Judgment:
ORDER
B. Akbar Basha Khadiri, J.
1. The common point that arises in all the O.P.s is whether the petitioner herein can be straight away prosecuted without obtaining sanction as required under Section 21 of the Payment of Wages Act, 1936.
2. The undisputed facts are the petitioner is the Managing Director of Mahavir Plantations Limited, having its Tea Plantations in Cochin, Kerala and various parts of this State. The respondent who happens to be the Inspector of Plantations, Valparai, inspected the petitioner's plantation office records and found that there has been delay in the payment of wages relating to various periods. Therefore, the Inspector of Plantations, Valparai, straight-away proceeded to prosecute the petitioner for violation of Section 5(1)(a) of the Payment of Wages Act 1936.
3. The learned Judicial Magistrate, Valparai, took cognizance of the matters in the various STC numbers as against which the petitioner has come forward with all these OPs. challenging the propriety of the learned Magistrate in taking cognizance of the matters.
4. Heard both sides.
5. It is vehemently contended by Mr.Karthik the learned Counsel appearing for thepetitioner that, without following theprocedure laid down under Sections 15 and21 of the Payment of Wages Act, 1936 therespondent has ventured to prosecute thepetitioner and that has resulted in the abuseof process of law.
6. It is not in dispute that what is payable to the employees in the case is 'Wages' falling within the proviso of Section 2(vi) of the Payment of Wages Act, 1936. Section 5(1) fixes the time limit within which the payment should be made. Section 5(l)(a) of the Act reads as under:
'.... Less than one thousand persons are employed, shall be paid before the expiry of the seventh day'.
Section 15(2) of the Act reads as under:
'Where contrary to the provisions of this Act any deduction has been made from the wages of an employed person, or any payment of wages has been delayed, such person himself, or any legal practitioner or any official of a registered trade union authorised in writing to act on his behalf, or any Inspector under this Act, or any other person acting with the permission of the authority appointed under Sub-section (1), may apply to such authority for a direction under Sub-section (3), and in case of death of the employed person, it shall be lawful for his legal representatives to make an application for such direction.'
The institution proceedings seeking relief under Section 15(3) of the Act, in the instant case for payment of delayed wages together the payment of such compensations the authority may think fit not exceeding ten times the amount deducted.
7. Mr. Karthik, the learned counsel appearing for the petitioner submitted that, all the persons referred in Section 15(2) must seek recourse under Section 3 by filing an application before the competent authority indicated under the earlier part of Section 15(2), in the instant case, the Deputy Commissioner of Labour. In other words any person who wants to seek redressal for delayed payment should file an application before the Deputy Commissioner of Labour.
8. Section 15(3) reads as under:
'When any application under Sub-section (2) is entertained, the authority shall hear the applicant and the employer or other person responsible for the payment of wages under Section 3, or give them an opportunity of being heard, and, after such further inquiry (if any) as may be necessary, may, without prejudice to any other penalty to which such employer or other person is liable under this Act, direct the refund to the employed person, of the amount deducted, or the payment of the delayed wages, together with the payment of such compensation as the authority may think fit, not exceeding ten times the amount deducted in the former case and not exceeding twenty-five rupees in the latter, and even if the amount deducted or the delayed wages are paid before the disposal of the application, direct the payment of such compensation, as the authority may think fit, not exceeding twenty-five rupees.'
Therefore, as per the proviso of Section 15(3) the Competent Authority has to give a reasonable opportunity to the person against whom the relief is sought being heard. Then after hearing the person against whom the relief is claimed the Competent Authority may pass order aforesaid for payment of delayed wages together with the payment of such compensation as the Authority may think fit. Of course, proviso to Section 15(3) lays down certain grounds under which the respondent in that application may have an opportunity to show that the delay was not due to any act of the respondent in which case the Competent Authority if accepts the cause putforth by the respondent, may not impose any penalty. Thus Section 15(3) makes room for the fiscal redressal of receiving the delayed payment if so held, with the compensation. The Competent Authority may also proceed further and sanction prosecution of the offender who is responsible for the delayed payment. Section 20 of the Payment of Wages Act, 1936, reads as under:
'Penalty for offences under the Act:-
(1) Whoever being responsible for the' payment of wages to an employed person contravenes any of the provisions of any of the following sections, namely, (Section 5 except Sub-section (4) thereof, Section 7, Section 8 except Sub-section (8) thereof, Section 9, section 10 except Sub-section (2) thereof, and Sections 11 to 13) both inclusive, shall be punishable with fine (which shall not be less than two hundred rupees but which may extend to one thousand rupees).
(2) Whoever contravenes the provisions of sections, (Sub-section (4) of Section 5 Section 6, Sub-section (8) of Section 8, Sub-Section (2) of Section 10 or Section 25 shall be punishable with fine which may extend to five hundred rupees).
(3) Whoever being required under this Act to maintain any records or registers or to furnish any information or return ..'
It provides the punishment for the delayed payment.
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:
'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 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.
10. Mr. Karthik, the learned counsel appearing for the petitioner points out that in the instant case no opportunity was given to the petitioner either under Section 15(3) or under Section 20(2) and 20 of the Act.
11. I have perused the records, Nowhere the petitioner was given an opportunity to satisfy the authority as to why penalty should not be imposed or why sanction should not be granted. It is also pointed out that notice of prosecution was issued not by the competent authority but by the Inspector of plantations without following the procedure laid down under Section 15(2) and (3) of the Act. I feel that no person can be condemned without being heard and without being given an opportunity to him to putforth his case. If that is done, it would certainly amount to abuse of process of law, on that ground, I am inclined to allow all these applications. Accordingly, all the O.P.s are allowed. Further proceedings in STC shall stand quashed. Consequently, the connected Crl. M.P. Nos. 7162 to 7173 of 2000 are also dismissed.