Oral Judgment:
1. Heard Mr. Nadkarni, learned Counsel appearing on behalf of the petitioner and Mr. Amonkar, learned Central Government Standing Counsel for respondent no.2.
2. By this petition, the petitioner seeks quashing of the complaint bearing Criminal Case No.18/L/12/C pending before the Judicial Magistrate, First Class ('JMFC' for short) at Vasco-da-Gama and also quashing of the summons dated 14/05/2012 issued by the learned JMFC in the said case.
3. The said Criminal Case No.18/L/12/C arises out of a private complaint filed by respondent no. 2, on 30/04/2012, against the accused (petitioner), under Section 26 of the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 ('the Act' for short). It is alleged that Shri K. A. Sebastian, Labour Enforcement Officer (Central), Vasco-da-Gama, who is an Inspector under the Act, had inspected the establishment of the accused at Vaddem, Vasco-da-Gama, Goa on 01/02/2012 and had observed that the accused had committed certain breaches. It is alleged that inter-state migrant workmen numbering 23 were employed on 28/12/2011 without obtaining the registration and, therefore, there is violation of Section 4(1) of the Act. It is further alleged that the notices showing rates of wages, hours of work, wage period, dates of payment of wages, name and address of the Inspectors having jurisdiction and date of payment of unpaid wages in English, Hindi and language understood by the majority of the workers at the work site were not displayed in conspicuous places at the establishment and, therefore, there is violation of Rule 55(1)(i) of the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Central Rules, 1980 ('the Rules' for short). Lastly, it is alleged that there was breach of rule 48 of the Rules on account of non-maintenance of register of contractors. The place of offence is stated to be œFederal Bank, Vasco-da-Gama? whereas date of offences is stated to be 01/02/2012. All the said breaches are stated to be punishable under Section 26 of the Act. It is further alleged that an inspection report-cum-show cause notice No.31(3)/2012-ISMW-PE-LEO-Vasco dated 1st February, 2012 incorporating the said breaches was prepared and issued to the accused by Registered A.D. Post. It is further alleged that the accused submitted the compliance report dated 05/03/2012, but the same was not found to be satisfactory by the Sanctioning Authority. Hence, the complaint. It is further stated in this complaint that the same is required to be filed within three months from the date of offence as per Section 29 of the Act and last date of filing the complaint is 30/04/2012.
4. The petitioner alleges as follows:- He is the Chief Manager of Federal Bank Ltd., which is a Scheduled Commercial Bank and that vide work order dated 05/01/2012, M/s. Diebold Systems Private Ltd.(M/s Diebold, for short) was entrusted with turn key execution of interior furnishing works of the proposed branch at Vasco. Clause 6 of the said work order specifically provided that it shall be the responsibility of M/s. Diebold to adhere to all provisions of Contract and Labour Act including obtaining registration. The said Branch Office at Vasco was completed and inaugurated on 17/03/2012. During the execution of the work at the proposed Branch site, an inspection was conducted by respondent no. 2 on 24/01/2012. Subsequently, a show cause notice dated 01/02/2012 was issued by the respondent no. 2 to the petitioner and vide reply dated 05/03/2012, the Branch Manager of the proposed Vasco Branch requested the respondent no. 2 not to proceed against the Bank. Further by letter dated 09/03/2012, the petitioner requested the respondent no. 2 to accept the replies filed by the proposed Branch Manager and exonerate from the charges. However, on 30/04/2012, respondent no. 2 filed the complaint and the said complaint has been registered as Criminal Case No.18/L/2012/C before the JMFC. Pursuant to the said complaint, the learned JMFC issued summons to the petitioner. The said complaint was not made within the prescribed limitation period of three months as stipulated in Section 29 of the Act. Neither in the inspection note nor in the show cause notice, respondent no. 2 has alleged that the persons working were recruited from inter-states for working at Goa by or through the Contractor. Hence, the Act has no application in the present case. The petitioner, being the Chief Manager, is not principal employer as defined in Section 2(1)(g) (iv) of the Act and hence, no complaint could lie against him. The person responsible for supervision and control would be the Branch Manager of the said proposed Vasco Branch and not the petitioner. The respondent no. 2 was well aware before filing the complaint that Mr. Satish R. Tikale has been appointed as the Branch Manager of the proposed Vasco Branch of the Federal Bank Ltd. The Vasco Branch of Federal Bank started functioning as from 17/03/2012 and on 24/01/2012 or even on 01/02/2012, the said Vasco Branch could not be termed as an 'establishment' as defined in the Act. Therefore, the said Criminal Case, along with the summons issued against the petitioner is liable to be quashed and set aside.
