Karnataka High Court
Padpara Patti Syed Basha Aysb @ P. S. Ayub vs Labour Department on 27 February, 2024
Author: S Vishwajith Shetty
Bench: S Vishwajith Shetty
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NC: 2024:KHC:8040
WP No. 14533 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY
WRIT PETITION NO. 14533 OF 2023 (GM-RES)
BETWEEN:
1. PADPARA PATTI SYED BASHA AYSB @
P. S. AYUB,
AGED ABOUT 51 YEARS,
S/O SYED BASHA,
R/AT NO.1-3, MARIAMMA
APARTMENTS,
FRAZER TOWN,
BANGALORE - 560 005.
2. SAMEER SULTHANA @
SHAMEEM SULTANA,
AGED ABOUT 51 YEARS,
W/O P.S. AYUB,
R/AT NO. 1-3,
Digitally signed MARIAMMA APARTMENTS,
by V KRISHNA
FRAZER TOWN,
Location: High
Court of BANGALORE - 560 005.
Karnataka ...PETITIONERS
(BY SRI. SADDAM R MULLA, ADVOCATE FOR
SRI. MOHAMMED TAHIR, ADVOCATE)
AND:
1. LABOUR DEPARTMENT,
GOVERNMENT OF KARNATAKA,
OFFICE AT LABOUR OFFICER,
SHIMOGA SUB DIVISION,
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NC: 2024:KHC:8040
WP No. 14533 of 2023
SHIMOGA, 2ND FLOOR,
COMMERCIAL COMPLEX,
SUDA COMPLEX, POLICE CHOWK,
VINOBHANAGAR,
SHIMOGA - 577 204.
2. THE LABOUR INSPECTOR,
1ST CIRCLE , 100 FEET ROAD,
ADARSH LAYOUT,
VINOBA NAGARA,
SHIMOGA - 577 201.
...RESPONDENTS
(BY SMT. K.P. YASHODHA, HCGP)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
COGNIZANCE ORDER DATED 25/01/2022 PRESENT AT
ANNEXURE-C IN CC NO 105/2022 ARISING OUT PCR NO
17/2022 FILED BY THE R2 FOR THE OFFENCES PUNISHABLE
U/S 18 RULE 29-B, 29(5) U/S 18 RULE 29-B, 29 (1), U/S 18
RULE 29-B, 29(2) AND U/S 18 RULE 29-B, 28(2) AND 22(A) OF
MINIMUM WAGES ACT 1948, AND SAME IS PENDING BEFORE
THE COURT OF THE HONBLE JMFC -II SHIMOGA, WHEREIN THE
PETITIONERS WERE ARRAIGNED AS ACCUSED NO 1 AND 2
AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners who are accused nos.1 and 2 in C.C.No.105/2022 pending before the Court of JMFC-II, Shivamogga arising out of PCR No.17/2022 registered for the offence punishable under Section 18 Rule 29-B, 29(5), -3- NC: 2024:KHC:8040 WP No. 14533 of 2023 under Section 18 Rule 29-B, 29(1), under Section 18 B Rule 29-B, 29(2) and under Section 18 Rule 29-b, 28(2) & 22A of Minimum Wages Act, 1948 are before this Court in this writ petition filed under Articles 226 & 227 of the Constitution of India, 1950 R/w Section 482 of Cr.P.C, with a prayer to quash the entire proceedings in C.C.No.105/2022.
2. Heard the learned counsel appearing for the parties.
3. Respondent No.2 - Labour Inspector has filed a private complaint before the Trial Court against the petitioners herein alleging that he had received complaint from the labours of the Company known as Attica Gold Pvt. Ltd., regarding non payment of minimum wages. Though the show-cause notice was allegedly issued by the complainant to the accused persons, they had not responded to the same nor had they rectified their violations and produced the records. It is under these circumstance, he had filed a private complaint before the -4- NC: 2024:KHC:8040 WP No. 14533 of 2023 Trial Court. The Trial Court after taking cognizance of the offences alleged in the complaint had issued summons to accused Nos.1 and 2 and case was registered in C.C.No.105/2022 against the petitioners for the aforesaid offences. Being aggrieved by the same, the petitioners are before this Court.
4. Learned counsel appearing for the petitioners submits that, the petitioners are no more Directors of the company. He submits that the Company is not arraigned as accused in the complaint. Therefore, complaint is not maintainable. Accordingly, he prays to allow the petition.
5. Per contra, learned High Court Government Pleader for respondent-State has opposed the prayer made in the petition.
6. Section 22(C) of the Minimum Wages Act, 1948 reads as under:
"Section 22C:Offences by companies.
(1) If the person committing any offence under this Act is a company, every person who at the time the offence was committed, was in charge -5- NC: 2024:KHC:8040 WP No. 14533 of 2023 of, and was responsible to, the company for the conduct of the business of the company as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub- section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any, director, manager, secretary or other officer of the company, such director, manager, secretary or other officer of the company shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation.-For the purposes of this section,-
(a) "company" means any body corporate and includes a firm or other association of individuals, and
(b) "director" in relation to a firm means a partner in the firm".
7. From a bare reading of the aforesaid provision of the law, it is evident that, if the person committing any offence under the Minimum Wages Act, 1948 is a Company, the persons in-charge of the company as well as the Company shall be deemed to be guilty of the -6- NC: 2024:KHC:8040 WP No. 14533 of 2023 offence and they shall be liable to be proceeded against and punished. The petitioners herein are being proceeded in their capacity as Directors of the Company known as Attica Gold Pvt. Ltd., the allegations against them is they are vicarious liable on behalf of the Company. Therefore, in the absence of the Company being made as accused in the complaint, the complaint is not maintainable.
8. The Hon'ble Supreme Court in the case of R KALYANI v. JANAK C MEHTA & OTHERS - (2009) 1 SCC 516, has observed that vicarious liability can be fastened only by reason of a provision of a statute and not otherwise and for the said purpose, a legal fiction has to be created. In the present case, the petitioners herein are sought to be prosecuted on the premises that they are vicariously liable for the affairs of the Company. If that is so, the Company must be made as a party and legal fiction must be created against the Company and the accused, if they are responsible for the acts of Company. Similar view has been taken by the Hon'ble Supreme Court -7- NC: 2024:KHC:8040 WP No. 14533 of 2023 in the case of ANEETA HADA V. GODFATHER TRAVELS AND TOURS PVT. LTD ., - (2012) 5 SCC 661. Under these circumstances, I am of the opinion that, in the absence of the Company being made as a party, the petitioners cannot be prosecuted for the alleged offences. Accordingly, the following:-
ORDER
(i) Writ petition is allowed.
(ii) The entire proceedings in C.C.No.105/2022 pending before the Court of JMFC-II, Shivamogga arising out of PCR No.17/2022 registered for the offences punishable under Sections 18 Rule 29-B, 29(5), under Section 18 Rule 29-B, 29(1), under Section 18 B Rule 29-B, 29(2) and under Section 18 Rule 29-b, 28(2) & 22A of Minimum Wages Act, 1948 is hereby quashed.
Sd/-
JUDGE NMS/CT:SNN