Madras High Court
Mythili K. Rajendran vs Labour Enforcement Officer (Central) ... on 11 July, 2022
Author: N. Sathish Kumar
Bench: N. Sathish Kumar
Crl. O.P. Nos. 13514 and 13537 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 11/7/2022
COR AM
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
Crl. O.P. Nos.13514 and 13537 of 2022
and
Crl.M.P.Nos.7222, 7223, 7258 and 7259 of 2022
Mythili K. Rajendran
Managing Director
M/s. Tamil Nadu Ex Servicemen Corporation
(TEXCO)
Major Parameswaran Memorial Building
No.2 West Mada Street, Srinagar Colony
Saidapet
Chennai 600 015. ... Petitioner in both
the writ petitions
Vs
Labour Enforcement Officer (Central) II
Government of India
Ministry of Labour and Employment
Shastri Bhavan
No.26 Haddows Road
Chennai 600 006. ... Respondent in both
the writ petitions
PRAYER : Criminal Original Petitions filed under Section 482 of Cr.P.C. to
call for the records in C.C.Nos.2609 and 2604 of 2021 pending on the file of the
Page No:1/21
https://www.mhc.tn.gov.in/judis
Crl. O.P. Nos. 13514 and 13537 of 2022
learned II Metropolitan Magistrate Court, Egmore, Chennai.
For Petitioner ... Ms.S.Subha Mohan
For respondent ... Mr.N.Ramesh
Special Public Prosecutor
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COMMON ORDER
Complaints in C.C.Nos.2609 and 2604 of 2021 have been filed under Section 23 of the Contract Labour (Regulation and Abolition) Act, 1970 for the breach of Section 24 of the Contract Labour Act, 1970.
2. The learned counsel for the petitioner submitted that the petitioner is the contractor, as defined under Section 2(i) (c ) of the Contract Labourer (Regulation and Abolition) Act, 1970. She has been executing the work of Watch & Ward Services, at Indian Oil LNG Pvt Limited, at Indian Oil Bhavan, No.139 Nungambakkam High Road, Chennai 34, by employing 20 or more contract labourers. While being so, on 13/11/2019, at 11.15 and 11.00 hours respectively, the Labour Enforcement Officer (Central), Chennai, inspected the work place under the provisions of Contract Labour (Regulation and Abolition) Act, 1970 and Central Rules, 1971, and observed the following offences:-
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(i). failed to intimate about the commencement/completion of contract work to the Inspector to Form VII.
(ii). Failed to display an Abstract of the Act and Rules made thereunder in the Form approved by the Chief Labour Commissioner (Central), New Delhi in English, Hindi and Tamil at the workspot.
(iii). Failed to issue employment cards to the workers and
(iv). Executing the contract without obtaining license.
3. The respondent had observed the aforesaid offences and incorporating the same in the inspection report-cum-Show Cause Notice Nos.34/41/2019-II/E2 and 34 (54)-2019-II/E2, dated 18/10/2019 and 13/11/2019 respectively and the inspection reports were duly sent to the petitioner. It was submitted by the respondent that since the petitioner has not submitted any reply, the petitioner is liable for prosecution under Sections 24 and 23 of the said Act.
4. In the above said backdrop, the respondent had filed C.C.Nos.2609 and Page No:3/21 https://www.mhc.tn.gov.in/judis Crl. O.P. Nos. 13514 and 13537 of 2022 2604 of 2021, on the file of the learned II Metropolitan Magistrate Court, Egmore, to prosecute the petitioner herein, under Sections 24 and 23 of the Act, respectively, punishable with the imprisonment for a term which may extend to 3 months or with fine which may extend to Rs.1,000/- or with both.
5. Assailing C.C.Nos.2609 and 2604 of 2021, the petitioner had filed these Criminal Original Petitions praying for the relief as stated supra.
