JUDGMENT
D.G.R. Patnaik, J.
1. Heard the parties
The petitioner has invoked the inherent powers of this Court under Section 482 Cr. P.C. with a prayer for quashing the entire criminal proceedings against him vide P. C. Case No. 1/2002 corresponding to T.R. No. 1398 of 2002 presently pending in the Court of Shri A.K. Sinha, Judicial Magistrate, Bokaro as well as order dated 25.6.2002 passed by Chief Judicial Magistrate, Chas, whereby cognizance for the offence under Section 9(1) of the Payment of Gratuity Act. The primary ground, upon which the petitioner has realized is that the learned Magistrate before taking cognizance of the offence, had failed to apply his judicial mind and that the very initiation of the criminal proceeding against the petitioner by the complainant, without granting adequate opportunity to the petitioner for explaining the reason for nonpayment of gratuity amount, as laid down under the provisions of the Act is bad in law.
2. For better appreciation of the grounds advanced, reference to the facts of the case needs to be stated. The prosecution case as appearing in the prosecution report submitted by the complainant-Labour Enforcement Officer (Central) Bermo and on the basis of which the cognizance for the offence was taken, is that the complainant, in his capacity of Inspector appointed under Section 7A of the Payment of Gratuity Act, 1972, made an inspection of the Bharat Refractories Ltd. situated at Indira Gandhi Marg, Sector-IV, Bokaro Steel City, on 3.12.2001. It is claimed that in terms of Section 2(f)(iii) of the Act the petitioner is the employer in respect of the Establishment. In course of inspection the complainant detected that the employer had failed to make payment of gratuity to 665 retired employees of various units of the establishment, such non-payment being in contravention of provision of Sections 7(2) and 7(3) of the Act. Specifying the offences in the inspection report and serving a copy thereof to the petitioner a direction was issued by the complainant to furnish a compliance report after rectifying the irregularities. The employer furnished a reply on 19.12.2001 stating reasons for non-payment of the gratuity amount to the retired employees. However, the payment was not made even after fault was pointed out by the complainant, claiming that failure to pay the gratuity amount within a period of 30 days from the date being payable, as breach of the provision of Section 7(3) of the Act, the complainant proceeded to lodge the prosecution against the petitioner as per provision of Section 9(2) of the Act. The complainant has claimed that he is authorized to file the complaint against the petitioner.
3. While challenging the prosecution against the petitioner, Sri Kalyan Roy learned Counsel for the petitioner, submits that in response to the notice issued by the complainant along with his inspection report dated 3.12.2001, the petitioner had submitted his detailed reply explaining adequately the reasons as to why payment could not be made to the retired employees promptly. The petitioner had explained that Bharat Refractories Ltd. being a Government Company, the petitioner was employed as the Chairman-cum-Managing Director and though the Establishment has three refractories plants at different places, but due to adverse market conditions and non availability of funds from the Central Government, the Company became sick and was referred to Board of Industrial and Financial Reconstruction since the Establishment of the petitioner came within the purview of Section 3(1)(u) of Sick Industrial Companies (Special Provisions) Act, 1985. By its judgment dated 24.5.2002 the B.I.F.R. had declared its prima facie opinion that the Company was not likely to make its net worth exceed the accumulated losses within a reasonable time while meeting all its financial obligations and is not likely to become viable in future. However, the Company preferred an appeal before the Appellate Authority for Industrial and Financial Reconstruction against the aforesaid judgment of BIFR, which was registered as Appeal No. 142/2002. In addition to the above facts, the petitioner had also explained that due to non-grant of any aid from the Central Government and due to lack of adequate finance, the Company could not pay the gratuity amount to its employees within time specified under the Act. The petitioner had also made an assurance that as soon as funds are made available to the Company, payment towards gratuity would be made to the retired employees. Learned counsel submits that without considering the genuine reasons explained by the petitioner, the complainant had proceeded to initiate the present proceeding against the petitioner. Learned counsel explains that learned court below while passing the order of cognizance, had also acted without application of judicial mind in a highly mechanical manner and without considering the fact that subsequently Central Government through Ministry of Steel, vide order dated 20.6.2002 had considered and approved the proposal for revival of the Company by sanctioning a sum of Rs. 307.89 crores to the Company and no sooner the funds were received, the total number of employees who had retired till that date were satisfied by payment of the gratuity amounts payable to them individually
4. The complainant- R.Hota by his counter affidavit has denied and refuted the grounds advanced by the petitioner and has claimed that the instant application is not maintainable at all. It has been submitted that non-payment of gratuity is an offence punishable under Section 9(2) of the Payment of Gratuity Act, and in view of the admitted fact that in contravention of provision of Section 7(2) and 7(3) of the Act the gratuity amounts which was payable to the retired employees of the Establishment, of which the petitioner is deemed employer was not paid to them and as such, the opposite party No. 2 had reasonable grounds to initiate the prosecution. It is further submitted that even though as claimed by the petitioner reference was made to the BIFR by the Establishment, but since no specific order was passed by the BIFR regarding non-payment of gratuity, therefore, the complainant suffered no prohibition from launching the prosecution against the petitioner.
