Madras High Court
Chennai Port Trust vs Regional Central Apprenticeship ... on 16 February, 2007
Author: K.N.Basha
Bench: K.N.Basha
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16.02.2007
CORAM:
THE HONOURABLE MR.JUSTICE K.N.BASHA
Crl. O.P. No.4240 of 2003
and
M.P. Nos.1466 & 7555 of 2003
1. Chennai Port Trust
Rep. by Its Chariman
Rajaji Salai
Chennai 600 001.
2. The Chairman
Chennai Port Trust
Rajaji Salai
Chennai 600 001.
3. The Chief Mechanical Engineer
Chennai Port Trust
Rajaji Salai
Chennai 600 001. ..Petitioners
Vs
Regional Central Apprenticeship Adviser
Rep. by T.A.Joseph
S/o.T.P.Antony
Regional Directorate of Apprenticeship Training
C.I.T. Campus
Guindy
Chennai 600 032. ..Respondent
Prayer :
Criminal Original Petition No.31375 of 2006 filed
under Section 482 of the Criminal Procedure Code, praying to
call for the records in C.C.No.8686 of 2002 on the file of
the learned IX Metropolitan Magistrate, Saidapet, Chennai,
and quash the same.
For Petitioners : Mr.M.Jagadeesan for Mr.K.Murugan
For Respondent : Mr.S.M.Deenadayalan, ACGSC
O R D E R
Mr.N.Jagadeesan, learned counsel for the petitioners submits that the first petitioner, being a statutory body, has come forward with this petition seeking the relief of quashing the proceedings initiated against the petitioner on the basis of the complaint given by the respondent/complainant in C.C.No.8686 of 2002 on the file of the learned IX Metropolitan Magistrate, Saidapet, Chennai, for the alleged offence under section 30(1)(c) and 30(2) of the Apprentices Act, 1961 (hereinafter referred to as "the Act").
2. The learned counsel for the petitioners submits that the allegation is related to the contravention of the provision of Section 30(1)(c) and 30(2) of the Act, herein after referred to Act, relating to the number of apprentice which is required to be engaged in the Chennai Port Trust. The learned counsel for the petitioners submits that the respondent/complainant sent a letter dated 29.01.2002 directing the 3rd petitioner (the first petitioner is the statutory body, the second petitioner is the Chairman of the Chennai Port Trust and the third petitioner is the Chief Mechanical Engineer) to arrange and engage the full quota of the apprentice as per seat located for Chennai port Trust failing which they may be constrained to invoke the provisions of Section 30(1)(c) of theAct. It is pointed out by the learned counsel for the petitioners that a suitable reply was given by the petitioners dated 03.04.2002 explaining the position in the Chennai Port Trust and the matter was kept in the cold storage and the petitioners are yet to know the result of their explanation dated 03.04.2002.
3. The learned counsel for the petitioners further contended that the respondent/complainant sent yet another show cause notice dated 23.08.2002 similar to the earlier letter dated 29.01.2002 directing the petitioners to engage full quota of Apprentice as notified above the apprenticeship training and failure to comply the such requirements penal proceedings would be initiated for the offence under section 30(1)(c) and 30(2) of the Act.
4. The learned counsel for the petitioners further pointed out that even for that show cause notice, an explanation was sent by the petitioners dated 27.11.2002. But without giving any reply to the explanation dated 27.11.2002, the respondent straight away filed the complaint before the IX Metropolitan Magistrate Court, Saidapet, Chennai.
