Karnataka High Court
M Nagesh vs The State on 8 August, 2017
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH.
DATED THIS THE 08TH DAY OF AUGUST 2017.
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL PETITION NO.101425 OF 2015.
BETWEEN:
SRI.M.NAGESH,
AGE:MAJOR,
OCC: SR.SUPERINTENDENT OF POST OFFICE,
DHARWAD 580001.
...PETITIONER
(BY SRI.M.SIDDARAJ, ADVOCATE)
AND:
THE STATE
REPRESENTED BY LABOUR ENFORCEMENT OFFICER (CENTRAL),
GOVT. OF INDIA, MINISTRY OF LABOUR,
HUBBLLI- 580 020.
(REP.BY ADDL.STATE PP)
HIGH COURT OF KARNATAKA, DHARWAD BENCH.
...RESPONDENT
(BY SRI. S.L.MATTI-CGSC)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. SEEKING TO QUASH THE CC NO. 1020/2014
PENDING ON THE FILE OF JMFC II COURT, HUBBALLI ON THE
COMPLAINT FOR THE OFFENCES UNDER SEC. 19(1) OF
MINIMUM WAGES ACT 1948 VIDE ANNEXURE A AND B.
THIS CRIMINAL PETITION COMING ON FOR FINAL
HEARING, HAVING BEEN HEARD AND RESERVED FOR ORDERS
ON 27.06.2017, THIS DAY, THE COURT, MADE THE
FOLLOWING:
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ORDER
This is the petition filed by petitioner-accused under section 482 of Cr.P.C praying the court to quash the criminal proceedings in C.C.No.1020/2014 pending on the file of JMFC-II Court Hubli initiated on the complaint of the respondent for the alleged offence under Section 19(1) of Minimum Wages Act 1948.
2. Brief facts of the case of the respondent- complainant filed before the Trial Court under Section 22-A of the Minimum Wages Act, are that the petitioner-accused is engaged in cleaning and sweeping works at Post Office Navanagar Hubli, had engaged an employees on the said employment, which is scheduled employment within the meaning of Section 2(g) of the Minimum Wages Act for which minimum rates of wages have been fixed vide notification No.113(e) dated 28.01.2002 issued by the Ministry of Labour Government of Inida, New Delhi. As such the accused is an employer within the meaning of Section 2(e) of the Minimum Wages Act and he is responsible to comply with the provision contained in the :3: said act and rules made their under. The further averments in the complaint that Sri. T. Srinvas, Labour Enforcement Officer (Central) Hubli, had inspected the above said establishment of the accused, which is within his jurisdiction under the Minimum Wages Act 1948 and the Minimum Wages (Central) Rules 1950 and on 22.05.2014 at 10.20 hours detected the infringements mentioned below. These violations were brought to the notice of the accused through the inspection report bearing establishment No.117/2014-L/H inspection report No.26/43/14-L/H dated 22.05.2014, which was served by RPAD. The accused received the same and he has sent the compliance report, which was not found to be satisfactory. Thus, the accused contravene the relevant provision of the rules within the jurisdiction of the Hon'ble Court.
It is mentioned about the alleged offences:-
i. Non display of the notices containing minimum rates of wages fixed, abstracts from the act and rules made under and addresses of the Inspectors in English and Kannada as per Rule 22-A of Minimum Wages (Central) Rules 1950.:4:
ii. Non-maintenance of Register of Muster Roll as per Rule 26(5) of the said Rules 1950.
iii. Non-maintenance of Register of Wages, at the work spot as per Rule 26(1) of the said Rules 1950.
iv. Non-maintenance of Register of Overtime at the work spot as per Rule 25(2) of the said Rules 1950.
v. Non-maintenance of Register of fines and deduction for damage or loss at the work spot, as per Rule 21(4) of the said Rules 1950.
vi. Non-issue of wages slips to the workers, as per Rule 26(2) of the said Rules 1950.
3. Hence, on these grounds the complainant prays the concerned Court that the cognizance of the offence may be taken and accused be summoned to stand trial under Section 22-A of the Minimum Wages Act 1948.
Appropriate amount of fine may be imposed and kindly it be awarded to their department and the amount may be paid to the Assistant Labour Commissioner (Central) Bangalore (BDO) by cheque or demand draft payable at Union Bank of India, Gandhi Nagar, Bangalore, as part of expenditure incurred in conducting the prosecution in terms of section 357(1)(a) of Cr.P.C 1973. On the basis of :5: the said complaint, summons was ordered to be issued to the petitioner-accused and being aggrieved by the initiation of such criminal proceedings. The petitioner is before this court challenging the legality and correctness of the said criminal proceedings, on the grounds as mentioned at ground No. 1 to 7 of the petition.