6. The learned counsel for the petitioner further submitted that the respondent is a Labour Enforcement Officer and lodged a complaint without obtained any sanction, as contemplated under Section 197 Cr.P.C., and filed the complaint before the Magistrate. The Magistrate without even considering whether the prosecution was initiated after obtaining sanction or not mechanically have taken cognizance and issued summons to the petitioner. The petitioner is a public servant under the Government of Tamil Nadu and having been deputed as Managing Director of TEXCO i.e. Tamil Nadu Ex-Servicemen Corporation Limited, hereinafter called TEXCO, the undertaking of the Government of Tamil Nadu. While discharging his official duty, he failed to Page No:4/21 https://www.mhc.tn.gov.in/judis Crl. O.P. Nos. 13514 and 13537 of 2022 obtain Labour Licence to engage contract labours and as such while discharging his official duty, the offence was committed. Therefore, necessarily the respondent ought to have obtained sanction, as contemplated under Section 197 Cr.P.C., to prosecute the petitioner.
7.Further he submitted that the Tamil Nadu Government Undertaking is including the TEXCO and the Managing Director of the TEXCO is a public servant coming under the State Government. Therefore Section 197 Cr.P.C. is mandatory and it cannot be dispensed with to prosecute the petitioner. Further he submitted that the petitioner being the State Government undertaking Corporation, the respondent being the Central Government official, he has no power to prosecute the petitioner under the alleged violation as under the Contract Labourer (Regulation and Abolition) Act, 1970. In this regard, she also cited the judgment of the Hon'ble High Court of Karnataka in Crl.Petition No.851 of 2005 in the case of Sri Victor Joseph and Anr. Vs. the State rep. By the Labour Enforcement Officer dated 21.07.2005 and the judgment of this Court in Crl.O.P.No.7317 of 2017 dated 01.03.2010 in the case of Munianathan Vs. Page No:5/21 https://www.mhc.tn.gov.in/judis Crl. O.P. Nos. 13514 and 13537 of 2022 Labour Enforcement Officer(Central).
8. Per Contra, the learned Special Public Prosecutor appearing for the respondent submitted that the petitioner is a contractor defined under Section 2 (1) (c ) of the Contract Labourer (Regulation and Abolition) Act, 1970 and she has been awarded contract work of Watch & Ward Services at Indian Oil LNG Pvt Limited, at Indian Oil Bhavan, for which the Central Government is the appropriate Government to take action as against the petitioner. The respondent is the competent person to lodge a complaint against the petitioner. Further, the learned Special Public Prosecutor submitted that the petitioner does not have any immunity, under Section 197 Cr.P.C., for the reason that the petitioner is not a public servant. The petitioner is engaged in contractual work with Indian Oil LNG Pvt Limited, which is a Central Government organisation and as such, the sanction required under Section 197 Cr.P.C. does not arise.
9.Further he submitted that as per Section 24 “if any person contravenes any of the provisions of this act or of any rules made thereunder for which no other penalty is elsewhere provided, he shall be punishable with imprisonment Page No:6/21 https://www.mhc.tn.gov.in/judis Crl. O.P. Nos. 13514 and 13537 of 2022 for a term which may extend to three months or with fine which may extend to Rs.1000/- or with both”. Therefore, the petitioner is the company registered under the Companies Act and as such, the petitioner is bound by the rule of law and cannot attempt to take shelter under Section 197 Cr.P.C. He also relied upon the judgment in State of U.P. and Anr. Vs. Synthetics and Chemicals Ltd. and Anr (1991) 4 SCC 139 and also the judgment in V.C.Chinnappa Goudar Vs. Karnataka State Pollution Control Board and Another (2015) 14 SCC 535.
