- (1.) This writ petition is filed seeking for issuance of a writ, order or direction to quash the order dated 23rd January, 2001 (Annexure-6) passed by Special Judicial Magistrate, respondent No. 2. By the said order, the learned Magistrate rejected the petitioner's application whereby she had prayed for quashing the order taking cognizance of the offence under Section 630 of the Companies Act. M/s. Sir Shadi Lal Enterprises Limited, respondent No. 3 filed a complaint alleging that the petitioner was a nurse-cum-mid wife in Upper Doab Sugar Mills and on retirement from service, did not vacate the company's quarter allotted to her in spite of notice and reminders issued from time to time. So withholding of possession of the quarter by the petitioner being an offence punishable under Section 630 of Indian Companies Act, she is liable for punishment as provided therein. The learned Magistrate took cognizance of the said offence and issued process against the petitioner. whereupon she moved the court below praying to recall the said order contending, inter alia that she having not paid her gratuity amount by the company, she will be deemed to be an employee and, therefore, is not liable to vacate the quarter as long as the amount remains unpaid. That prayer having been rejected, she moved the revisional court which did not yield desired result. Hence, she has filed present writ petition seeking the relief as aforesaid.
(2.) Section 630 of the Companies Act reads as under : "630. Penalty for wrongful withholding of property.--(1) If any officer or employee of a company-- (a) wrongfully obtains possession of any property of a company ; or (b) having any such property in his possession wrongfully withholds it or knowingly applies it to purposes other than those expressed or directed in the articles and authorised by this Act ; he shall, on the complaint of the company or any creditor or contributory hereof, be punishable with fine which may extend to one thousand rupees. (2) The Court trying the offence may also order such officer or employee to deliver up or refund, within a 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."
(3.) The case of the respondent No. 2, as stated earlier, is that the petitioner after having retired from company's service was Issued with a notice to hand over physical possession of the Company's quarter allotted to her which she did not. Question, therefore, arises whether in view of such factual position, she could be said to have wrongfully withheld the property of the company so as to be liable for punishment as provided under Section 630 of the Companies Act. The petitioner has filed the copy of the company's relevant standing order. Annexure-5 in Clause 8 whereof it is stated that the company will pay the gratuity to a retired employee upon receipt of 'No dues certificate' from the store and on payment of the gratuity, the employee shall vacate the quarter and so long as the gratuity amount is not paid, the employee shall be deemed to be in service. In the counter-affidavit, respondent No. 3 in paragraph 6 (ii) has stated that the company has duly deposited the entire amount of gratuity to the tune of Rs. 67.793 payable to the petitioner before the controlling authority on 3.10.2000 and accordingly, informed her that she can withdraw the same on furnishing the clearance certificate as provided in the standing order. The stand of respondent No. 3 as borne out from the affidavit is that the petitioner did not produce 'No dues certificate' for payment of gratuity and illegally withheld possession of the quarter on flimsy ground. A copy of the letter dated 30.9.2000 addressed to the controlling authority under the Payment of Gratuity Act has been annexed as CA-2 to the counter-affidavit. The said letter clearly discloses the intention of the company that the gratuity amount would be paid to the petitioner only after she vacated the quarter. In the last paragraph thereof, it is stated that "in view of the above, we have no other alternative except to deposit the gratuity dues of Smt. Beerbala Gupta with you, with the request that the same should be paid to her after she hands over the vacant possession of quarter allotted to her to the Quarter Incharge of the Management and intimates the same to you. Accordingly, we are enclosing draft No. 250672 dated 29.9.2000 for Rs. 67,793 (Rs. sixty seven thousand seven hundred ninety three only) towards gratuity dues of Smt. Beerbala Gupta". On a conspectus of the facts and circumstances, it appears that only when the petitioner moved the authority concerned for non-payment of the gratuity, the company deposited the amount and requested the authority to pay the same to the petitioner after she vacated the quarter. To repeat with, the company's standing order postulates that gratuity amount shall be paid to the retired employee and simultaneously, the latter will vacate the company's quarter. The company in the present case did not discharge its obligation, Inasmuch as it did not pay the gratuity amount to the petitioner and in such view of the matter, the petitioner cannot be said to have wrongfully retained the quarter belonging to the company and, therefore, she is not liable for punishment under Section 630 of the Companies Act. The petitioner's case is squarely covered by the judgment of the Supreme Court in the case of Jagdish Chandra Nijhwan v. S.K. Saraf (1999) 1 SCC 119.;