4. Heard the arguments of the counsel appearing for petitioner-accused and also the learned counsel appearing for the respondent. The counsel for the petitioner, during the course of arguments made the submission that the complaint filed by the respondent Labour Enforcement Officer is devoid of merits and not maintainable in law. The respondent, herein wrongly treated the present petitioner, Senior Superintendent of Post Offices as the principal employer, where as the postal department headed by Director General New Delhi is the principal employer. He also made the submission, that the respondent wrongly treats the Sub-Post Master who is the head of the office of Sub-Post office, Navanagar, as only a :6: representative of the employer. It is his further submission, that respondent-inspector being the Central Government employee fails to understand the basic function of the post office and deliberately neglected the same for some extraneous reasons. The respondent- Inspector has issued the show cause notices under the letter head of Assistant Labour commissioner without his authority. It is also his submission, that the respondent- Inspector requested the petitioner to rectify the irregularities and report compliance to the Deputy Chief Labour Commissioner, Bengaluru and the respondent without waiting for the reply by the Deputy Chief Labour Commissioner, on the compliance report of the petitioner's office has directly filed the criminal case before the JMFC Court at Hubballi. The respondent has not taken prior sanction of the appropriate authority (Central Government) while prosecuting the public servant and it is also submitted that the present petition is for the alleged lapses in the discharge of official duties. Hence, the counsel made the submission that the initiation of criminal proceedings :7: are with malafide intention and there is no prima facie case as against the petitioner and hence learned counsels sought to allow the petition and to quash the said proceedings.
5. Per contra the learned counsel for the respondent made the submission that the petitioner herein has not at all taken steps for the display of the notices containing minimum rates of wages and he has not maintained the register of Muster Roll and register of wages at the work spot not maintained the register of overtime at the work spot and the register of fines and deductions for damage or loss at the work spot and he has also not issued the wage slips to the workers and these are all the lapses on the part of the petitioner-accused. There is a prima facie case as against the present petitioner about the said lapses. Hence, he made the submission that the complaint filed before the Court below cannot be said to be either groundless or it is with malafide intention. Hence, he submitted the proceedings cannot be quashed :8: by invoking Section 482 of the Cr.P.C. and he submitted to reject the petition.
6. I have perused the averments made in the petition, copy of the complaint and the inspection note produced as per Annexure-C and documents produced at Annexures-E to M, produced along with the petition and I have also considered the submission made by the learned counsels on both sides which are mentioned above.
7. Looking to the complaint of the Labour Enforcement Officer presented before the JMFC Court at Hubli, the complainant is an Inspector under Section 19(1) of the Minimum Wages Act 1948, for the entire State of Karnataka, vide notification No.SO.192 (E) dated 6.3.90, issued from the Government of India Ministry of Labour, New Delhi. It is the contention of the complainant in his complaint, that the petitioner herein is the accused engaged in cleaning and sweeping works at the Post Office Navanagar and the accused has engaged employees on the said employment, which is a scheduled employment :9: within the meaning of Section 2(g) of the Minimum Wages Act, for which Minimum rates of Wages have been fixed. But looking to the petition averments, the petitioner has denied the very fact that the accused is engaged in cleaning and sweeping works of the Post office Navanagar as it is a utterly false statement made in the complaint and the petitioners further contention that accused is Senior Superintendent of Post Offices Dharwad Division, who is the administrative head of the post offices in Dharwad District and the immediate officer to Sub Post Office Navanagar is the Sub Post. Therefore by making such averment in the petition the petitioner accused herein, seriously disputed the fact that he is engaged in cleaning and sweeping works at the Post Office Navanagar and he considered to be the employer and he appointed employees on the said employment. So these factual aspects were denied by the petitioner herein. As per the allegation of the complainant that the Labour Enforcement Officer visited the place and inspected the establishment of Post Office at Navanagar Hubballi on 22.5.2014 at 10.20 : 10 : hours and copy of the said inspection note is produced at Annexure-C, wherein it is mentioned the number of employees/workers 13 male 4 female total 17, in that regular employees 8, extra departmental 7, part time sweeper 1, part time scavenger 1. In the inspection note it is also mentioned the representative of the employer stated that Smt.Shahista resident of Rayanal, Taluka Hubli is engaged as scavenger since August 2002 and Smt.Mahadevi A. Dodamani resident of Navanagar, Hubli engaged as sweeper cum waterman since August 2002. The further averments in the inspection note as both the scavenger and the sweeper cum watermen were engaged for a maximum period of one hour per day on all the working days of the post office. It is also mentioned in the inspection note no notices were displayed and no registers and the records are maintained, as per the requirement of Minimum Wages Act. The further averment in the inspection note that employees/workers covered under the