Karnataka High Court
The Embassy Apartment Owner"S ... vs The State Of Karnataka on 10 November, 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE C.M. POONACHA
WRIT PETITION NO.49553 OF 2012 (L-RES)
BETWEEN
1 . THE EMBASSY APARTMENT OWNERS'
ASSOCIATION
NO.15, ALI ASKAR ROAD,
BANGALORE-560 052
REPBY ITS PRESIDENT
MR ASHOK PEREIRA
2 . MR STANLEY PINTO
AGED ABOUT 69 YEARS,
EX PRESIDENT,
THE EMBASSYI APARTMENT OWNERS'
ASSOCIATION,
NO.15, ALI ASKAR ROAD,
BANGALORE- 560 052
3 . SMT RACHANA GOPINATH
AGED ABOUT 36 YEARS,
EX SECRETARY
THE EMBASSYI APARTMENT OWNERS'
ASSOCIATION,
NO.15, ALI ASKAR ROAD,
BANGALORE- 560 052
4 . SRI K S SRINIVAS
AGED ABOUT 49 YEARS
ACCOUNTS MANAGER,
THE EMBASSYI APARTMENT OWNERS'
ASSOCIATION,
NO.15, ALI ASKAR ROAD,
2
BANGALORE- 560 052
...PETITIONERS
(BY SRI C K SUBRAMANYA, ADVOCATE FOR
SRI B C PRABHAKAR, ADVOCATE)
AND
THE STATE OF KARNATAKA
REPRESENTED BY ITS
SENIOR LABOUR INSPECTOR
9TH CIRCLE,
DEPARTMENT OF LABOUR,
BANGALORE- 560 029
...RESPONDENT
(BY SRI BHOJEGOUDA KOLLER, AGA)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
CRIMINAL COMPLAINT DATED 30.6.2012 FILED BY THE
RESPONDENT BEFORE THE MMTC-3, BANGALORE IN CC
NO.1838/2012 VIDE ANNEXURE-E AND ETC.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 07.11.2022, COMING ON FOR
'PRONOUNCEMENT OF ORDER' THIS DAY, THE COURT MADE
THE FOLLOWING:-
ORDER
The Petitioners have filed the above Writ Petition seeking for the following reliefs:
"a) call for records leading to the filing of the Criminal Complaint dated 30.6.2012 filed by the Respondent before the MMTC-3 Bangalore in cc No.1838/2012.
b) Quash the Criminal Complaint dated 30.6.2012 filed by the Respondent before the MMTC-3, 3 Bangalore in CC No.1838/2012 (Annexure-E).
c) grant any other relief (s) as may be deemed fit and proper by this Hon'ble Court".
2. It is the case of the Petitioners that Petitioner No.1 is an Association and that they are rendering personal services to its members and managing the common area and facilities of the building 'The Embassy' and it is not engaged in providing any kind of commercial services. It is the further case of the Petitioners that they has employed 5 persons to carryout activities of the Association.
3. That the Respondent upon an inspection carried out of the records maintained by the Petitioners, submitted an Inspection Report and directed the Petitioners to submit a compliance report by 29.3.2012. The Petitioners, submitted a reply dated 24.8.2012. Despite the same, the Respondent has filed a criminal complaint dated 30.6.2012 under Section 200 of the Code of Criminal Procedure, 1973 read with Section 22-A of the 4 Minimum Wages Act, 1948 (hereinafter referred to as the 'Minimum Wages Act') before the Metropolitan Magistrate Traffic Court III, Bengaluru (hereinafter referred to as 'MMTC-III) for violation of Section 18(3) of the Minimum Wages Act and Rule 29(2) of the Minimum Wages Rules, 1958 (hereinafter referred to as the 'Minimum Wages Rules'). The learned Magistrate, vide order dated 18.9.2013, has taken cognizance of the said complaint. Being aggrieved, the Petitioners have filed the present Writ Petition.
4. The learned Counsel for the Petitioners vehemently contends that having regard to the activities carried out by the Petitioners, the Petitioner No.1 is not an 'Industry' and hence, question of initiation of proceedings for violation of the provisions of the Minimum Wages Act does not arise. In support of his contentions, he relied upon the following decisions:
i) Management of SOM Vihar Apartment Owners Housing Society Ltd., v. Workmen1 1 2001-I LLJ 1413 SC 5
ii) Smt Rachana Gopinath & Anr., v. The State of Karnataka, Dep.t of Labour, B'lore2
iii) Subhash Bheendra and Ors., v. State of Karnataka and ors., 3
5. The learned AGA submits that the judgments relied upon by the learned Counsel for the Petitioners are inapplicable to the present case and they are with regard to various other enactments. He further submits that the Respondent was justified in initiating the proceedings against the Petitioners.
6. I have given my anxious consideration to the submissions of the learned Counsel for the Petitioners and the learned AGA for the Respondent. The question that arises for consideration is, Whether the complaint filed by the Respondent in CC.No.1838/2012 before the MMTC-III is liable to quashed?