5. The learned counsel for the petitioners further contended that in the complaint, the respondent has not mentioned about the earlier notice dated 29.01.2002 and the explanation of the petitioners dated 03.04.2002 and further there is absolutely not a whisper about the explanation given by the 3rd petitioner dated 27.11.2002 to the second show cause notice dated 23.08.2002. It is pointed out by the learned counsel for the petitioners that as a matter of fact, the complaint itself is barred by limitation. It is pointed out by the learned counsel for the petitioners that Section 33 of the Act provides that a complaint can be filed in the court in writing made by the Apprenticeship Advisor within six months from the date on which the offence is alleged to have been committed. The learned counsel for the petitioners further contended that the respondent/complainant has sent a show cause notice dated 29.1.2002 and through that show cause notice, the complainant directed the petitioners to comply with the requirements of engaging full quota of apprentice as per the seat located for the Chennai Port Trust and in the event of failure, it is also specifically mentioned in that notice that penal proceedings would be initiated against the petitioners u/s. 30(1)(c) of the Act. Therefore, the learned counsel for the petitioners submits that it has to be construed that the limitation starts from 29.01.2002 and therefore, the complaint could have been filed by the respondent on or before 28.07.2002. It is contended by the learned counsel for the petitioners that with a view to overcome the bar of limitation, now the complainant proceeded to file a complaint calculating the limitation from the date of second show cause notice dated 23.08.2002.
6. The second contention raised by the learned counsel for the petitioners is that the respondent/complainant has not whispered a word about the two explanations given by the petitioners dated 03.04.2002 and 27.11.2002 and those explanations were given as a reply to the show cause notices dated 29.01.2002 and 23.08.2002. The learned counsel for the petitioners pointed out the provisions under Section 8 (3) of the Act and contended that, as per proviso to section 8(3) of the Act, the employer namely the petitioners herein are entitled to give a requisition to consider the facilities actually available in the establishment concerned and the employer of the establishment is entitled to make a representation to the respondent/complainant seeking permission to engage such number of apprentice for a designated trade as is lesser than the number arrived at for the ratio for the trade. Therefore, it is contended by the learned counsel for the petitioners that in view of the explanation given by the petitioners, it is clear that the petitioners have not at all violated the provisions under section 30(1)(c) and 30(2) of the Act and as such the complaint itself is not at all maintainable and the same is liable to be quashed.
7. Per contra, Mr.S.M.Deenadhayalan, learned Additional Central Government Standing Counsel, vehemently contended that there is absolutely no point made out by the petitioners for quashing the proceedings. It is contended by the counsel for the respondent/complainant that there are enough averments and allegations mentioned in the complaint constituting the offence under Section 30(1)(c) of the Act. It is also vehemently contended by the learned counsel for the respondent/complainant to the effect that the respondent/complainant has sent only one show cause notice dated 23.08.2002 and if the calculation is made from the date of this show cause notice i.e. 23.08.2002, the complaint is filed within a period of six months as stipulated under section 33 of the Act. It is also pointed out by the learned counsel for the respondent that regarding the non mentioning of the reply and explanation said to have been sent by the petitioners is not fatal to the case of the complainant and such contention may be availed by the petitioners only at the time of trial and not at this pre-mature stage. It is also pointed out by the learned counsel for the respondent/complainant that it is for the petitioners to prove their stand by adducing their evidence at the time of trial by placing reliance of their so called explanations.
8. I have carefully considered the rival contentions put forward by either side and also perused the complaint as well as the materials available on record.
9. A perusal of the complaint discloses that the complainant has categorically mentioned that a letter dated 26.12.2001 was sent to the petitioners bringing to the knowledge of the first petitioner highlighting the provision of Section 30(1)(c) of the Act and cautioning that any contravention of the provisions of the Act will invite imprisonment for a term which may extend to six months or with fine or with both. It is also revealed that the complainant has further mentioned about the second communication to the petitioner calling it as a show cause notice dated 23.08.2002 and the reading of the said show cause notice dated 23.08.2002 makes it crystal clear that the show cause notice is nothing but the repetition of the alleged letter sent by the respondent/complainant dated 26.12.2001. It is pertinent to note that section 8(3) of the Act, which reads herein :
"8 (3). The Apprenticeship Adviser may, by notice in writing, require an employer to engage such number of trade apprentices within the ration determined by the Central Government for any designated trade in his establishment, to undergo apprenticeship training in that trade and the employer shall comply with such requisition :
Provided that in making any requisition under this sub-
section, the Apprenticeship Adviser shall have regard to the facilities actually available in the establishment concerned :
(Provided further that the Apprenticeship Adviser may, on a representation employment potential, training facilities and other relevant factors, permit him to engage such number of apprentices for a designated trade as is lesser than the number arrived at by the ratio for that trade, not being lesser than twenty per cent of the number so arrived at, subject to the condition that the employer shall engage apprentices in other trades in excess in number equivalent to such shortfall."
