G M. LODHA, J. - (1.) SHIV Shanker Singh a mill worker working in the Vegetable Oil Mill of Jaipur, namely Rohtas Industries Ltd. , Jaipur, has filed this writ application challenging the proceedings against him under the provisions of the Rajasthan Control of Goondas Act, 1975 (hereinafter referred to as the Act, 1975 ). The petitioner claims that he is an active member of the Trade Union affiliated to the Centre of Indian Trade Union (CITU) and is an office bearer of this Union. On account of trade union activities and the strike during the period from October 27, 1978 to Dec, 5, 1978 in which he actually participated, certain criminal cases have been registered against him on the complaints of the management. The criminal cases have been registered under sees. 147, 149 and 323 I. P. C. ete. , and challans have been filed in which he has been released on bail.
(2.) DURING the pendency of these cases, the management of the Factory made complaint to get ride of him, by getting him declared a 'goonda' under the provisions of the Act, 1975. With that end of view police moved the Additional Collector, Jaipur who served a notice on the petitioner under the provisions of the Act. 1975. In reply to this notice petitioner, submitted his reply dated April 26, 1979 which is Annexure 2. It was mentioned in this reply that the petitioner is a trade union worker and in connection with the strike commencing from October 27, 1978 to December 5. 1978, petitioner remained on stike and did not surrender to the pressure of the management and the police. It is on this account of the participiation in strike and the trade union activities that the police and the management of the Factory in collusion, have launched three cases against him. The petitioner requested the authority under the Act to drop the proceedings as the provision of the Act, 1975 is not applicable in his case and it was a case of victimisation and harrassment only. This reply of the petitioner dated April 26, 1979, was considered by the Additional Collecior and was rejected on June 31, 1979 without mentioning any reason whatsoever. Against this order dated May 31, 1979 the present writ petition has been filed This writ petition was admitted by this Court on July 19, 1979. The case came up on September 15, 1979 when Shri M. I. Khan took notice on behalf of the respondent. An order was passsd that the case would be listed for final disposal for October 8, 1979. Inspite of the above, no reply has been filed by the respondents. A request was mad. by the learned Government Advocate, Mr. J. S. Rastogi that the adjournment may be granted but since 1 am convinced that no useful purpose would be served by granting time, request was rejected. A perusal of the provisions of the Act, 1975 would show that it was anacted for the purpose of control and supersession of the 'goondas' with a view to the maintenance of public orders. Under Sub-sec. (b) of Sec. 2 of the Act, 1975, definition of'goonda' means a person who: (i) either by himself or as a member or leader of a gang, habitually commits, or attempts to commit, or abets the commission of, offences, punishable under Chapter XVI, Chapter XVII or Chapter XXI of the Indian Penal Code, 1860 (Act XLV of 1860) or under secs. 290 to 294 of the Indian Penal Code, 1960: or (ii) has been convicted under the Suppression of Immoral Traffic in Women and Girls Act, 1956, (Act No. 104 of 1956); or (iii) has been convicted not less than twice under the Rajasthan Excise Act, 1950 (Rajasthan Act No. 11 of 1950): or (iv) has been convicted not less than twice under the Opium Act, 1878 (Central Act No. 1 of 1878); or (v) has been convicted not less than twice under Rajasthan Public Gambling Ordinance, 1949 (Rajasthan Ordinance No. 48 of 1949); or (vi) has been found habitual passing indecent remarks to or teasing women or girls; or (vii) has been found habitual in intimidation of law abiding people by acts of violance or by show of force: or (viii) is habituated to commit affray or breach of peace, riot, or who is habituated to make forcible collection of subscription or threatening people for illegal pecuniary gain for himself or for others, or who is habituated to cause alarm, danger, or harm to persons or property. " Mr. Rastogi learned Government Advocate submitted that the case of the petitioner is covered by clause (i ). The word 'habitual' or 'habituated' means according to the explanation, a person who during a period within six months immediately preceding the commencement of an action under sec. 3, has been found on not less than three occasions to have committed the offences or acts, as the case may be, referred to in sub-clause (i), (vi), (vii) or (viii ). In the present case, since we are concerned, with only clause (i) of sub-sec, (i) of Sec. 2 of the Act, 1975 it is to be seen whether the petitioner has been found to have committed the offences on three occasions