Madras High Court
Shri Andrew Stern vs Labour Enforcement Officer (Central) on 30 September, 2008
Author: K.N. Basha
Bench: K.N. Basha
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.09.2008 CORAM THE HONOURABLE MR. JUSTICE K.N. BASHA Crl.O.P.Nos.31399 & 31400 of 2005 and Crl.M.P.Nos.8850 to 8853 of 2005 Shri Andrew Stern, Chief Executive Officer, British Airways World Cargo, DLF Plaza Towers, DLF Qutab Enclave, Phase I, Gurgaon 122 022. .. Petitioner in both the petitions/Accused Vs. Labour Enforcement Officer (Central), Ministry of Labour, Government of India, No.26, Haddows Road, Shastri Bhavan, Chennai 600 006. .. Respondent in both the petitions/Complainant * * * Prayer in both the petitions : Criminal Original Petitions filed under section 482 of Cr.P.C. to call for the records and quash the proceedings in S.T.C.Nos.237 and 251 of 2005 on the file of the learned Judicial Magistrate, Alandur. * * * For Petitioners : Mr.Habibullah Badsha, Senior Counsel for M/s.Kochhar & Co., For Respondent : Mr.A.P.Balasubramani Central Govt. Standing Counsel C O M M O N O R D E R
The petitioner has come forward with these petitions seeking for the relief of quashing the proceedings pending in S.T.C.Nos.251 and 237 of 2005 on the file of the learned Judicial Magistrate, Alandur, for the alleged offences under Section 9 of the Contract Labour (Regulation and Abolition) Act, 1970 and Rules 74, 81(1)(i), 81(2) and 81(3) of the Contract Labour (Regulation and Abolition) Central Rules, 1971 and Section 7 of the Contract Labour (Regulation and Abolition) Act, 1970 respectively.
2. The above two criminal original petitions are arising between the same parties, viz., the petitioner/accused and the respondent/complainant are one and the same in respect of the contravention of same Act and Rules, viz., Contract Labour (Regulation and Abolition) Act, 1970 and therefore, both the petitions taken up together for disposal by this Court with the consent of both the learned senior counsel for the petitioner and the learned Additional Central Government Standing Counsel appearing for the respondent.
3. For the sake of convenience the Contract Labour (Regulation and Abolition) Act, 1970 and the Contract Labour (Regulation and Abolition) Central Rules, 1971 are hereinafter referred to as "the Act" and "the Rules" respectively.
4. The crux of the allegation made against the petitioner in both the complaints is to the effect that the petitioner was engaged with cargo handling work at Airport Authority of India (hereinafter referred to as "AAI"), at Chennai and the petitioner said to have committed the breach of the following provisions in respect of S.T.C.No.251 of 2005 which are liable for prosecution under Section 24 of the Act :
01.BREACH OF SECTION 9 :
The Principal Employer has employed contract labour through contractor without obtaining Registration of Certificate from Registering Officer ;
02.BREACH OF RULE 74 :
Failed to maintain the Register of Contractors in form XII at the workspot/premises ;
03.BREACH OF RULE 81 (1)(i) :
Failed to display the notices showing the rates of wages, hours of work, wage periods, date of payment of wages, designation and address of the Inspectors having jurisdiction and payment of unpaid wages at the workspot ;
04.BREACH OF RULE 81(2) :
Failed to submission of copies of notices required to be displayed at the workspot to the Inspector ;
05.BREACH OF RULE 81(3) :
Failed to submission of notice of commencement of contract work in Form VIB.
and BREACH OF SECTION 7 :
Failed to obtain Registration of Certificate for executing work through contract labour numbering 20 or more ; in respect of S.T.C.No.237 of 2005 which is liable for prosecution under Section 23 of the Act.