5. Mr. Nadkarni, learned Counsel appearing on behalf of the petitioner read out the provision of Section 29 of the Act and pointed out that the inspection was carried out by the complainant, who is Inspector or authorised officer on 24/01/2012, but the complaint was filed on 30/04/2012, i.e. beyond the period of three months, which is clearly barred by limitation as prescribed under Section 29 of the Act. He further pointed out that all the breaches alleged by respondent no. 2 require that there has to be an establishment. He invited my attention to Section 2(1)(d) of the Act which defines the establishment. He submitted that since no business, trade or occupation was carried out in the said premises as on 24/01/2012 or even as on 01/02/2012, the said premises were not an establishment. He, therefore, submitted that the provisions pertaining to the alleged breaches are not at all applicable to the petitioner's premises. He, therefore, submitted that the complaint is filed beyond limitation period and also when none of the provisions apply to the petitioner's premises. He, therefore, urged that the said Criminal Case is liable to be quashed.
6. On the contrary, Mr. Amonkar, learned Central Government Standing Counsel appearing on behalf of respondent no.2 read out the definition of œInter-State Migrant Workman? as given in Section 2(1)(e) of the Act. He further submitted that the inspection carried out on 24/01/2012 and the inspection note prepared on that day was not in respect of the present petitioner, but pertained to M/s. Diebold. He submitted that, therefore, the petitioner cannot base his contentions on the said inspection note. He pointed out from the notice dated 01/02/2012 sent to the petitioner by the complainant that it is specifically stated therein that the inspection of the establishment of the petitioner was carried out on 01/02/2012. He invited my attention to the inspection report prepared by the complainant wherein the violations are specifically mentioned. He, therefore, submitted that the complaint filed on 30/04/2012 is within three months and is not time barred. Mr. Amonkar, learned Central Government Standing Counsel further submitted that the question whether the business or occupation was already started in the establishment of the petitioner or not would be a question of fact to be decided on merits and, therefore, the same should not be decided at this stage only. He, therefore, submitted that there is no substance in the present petition and the same be dismissed.
7. I have perused the entire material on record. I have considered the submissions made by the learned Counsel for both the parties.
8. It would be advantageous to see the relevant provisions of the Act and the Rules, before proceeding further.
(a) Section 2(1)(d) of the Act defines 'establishment' as under :
œ2(1)(d)- 'establishment' means-
(i) any office or department of the Government or a local authority; or
(ii) any place where any industry, trade, business, manufacture or occupation is carried on.?
(b) Section 2(1)(e) of the Act defines 'inter-state migrant workman' as under :
"2(1)(e).- Inter-State migrant workman" means any person who is recruited by or through a contractor in one State under an agreement or other arrangement for employment in an establishment in another State, whether with or without the knowledge of the principal employer in relation to such establishment.?
(c) Section 2(1)(g) of the Act provides as under:
œ2(1)(g).- 'principal employer' means, -
(i) in relation to any office or department of the Government or a local authority, the head of that office, department or authority or such other officer as the Government or the local authority, as the case may be, may specify in this behalf;
(ii) in relation to a factory, the owner or occupier of the factory and where a person has been named as the manager of the factory under the Factories Act, 1948 (63 of 1948), the person so named;
(iii) in relation to a mine, the owner or agent of the mine and where a person has been named as the manager of the mine, the person so named;
(iv) in relation to any other establishment, any person responsible for the supervision and control of the establishment.?
(d) Section 4(1) of the Act provides as under:
œ4. Registration of certain establishments -
(1).- Every principal employer of an establishment to which this Act applies shall, within such period as the appropriate Government may, by notification in the Official Gazette, fix in this behalf with respect to establishments generally or with respect to any class of them, make an application to the registering officer, in such form and manner and on payment of such fees as may be prescribed, for the registration of the establishment:
Provided that the registering officer may entertain any such application for registration after the expiry of the period fixed in that behalf, if the registering officer is satisfied that the applicant was prevented by sufficient cause from making the application in time.?
(e) Section 26 of the Act provides as under :
œ26. Other offences -
If any person contravenes any of the provisions of this Act or of any rules made there under for which no other penalty is elsewhere provided, he shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to two thousand rupees, or with both.?
(f) Section 29 of the Act provides as under:
œ29. Limitation of prosecutions -
No court shall take cognizance of an offence punishable under this Act unless the complaint thereof is made within three months from the date on which the alleged commission of the offence came to the knowledge of the inspector or authorised person concerned:
Provided that where the offence consists of disobeying a written order made by an inspector or Authorised person, complaint thereof may be made within six months of the date on which the offence is alleged to have been committed.?