10. Heard the learned counsel for the petitioner and the learned Special Public Prosecutor for the respondent.
11.The respondent lodged the complaint under Section 23 of the Contract Labourer (Regulation and Abolition) Act, 1970 for the offences punishable under Section 12(1) of the same Act. The petitioner is the sole accused in the complaint. The crux of the allegation is that the petitioner failed to intimate about the commencement/completion of contract work to the Inspector to Form VII; to display an Abstract of the Act and Rules made thereunder in the Form approved by the Chief Labour Commissioner (Central), New Delhi in English, Page No:7/21 https://www.mhc.tn.gov.in/judis Crl. O.P. Nos. 13514 and 13537 of 2022 Hindi and Tamil at the workspot; to issue employment cards to the workers and to execute the contract without obtaining license. It is also seen that infringements found on the inspection of the respondent and issued show cause notice to the petitioner. After receipt of the same, the petitioner did not reply and hence the complaint.
12.The learned counsel for the petitioner raised two grounds. The first one is that the petitioner is the Managing Director of the TEXCO and it is completely controlled by the Government of Tamil Nadu. Therefore, she is a Government servant of Tamil Nadu and as such the respondent is being the Central Government has no power to initiate any complaint. In this regard, the Section 2(1)(a) of the said Act is extracted as follows:
"2(1) (a) "Appropriate Government means:
(i) in relation to an establishment in respect of which the appropriate Government under the Industrial Disputes Act, 1947 (14 of 1947), is the Central Government, the Central Government;
(ii) in relation to any other establishment, the Government of the State in which that other Page No:8/21 https://www.mhc.tn.gov.in/judis Crl. O.P. Nos. 13514 and 13537 of 2022 establishment is situated."
13.In the case on hand, the TEXCO Limited is functioning within the State of Tamil Nadu and it is an establishment of which the appropriate Government is not the Central Government. As contemplated under Section 2(1) (a) of the said Act provides that in respect of certain establishment, the appropriate Government would be Central Government. Therefore, the complaint lodged by the respondent of the Central Government is not maintainable as against the petitioner.
14.The second point raised by the petitioner is that the petitioner presently is a contractor and she has been executing the work of Security Services at Indian Oil, LNG Private Limited, by employing 20 or more Contract Labourers. She is the Managing Director of TEXCO and she is a public servant under the Government of Tamil Nadu. While he was discharging his duty to lodge complaint, the respondent has to obtain sanction under Section 197 Cr.P.C. A reading of Sections 4 and 5 of Cr.P.C., would make it clear that unless it is so specifically stated to the contrary only special enactment, the provisions of the Page No:9/21 https://www.mhc.tn.gov.in/judis Crl. O.P. Nos. 13514 and 13537 of 2022 Code of Criminal Procedure are very much applicable for investigation, enquiry or trial otherwise while dealing with the offence. In the case on hand, Section 23 of the Contract Labourer (Regulation and Abolition) Act, 1970 provides as to who is competent to present the private complaint in respect of the offence committed by the contractor. Section 23 of the said Act reads as follows:
“23. Contravention of provisions regarding employment of contract labour.-Whoever contravenes any provision of this Act or of any rules made thereunder prohibiting, restricting or regulating the employment of contract labour, or contravenes any condition of a licence granted under this Act, shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to one thousand rupees, or with both, and in the case of a continuing contravention with an additional fine which may extend to one hundred rupees for every day during which such contravention continues after conviction for the first such contravention.” Page No:10/21 https://www.mhc.tn.gov.in/judis Crl. O.P. Nos. 13514 and 13537 of 2022
15.The provision says that except the act done by the person shall be punishable. It does not say about the sanction to be obtained for prosecuting a public servant without recourse to Section 197 Cr.P.C. Thus, it is clear that neither Section 23 nor any other provision of the Contract Labourer (Regulation and Abolition) Act, 1970 is explicitly or implicitly excluding portion of the Section 197 Cr.P.C. As repeatedly held by the Hon'ble Supreme Court of India, unless there is a specific provision excluding the applicability of any of the provisions of the Code of Criminal Procedure, the said provision in the Code of Criminal Procedure should be followed. Therefore, to prosecute a person covered under Section 197 Cr.P.C., if the offence alleged to have been committed under the Contract Labourer (Regulation and Abolition) Act, 1970 is in discharge of official duty, the sanction is mandatory and in the absence of such sanction no Court shall take cognizance of the offence.
