Kerala High Court
Coconut Development Board vs Union Of India on 23 March, 2012
Author: A.V.Ramakrishna Pillai
Bench: A.V.Ramakrishna Pillai
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI
FRIDAY, THE 23RD DAY OF MARCH 2012/3RD CHAITHRA 1934
WP(C).No. 19866 of 2006 (M)
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PETITIONER :
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COCONUT DEVELOPMENT BOARD,
KERABHAVAN, SRV HIGH SCHOOL ROAD, KOCHI-11.
REPRESENTED BY ITS CHAIRMAN.
BY ADV. SRI.O.V.MANIPRASAD
RESPONDENT(S):
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1. UNION OF INDIA,
REP.BY THE SECRETARY TO THE GOERNMENT OF INDIA
MINISTRY OF LABOUR, CENTRAL SECRETARIAT, NEW DELHI.
2. LABOUR ENFORCEMENT OFFICER (CENTRAL),
OFFICE OF THE REGIONAL LABOUR COMMISSIONER
KENDRIYA SHRAM SADAN, OLIMUGAL, KAKKANAD
KOCHI-30.
BY ADVS. SRI.M.A.HAKEEM SHAH, CGC
SRI.JOHN VARGHESE, ASGI
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 23-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Mn
A. V. RAMAKRISHNA PILLAI, J.
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W.P(C) No.19866 of 2006.
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Dated this the 23rd day of March, 2012.
JUDGMENT
The petitioner Board has come up with this petition aggrieved by the criminal prosecution launched against their chairman by the second respondent, alleging violation of the provisions of Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter referred to as, the Act) and the Rules made therein .
2. The second respondent filed Ext.P4 complaint under Section 23 of the Act alleging breach of Section 7 r/w. Section 17 and breach of Rule 81(3). The basis of the complaint was that the petitioner Board has executed works by employing contract labourers more than 100, through few contractors without registering the establishment under the Act. In Ext.P5 complaint, the second respondent alleged breach of Rules 81 (1)
(i), which pertains to display of notice of rates of wages, hours of work, wage period, date of payment, name and address of inspector and date of payment of undisbursed wages in English, Hindi and Malayalam. It is further alleged that there was breach of Rule 81(2), that is, non W.P(C) No.19866 of 2006 -:2:- submission of copies of notices displayed/required to be displayed under Rule 81 (1) to the inspector, etc.
3. The petitioner alleges that Ext.P4 and P5 complaints are illegal as the provisions of the Act are not applicable to the petitioner Board. The reason stated is that no contract labourer is employed at the petitioner's head office at Kochi, where the second respondent allegedly conducted an inspection. It is further stated in the petition that not more than 15 contract labourers have been engaged in any day in one year preceding the date of inspection. So, according to the petitioner the provisions of the Act cannot be made applicable to the Board.
4. The contention is that even if, there is an engagement of more than 20 contract labourers in any day in the year preceding the date of inspection, the DSP Farm of the board is exempted from coverage of the Act as per provisions contained in Section 1(5)(a) of the Act. Hence, the petitioner sought following reliefs:
(i) To declare that the provisions of the Contract Labour (Regulation and Abolition) Act is not applicable to the petitioner, the Coconut Development Board.
(ii) Issue a writ of certiorari, order or direction or any other appropriate writ quashing Exts.P4 and P5 complaints and all W.P(C) No.19866 of 2006 -:3:- further proceedings against the petitioner board in ST Nos.1071/05 and 1072/05 pending before the Court of Judicial First Class Magistrate-II, Ernakulam.
5. I have heard the learned counsel for the petitioner. His argument were not resisted at the Bar by the respondent.
6. The learned counsel for the petitioner invited my attention to Section 1 of the Act, which reads as follows:
"1. Short title, extent, commencement and application.-(1) This Act may be called the Contract Labour (Regulation and Abolition) Act, 1970.
(2) It extends to the whole of India.
(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint and different dates may be appointed for different provisions of this Act.
(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 ;
(emphasis supplied)
(b) to every contractor who employs or who employed on any day of the preceding twelve months or more workmen:
Provided that the appropriate Government may, after giving not less than two months notice of its intention so to do, by notification in the Official Gazette, apply the provisions of this Act to any W.P(C) No.19866 of 2006 -:4:- establishment or contractor employing such number of workmen less than twenty as may be specified in the notification.
(5) (a) It shall not apply to establishments in which work only of an intermittent or casual nature is performed.
(b) If a question arises whether work performed in an establishment is of an intermittent or casual nature, the appropriate Government shall decide that question after consultation with the Central Board or, as the case may be, a State Board, and its decision shall be final."
(emphasis supplied)
7. Inviting my attention to Section 1(a), it was argued that the establishment will come under the purview of the Act, only in cases 20 or more workmen are employed or were employed on any day of the preceding twelve months as contract labour. Allegedly, while the second respondent made a surprise visit to the office of the petitioner, she noted the presence of about 100 contract labourers in the office. It was submitted by the learned counsel for the appellant that, the sanctioned strength of the regular employees of the Board all over India will come to 97 only. So, according to the learned counsel for the petitioner, deployment of another 100 contract labourers is improbable, rather than impossible, as far as the petitioner Board is concerned. W.P(C) No.19866 of 2006 -:5:-
8. The present writ petition was instituted as the second respondent initiated criminal prosecution against the chairman of the petitioner Board launching Exts.P4 and P5 complaints.
9. It was further argued by the learned counsel for the petitioner that the petitioner Board preferred Ext.P3 reply to the notice issued to them informing that establishments, in which work of an intermittent or seasonal nature only is performed, are not covered under the Act. It was further stated in Ext.P3 that the operational works of the petitioner Board are carried out on a seasonal basis and that the petitioner Board is not a manufacturing unit. It was urged that in the light of Section 1(5)(b), it is for the Government to take a final decision whether the work performed is of an intermittent or casual nature. Under such a situation, the proper course open to the second respondent was to refer the matter to the Government for a final decision under Section 1(5)(b), so submitted the learned counsel for the petitioner.
10. I do notice that it is the Government on such references has to take a final decision as per Section 1(5)(b). I see considerable force in the submission made by the learned counsel for the petitioner. As the W.P(C) No.19866 of 2006 -:6:- petitioner Board by Ext.P3 has informed the second respondent that the work performed was of an intermittent nature, the proper course open to the second respondent was to refer the matter to the Government, which is the final authority in taking a decision. As this course was not opted by the second respondent, I am of the definite view that Exts.P4 and P5 complaints preferred by the second respondent, are liable to be quashed, I do so.
In the result, the writ petition is allowed. Exts.P4 and P5 complaints preferred by the second respondent before the Judicial First Class Magistrate-II, Ernakulam, and all consequential proceedings against the petitioner Board in ST Nos.1071/05 & 1072/05 pending before the aforesaid court is hereby quashed. However, it is made clear that this order will not stand in the way of the second respondent from referring the matter to the Government for taking a final decision under Section 1 (5)(b). No costs.
Sd/-
A. V. RAMAKRISHNA PILLAI
JUDGE
//TRUE COPY// P.A TO JUDGE
krj