9.(a) Rule 48 of the Rules provides as under:
œ48. Registers of Contractors -
Every principal employer shall maintain in respect of each registered establishment a register of contractors in Form XII.?
(b) Rule 55(1)(i) of the Rules provides as under:
œ55. Notices -
(1) (I).- Notices showing the rates of wages, hours of work, wage periods, dates of payment of wages, names and addresses of the Inspectors having jurisdiction, and date of payment of unpaid wages, shall be displayed in English and in Hindi and in the local language understood by the majority of the workers in conspicuous places at the establishment and the work-site by the principal employer or the contractor, as the case may be. ?
10. From the provision of Section 29 of the Act, it is clear beyond doubt that the complaint for contravention of the provisions of the Act and Rules has to be made within three months from the date on which the commission of offence came to the knowledge of the Inspector or authorised person concerned. In the present case, admittedly, Shri K. A. Sebastian, who has lodged the complaint against the present petitioner, is the Inspector and authorised person concerned. Though the inspection note dated 24/01/2012 mentions the name of the establishment as M/s. Diebold, however, in clause 3 of the said inspection note, there is mention regarding the work of furnishing for new branch set up for Federal Bank Ltd at Vasco. This inspection note reveals that the inspection was carried out at the said premises of proposed new Branch at Vasco and not at the premises of the establishment of M/s. Diebold. It is clearly stated that at the premises Mr. S. R. Tikale, Branch Manager of Federal Bank, Vasco was present. This inspection note is duly signed by the said Inspector/ authorised officer namely K. A. Sebastian, by the Branch Manager Mr. S. R. Tikale and by Mr. Balaji K.B., coordinator of M/s. Diebold. The notice bearing No.31(3)/2012-ISMW-PE-LEO-Vasco dated 01/02/2012 addressed to the petitioner says that during the inspection on 01/02/2012, certain irregularities were observed. The inspection report annexed to this notice is signed only by Shri K. A. Sebastian and not by Mr. S.R. Tikale or Shri Balaji K. B.. It is pertinent to note that in the complaint dated 30/04/2012, the inspection note and workers' statement dated 24/01/2012 have been relied upon. The inspection note dated 24/01/2012 specifically mentions the alleged breaches noticed. It can, therefore, be said that the authorised officer had knowledge of the alleged commission of offence on 24/01/2012. As has been rightly contended by the learned Counsel for the petitioner, in the notice dated 01/02/2012, the date of inspection has been mentioned as 01/02/2012 only to get over the provision of Section 29 of the Act. In the circumstances above, the complaint filed on 30/04/2012 is beyond the period of limitation as prescribed under Section 29 of the Act. On this ground alone, the complaint (Criminal Case No. 18/L/2012/C) is bound to be quashed.
11. The petitioner has produced on record the invitation card of inauguration of their new Branch at Vasco-da-Gama on 17/03/2012. In the Inspection Note dated 24/01/2012, as far as the Federal Bank at Vasco is concerned, it is mentioned that the nature of the work was furnishing of new Branch set up. This means that as on 24/01/2012, the branch was not ready for operation. By letter dated 05/03/2012, the petitioner had informed the respondent no. 2 that as on that day, the proposed branch had not yet started functioning and the works were under progress.
12. For application of Section 4(1) of the Act, there has to be an establishment. Similarly, for application of Rules 48 and 55(1)(i) of the Rules, existence of an establishment is a must. As already seen above, establishment means any place where industry, trade, business, manufacture or occupation is carried on. In the premises of the petitioner at Vasco, the work of setting up of the establishment was going on and the establishment as such, had not started its work, till 17/3/2012. Therefore, there was no establishment at all. In such circumstances, there could not be any breach of Section 4(1) of the Act or Rules 48 and 55(1) (i) of the Rules.
13. In view of the above, the complaint filed by respondent no. 2 and registered as Criminal case No. 18/L/2012/C cannot sustain and the Magistrate ought not to have taken cognizance of the same. The said Criminal Case No.18/L/12/C is bound to be quashed and set aside.
14. In the result, the petition is allowed.
(a) The Criminal Case No.18/L/2012/C pending before the JMFC, Vasco-da-Gama is quashed and set aside.
(b) The summons dated 14/05/2012 issued by the learned JMFC in the said case is also quashed.
(c) Rule is made absolute in the aforesaid terms.
15. The petition stands disposed of accordingly, with no order as to costs.