schedule employment and no wages slips are also issued. Employee's representative submitted extract of register : 11 : showing payment to the scavenger/sweeper. Therefore it is the allegation in the complaint that the accused herein is employer, who appointed employees to work in the Navanagar Post Office. It is scheduled employment and hence accused is required to maintain required registers and he has to display the notices as per the Minimum Wages Act which is not done in this case. So these aspects were also disputed by the petitioner-accused herein, contending that when he has not at all the employer of the said employees, the question of he maintaining the said registers and display of the notices does not arise at all. Therefore, even these disputed factual aspects, ought to be considered by the JMFC Court in the said complaint. It is contended by the petitioner-accused herein, that he being a public servant the prior permission under Section 197 of the Cr.P.C. was not at all taken by the complainant to file the complaint and on that ground also he has challenged the proceedings. This petition being petition under Section 482 of the Cr.P.C. the Court has to see, looking to the FIR and complaint, whether they will make : 12 : out a prima facie case or not and as to whether it is only abuse of the process of the Court. In Section 482 petitions this Court cannot assume the roll of the Trial Court itself. Even this Court cannot make an exercise, whether the averments or allegations made in the complaint are true or false. As I have already observed above, that in the case as per the complaint before the Trial Court, firstly the Trial Court has to ascertain, whether the petitioner-accused is the employer and employees are appointed by the employer. In case if the Trial Court holds that the petitioner-accused herein is employer, the next question will be for maintenance of registers and the records and display of notices, as required and as contended in the complaint as per rule 21,25 and 26 of the Minimum Wages Rules. So also regarding the display of notices as per Section 22-A of the Minimum Wages Act. These are all the factual aspects to be ascertained from the Court below. In this connection I am referring to the Division Bench decision reported in AIR 1965 Mysore 317 in the case of Municipal Borough Bijapur Vs. M.N.Gundawan and : 13 : others, the relevant portion in the said decision i.e. paragraphs 5 and 6, which are reads as under.
"(5) The Authority appears to have proceeded on the basis that in view of section 18 of the 'Act' and Rules 25(2) and 26 of the Rules framed under the 'Act' the burden of proving that the employees had not worked overtime is on the employer. We do not think that this view of the law is correct. It is true that Section 18 requires the employer to maintain such registers and records giving such particulars to employees employed by him, the work performed by them, the wages paid to them, the receipts given by them and such other particulars in such form as may be prescribed.
Every employer is also required to exhibit, in such manner as may be prescribed, in the factory, workshop or place where the employees in the scheduled employment may be employed, or in the case of out-workers, in such factory, workshop or place as may be used for giving out-work to them, notices in the prescribed form containing prescribed particulars.
Sub-rule (2) of the Rule 215 requires every employer to maintain a register of overtime in form IV in which entries under the columns specified : 14 : therein should be made as where over-time is worked in any establishment; where no overtime has been worked in any wage period a nil entry shall have to be made in the register at the end of the wage period. Rule 26 prescribes that a register of wages should be maintained by every employer at the workspot and kept in such form as may be notified by the State Government and that register should include the following particulars:-
(a) the minimum rates of wages payable to each person employed;
(b) the number of days for which each employed person worked overtime for each wage period;
(c) the gross wages of each person employed for each wage period:
(d) all deductions made from wages with an indication in each case, of the kinds of deductions mentioned in sub-rule (2) of Rule 21; and
(e) the wages actually paid to each person employed for each wage period and the date of payment.
(6) The rest of the Rule is not relevant for our present purpose. It is true that the Bijapur : 15 : Municipal Borough the employer had not maintained any of the documents and records required to be maintained by S.18 and Rr. 25 and
26. Therefore, adverse inference can be drawn against it. But that is not the same thing as saying that the burden of proving that a particular employee has not worked overtime is on the employer. An employee who claims relief under the 'Act' has to place before the Authority, evidence to support his claim. That evidence may get strengthened from the fact that the employer has failed to maintain the required documents and records. It is a well known rule of law that it is for the person who makes claims to establish the same. The provisions in the 'Act' and the Rules framed thereunder do in no manner depart from that basic rule. No provision either in the 'Act' or in the Rules placing the burden of proving the negative on the employer was brought to our notice.
8. Therefore, the contentions of the petitioner- accused that the complaint and FIR to be quashed by this Court cannot be accepted at all. So far as his contentions of prior permission under Section 197 of the Cr.P.C. is : 16 : concerned the petitioner-accused can raise such point before the Trial Court. Hence, it is not a case to exercise the jurisdiction under Section 482 of the Cr.P.C. for quashing the proceedings. Accordingly the above petition is hereby rejected.
Sd/-
JUDGE RHR/-