16.In the case on hand, the petitioner while in discharge of her official duty alleged to have committed the offence under Section 12(1) of the said Act and it falls under Section 197 Cr.P.C and therefore before taking cognizance sanction Page No:11/21 https://www.mhc.tn.gov.in/judis Crl. O.P. Nos. 13514 and 13537 of 2022 from the Central Government should have been obtained by the respondent. Therefore without any sanction the learned Magistrate ought not to have take cognizance of the impugned complaint. In this regard, the learned counsel for the petitioner relied upon the judgment of this Court in Crl.O.P.No.7317 of 2017 dated 01.03.2010 in the case of Munianathan Vs. Labour Enforcement Officer(Central), wherein it is held as follows:
“5.The second contention is that the complainant was an authority functioning under the Central Government. Section 2(1)(a) of the Act reads as follows:
"2.Definitions. -- (1) In this Act, unless the context otherwise requires,--
[(a) "appropriate Government" means, --
(i) in relation to an establishment in respect of which the appropriate Government under the Industrial Disputes Act, 1947 (14 of 1947), is the Central Government, the Central Government:
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(ii) in relation to any other establishment, the Government of the State in which that other establishment is situate;]"
In the instant case, the establishment in which the petitioner was functioning viz., M/s.TEXCO Ltd. is within the State of Tamilnadu. As such, the appropriate Government in respect thereof would be the State Government. Section 2(1)(a) of the Act provides that in respect of certain establishments, the appropriate Government would be the Central Government. Towards falling into such category, the establishment would have to be one whereof the appropriate Government is declared to be the Central Government under the Industrial Disputes Act, 1947. Section 2(a)(i) of the Industrial Disputes Act inform the category of concerns or establishments in respect of which the appropriate Government would be the Central Government. The Page No:13/21 https://www.mhc.tn.gov.in/judis Crl. O.P. Nos. 13514 and 13537 of 2022 establishment in which the petitioner was functioning is not a concern so covered. While so, the complainant in the case who was working under a central enactment could not validly prefer a complaint for the violations alleged since it was only the State Government and officials acting thereunder who could do so. The learned counsel for the petitioner placed reliance on the decision of the Karnataka High Court in Victor Joseph Regl. M.D., Group 4 Securities Guarding Ltd., and another vs. State 2006-I-LLJ wherein it was held as follows:
"4.As could be seen from the definition of the appropriate Government as found in Section 2(1)(a) of the Act, the definition of appropriate Government as found in the Industrial Disputes Act is adopted therein. Under the definition of "Appropriate Government" as contained in Industrial Disputes Act, certain Industries/establishments are notified which Page No:14/21 https://www.mhc.tn.gov.in/judis Crl. O.P. Nos. 13514 and 13537 of 2022 will come under the authority of Central Government. Admittedly, the petitioners' company does not come within the list of the establishments found therein. It is also not the case of the respondent that the Central Government has got control over the petitioners' organization. Under such circumstances, the second petitioner viz., Group 4 Securities Guarding Ltd., is an establishment of which the appropriate Government is not the Central Government. Therefore, the complaint lodged by the respondent/Officer of the Central Government is not maintainable."
6.I have heard the learned counsel for the respondent in answer to the above contentions.
7.On consideration of the facts and the rival submissions, this Court is of the view that the petition is to be allowed. Though the contention regarding the want of sanction is well founded, the same would Page No:15/21 https://www.mhc.tn.gov.in/judis Crl. O.P. Nos. 13514 and 13537 of 2022 arise for consideration only when the complaint case has been preferred by a person competent to do so. The Central Government, it is found, is not the appropriate government. Hence, the complaint which has been filed by an official thereof is bad in law.
