Judgment:
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(Cr.)No. 240 of 2010. ----- M/s. Mcnally Bharat Engg. Co. Ltd., Kolkata Petitioner. Versus 1. The State of Jharkhand 2. Aman Toppo Respondents. ..... Coram : The Hon'ble Mr. Justice Prashant Kumar. ----- For the Petitioner : Sri Indrajit Sinha For the Respondents: Md. Mokhtar Khan, ASGI ----- 07/26.07.2013. This application has been filed for quashing the entire criminal proceeding against the petitioner in connection with C.L.A. case no.01 of 2009 including the order dated 07.01.2009 passed by learned Additional Chief Judicial Magistrate, Bermo at Tenughat. The fact of the case, in brief, is that petitioner Mcnally Bharat Engg. Co. Ltd. engaged by the BHEL for erection and commissioning services for D.V.C. Chandrapura Thermal Power Station Units 7&8. It is further alleged that while executing the aforesaid contract work, petitioner-company engaged some labours. It is further alleged that the petitioner-company is not maintaining the Register and displaying the notices prescribed under the Minimum Wages Central Rules. Thus, it violated the provision of the Minimum Wages Act. It appears that the complainant who is a Labour Enforcement Officer, Central has filed complaint petition in the Court of Addl. Chief Judicial Magistrate, Bermo at Tenughat against the petitioner through Managing Director, Sri Sriniwas Singh for prosecution and punishment under Section 22 A of the Minimum Wages Act. It further appears that the said complaint was instituted as C.L.A. case no.01 of 2009. It then appears that learned Additional Chief Judicial Magistrate, Bermo at Tenughat took cognizance of the offence under Section 22-A of the Minimum Wages Act, 1948 vide his order dated 07.01.2009 and transferred the case in the Court of Mr. D.K. Mishra, Judicial Magistrate, 1st Class, Bermo, at Tenughat. Sri Indrajit Sinha, learned counsel for the petitioner challenged the proceeding on the ground that the complainant, Labour Enforcement Officer, Central has no jurisdiction to file the case against the petitioner-company because in the case of petitioner-company, the appropriate government is State of Jharkhand. He submits that -2- according to Section 2 (b) (i) of the Minimum Wages Act, 1948, the Central Government will be the appropriate government only if there is violation of Minimum Wages Act by a corporation established by Central Act. He submits that in the instant case, admittedly, petitioner-company is not established by Central Act, rather the same has been registered under the company Act. Thus, in the case of petitioner the appropriate government is State of Jharkhand. Md. Mokhtar Khan, Assistant Solicitor General, submits that petitioner-company has been engaged by D.V.C. as a contractor for execution of work at its Chandrapura Thermal Power Station. Under the said circumstances, as per Section 2(e) of the Minimum Wages Act, D.V.C. is Principal employer of the employee engaged by the petitioner. Thus, the Central Government is the appropriate government to file case against the D.V.C. and the petitioner-company for violation of the provision of Minimum Wages (Central) Rules. Accordingly, Sri Khan Submits that the Labour Enforcement Officer, Central has jurisdiction to file complaint against the petitioner. Having heard the submissions, I have gone through the records of the case. Admittedly, petitioner-company was registered under the company Act, 1956. Section 2 (b) (i) & (ii) of Minimum Wages Act reads as under:- "appropriate Government" means - (i) in relation to any scheduled employment carried on by or under the authority of the [ Central Government or a railway administration], or in relation to a mine, oil-field or major port, or any corporation established by [a Central Act], the Central Government, and (ii) in relation to any other scheduled employment, the [State Government]; From perusal of the aforesaid provision, it is clear that if the scheduled employment is carried by any corporation established by a Central Act, then the appropriate government will be the Central Government. In the present case, as noticed above, petitioner-company has not been established by a Central Act. Thus, in the case of petitioner-company the appropriate government will be the State Government. However, Mr. Khan, submits that as per Section 2 (e) of the -3- Minimum Wages Act, the employer of the labourers engaged by the Contractor (petitioner-company) is D.V.C., because as per section 2(e), the employer means - any person, who employs any worker, directly or through another person. It is true that in the instant case, petitioner- company working as contractor in D.V.C. for erecting and commissioning services of D.V.C. Chandrapura Thermal Power Station, Units 7 & 8 and it had engaged labours. Thus, as per Section 2(e) of Minimum Wages Act, the employer of labours engaged by the petitioner- company is D.V.C. This interpretation was accepted by the Central Government in its letter dated 29th July, 1983 (Annexure-R-1 of the counter affidavit). Thus, if labourers engaged by the contractor or have not been paid minimum wages and/or contractor violates any of the provision of Minimum Wages Act or Rules, then the employer is liable to be prosecuted. Section 22 A of the Minimum Wages Act reads as under:- [General provision for punishment of other offences. - Any employer who contravenes any provision of this Act or of any rule or order made thereunder shall, if no other penalty is provided for such contravention by this Act, be punishable with fine which may extend to five hundred rupees.] Thus, according to aforesaid provision, if there is any violation of the Minimum Wages Act or Rules made thereunder employer is liable to be prosecuted and punished. In the instant case, it is alleged that in relation to labours engaged by the petitioner, the Register as well as Notice has not been displayed as required under the Minimum Wages Central Rules. Thus, in my view the complaint is required to be filed against the D.V.C. under Section 22 A of the Minimum Wages Act because D.V.C. is the employer in the instant case. In this case, complaint has been filed against the petitioner- company who is not employer under the Minimum Wages Act. Therefore, I find that the order of cognizance suffers from serious illegality, therefore, the same can not be sustained in this application. In view of the aforesaid findings, I allow this writ application -4- and quash the entire criminal proceeding in connection with C.L.A. case no.01 of 2009 pending in the Court of Sri D.K. Mishra, Judicial Magistrate, 1st Class, Bermo at Tenughat, including the order dated 07.01.2009 passed by learned Additional Chief Judicial Magistrate, Bermo at Tenughat in the above case. ( Prashant Kumar, J.) Pramanik/