Chattisgarh High Court
Aditya Jajodia vs State Of Chhattisgarh on 3 August, 2023
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRMP No. 9 of 2017
1. Aditya Jajodia S/o Late Shri Rajendra Prasad Jajodia Aged About 46 Years
R/o 5 Bentick Street, Kolkatta, West Bengal, West Bengal
2. Sanjiv Jajodia S/o Keshar Deo Jajodia Aged About 53 Years R/o 5 Bentick
Street, Kolkatta, West Bengal, District : Kolkata, West Bengal
3. Rajiv Jajodia S/o Keshar Deo Jajodia Aged About 51 Years R/o 5 Bentick
Street, Kolkatta, West Bengal, District : Kolkata, West Bengal
4. Gourav Jajodia S/o Devendra Prasad Jajodia Aged About 36 Years R/o 5
Bentick Street, Kolkatta, West Bengal, District : Kolkata, West Bengal
5. Shailendra Kumar Tamotia S/o Late Shri Shankar Tamotia Aged About 77
Years R/o Flat No. D/ 801, Block D, Gymkhana Palm Height, Shampur, Near
Sum Hospital, Bhubneshwar, Orissa., District : Bhubaneswar, Orissa
6. Amit Kumar Majumdar S/o Late Shri Kanakendu Majumdar Aged About 78
Years R/o Bungalow- Dx-4, Sapna Garden, Porvorim, Goa., Goa
7. Manas Kumar Nag S/o Late Shri Tarit Kumar Nag Aged About 64 Years R/o
10/2, Kayatala Lane, Ground Floor, Kolkata, West Bengal, District : Kolkata,
West Bengal
8. Chandra Kant Bhartia S/o Late Chandra Gopal Bhartia Aged About 54 Years
R/o Lal Building, Kachery Road, Rourkela, Orissa., Orissa
9. Seema Chowdhury W/o Shri Vijay Kumar Surekha Aged About 34 Years R/o
493/c/a, G.T. Road South, Vivek Vihar Phase-5, B.L-21, F.L-2a, Sibpur,
Haora, Hawrah, West Bengal., District : Howrah, West Bengal
10. Swati Agrawal W/o Shri Sitaram Bhotika Aged About 30 Years R/o 64,
Harish Chatterjee Street, Kalighat, Bhawanipore, Kolkatta, West Bengal.,
District : Kolkata, West Bengal
11. Rakhi Jain W/o Shri Chand Jain Aged About 34 Years R/o Bevangan
Apartment, 1st Floor, 176, Bidhan Sarani, Kolkata, West Bengal., District :
Kolkata, West Bengal
12. Sudhir Joshi S/o Madukar Joshi Aged About 54 Years Jai Balaji Industries
Limited Dorai, Rasmada, Durg, Chhattisgarh., District : Durg, Chhattisgarh
---- Petitioners
Versus
State Of Chhattisgarh Through Labour Inspector Durg, Office Of Labour
Commissioner, Ravishankar Stadium, Durg, Chhattisgarh.
---- Respondent/ Non-applicant
For the Petitioners : Shri Ankit Pandey, Advocate.
For Respondent/ State : Ms. Astha Shukla, G.A.
Hon'ble Shri Justice Rakesh Mohan Pandey
ORDER
2 03.08.2023
1. The present writ petition has been filed by the petitioners with the following prayer:
"It is, therefore, most respectfully and humbly prayed that this Hon'ble Court may kindly be pleased to set aside the order dated 26.10.2016 (Annexure A-1) passed in Complaint Case No.252/P.W. ACT/2016 by the Court of Judicial Magistrate First Class, Labour Court, District Durg (C.G.) to quash the entire proceedings pending before the Judicial Magistrate Fist Class, Labour Court as Complaint Case No. 252/P.W. ACT/2016, in the interest of justice.
Applicants further most respectfully pray to pass any other order considering the facts and circumstances of the case."
