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TMI Blog1983 (3) TMI 208X X X X Extracts X X X X X X X X Extracts X X X X ..... 1962, under a letter of appointment issued by the Corporation. His services were covered by the rules and regulations of the Corporation, which were then in force and as amended from time to time. A lease dated April 4, 1962, was executed between the Corporation and one Smt. Sheila B. Tolani in respect of flat No. 401 situate at Prabhu Kunj, Peddar Road, Bombay, on a monthly fee of Rs. 800 on the terms and conditions mentioned in the said lease. It is the contention of respondent No. 1 that the said lease was for a period of two years and even thereafter the Corporation continued in possession of the said flat and continued to pay the rent. Respondent No. 1 alleged that the Corporation had acquired the said flat for housing the officials and employees of the Corporation by allotment of the said flat according to their eligibility. Respondent No. 1 alleges that where the Corporation leased flats, the lease fees or rental was always paid directly by the Corporation to the owners of the flats and only 10 per cent, of the basic pay of such allottees was deducted from their salary. In all such cases, the Corporation continued to be the owner or the lessee of the said flats irrespec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the company and other employees. It must be mentioned here that in the course of the arguments Shri Noorani wanted to challenge the legislative competency of Parliament to enact the said section. Since the point is not raised in this petition, I did not allow Shri Noorani to raise any new point which is not taken up or set out in this petition. Now, I proceed to consider each of the contentions raised in this petition by learned counsel. It is contended by Shri Noorani that in view of the definition of "Public premises" given in clause 2( i ) of section 2( e ) of the Act, the learned Metropolitan Magistrate has no jurisdiction to take cognizance of the complaint or issue process on such complaint in view of the provisions of section 15 of the Act. Section 15 of the Act bars jurisdiction of other courts to entertain any suit or proceeding in respect of matters covered by that section. Section 4 of. the Act lays down that if the estate officer is of opinion that any persons are in unauthorised occupation of any public premises and that they should be evicted, the estate officer shall issue in the manner provided a notice in writing calling upon all persons concerned to show cau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the word "proceedings" should be construed to mean criminal proceedings also, and it is in view of the said submission, the complaint filed by respondent No. 1 is not maintainable and is liable to be quashed. Shri K. M. Desai, learned counsel appearing on behalf of respondent No. 1, pointed out that section 11 of the Act specifically deals with cognizable offences. The said section lays down that if any person who has been evicted from any public premises under the Act again occupies the premises without authority for such occupation, he shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both. Sub-section (2) of the said section 11 vests jurisdiction to entertain such complaint by a magistrate. The said subsection lays down that any magistrate convicting a person under sub-section (1) may order for evicting that person summarily and he shall be liable to such eviction without prejudice to any other action that may be taken against him under the Act. Shri Desai submitted that so far as the offences are concerned, under section 11 the jurisdiction is vested in the magistrate to deal with offen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce covered by section 630 is the wrongful withholding of the property of a company by an officer or employee of the company. Subsection (2) of the said section further lays down that the court trying the offence may also order such officer or employee to deliver up or refund within the time to be fixed by the court, any such property wrongfully obtained or wrongfully withheld or knowingly misapplied, or in default, to suffer imprisonment for a term which may extend to two years. Subsection (2) of section 630 thus empowers the magistrate trying the offence to pass an order to deliver up or refund the property within the time to be fixed by the court. For defiance of the said order, the magistrate is further empowered to pass a sentence to suffer imprisonment for a term which may extend to two years. A plain reading of section 630 clearly indicates that if an officer or employee wrongfully withholds any property belonging to a company, it is an offence punishable with a fine of Rs. 1,000. Sub-section (2) of the said section further directs the court trying the offence to pass an order directing such officer or employee to deliver up or refund, within the time to be fixed by the court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ees or ex-officers. Admittedly, the petitioner on the date of filing of the complaint was lot in the employment of the Corporation, since he retired on February 28, 1982. Reliance is placed by Shri Noorani on the definition of the term"officer" given in section 2(30) of the Companies Act, and it is contended that the said definition is an inclusive definition and it includes all those officers who are holding the post of officer in the Corporation. According to Shri Noorani, in section 630, wherever the word "officer" has been used, it should be treated as an existing officer of the company or who holds an officer's post in the said company. It is submitted that the company could file a complaint under section 630 against officers and employees of the company who are actually working in the company. An ex-employee as an officer cannot be prosecuted even if he wrongfully withholds any property of the company. Shri Noorani tried to persuade me to take a different view, as is taken by Kotwal J. in his judgment dated September 11, 1980, in Criminal Revision Application No. 494 of 1980, Harkishin Lakhimal Gidwani v. Achyut Kashinath Wagh [1982] 52 Comp. Cas. 1 (Bom.). In the said ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 630 as under clause ( b ) of section 630(1) also furnishes a clue, pre-qualifying the existence of three further contingencies of wrongful obtainment, wrongful withholding and knowingly misapplication and this is merely to tag a label or characterise the property as belonging to the company. With great respect, I entirely agree with the view taken by Kotwal J. and, accordingly, I need not elaborate this point any further. This takes me to the last submission made by Shri Noorani that section 630 of the Companies Act is ultra vires article 14 of the Constitution. Ground No. 4 specifically taken in the petition is as follows : "The petitioner respectfully submits that section 630 of the Companies Act is ultra vires article 14 of the Constitution of India. The section discriminates between employees of companies on the one hand and employees of private individuals, sole proprietorship concerns and partnerships on the other. The employees of the latter category face no risk of prosecution for an offence similar to that under section 630 of the Companies Act which penalises employees of the companies. Further, the said discrimination is not a reasonable criteria for differe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officers and employees of other private individuals or sole proprietorship concerns and partnerships. Those who are charged with the duty to protect and manage the affairs of the company are grouped together for their treatment in the statute, in case they commit breach of the conditions of the said section. That cannot be the case of other employees. As stated above, the principle of equality of law and equal protection of law does not mean that every law must have a universal application for all persons who are not, by nature, attainment or circumstanced in service in the same position or situate in similar circumstances. In paragraph 73(4) of the judgment of the Supreme Court in the said case of Special Courts Bill, 1978, AIR 1979 SC 478, it is observed by the Supreme Court that the principle underlying the guarantee of article 14 is not that the same rules of law should be applicable to all persons within the Indian territory or that the same remedies should be made available to them irrespective of different of circumstances. It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Equal laws would h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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