5. Mr.Habibullah Badsha, learned senior counsel appearing for the petitioner contended that the petitioner is nothing to do with the cargo handling at Airport and cargo handling is done by AAI and as such the provisions under the Act and the Rules are not applicable to the petitioner herein and put forward the following contentions :
(1)As per the provision under Section 12(3)(r) of the Airports Authorities Act, cargo handling shall be the function of the AAI and cargo handling at Airport is done only by the AAI and cargo handling cannot be done by any private party and in respect of the petitioner the cargo handling was all along carried on only by AAI and therefore, implicating the petitioner for the contravention of the provisions of the Act and the Rules are baseless as the petitioner would not come within the purview of the Act and Rules ;
(2)The petitioner sent a reply dated 13.11.2003 to the Show Cause Notice dated 15.10.2003 in respect of both the cases explaining that the petitioner is nothing to do with the cargo handling and as such the petitioner would not fall within the purview of the Act and Rules. It is further stated in the reply that the petitioner has entered into an agreement with the AAI for the purpose of handling its cargo at the Chennai Airport and only the AAI engaged and employed its own workmen on a contractual basis to carry out the work arising out of the agreement and as such the workmen so employed could not be construed to be workmen employed by the petitioner. The complainant having acknowledged the receipt of the reply notice on the same day, i.e., on 13.11.2003 itself has deliberately stated in the complaints filed subsequent to the receipt of the reply on 22.12.2003 that no reply was received to the Show Cause Notice served on the petitioner and proceeded to file the impugned complaints and as such the complainant suppressed the material facts and on that ground itself the complaints are liable to be quashed ;
(3)As far as the petitioner is concerned, the petitioner can bring the cargo only upto the Airport and thereafter the cargo handling is carried out only by the AAI till the cargo is loaded on to the aircraft. Therefore, the petitioner's establishment is not engaged in entrusting any work to the contractor for cargo handling as the same is only done by the AAI and as such the provision under the Act and Rules is not applicable to the petitioner herein ;
(4)There is no specific allegation against the petitioner, who is the Chief Executive Officer, to the effect that he is in-charge and responsible for the conduct of the business of the company, viz., British Airways World cargo, and as such the complaint is not maintainable against him ;
(5)The entire allegations contained in the complaint are vague and bald and there is no specific and definite allegations levelled against the petitioner and the complaints have been filed mechanically without application of mind ;
(6)It is alleged in S.T.C.No.237 of 2005 that Section 2(2)(c) of the Act violated but there is no such provision under the said Act and as such the impugned complaints are filed without application of mind.
By making the above said submissions, the learned senior counsel vehemently contended that in view of the provisions of the Act and Rules itself are not applicable to the petitioner, the allegations made against the petitioner for the breach of the Sections of the Act and Rules are totally absurd and perverse and as such the complaint is liable to be quashed.
6. Per contra, learned Central Government Standing Counsel for the respondent contended that there is no infirmity or illegality in the complaints preferred by the respondent and there are allegations levelled against the petitioner in the complaint for the contravention and violation of the provisions of the Act and Rules. It is submitted that the petitioner, being the principal employer is liable to be proceeded for the alleged contravention of the provisions of the Act and Rules. The learned Additional Central Government Standing Counsel would further submit that though the reply to the Show Cause Notice was given by the petitioner, the same was not given within the time stipulated in the Show Cause Notice i.e., within 10 days from the date of receipt of Show Cause Notice and as such the same was not mentioned in the complaints. It is contended that only after the inspection made on 15.10.2003 by the Officer and after giving sufficient time to send a reply, the impugned complaints were filed. It is further contended that along with the Show Cause Notice, the inspection report was also enclosed giving opportunity to the petitioner to Show Cause why legal action should not be initiated against him for the irregularities and contravention of the provisions of the Act and Rules. The learned Central Government Standing Counsel would further contend that it is open to the petitioner to raise the defence that the petitioner would not come within the purview of the Act and Rules only at the time of trial and not before the commencement of trial as the same relating to appreciation of facts and therefore, the petition for quashing is not maintainable.
7. I have carefully considered the rival contentions put forward by either side and also perused the impugned complaints dated 22.12.2003 in both the petitions and other materials available on record including the Show Cause Notices issued by the complainant dated 15.10.2003 and the reply to the Show Cause Notice dated 13.11.2003 given by the petitioner.
8. A perusal of the impugned complaints discloses that the petitioner has been implicated in both the cases for the alleged contravention and breach of provisions of the Act and rules as stated above. The crux of the question involved in this matter is to the effect that whether the petitioner is engaged with cargo handling work at AAI, Chennai, by employing twenty or more workmen as contract labour and whether the petitioner would come within the purview of the Act and the Rules.
9. Before proceeding to consider the question involved in this matter, it is better to refer the relevant provisions of the Act.
10. Section 1 (1) and (4) (a) and (b) of the Act reads hereunder :
"1. Short title, extent, commencement and application (1) This Act may be called THE CONTRACT LABOUR (REGULATION AND ABOLITION) ACT, 1970.
(2) ....
(3) ....