6
7. It is the categorical case of the Petitioners that Petitioner No.1 is an Association of the owners' of apartments of the building 'The Embassy'. The Petitioners have thier own Memorandum of Association and Rules and Regulations. The main aim and objectives of the Association is mentioned in the Memorandum of Association. The relevant portion of which as stated in paragraph 2(a) to (f) in the Writ Petition is extracted hereinbelow for ready reference:
"2. The Association has its own Memorandum of Association and also Rules & Regulations. The main aims and objectives of the Association are as hereunder:
a) To organize, conduct and establish social, educational and recreational forums, organizations and activities for the benefit of the members.
b) To promote and conduct activities of a literary, cultural, social or charitable nature and conduct research in such fields t acquaint with the cultural heritage.
c) To establish, maintain and reinforce contacts with and to render help and assistance to all Members in their problems.
d) To manage, maintain, administer and regulate common area and common facilities to the best 2 ILR 2016 KAR 4239 3 Crl.P.No.7983/2016, DD 19.9.2019 7 advantage and benefit of all the members of the Association. To represent the members in all matters pertaining to their common problems in the premises and settle or compromise with third parties any matter or dispute affecting the common problems in the premises;
e) To promote close co-operation between Members, render all possible advice and guidance to Members relating to ownership and enjoyment of apartments and to provide such amenities and facilities to Members as the Management Committee may deem fit.
f) To carry out the above objectives and activities and to facilitate their efficient and effective functioning to liase, collaborate and share experience with individuals and/or other bodies and organizations with similar objectives in the city of Bangalore, organize meetings or participate in them, make representations or carry out other activities as may be considered necessary;"
8. It is the case of the Petitioners that they are not carrying out any commericial activity and hence, the question of initiation of proceedings under the Minimum Wages Act does not arise.
9. The Hon'ble Supreme Court in the case of Management of SOM Vihar Apartment Owners (supra) has held as follows:
"7. ............... In that context it was said that it should not be understood that all services and callings would come within the purview of the definition; service rendered by a domestic servant purely in a personal or domestic matter or even 8 in a casual way would fall outside the definition. That is how this Court dealt with this aspect of the matter. The whole purpose of the Industrial Disputes Act is to focus on resolution of industrial disputes and the regulation will not meddle with every little carpenter or a blacksmith, a cobbler or a cycle repairer who come outside the idea of industry and Industrial dispute. This rationale which applies all along the line to small professions like that of domestic servants would apply to those who are engaged by a group of flat owners for rendering personal services even if that group is not amorphous but crystallised into an Association or a society. The decision in Rajappa's case (AIR 1978 SC 548) if correctly understood is not an authority for the proposition that domestic servants are also to be treated to be workmen even when they carry on work in respect of one or many masters. It is clear when personal services are rendered to the members of a society and that society is constituted only for the purposes of those members to engage the services of such employees, we do not think its activity should be treated as an industry nor are they workmen. In this view of the matter so far as the appellant is concerned it must be held not to be "industry". .............."
(emphasis supplied)
10. This Court in the case of Smt Rachana Gopinath (supra) was dealing with a case pertaining to the Petitioners' Association, wherein criminal proceedings were initiated alleging violation of the provisions of the Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter referred to as the 'Contract Labour Act') and a 9 criminal complaint was lodged before the Magistrate. This Court, noticing the various provisions of the Contract Labour Act and relying on the judgment of the Hon'ble Supreme Court in the case of Management of SOM Vihar Apartment Owners (supra) has, categorically held that the essential ingredients of an establishment, as set out in Section 2(e) of the Contract Labour Act, were not satisfied and quashed the criminal complaint.
11. A Co-ordinate Bench of this Court in the case of Subhash Bheendra (supra) was dealing with a case of prosecution launched against an Apartment Owners' Association for alleged violation of Section 18(3) of the Minimum Wages Act and various Rules including Rule 29(2) of the Minimum Wages (Central) Rules, 1950. This Court, considering the definition employed under Section 2(e) as well as Section 18(3) of the Minimum Wages Act and relying on the judgment of the Hon'ble Supreme Court in the case of Management of SOM Vihar Apartment Owners (supra), has held that the provisions of the 10 Minimum Wages Act and the Rules do not apply to the Association of the Petitioners and allowed the Writ Petition and quashed the prosecution initiated against the Petitioners.
12. The judgments relied upon by the learned Counsel for the Petitioners are squarely applicable to the facts of the present case. The judgment of a Co-ordinate Bench of this Court in the case of Subhash Bheendra (supra) specifically deals with the prosecution launched under the Minimum Wages Act.
13. It is clear from the aforementioned that, none of the objectives of the Petitioners' Association fall within the ambit of Section 2(e) of the Minimum Wages Act.
14. In view of the aforementioned, I pass the following ORDER i. The Writ Petition is allowed.
11ii. The proceedings in CC.No.1838/2012 pending before the MMTC-III, Bengaluru, initiated by the Respondent are hereby quashed.
iii. No costs.
SD/-
JUDGE nd