2. The facts of the present case are that the petitioners are Directors and General Manager of Jai Balaji Industries Limited (JBIL), which is a Public Limited Company having its registered office at 5 Bentinck Street, Kolkata and Plant at Rasmada, Durg. The respondent/ non-applicant has filed a complaint under Section 20 of the Payment of Wages Act, 1936 wherein it has been asserted that the wages have not been paid by the employer within seven days after the last day of the wage period in respect of which the wages are payable and thus, the same is violative of Section 5 punishable under Section 20 of the Payment of Wages Act, 1936. On 20.9.2016, a notice was issued by the Labour Inspector to the petitioners for making payment of wages to its employees within three days. Thereafter, on 26.10.2016 a complaint case was filed and on the very date, the concerned Court registered the same and issued summons to the petitioners. Thereafter, the petitioners challenged the order of taking cognizance dated 3 26.10.2016 passed by the Court of Judicial Magistrate First Class, Labour Court, Durg.
4. The respondent filed a complaint under Section 20 of the Payment of Wages Act, 1936 (for short 'the Act') on the ground that the wages were not paid by the employer to its employees within seven days after the last day of the wage period, as such, the same is violative of Section 5, punishable under Section 20 of the Act.
5. Learned counsel for the petitioners would submit that no prosecution can be launched by the respondent without obtaining sanction as required under Section 21 of the Act. He would further submit that a mechanical order was passed by the learned trial Court on 26.10.2016 without application of mind. He would also submit that the complaint itself does not disclose any offence against the petitioners and therefore, the order passed by the Court of Judicial Magistrate First Class, Labour Court is liable to be set aside.
6. On the other hand, learned counsel for the State would oppose the submissions made by learned counsel for the petitioners. She would submit that an inspection was carried out wherein it was found that the petitioners had not paid the wages to its employees within the prescribed period as provided under Section 5 of the Payment of Wages Act and after affording an opportunity to the petitioners, a complaint case was filed. She would further submit that the petitioners could not substantiate as to what prejudice is caused in absence of proper sanction. Thus, she would submit that the 4 petition preferred by the petitioners is liable to be dismissed.
7. I have heard learned counsel for the parties and perused the documents.
8. At the relevant time, in the Plant situated at Rasmada, Durg about 167 workers were employed. On Inspection, it was noticed by the Labour Inspector that the petitioners had not paid wages to its employees according to provisions of Section 5 of the Act, therefore, notice was issued and when the petitioners did not pay the wages, the complaint case was filed on 26.10.2016 and on the same date the Learned Magistrate issued summons to the petitioners. The main contention raised by the petitioners is that there was no sanction according to provisions of Section 21 of the Act; therefore, the complaint case preferred by the respondent was not maintainable. It would be advantageous to go through the provisions of Section 21 of the Payment of Wages Act, which reads as under:
"21. Procedure in trial of offences.―(1) No Court shall take cognizance of a complaint against any person for an offence under sub-section (1) of section 20 unless an application in respect of the facts constituting the offence has been presented under section 15 has been granted wholly or in part and the authority empowered under the latter section or the Appellate Court granting such application has sanctioned the making of the complaint.
(2) Before sanctioning the making of a complaint against any person for an offence under sub-section (1) of section 20, the authority empowered under section 15 or the appellate Court, as the case may be, shall give such person an opportunity of showing cause against the granting of such sanction, and the 5 sanction shall not be granted if such person satisfies the authority or Court that his default was due to―
(a) a bona fide error or bona fide dispute as to the amount payable to the employed person, or
(b) the occurrence of an emergency or the existence of exceptional circumstances, such that the person responsible for the payment of the wages was unable, though exercising reasonable diligence, to make prompt payment, or
(c) the failure of the employed person to apply for or accept payment.
(3) No Court shall take cognizance of a contravention of section 4 or of section 6 or of a contravention of any rules made under section 26 except on a complaint made by or with the sanction of an Inspector under this Act.
[(3-A) No Court shall take cognizance of any offence punishable under sub-section (3) or sub-section (4) of section 20 except on a complaint made by or with the sanction of an Inspector under this Act.] (4) In imposing any fine for an offence under sub-section (1) of section 20 the court shall take into consideration the amount of any compensation already awarded against the accused in any proceedings taken under section 15."
9. From bare reading of Section 21 of the Payment of Wages Act, it is manifest that the Court can take cognizance of a complaint against any person for an offence under Section 20(1) of the Act on an application in respect of the facts constituting the offence where the sanction has been granted according to the provisions of Section 15 of the Act by the authority empowered under the Act. There is State Amendment in Section 15(1-A) of the Payment of Wages Act, 1936, which reads as under:
"(1-A) A person shall not be qualified for appointment as an authority under this Act unless, he is a Commissioner for 6 Workmen's Compensation or any other officer with experience a a Judge of Civil Court or of a Labour Court constituted under the Madhya Pradesh Industrial Relations Act, 1960."
