THE HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION No.1991 OF 2021
ORDER:
1. This Criminal Petition is filed to quash the proceedings in STC No.1 of 2021 on the file of XII Additional Metropolitan Magistrate of First Class at Nampally, Hyderabad.
2. The petitioners are questioning their prosecution on the basis of complaint filed by the 2nd respondent, who is the Labour Enforcement Officer (Central), Government of India. On the basis of the complaint filed by the 2nd respondent, learned Magistrate has taken cognizance of the complaint and directed issuance of notice to the 2nd respondent.
3. The complaint is filed under Section 24 of the Contract Labour (Regulation and Abolition) Act, 1970 (for short 'the Act of 1970) for breach of Section 7 r/w Section 9, Rule 18(1)(i), Rule 81(3), Rule 82(2) and Rule 74 of Contract Labour (Regulation and Abolition) Central Rules, 1971 (for short 'the Rules').
3. The allegation of the 2nd respondent is that the petitioners have employed 3000 contract labourers without obtaining valid certificate of registration. Further, the petitioners have failed to display on the notice board giving details in accordance with the 2 Rule 18(1)(i) of the Rules. The petitioners have failed to intimate the notice of commencement of work in Form VII to the Inspector, which is in violation of Rule 81(3). Also failed to submit unified Annual Return in Form XXV for the year 2019 through shram suvidha web portal and also failed to submit Form-XII to the Inspector which are in violation of Rules 82(2) and 74 of the Rules respectively.
4. The said complaint was filed after the 2nd respondent inspected and issued a report-show-cause notice on 02.03.2020 along with all relevant documents.
5. Learned counsel appearing for the petitioners would submit that the 2nd respondent does not have jurisdiction to lodge compliant against these petitioners for the reason of the 2nd petitioner's company being registered with the State Government. The registration was done with the State Government and certificate of registration was also issued from time to time and the registration has been renewed. Further, the Central Labour Enforcement Officer has issued notice dated 24.09.2014. In view of Section 27 of the Act of 1970, the Court is barred from taking cognizance of an offence punishable under the Act unless the complaint is made within the three months from the date of which, 3 the alleged commission of offence came to the knowledge of the Inspector. Further, the proviso extends the limitation to six months if there is any disobedience for the written order made by an Inspector.
6. The petitioners also raised several grounds for seeking quashment of the complaint on the ground that the learned Magistrate has mechanically summoned the petitioners. Summoning a person is a serious matter in a criminal case and the order reflects non-application of mind while summoning the petitioners. Learned counsel also relied on the judgments; i) CMRL Employees Union & others v. The Ministry of Housing and Urban Affairs and others1; ii) Victor Joseph, Regional Managing Director, Group 4 Securities Guarding Ltd., v. State (rep. by Labour Enforcement Officer (Central), Government of India, Ministry of Labour2; iii) Cochin International Airport Ltd v. The Regional Labour Commissioner3; iv) Group 4 Securities Guarding Pvt. Ltd., v. Labour Enforcement Officer (Central), 1 2019 (IV) LLJ 739 Mad 2 2006 (2) LLN 259 3 2009(3) LLN 350 4 Hyderabad and another4 and v) GMR Hyderabad International Airport Limited v. The State of A.P, rep. by the Commissioner of Labour, Hyderabad5.
7. On the other hand, learned counsel appearing for the Central Government would submit that the prosecution by the Central Labour Enforcement Officer is valid. The petitioners in one of the writs have taken stand that they are governed by Central Rules and now they cannot urge that they are registered with the State Government. For violation of Section 7 of the Act, petitioners are bound to undergo the process of trial. Accordingly, prayed to dismiss the petition.
8. Under Section 7 of the Act of 1970, every principal employer of an establishment shall register in the manner prescribed for registration of the establishment. If the application of registration is complete, the registering authority shall register the establishment and shall issue a certificate of establishment.
9. Under Section 6 of the Act of 1970, the appropriate government is empowered to appoint Gazetted Officers for issuance of such registration certificates. There is a clear demarcation in the 4 W.P.No.3198 of 2006 dated 07.02.2014 5 WP No.24041 of 2008, dated 14.07.2014 5 Act about the Central Government and the State Government. Section 2(1) of the Act reads as follows:
"2 (1) In this Act, unless the context otherwise requires,-
(a) 'appropriate Government' means,-
(i) in relation to an establishment in respect of which the appropriate Government under the Industrial Disputes Act, 1947 (14 of 1947), is the Central Government;
(ii) in relation to any other establishment, the Government of the State in which that other establishment is situated."
10. It is not in dispute that the 2nd petitioner company was registered with the erstwhile Government of Andhra Pradesh and certificate of registration dated 11.11.2010 is filed. Thereafter, the certificate of registration dated 25.10.2019 issued by the Government of Telangana, Labour Department is also filed. The said registration certificates are not in dispute.
11. The ground of limitation under Section 27 of the Act is not available to the petitioners Since the Hon'ble Supreme Court in Suo moto Writ (Civil) No.3 of 2020 extended the limitation in view of the pandemic up to 14.03.2021 and in the event of any violations that are detected by the Labour Enforcement Officer either the Central or State Governments, having issued such notice, prosecution can be launched. In the present case, after notice was issued on 02.03.2020, complaint was filed on 20.02.2021. 6
12. Learned Magistrate has taken cognizance on 20.02.2021. The docket order dated 20.02.2021 reads as follows:
"Issue notice to respondent. Call on 12.03.2021.".
13. At the stage of taking cognizance, it is just and necessary that the learned Magistrate applies his mind to the facts of the case. The order does not reflect that the Magistrate has even gone through the complaint before taking cognizance of the offence and issuing summons for trial of the petitioners. The Hon'ble Supreme Court in Pepsi Foods Limited v. Special Judicial Magistrate6 held that summoning a person in a criminal case is a serious matter and the Magistrate taking cognizance of an offence has to be prima facie satisfied about the case. As already said, the cognizance order is bereft of any reasons and liable to be set aside.
14. This Court, by order dated 18.04.2023 in Criminal Petition No.3615 of 2023 given directions regarding cognizance orders by Courts.
15. In view of the cognizance order not reflecting any reasons for taking cognizance order dated 20.02.2021 in STC No.01 of 2021 on the file of XII Additional Chief Metropolitan Magistrate, Hyderabad and the same is liable to be set aside and accordingly, set aside. 6 (1998) 5 Supreme Court Cases 749 7 However, the trial Court is not precluded from taking cognizance order by following the directions in Criminal Petition No.3615 of 2013, dated 18.04.2023.
16. Accordingly, the Criminal Petition is allowed. Consequently, miscellaneous applications, if any, shall stand closed.
_________________ K.SURENDER, J Date: 25.04.2023 kvs