effective implementation and enforcement of the law, must exercise extreme vigilance over some of the complainants who are not that active and efficient, and many a times remain negligent in discharging their duties. The labour cases and causes suffer severe set-backs because of such negligent complainants who needs to be controlled by maintaining confidential register of the complainants of the following lines:
Factory Inspector''s Confidential Register
(1) Name of the Factory Inspector
(2) Name of the Court
(3) Criminal Case No. _ of 19
(4) Date, Time and Place of the offence.
(5) Date, Time and Place of filing complaint.
(6) Name/s and address/es of the accused.
(7) Date of issuance of summons.
(8) Whether after issuance of the summons, notice is served on the accused or not?
(9) If not served, why and what steps the complainant has taken to get it served?
(10) Whether complainant is regularly attending the Court on the fixed dates of hearing? If not? Why not? Reasons.
(11) Whether complainant has taken sufficient care to keep the witnesses present before the Court. If not, why not. Reasons.
(12) After the order of acquittal or conviction came to be passed by the trial Court, whether the certified copy of the impugned order applied for immediately? If yes, when. If not, why not?
(13) Whether he gave proposal to file an acquittal appeal or enhancement of the sentence?
(a) If yes, when?
(b) If not, why not?
(14) Court''s remarks, if any, in the judgment against the complainant.
(15) Final remarks of the head of department in case where the cases specially fail on count of the deriliction of duty on the part of the complainant.
11. In the overall interest of the workers, it is highly desirable that the information regarding initiation of proceedings by way of filing complaint, the Court in which it is filed stage of proceedings at which it has reached and the ultimate result of the same by way of either acquittal or conviction with brief summary, as well as full text of the judgment must be made available to the workers. For this, the same must be duly notified on the conspicuous part of the Factory where the alleged offence took place. Workers must know as of their rights, grievances attended to by the Factory Inspector and the Court before which the same is prosecuted. It is only the department of complainant jointly exercising vigilance in matter of the enforcement and implementation of the Law that the Labour Laws can have a hope to reach goal of the justice, It is hoped that whatever has been observed above by this Court would be taken up in the right spirit in order to see that justice to the workers is not let down and denied because of carelessness at any of the aforesaid stages.
12. Ordinarily the exercise that this Court has taken up in this judgment would not have been necessary as these matters standing by themselve could have simply ended by remanding the same to the trial Court. This is not done as this Court has a feeling from the experience that the entire system of Law & Justice is often found failing at the hands of the Executives and sometimes because of some judgment, as in the instant cases at the hands of the Court. It is in order to save such a situation that in the interest of ''Labour Justice'' and to vindicate the overall public interest that this Court is constrained to deal the matter at some length sounding caution with some necessary guidelines.
13. All the District & Sessions Judges of the State hereby directed to call for the report from their subordinate learned Magistrates calling upon them to state as to how many labour cases are pending before them and if they are so pending since more than one year, explain as to why the delay has taken place. They are further directed to call for the report as to how many cases wherein fatal accident has taken place under the Labour Laws which are pending before them. District & Sessions Judges are accordingly further directed to submit their report, as above, on or before 23-10-1992. Registrar of this Court is directed to bring to the notice of this Court the reports so submitted by the learned District & Sessions Judges of the State.
14. Now, having regard to the importance of the question involved pertaining to the labour justice, Registrar is further directed to forward a copy of this judgment and order to (1) The Secretary, Legal Department, Government of Gujarat, Gandhinagar and (2) The Secretary, Labour & Employment Department, Government of Gujarat, Gandhinagar for information and necessary action immediately.
In the result, these appeals are partly allowed. The impugned judgment and orders of acquittal passed by the learned Magistrate are hereby quashed and set aside and that they are further remanded to the trial Court to be takenup on the Board and decide the same de novo on merits, according to the law.
(Rest of the Judgment is not material for the Reports).