10. A conjoint reading of Section 15 (1-A) and 21 of the Act would make it clear that a complaint case can be filed by the authority prescribed before the concerned Court after obtaining prior sanction according to the provisions of Section 15(1-A) of the Act. It is not in dispute that in the present case there is no sanction as required under Section 15(1-A) of the Payment of Wages Act.
11. This Court in Ramlal Sonkar vs. Smt. Sonapuhle Salma and Ors. W.P. No. 203 of 2005 vide order dated 18.07.2019, while dealing with the similar issue at paragraph 5 held that the Commissioner of the Workmen's Compensation would be Presiding Officer of the Labour Court. The Presiding Officer and Additional Presiding Officer of the Labour Courts constituted under the Madhya Pradesh Industrial Relations Act, 1960 have been notified to be the Commissioner for Workmen's Compensation for their respective areas of jurisdiction under the Act and they shall be the 'Prescribed Authority' to accord sanction for filing of a complaint case.
12. The High Court of Judicature at Madras in the matter of Sailesh T. Bhansali vs. Inspector of Plantations, Valparai, reported in 2001 (3) LLN 1197 while dealing with the similar issue at paragraph 9 held as under:
"9. But, 'any person' referred to in Section 15(2) of the Payment of Wages Act, 1936, cannot straight-away proceed to prosecute the offender because there is a bar under Section 21(1) and (2) which reads as under:7
"Procedure in trial of offences.- (1) No Court shall take cognizance of a complaint against any person for an offence under Sub-section (1) of Section 20, unless an application in respect of the facts constituting the offence has been presented under Section 15 and has been granted wholly or in part and the authority empowered under the latter section or the appellate Court granting such application has sanctioned the making of the complaint.
(2) Before sanctioning the making of a complaint against any person for an offence under Sub-section (1) of Section 20 the authority empowered under Section 15 or the appellate Court, as the case may be, shall give such person an opportunity of showing cause against the granting of such sanction, and the sanction shall not be granted if such person satisfies the authority or Court that his default was due to -
(a) a bona-fide error or bona-fide dispute as to the amount payable to the employed person, or
(b) the occurrence of an emergency, or the existence of exceptional circumstances, such that the person responsible for the payment of the wages was unable, though exercising reasonable diligence, to make prompt payment, or
(c) the failure of the employed person to apply for or accept payment."
Section 21(2) of the Act gives an area of jurisdiction to the Competent Authority to sanction prosecution. The procedure laid down for sanctioning prosecution is detailed in Section 21(2) of the Act, according to which the Competent Authority shall give such person i.e., the offender an opportunity of showing cause against the granting of such sanction. Thus it would appear that the person who commits default in payment gets second opportunity of explaining as to why he should not be persecuted. He may make out a case under any one of the 8 grounds adumbrated under Section 21(2)(a)(b) or (c). If the competent authority is satisfied that such person i.e., the offender has given a satisfactory answer then the competent Authority shall not grant sanction for prosecution. If the person fails to make out a case, then the Competent Authority shall accord sanction for prosecution."
13. Coming to the facts of the present case, in light of the provisions of Section 15 (1-A) and 21 of the Act and the law laid down by this Court in the matter of Ramlal Sonkar (supra) and the judgment passed by the High Court of Judicature at Madras in the matter of Sailesh T. Bhansali (supra), I have no hesitation to hold that since no proper sanction was obtained prior to filing of the complaint case and thus, the entire proceeding pending before the learned Labour Court is vitiated on this count alone.
14. Consequently, the petition is allowed. The impugned order dated 26.10.2016 passed by the Court of Judicial Magistrate First Class, Labour Court, District Durg in Complaint Case. No. 252/P.W.ACT/2016 is hereby set aside and the entire proceedings pending before the Judicial Magistrate First Class, Labour Court in Complaint Case. No. 252/P.W.ACT/2016 are also quashed.
Sd/-
(Rakesh Mohan Pandey) Judge Nimmi