Madhya Pradesh High Court
Dayle Desouza vs Government Of India on 20 January, 2020
Author: Vishnu Pratap Singh Chauhan
Bench: Vishnu Pratap Singh Chauhan
HIGH COURT OF MADHYA PRADESH : JABALPUR
S.B : HON.SHRIJUSTICE VISHNU PRATAP SINGH CHAUHAN
M.Cr.C. NO.846/2016
Dayle De' souza
Vs.
Government of India and another
Shri Uttam Maheshwari, learned counsel for the
applicant.
None for the respondent.
ORDER
(20/01/2020) The applicant has filed this petition under Section 482 of the Code of Criminal Procedure, 1973 being aggrieved by the order dated 14/08/2014 passed by the Court of JMFC, Sagar whereby criminal case has been registered against the applicant for the offence punishable under Section 22-A of the Minimum Wages Act, 1948 on the basis of the complaint filed by respondent No.2, the Labour Enforcement Officer, in the Court.
2. The facts giving rise to this petition, in short, are that the applicant is the Director of Writer Safeguard Pvt. Ltd. having its Head Office at Marol, Andheri (East), Mumbai 2 (Maharashtra). The State Bank of India installed the ATMs (Automated Teller Machines) in different-different places and entered into an agreement with NCR Corporation India Private Limited for maintenance and upkeeping of its AMTs and performing other allied activities. Lateron, NCR Corporation India Private Limited further entered into an agreement with the company of the applicant and applicant was assigned work of replenishing cash at specified ATMs and perform its allied activities.
3. Respondent No.2-Labour Enforcement Officer inspected the ATMs of State Bank of India at Komal Chand Petrol Pump, Sagar on 19/02/2014 and noted some discrepancies that the applicant has failed to maintain the display of notices, maintenance of registers or record at the ATM sites regarding payment of wages. For that noted discrepancies, the applicant has been served with the notice dated 06/03/2014 (Annexure-P/3) with regard to removal of that discrepancies. The applicant immediately replied to respondent No.2 vide 3 representation dated 02/04/2014 (Annexure-P/4) alleging therein that the applicant is not liable to maintain the register or record with regard to minimum wages and to display the notices and clearly stated that the notice dated 06/03/2014 is not applicable to the applicant. The applicant was not responsible for upkeeping and maintenance of ATMs.
4. Respondent No.2 while not satisfying with the reply decided to lodge a criminal complaint under Section 22-A of the Minimum Wages Act, 1948, however, before filing the complaint, served a notice dated 8 th August, 2014 (Annexure-P/5) to the applicant and filed a criminal complaint in the Court of Chief Judicial Magistrate, Sagar, copy of the complaint has been filed along with this petition as Annexure-P/8. The applicant alleged in this petition that after receiving the notice dated 8 th August, 2014 (Annexure-P/5), applicant immediately filed a detailed representation (Annexure-P/6) to respondent No.2 pleaded therein that respondent No.2 is not having any jurisdiction to inspect the ATM and served 4 notice to the applicant because under Section 2(b) of the Minimum Wages Act, 1948 the State Government is having jurisdiction to inspect as held by Madras High Court in the case of A.K. Ahmed and Co., represented by its partner S.A.M. Jamaludeen Vs. Regional Labour Commissioner (Central) Madras and another, 1980 SCC Online Mad 222, thus, prays to quash the criminal proceeding and complaint instituted without any jurisdiction.
5. None for the respondents, though served.
6. Having heard learned counsel for the applicant, perused the case law of A.K. Ahmed & Co. represented by its partner S.A.M. Jamaludeen (supra).
7. In the case of A.K. Ahmed & Co. represented by its partner S.A.M. Jamaludeen (supra), Madras High Court interpreted appropriate Government as defined in Section 2(b) of the Minimum Wages Act, 1948. The facts of that case were that the applicant is a contractor registered in the State of Madras and contracted construction work of Central Warehousing Corporation in 5 the State of Madras. Labour Enforcement Officer (Central), Madras inspected the premises of the Golden Studio in Kodambakam, Madras, in these circumstances, Madras High Court interpreted appropriate Government as defined under Section 2(b) of the Minimum Wages Act, 1948 that it is not the Central Government, but it is the State Government which is appropriate Government to inspect whether the provisions of Minimum Wages Act are being complied with or followed or not. Section 2(b) of Minimum Wages Act, 1948 reads as under :
"2(b) "appropriate Government'' means -
(i) in relation to any scheduled employment carried on by or under the authority of the Central Government or a railway administration, or in relation to a mine, oil-field or major port, or any corporation established by a Central Act], the Central Government, and
(ii) in relation to any other scheduled employment, the State Government;"6
8. In the present case, no doubt, State Bank of India, which is constituted under the State Bank of India Act, 1955 is governed by the instructions issued by the Reserve Bank of India. As pleaded by the applicant that State Bank of India and NCR Corporation India Private Limited entered into an agreement for maintaining, upkeeping and other allied works in regard to maintenance and functioning of the ATMs. However, the applicant has not submitted that agreement along with this petition. Further pleaded that thereafter he entered into agreement with NCR Corporation India Private Limited, applicant annexed a copy of the agreement (Annexure-P/1).
9. No doubt, prima facie, it is reflected that the applicant who is Director of the Writer Safeguard Pvt. Ltd., took petty work with the NCR Corporation India Private Limited, cannot be escaped from the liabilities imposed under the Minimum Wages Act, 1948 by saying that he is a petty contractor and in the above circumstances, appropriate Government is not the State 7 Government but it is the Central Government because NCR Corporation India Private Limited took work on contract for upkeeping, maintenance and other allied work of the ATM from the State Bank of India in all over India. Thus, in these circumstances, this Court is of the firm view that it is not the State Government, but, it is the Central Government and Labour Enforcement Officer who inspected the work carried out on the ATMs by or on behalf of NCR Corporation India Private Limited under the provisions of Minimum Wages Act, 1948, is having a jurisdiction to inspect the alleged ATM.
10. It is pertinent to note here that when respondent No.2 served notice dated 06/03/2014 of that discrepancies committed by applicant who had undertaken the work on behalf of NCR Corporation India Private Limited. The applicant in the reply dated 02/04/2014 in a very short way denied the fact that it is not applicable to the applicant. When respondent No.2 decided to file complaint under Section 22-A of Minimum Wages Act, then served notice and directed the applicant to remain 8 present to the Court of CJM on 14/08/2014. As alleged by the applicant, he submitted a detailed representation. Why he did not submit a detailed representation in reply to the notice dated 06/03/2014, had not been explained by the applicant. On perusal of the detailed reply filed by the applicant along with this petition, it reveals that neither it bears any date nor bears any service report. In these circumstances, if the applicant is aggrieved by filing the complaint, he, on the date i.e. 14/08/2014, can file a detailed representation in the Court because he was having a previous notice of the date of filing the complaint. It seems that the applicant was avoiding the criminal proceeding on one pretext to another. He is free to file objection. On the basis of forgoing discussions, this Court does not find any circumstance to dismiss the criminal proceeding of Criminal Case No.3398/2014 pending against the applicant before the Court.
11. Accordingly, this petition sans merit and the same is hereby dismissed without any order as to cost. 9
12. If any interlocutory application is pending, the same stands dismissed.
(Vishnu Pratap Singh Chauhan) Judge ts Digitally signed by TULSA SINGH Date: 2020.01.21 15:21:01 +05'30'