The proviso to Section 8(3) of the Act makes it crystal clear that the employer is entitled to make any requisition as per this provision and the Apprenticeship Advisor shall have regard to the facilities actually available in the establishment concerned.
10. Therefore, the above said particular provision contemplates a mandatory requirement on the part of the Apprenticeship Advisor to consider the facilities actually availed in the establishment of a particular concern. In this case, the alleged accused is a statutory body, viZ., Chennai Port Trust. The petitioners also produced before this court their explanation dated 03.04.2002 and
27.11.2002 given to the two show cause notices sent by the respondent/complainant dated 29.01.2002 and 23.08.2002.
The undisputed fact remains that the respondent/complainant, for the reasons best known to them, not whispered about the explanations given by the petitioners for the show cause notice issued by them. The perusal of the complaint also discloses that curiously the complainant also referred one more letter dated 26.12.2001 and the complainant suppressed the yet another communication sent by them dated 29.01.2002. There is absolutely no explanation for the letter dated 26.12.2001 sent by the complainant to the accused. In the counter, they have not given any explanation to their communication dated 26.12.2001. It is pertinent to be noted that there is absolutely no explanation even in the counter for suppressing the earlier communication sent by the respondent/complainant to the petitioner dated 29.1.2002. This Court is of the considered view that the reading of the communication dated 29.1.2002 makes it crystal clear that that communication is only a show cause notice as contemplated under Section 30(1)(c) of the Apprentices Act, 1961. In paragraph 2 of that notice dated 29.1.2002, they have specifically mentioned the Section 30(1)(c) of the Apprentices Act, 1961. It is better to reproduce the notice dated 29.1.2002, which reads hereunder:
"It has been brought to my notice that against the quota of 399 seats located for trade apprentices in your establishment by the Central Regional Apprenticeship Adviser (Regional Director of Apprenticeship Training, Chennai), only 310 trade apprentices have been engaged by your establishment in contravention of the provisions of the Apprentices Act, 1961.
2. I am to request you to please look into the matter and arrange to engage the full quota of the apprentices as per seats located for your establishment, failing which we may be constrained to invoke the provisions of Section 30(1)(c) of the Apprentices Act, 1961.
3. You are requested to please let me know the steps taken by you to engage the full quota of apprentices, at the earliest."
The respondent/complainant has not denied about sending the notice dated 29.1.2002 even in the counter filed by them. It is only stated on the other hand that such communication dated 29.1.2002 is only a demi-official letter and the same cannot be treated as show cause notice. This court is unable to accept such explanation of the respondent, in view of the contents of the communication dated 29.1.2002 as incorporated above. These are all the communications took place between the two statutory bodies namely the petitioner and the respondent/complainant and therefore, this court cannot brush aside the same and overlook those materials produced before this court while considering the petition for quashing the proceedings in view of securing the ends of justice. As rightly pointed out by the learned counsel for the petitioners that if the limitation is calculated from the date of issue of first show cause notice dated 29.01.2002, the complainant/respondent ought to have filed the complaint on or before 28.07.2002. But the present complaint is filed only on 15.11.2002 and therefore, it is clearly barred by limitation as per provisions under section 33 of the Act which contemplates six months time from the date of offence to file a complaint. This court is of the considered view that the respondent/complainant only with a view to overcome this problem of limitation, placed reliance on the second show cause notice dated 23.08.2002 ignoring the earlier show cause notice dated 29.01.2002.
11. Therefore, for the aforesaid reasons, allowing the proceedings to continue against the petitioners would amount to a clear case of abuse of process of Court and as such the proceedings initiated against the petitioners inC.C.No.8686 of 2002 on the file of the learned IX Metropolitan Magistrate, Saidapet, Chennai is liable to be quashed and accordingly, the same is quashed. Consequently, connected Miscellaneous Petitions are closed. gg/ajr To
1. The Central Apprenticeship Adviser Regional Directorate of Apprenticeship Training C.I.T. Campus Guindy Chennai 600 032.
2. The Assistant Central Government Standing Counsel High Court Chennai.
[PRV/10412]