17.This Court held that the petitioner was the Managing Director to the Tamil Nadu Ex-Servicemen Corporation Limited (M/s. TEXCO Ltd.) fully controlled by the State of Tamil Nadu and she was a Government servant. Therefore this judgment squarely applies to the case on hand and the impugned complaint cannot be sustainable as against the petitioner.
18.The learned counsel for the respondent relied upon the judgment in the case of V.C.Chinnappa Goudar Vs. Karnataka State Pollution Control Board and Another reported in (2015) 14 SCC 535, wherein it is held as follows:
“7. Having considered the respective submissions, we find force in the submission of Mr A. Mariarputham, learned Senior Counsel for the Page No:16/21 https://www.mhc.tn.gov.in/judis Crl. O.P. Nos. 13514 and 13537 of 2022 respondents. As rightly pointed out by the learned Senior Counsel under Section 48, the guilt is deemed to be committed the moment the offence under the 1974 Act is alleged against the Head of the Department of a government department. It is a rebuttable presumption and under the proviso to Section 48, the Head of the Department will get an opportunity to demonstrate that the offence was committed without his knowledge or that in spite of due diligence to prevent the commission of such an offence, the same came to be committed. It is far different from saying that the safeguard provided under the proviso to Section 48 of the 1974 Act would in any manner enable the Head of the Department of the government department to seek umbrage under Section 197 CrPC and such a course if permitted to be made that would certainly conflict with the deemed fiction power created under Section 48 of the 1974 Act.
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8. In this context, when we refer to Section 5 CrPC, the said section makes it clear that in the absence of specific provisions to the contrary, nothing contained in the Criminal Procedure Code would affect any special or local laws providing for any special form or procedure prescribed to be made applicable. There is no specific provision providing for any sanction to be secured for proceeding against a public servant under the 1974 Act. If one can visualise a situation where Section 197 CrPC is made applicable in respect of any prosecution under the 1974 Act and in that process the sanction is refused by the State by invoking Section 197 CrPC that would virtually negate the deeming fiction provided under Section 48 by which the Head of the Department of a government department would otherwise be deemed guilty of the offence under the 1974 Act. In such a situation the outcome of application of Section 197 CrPC by Page No:18/21 https://www.mhc.tn.gov.in/judis Crl. O.P. Nos. 13514 and 13537 of 2022 resorting to reliance placed by Section 4(2) CrPC would directly conflict with Section 48 of the 1974 Act and consequently Section 60 of the 1974 Act would automatically come into play which has an overriding effect over any other enactment other than the 1974 Act.”
19.The above judgment held by the Hon'ble Supreme Court of India arising out of Section 48 of the Water (Prevention and Control of Pollution) Act, 1974 and held that the outcome of the application of Section 197 Cr.P.C. by resorting to reliance placed by Section 4 (2) Cr.P.C. would directly conflict with Section 48 of the Water (Prevention and Control of Pollution) Act, 1974 and consequently, Section 16 of the Water (Prevention and Control of Pollution) Act, 1974 would automatically come into play which has a over riding effect over any other enactment other than the Water (Prevention and Control of Pollution) Act, 1974. Therefore the said statutory prescription contained in Section 48 of the said Act there is no scope for invoking Section 197 Cr.P.C. In the case on hand Section 23 of the Contract Labourer (Regulation and Abolition) Act, 1970 does not say about the sanction to be obtained to prosecute a public servant. Page No:19/21 https://www.mhc.tn.gov.in/judis Crl. O.P. Nos. 13514 and 13537 of 2022 Therefore, the above judgment is not applicable to the case on hand and it is not helpful to the case of the respondent.
20. In view of the above discussions, the complaint lodged by the respondent is not maintainable as against the petitioner. Accordingly these criminal original petitions are allowed and the proceedings in C.C/S.T.C.Nos.2609 and 2604 of 2021 on the file of the learned II Metropolitan Magistrate, Egmore, Chennai, respectively are quashed. Consequently, connected miscellaneous petitions are closed.
11/7/2022 Index : Yes / No Internet: Yes Speaking/non speaking order mvs.
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