5. From the rival submissions, the issue, which arise for determination is whether the prosecution of the petitioner as initiated on the basis of the complaint/prosecution report filed by the opposite party No. 2 would amount to an abuse of the process of the court for the reasons stated by the petitioner. From the averments in the prosecution/complaint of the opposite party No. 2, it appears that on finding certain irregularities in the matter of non-payment of gratuity to the retired employees, the complainant had pointed out the irregularities to the petitioner with a direction that the irregularities be rectified and compliance report be furnished within a fortnight. Thereafter a reply-cum-explanation was submitted by the petitioner to the complainant explaining the reason for non-payment gratuity td the retired employees. It further appears that the petitioner had tried to explain that the non-payment of the gratuity amount was due to lack of funds and since the Establishment was a Government undertaking and funds were not made available by the Central Government, the financial position of the Establishment was referred to the BIFR and in its order, the BIFR had also acknowledged that the Establishment had suffered huge losses resulting in its inability to meet its financial obligation, The complainant was also informed that against the judgment of the BIFR the sick Establishment, the petitioner, had preferred an appeal before the competent authority under the Sick Industrial Companies (Special Provisions) Act, 1985. It further appears that without considering the reasons as assigned by the petitioner and without appreciating the fact that non-payment of gratuity amount was on account of reasons beyond the violation and control of the petitioner, the complainant had proceeded to lodge the complaint merely by taking a technical plea that no order was obtained by the Establishment from the BIFR for non-payment of the gratuity amount.
6. The provision of Section 9 of the Gratuity Act is the penal provision which lays down that non-payment of gratuity would be deemed an offence. However, mere non-payment may not attract penal consequences unless the facts indicate that the non-payment is intentional, deliberate and without reasonable excuse. The element of malafide intentions is necessarily involved where the non-payment of gratuity calls for imposition of penalty.
7. In the instant case there appears essential lack of deliberate and malafide intentions on the part of the petitioner for the non-payment of the gratuity amount. It also appears that as soon as funds were sanctioned and made available to the Establishment by the Central Government, the entire arrears of gratuity payable by the Establishment to the retired employees till the date or payment, was cleared. The complainant has apparently failed to appreciate the genuine reasons offered by the petitioner and has hastily proceeded to lodge the complaint.
8. In my opinion, the continuance of the criminal proceeding against the petitioner in the light of the aforesaid facts and circumstances would certainly amount to injustice upon the petitioner and would certainly be an abuse of the processes of the court. The instant case is one which calls for intervention by this Court in exercise of its inherent powers.
9. For the reasons stated above, the entire criminal proceeding against the petitioner pending in the court of Shri A.K. Sinha, Judicial Magistrate, Bokaro vide P.C. Case No. 1 of 2002 corresponding to T.R. No. 1398 of 2002, is hereby quashed.