within a period of six months. A full bench of the Calcutta High Court in Mahavir Singh vs. Emperor (FB) (1) has held that the meaning of phrase 'finding' means a con-clusion on a question of fact by a Judge or by a Jury. The relevant portion is reproduced as under: "the word "finding" need not detain us. It has a universally accepted meaning a finding of law can mean only a conclusion on a question of law by a Judge, a finding of fact means a conclusion on a question of fact by a Judge or by a Jury. In my opinion "finding" here includes a conviction or an acquittal. " The submission of Mr. J. S. Rastogi is that the above principle enoun-ciated by the Calcutta High Court, relates to a finding as mentioned in sec. 435 of the Code of Criminal Procedure, as the Code was required to interpret the meaning of Sec. 435 of the Code of Criminal Procedure and the words, "finding", "sentence" or "acquittal" was used in it. According to him in Sec. 2 of the Act, 1975 the meaning of the word, "finding" as used, cannot be equated to the meaning of the "finding" given by Calcutta Court while interpreting sec. 435 of the Code of Criminal Procedure. Mr. Rastogi's contention is that in view of the fact that the legislature has been used some where the phrase "conviction" and/or some where the phrase "found" it must be assumed that the finding need not be the conviction recorded by a Court. Contrary to it, Mr. Sharma's contention is that the use of the word "found" in sec. 2 of the Act, 1975 means a finding by a competent Court and if this interpretation is not given then even if a police officer on investigation finds that a person has committed an offence, that person would be liable to be declared a 'goonda' without there being any conviction and finding of the Court. According to Mr. Sharma the results would be fantastic because in a given case a trial of person may resulted in acquittal and yet only on the basis of the challan of the police the Additional Collector would declare him 'goonda' before any verdict of the Court; and extradiet him by sending him in other districts.
(3.) THE above controversy raises serious question of law, whether the meaning of word "found" used in sec. 2 of the Act, 1975 includes a tentative finding of a police officer, in a criminal case, on the basis of, a challan or whether it would mean a finding of a conviction by Criminal Court ? However, in the facts and circumstances of the present case, it is not necessary to decide this controversy because all allegations made in the writ petition and the reply before the Additional District Magistrate, clearly make out a case of malafides and victimisation. The unrebutted allegation of the petitioner is that these challans have been put on the basis of some complaints which were filed by the management of the Factory, during the strike period, wherein he was working as an active trade union worker, participating in the Union strike. A perusal of the complaint filed also shows that the offences related to certain events which happened on November 30, 1978, November 5, 1978 and November 7, 1978 and all these dates are during the period the strike was going on in the Factory of the petitioner. The offences as alleged appear to be of an unlawfully assembly and certain minor offences of section 323 etc. , I. P. C. The detailed reply was filed before the Additional District Magistrate mentioning all these but the Additional District Magistrate, rejected it without giving any reason. Before this Court, these facts have been retariated in the writ application and it has been contended that the petitioner is being subjected to harassment and victimisation on account of his trade union activities, at the instance of the management of the Factory. These facts remain unrebutted. Thus on careful perusal of the entire facts of the case, I am convinced that the proceedings against the petitioner under the Act, 1975 is misuse and abuse of the process of law, which was never meant to be used for such purposes. A right to "strike" has been recognised on certain conditions and in certain circumstances under the various labour legislations and if they participants in it, are prosecuted under the Act, 1975; it would be a serious encroachment on the rights of the workmen. The present one is precisely a case of that category. That being so, I am convinced that the proceedings against the petitioner under the provisions of the Act, 1975 for declaring him 'goonda' under sec. 3 of the Act deserve to be quashed, being, malafide based on victimisation. It is unfortunate that the Additional Collector did not scrutinise these allegations of "malafides and victimisation" and thus dragged a poor workman to file this writ petition. It is expected that the provisions of 'goonda' Act would be used to deal with the real 'goondas' who are real threat to society and would not be abused or misused, as has been done in this case. ;