Kerala High Court
Siby Thomas vs Assistant Labour Officer on 30 September, 2011
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
FRIDAY, THE 24TH DAY OF JANUARY 2014/4TH MAGHA, 1935
Crl.MC.No. 988 of 2012 ()
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AGAINST THE ORDER/JUDGMENT IN ST 1963/2011 of J.M.F.C. - I, ETTUMANUR
PETITIONER(S)/ACCUSED:
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SIBY THOMAS
MANAGING PARTNER, N.J.THOMAS & COMPANY
MATTETHARA COLONY, YWCA LANE, KOTTAYAM.
BY ADVS.SRI.B.ASHOK SHENOY
SMT.C.G.PREETHA
SRI.THOMAS P.MAKIL
SMT.LAKSHMI B.SHENOY
RESPONDENTS/COMPLAINANT & STATE:
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1. ASSISTANT LABOUR OFFICER, PALA
PALA-686575.
2. STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031.
R1 & R2 BY PUBLIC PROSECUTOR EGY.N.ELIAS
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 24-01-
2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No. 988 of 2012
APPENDIX
ANNEXURE A1:TRUE COPY OF THE COMPLAINT DATED 30.09.2011 IN
S.T.NO.1963/2011 ON THE FILE OF THE JUDICAL FIRST CLASS
MAGISTRATE COURT, ETTUMANOOR
ANNEXURE AII:TRUE COPY OF THE INSPECTION REPORT DATED 02.07.2011
PREPARED BY THE 1ST RESPONDENT
ANNEXURE AIII:TRUE COPY OF THE SHOW CAUSE NOTICE DATED 16.09.2011
ISSUED TO THE PETITIONER BY THE 1ST RESPONDENT
ANNEXURE AIV:TRUE COPY OF THE STATEMENT DATED 27.09.2011 FILED BY THE
PETITIONER BEFORE THE 1ST RESPONDENT
/TRUE COPY/
P.S TO JUDGE
P.UBAID,J.
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Crl.M.C No.988 of 2012
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Dated this the 24th January, 2014
O R D E R
The petitioner herein is the Managing Partner of a construction company by name, 'N.J.Thomas and Company", involved in some construction work for an establishment by name 'Samaritan Resource Centre'. When the Assistant Labour Officer, Pala, inspected the construction site of Samaritan Resource Centre, some workers from Kerala and from other States were seen employed there. On further inspection, the Assistant Labour Officer noticed violation of Section 8 of the Interstate Migrant Workmen (Regulation of Employment and Conditions of Service) Act read with Rule 7 of the Rules framed thereunder and also violation of Rule 51 (a). The stand taken by the Assistant Labour Officer is that the petitioner will have to obtain licence for recruiting employees as provided under the said Act, but so many workers were found there recruited or brought otherwise than under licence required under the law. Necessary Crl.M.C No.988 of 2012 2 registers were also not seen maintained in the said establishment as prescribed under the Rules. The Assistant Labour Officer made note of all these violations and filed a complaint against the petitioner before the Judicial First Class Magistrate's Court, Ettumanoor, alleging the offence punishable under Section 25 of the Interstate Migrant Workmen (Regulation of Employment and Conditions of Service) Act. The said complaint is sought to be quashed under Section 482 of the Code of Criminal Procedure on the ground that the said Act or the provisions of the Act are not applicable to the petitioner.
2. When this Crl.M.C came up for hearing, the learned counsel for the petitioner submitted that the petitioner is not a 'contractor' as meant and defined under the law, and that he has not in fact recruited any employee coming under the category of "Interstate Migrant Workman". The learned counsel also submitted that, to come under the category "Interstate Migrant Workman", the workman must be one recruited by or through a contractor in one State under an agreement or other arrangement for employment in an establishment in another State. Crl.M.C No.988 of 2012 3
3. On a perusal of the different provisions of the Migrant Workmen (Regulation of Employment and Conditions of Service) Act, this Court finds that any establishment, or any contractor under such establishment, who has procured or brought employees from other States even under some oral or other arrangement, is covered by the provisions under the Act.
4. It was submitted by the learned counsel that there is absolutely nothing to show that the petitioner is a contractor under Samaritan Resource Centre. Of course, his address is shown as Managing Partner of one N.J.Thomas and Company, which is a construction company. Whether the alleged construction work in the work site of Samaritan Resource Centre is actually being carried out by the petitioner herein, is a matter to be decided in the trial court. Whether the act of the petitioner in bringing or procuring employees from other States will attract the definition of Interstate Migrant Workman is also a matter to be looked into during the trial process.
5. Admittedly, the petitioner had received a notice from the Assistant Labour Officer, requiring him to cure the defects and obtain proper licence as prescribed under the Crl.M.C No.988 of 2012 4 law. But, the petitioner kept mum, and when the Assistant Labour Officer proceeded with legal action, he approached this Court to quash the complaint itself. Whether he is in fact a contractor as defined under the law, or whether the workmen found by the Assistant Labour Officer will come under the category "Interstate Migrant Workman", or whether the petitioner will have to obtain a licence under the Act for procuring or bringing employees or workmen from other States, are all matters to be decided during the trial process. This Court finds that the complaint as such cannot be now quashed by exercising the special jurisdiction under Section 482 of the Code of Criminal Procedure, which is meant to prevent abuse of legal process or judicial process.
In the result, this Crl.M.C is dismissed without prejudice to the rights of the petitioner to agitate all legal and factual aspects involved in the prosecution, before the trial court.
Sd/-
P.UBAID JUDGE ma /True copy/