Karnataka High Court
Mr Vizoo Zachariah vs State Of Karnataka on 23 April, 2024
Author: S Vishwajith Shetty
Bench: S Vishwajith Shetty
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NC: 2024:KHC:16239
CRL.P No. 2968 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY
CRIMINAL PETITION NO. 2968 OF 2024
BETWEEN:
1. MR. VIJOO ZACHARIAH
S/O MR. K.U. SCARIA
AGED ABOUT 61 YEARS
NO.39, PLOT NO.30/C
2ND PHASE, PEENYA INDUSTRIAL
AREA, BENGALURU - 560 058.
2. MR. JOSEPH ZACHAIRAH
S/O MR. K.U. SCARIA
AGED ABOUT 64 YEARS
NO.39, PLOT NO.30/C, 2ND PHASE
PEENYA INDUSTRIAL AREA
BENGALURU - 560 058.
3. MR. NAKUL UTHUP JOSEPH
S/O MR. REJI K JOSEPH
AGED ABOUT 34 YEARS
Digitally NO.39, PLOT NO.30/C
signed by
PAVITHRA N 2ND PHASE, PEENYA INDUSTRIAL
Location: AREA, BENGALURU - 560 058.
High Court ...PETITIONERS
of Karnataka
(BY SRI K. PRABHAKAR RAO, ADV.)
AND:
STATE OF KARNATAKA
AT THE INSTANCE OF SENIOR
LABOUR INSPECTOR
4TH CIRCLE, BANNERGHATTA
MAIN ROAD, BANGALORE - 560 029.
...RESPONDENT
(BY SRI R. RANGSWAMY, HCGP)
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NC: 2024:KHC:16239
CRL.P No. 2968 of 2024
THIS CRL.P FILED U/S.482 CR.P.C PRAYING TO QUASH THE
COMPLIANT VIDE DOCUMENT NO.1 AND ALSO THE ENTIRE
PROCEEDINGS ON THE FILE OF THE COURT OF 2nd ADDITIONAL
METROPOLITAN MAGISTRATE II BENGLAURU C.C.NO.9278/2023.
THIS PETITION, COMING ON FOR FINAL DISPOSAL, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
1. The petitioners who are accused nos.1 to 3 in C.C.No.9278/2023 pending before the Metropolitan Magistrate, Traffic Court-II, Bengaluru, arising out of PCR No.547/2023 registered for the offence punishable under Section 22(a) of the Minimum Wages Act, 1948, are before this Court in this petition filed Section 482 of Cr.P.C, with a prayer to quash the entire proceedings in the said case.
2. Heard the learned counsel appearing for the parties.
3. Respondent No.2 - Senior Labour Inspector has filed a private complaint before the Trial Court against the petitioners herein alleging that when he had inspected the premises of the Company known as M/s. Paragon Polymer Products Pvt. Ltd., it was found that there was payment of wages book, wage receipts, attendance register, etc., was not maintained. Though the show-cause notice was allegedly issued by the complainant to the accused persons, they had not responded to the same -3- NC: 2024:KHC:16239 CRL.P No. 2968 of 2024 nor had they rectified their violations and produced the records. It is under these circumstance, he had filed a private complaint before the Trial Court. The Trial Court after taking cognizance of the offences alleged in the complaint had issued summons to accused nos.1 to 3 and case was registered in C.C.No.9278/2023 against the petitioners for the aforesaid offence. Being aggrieved by the same, the petitioners are before this Court.
4. Learned counsel appearing for the petitioners submits that, the petitioner no.1 is the Managing Director of the company, petitioner no.2 is the retired Director of the company and petitioner no.3 is the Executive of the company. He submits that the Company is not arraigned as accused in the complaint. Therefore, complaint is not maintainable. Accordingly, he prays to allow the petition.
5. Per contra, learned High Court Government Pleader for respondent-State has opposed the prayer made in the petition.
6. Section 22(C) of the Minimum Wages Act, 1948 reads as under:
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NC: 2024:KHC:16239 CRL.P No. 2968 of 2024 "Section 22C:Offences by companies.
(1) If the person committing any offence under this Act is a company, every person who at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any, director, manager, secretary or other officer of the company, such director, manager, secretary or other officer of the company shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation.-For the purposes of this section,-
(a) "company" means any body corporate and includes a firm or other association of individuals, and
(b) "director" in relation to a firm means a partner in the firm".
7. From a bare reading of the aforesaid provision of the law, it is evident that, if the person committing any offence under the Minimum Wages Act, 1948 is a Company, the persons in- charge of the company as well as the Company shall be deemed to be guilty of the offence and they shall be liable to be proceeded against and punished. The petitioners herein are -5- NC: 2024:KHC:16239 CRL.P No. 2968 of 2024 being proceeded in their capacity as Managing Director, Retired Director and Executive of the Company known as M/s. Paragon Polymers Products Pvt. Ltd.. The allegations against them is they are vicarious liable on behalf of the Company. Therefore, in the absence of the Company being made as accused in the complaint, the complaint is not maintainable.
8. The Hon'ble Supreme Court in the case of R KALYANI v. JANAK C MEHTA & OTHERS - (2009) 1 SCC 516, has observed that vicarious liability can be fastened only by reason of a provision of a statute and not otherwise and for the said purpose, a legal fiction has to be created. In the present case, the petitioners herein are sought to be prosecuted on the premises that they are vicariously liable for the affairs of the Company. If that is so, the Company must be made as a party and legal fiction must be created against the Company and the accused, if they are responsible for the acts of Company. Similar view has been taken by the Hon'ble Supreme Court in the case of ANEETA HADA V. GODFATHER TRAVELS AND TOURS PVT. LTD., - (2012) 5 SCC 661. Under these circumstances, I am of the opinion that, in the absence of the Company being made as a party, the petitioners cannot be -6- NC: 2024:KHC:16239 CRL.P No. 2968 of 2024 prosecuted for the alleged offences. Accordingly, the following order:
9. Petition is allowed. The entire proceedings in C.C.No.9278/2023 pending before the Metropolitan Magistrate, Traffic Court-II, Bengaluru, arising out of PCR No.547/2023 registered for the offence punishable under Section 22(a) of the Minimum Wages Act, 1948, is hereby quashed. Liberty is reserved to take fresh action in accordance with law.
Sd/-
JUDGE KK