Patna High Court - Orders
M/S Reliance Telecom Ltd. & Anr vs State Of Bihar & Anr on 4 May, 2010
IN THE HIGH COURT OF JUDICATURE AT PATNA
Cr.Misc. No.29379 of 1999
1. M/S RELIANCE TELECOM LTD INCORPORATED UNDER THE
COMPANIES ACT AND HAVING ITS CIRCLE AT KASHI PLACE,
DAKBUNGLOW ROAD, PATNA.
2. SHRI RAJENDRA KUMAR SINGH, CIRCLE HEAD, M/S
RELIANCE TELECOM PVT.LTD. KASHI PLACE,
DAKBUNGALOW ROAD, PATNA.
Versus
1. STATE OF BIHAR
2. LABOUR SUPERINTENDENT AND INSPECTOR, IN THE
OFFICE OF DEPUTY LABOUR COMMISSIONER, BAILEY ROAD,
PATNA-800 001.
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FOR THE PETITIONERS :- .MR. Y.V. GIRI, SR. ADVOCATE
MR. MANOJ KUMER ADVOCATE &
MR. VIKAS RATAN BHARTI, ADVOCATE
FOR THE STATE, LABOUR DEPT :- MR. ALOK KR. SINHA,ADVOCATE
FOR THE STATE :- MR. LALA KAILASH BIHARI PD., SR. ADVOCATE
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7 4-5-2010Heard Mr. Yadu Vansh Giri, learned senior counsel appearing for the petitioners, Mr. Lala Kailash Bihari Pd, learned senior Advocate for the State and Mr. Alok Kumar Sinha, learned counsel appearing for the complainant.
2. This application under section 482 of the Code of Criminal Procedure has been filed for quashing the entire proceeding in Complaint Case No. 1084(M) of 1999 filed by respondent no.2, the Labour Superintendent and Inspector, in the Office of Deputy Labour Commissioner, Patna pending in the court of Chief Judicial Magistrate, Patna and also for quashing the order of cognizance dated 5th August,1999.
3. On behalf of petitioners, initially two pronged arguments were advanced. Firstly, it was submitted that recently 2 petitioners' application for quashing of prosecution against them under the provisions of the Bihar Shops and Establishment Act 1953 has been allowed on 26th April,2010 vide Cr.Misc.No. 29447 of 1999. That order has been annexed as annexure-7 to the supplementary affidavit and on that basis it has been submitted that now when the legal position is clear that petitioners are exempted from the provisions of Shops and Establishment Act, they cannot be prosecuted under the provisions of the Minimum Wages Act 1948 ( hereinafter referred to as `the Act') because they are not covered by the term `Scheduled Employment' under the Act. Secondly, it was submitted that in respect of petitioners the appropriate Government is the Central Government and not the State Government. Hence, prosecution at the instance of the State Government or its officials is against law.
4. In order to substantiate the first submission which was the main argument raised before this Court, it was pointed out that minimum wages under the Act are made for employees as defined under section 2 of the Act and they must be employed in a scheduled employment in respect of which rates of wages have been fixed. Scheduled employment has been defined to mean an employment specified in the Schedule. It is not in dispute that the Schedule which contains large number of entries does not cover the business of providing telephone service and hence only entry which is supposed to cover the petitiones is entry no.27 relating to employment in Shops and Establishments other than 3 that covered under any of the entry in the schedule.
5. According to learned counsel for the petitioners the words "Shops or Establishments" are not defined in the Act and hence they can only mean Shops and Establishments as defined under the Shops and Establishment Act. To corroborate this submission learned counsel for the petitioners has placed reliance upon notification of the State Government bearing S.O. 765 dated 25-6-1975 contained in annexure-6 to the supplementary affidavit. That notification has been issued in exercise of the powers conferred by Clause (a) of Sub-section (1) of Section 3 of the Act and it specifies the minimum rates of wages for different categories of the employees employed in the Shops and Establishments registered under the Bihar Shops and Establishment Act,1953 other than those covered under any of the other entries in this schedule to the Act for the whole of the State of Bihar. On the basis of such notification which has admittedly never been cancelled or superseded but only revised from time to time in respect of rates, it has been submitted that the State Government has not prescribed minimum wages for shops and establishments which are not registered under Bihar Shops and Establishments Act, 1953 and even if the notification be deemed to cover those shops and establishment which ought to have been registered under the Bihar Shops and Establishments Act,1953, the petitioners will not be governed even by the said notification because it has been held that they 4 are exempt and not covered by the Bihar Shops and Establishmens Act.
6. Learned counsel for the complainant, after some arguments, accepted the legal position that the S.O. dated 25-6- 1975 has not been superseded in substance ( except for revision of rates) and further no notification has been issued so as to prescribe minimum wages for a different category of shops and establishments which has not been registered or may not be required to register under the Bihar Shops and Establishments Act, 1953.
7. In view of aforesaid factual and legal position there is no difficulty in holding that petitioners are not covered by the schedule as they are exempted from the Shops and Establishments Act, 1953. Even if they be deemed to be covered by the schedule as shops or establishment other than that covered under any of the other entries in the schedule, in the absence of any notification fixing minimum wages for such shops or establishments ie, other than those registered under the Shops and Establishments' Act 1953, the petitioners cannot be prosecuted for not complying with the provisions of the Act.
8. Learned senior counsel for the petitioners in course of submission gave up his second argument and did not press that for the petitioners the appropriate Government will be Central Government.
9. Since the petitioners have succeeded on the basis 5 of first point itself and it has been held that they are not covered by the Minimum Wages Act , this application must succeed. Accordingly, it is allowed and the entire criminal proceeding against the petitioners as well as the impugned order of cognizance are hereby quashed.
10. In the interest of justice and in the facts of the case it is clarified that the benefit of quashing of the entire proceeding would go even to those accused who are not parties before this Court.
Naresh ( Shiva Kirti Singh, J.)