(4) It applies -
(a) to every establishment in which twenty or more workmen are employed or were employed on any day of the preceding twelve months as contract labour ;
(b) to every contractor who employs or who employed on any day of the preceding twelve months twenty or more workmen :
11. Section 2(1)(b) of the Act reads hereunder :
2. Definitions -
(1) In this Act, unless the context otherwise required -
(b) a workman shall be deemed to be employed as "contract labour" in or in connection with the work of an establishment when he is hired in or in connection with such work by or through a contractor, with or without the knowledge of the principal employer ;
12. Section 2(1)(g)(iv) of the Act reads hereunder :
2. Definitions -
(1) In this Act, unless the context otherwise required -
(g) "principal employer" means -
(i) ....
(ii) ....
(iii) ....
(iv) in any other establishment, any person responsible for the supervision and control of the establishment.
13. A reading of the above said provisions under the Act makes it is crystal clear that (i) the Act applies to every establishment and every contractor who employs or who employed twenty or more workmen on any day of the preceding twelve months as contract labour ; (ii) the workmen shall be deemed to be employed as "contract labour" when he was hired by the establishment or through a contractor with or without knowledge of the principal employer ; and (iii) "principal employer" means "a person responsible for the supervision and control of the establishment".
14. In view of the above provisions it is incumbent on the complainant to make specific averments in the complaints to make out a prima facie case to the effect that the provisions of the Act and the Rules are applicable to the petitioner herein and thereafter to proceed to make allegations constituting the offence under the Act on the ground of breach of the provisions of the Act.
15. At the outset, this Court is constrained to state that the impugned complaints in both the matters are not only bereft of fundamental details to make out a prima facie case of the applicability of the Act and Rules against the petitioner but also lacks specific averments and allegations constituting the breach of the provision of the Act and the Rules.
16. It is pertinent to be noted that the impugned complaints contain only vague and bald allegations by merely quoting the breach of the specific provisions of the Act and the Rules without specifying as to how and in what manner the petitioner company would come within the purview of the Act and the Rules. It is seen from the impugned complaints that it is stated at paragraph 3 as follows :
"03. That the above named accused is the Principal Employer within the meaning of Section 2(2)(c) of the Contract Labour (Regulation and Abolition) Act, 1970, who was engaged in the work of ENGAGED WITH CARGO HANDLING WORK AT AIRPORT AUTHORITY OF INDIA, CHENNAI."
17. It is curious to note that there is no such provision under the Act as 2(2)(c) and this averment contained in the impugned complaints discloses that there is total non-application of mind on the part of the respondent/complainant and the complaints have been filed arbitrarily and mechanically. As already pointed out, the definition of "principal employer" comes under Section 2(1)(g) of the Act and as per the said provision any person responsible for the supervision and control of the establishment is a "principal employer". But there is no averment in the complaints to the effect that the petitioner, as the principal employer, has employed or hired any workmen either by himself or through a contractor for the work of the establishment, viz., M/s.British Airways World Cargo. It is merely alleged in the complaint that the petitioner was engaged in the work of cargo handling at AAI, Chennai and at the risk of repetition, it is to be re-iterated that there is no whisper to the effect that the petitioner has engaged workmen numbering twenty or more either by himself or through any contractor for the work of the establishment, viz., M/s.British Airways World Cargo and as such the complainant has not made out any prima facie case of the breach of the alleged provisions under the Act against the petitioner and therefore, the proceedings are liable to be quashed.
18. It is pertinent to be noted that the respondent/complainant is empowered to enter into the business premises of any establishment where contract labour is employed, for the purpose of examining any register or record or notices required to be kept or exhibited under the Act or Rules and required the production thereof for inspection under Section (2)(a) of the Act. Under Section 28(2)(b), the respondent/complainant is entitled to examine any person, whom he finds in any such premises, that he has reasonable cause to believe is a workman employed therein. Under Section 28(2)(c) and (d), the respondent/complainant is further empowered to get information from any workmen in respect of the names and addresses of the persons to, for and from whom the work is given and also with respect to the payments to be made for the work and to seize register, records of wages and other relevant documents in respect of the offence under this Act, which the respondent/complainant has reason to believe, has been committed by the principal employer or the contractor. But in spite of these powers, there is absolutely no indication neither in the complaint nor in the show cause notice or in the inspection report to the effect that the respondent/complainant enquired any workmen of the premises and gathered the information and seized the relevant documents to make out a prima facie case that the petitioner said to be the principal employer of M/s.British Airways World Cargo, has engaged either by himself or through any contractor workmen numbering 20 or more to the work of the establishment in order to bring the petitioner within the purview of the Act or the Rules. It is seen that under Section 28(2)(e) of the Act, the inspecting officer, viz., the complainant/respondent herein is also entitled to exercise such other powers as may be prescribed and the respondent/complainant after the inspection on 15.10.2003 thought it fit to serve a show cause notice dated 15.10.2003 to the petitioner requesting the petitioner to rectify the irregularities mentioned in the inspection report annexed along with the show cause notice dated 15.10.2003 and also to show cause within ten days from the date of receipt of the said notice as to why legal action under Sections 23 and 24 of the Act should not be initiated against the petitioner.
19. It is needless to state that the respondent/complainant, having chosen to send such show cause notice to the petitioner, ought to have considered the reply dated 13.11.2003 given by the petitioner to the show cause notice dated 15.10.2003 which was also admittedly served on the respondent/complainant on the same day, i.e., on 13.11.2003 itself. But unfortunately, in spite of receiving such reply dated 13.11.2003 from the petitioner to the show cause notice dated 15.10.2003, the respondent/complainant simply ignored, overlooked and brushed aside the explanations given by the petitioner to the effect that the petitioner company would not come within the purview of the Act and Rules and further stating that they are nothing to do with cargo handling and the same was undertaken by the AAI in pursuance of the agreement entered into between the petitioner company and the AAI for the purpose of cargo handling of the company and the petitioner company merely entrust the cargo to the AAI and it is only AAI deals with the handling of cargo at the Chennai Cargo Terminal in expoert and import of transhipment of the cargo. This Court is constrained to state that the respondent/complainant has treated the issuance of show cause of notice to the petitioner as a mere empty formality. It is also pertinent to be noted that the respondent/complainant could have very well aware from the reply to the show cause notice that the cargo handling of the petitioner company was undertaken and carried out by the AAI which is functioning as per the provisions contained in the Airports Authorities Act, 1994.
20. Section 12 of the Airports Authority of Indian Act, 1994 deals with the functions of the authority and one of the functions of AAI under Section 12 (3)(r) reads hereunder :
"12. Functions of the Authority -
(3) Without prejudice to the generality of the provisions contained in sub-sections (1) and (2), the Authority may -
(r) any other activity at the airports and the civil enclaves in the best commercial interests of the Authority including cargo handling, setting up of joint ventures for the discharge of any function assigned to the Authority."
21. Therefore, it is crystal that AAI is a statutory body functioning as per the provisions of the enactment, viz., Airports Authority of India Act, 1994 and as per the provision under Section 12(3)(r) of the said Act, the cargo handling is one of the functions of the AAI and as such the responsibility of the cargo of the petitioner company is over once they entrust the cargo to the AAI and the work of cargo handling was mainly done by AAI. Therefore, there is absolutely no nexus between the petitioner company and the contract labourers who have been engaged by AAI directly or through its contractor to carry out the work of cargo handling and as such there is no direct master-servant relationship between the petitioner company and the workmen and hence by no stretch of imagination, it could be construed that the petitioner company would come within the purview of the Act or the Rules.
22. This Court is shocked and surprised to take note of a very disturbing feature in this case to the effect that in spite of receiving the reply from the petitioner company dated 13.11.2003 to the show cause notice dated 15.10.2003, which is very much evident from the seal of the respondent/complainant containing the date of acknowledgement in receipt of the reply to the show cause notice given to the petitioner and from the fair submission of the learned Additional Central Government Standing Counsel to the effect that though the respondent/complainant received the reply of the petitioner dated 13.11.2003, the said reply was not submitted to the respondent/complainant within the stipulated time, viz., within ten days from the date of receipt of the show cause notice, the respondent/complainant proceeded to file the impugned complaints only on 22.12.2003 and went to the extent of stating in the impugned complaints that no reply was submitted by the petitioner to the show cause notice dated 15.10.2003 and hence they are liable for prosecution under Sections 23 and 24 of the Act suppressing the material factor of the receipt of the reply from the petitioner which is nothing but a clear case of abuse of process of Court and as such the proceedings against the petitioner is liable to be quashed.
23. For the aforesaid reasons, this Court is constrained to quash the proceedings pending against the petitioner and accordingly, the proceedings pending against the petitioner in S.T.C.Nos.237 and 251 of 2005 on the file of the learned Judicial Magistrate, Alandur, are hereby quashed.
These Petitions are allowed accordingly. Consequently, connected miscellaneous petitions are closed.
gg To
1. The Judicial Magistrate, Alandur.
2. The Labour Enforcement Officer (Central), Ministry of Labour, Government of India, No.26, Haddows Road, Shastri Bhavan, Chennai 600 006.
3. The Central Government Standing Counsel, Chennai [ PRV / 16087 ]