Bombay High Court
The President, Vidarbha Hindi ... vs The Inspector, Shops And ... on 5 July, 2021
Bench: Manish Pitale
3-APL516.16-Judgment 1/10
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRI. APPLN. (APL) NO. 516 OF 2016
APPLICANTS :- 1. The President, Vidarbha Hindi Sahitya
Sammelan, Zhansi Rani Chowk,
Sitabuldi, Nagpur.
2. The General Secretary/Trustee, Vidarbha
Hindi Sahitya Sammelan Zhansi Rani
Chowk, Sitabuldi, Nagpur.
...VERSUS...
NON-APPLICANT: 1. The Inspector, Shops and Establishments
Office of the Additional Commissioner of
Labour, Administrative Building, 4th
Floor, Civil Lines, Nagpur. .
NON-APPLICANT NO.2: The State of Maharashtra, through
Commissioner of Labour, Civil Lines,
Nagpur.
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Mr. S.S.Ghate, counsel for the applicants.
Mr.S. Ashirgade, APP for the non-applicants.
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CORAM : MANISH PITALE, J.
DATE : 05.07.2021.
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ORAL JUDGMENT
Hearing was conducted through video conferencing
and the learned counsel agreed that the audio and visual quality
was proper.
2. Heard the learned counsel for the rival parties.
3. This is an application filed under section 482 of the
Code of Criminal Procedure for quashing and setting aside
complaint/prosecution sought to be initiated by an Inspector
under the provisions of the Maharashtra Shops and Establishments
Act, 1948, against the applicants.
4. The applicants are the office bearers of Vidarbha
Hindi Sahitya Sammelan, which was a registered Trust under the
erstwhile legislation of the State of Madhya Pradesh. This Trust
was established at Nagpur, the then capital of Central Provinces
and Berar State, for promoting cultural activities. In this regard,
there were premises allotted to the Trust by the State
Government, since 1956.
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5. The material on record shows that on 04/11/2015, a
person claiming to be president of Nagpur Gumasta Mandal sent a
complaint to the concerned Authority under the provisions of the
Minimum Wages Act, 1948, against the applicants. It was claimed
that proper wages were not being paid to employees of the
applicants and attendance registers were not being maintained
and further that some of the employees had been forcibly removed
from the employment. According to the applicants, in the year
2016 an inspection was carried out by an Inspector under the
provisions of the Minimum Wages Act, 1948. The Inspector
granted time of seven days to the applicants to make good alleged
shortcomings. Thereafter, the applicants sought time and
submitted a reply to the Inspector under the provisions of the
Minimum Wages Act, 1948 as also the Maharashtra Shops and
Establishments Act, 1948. In this reply dated 24/02/2016, the
applicants stated the scope of their activities, asserting that the
Trust could not be classified as an establishment under the
provisions of the aforesaid legislation, particularly when
employees were being paid only honorarium.
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6. Thereafter, the Inspector under the provisions of the
Maharashtra Shops and Establishments Act, 1948, initiated
proceedings before the Court of Judicial Magistrate First Class,
(JMFC) Nagpur, bearing Criminal Complaint No.6428 of 2016.
7. In this complaint/launching of prosecution, the
Inspector claimed that the applicants had violated various
provisions of the Maharashtra Shops and Establishments Act,
1948. A perusal of the said complaint shows that the Inspector
has proceeded on the basis that the provisions of the Maharashtra
Shops and Establishments Act, 1948, would apply. It is at this
stage that the applicants immediately filed writ petition before this
Court. On 18/10/2016, the principal contention raised on behalf
of the applicants was recorded and while issuing notice, this Court
granted interim stay to further proceedings in the said Criminal
Complaint No.6428 of 2016 pending before the JMFC, Nagpur.
8. Thereafter, on 30/06/2017, this Court granted Rule
and the interim stay order was continued.
9. Mr. Ghate, learned counsel for the applicants,
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submitted that in the present case, the aforesaid criminal
complaint lodged by the respondents deserved to be quashed at
the outset, for the reason that there is no ascertainment of the fact
as to whether the provisions of the Maharashtra Shops and
Establishments Act, 1948, would apply to the applicants-Trust at
all. It is submitted that the applicants had filed a detailed reply
before the concerned Inspector and without any determination of
the applicability of the provisions of the Maharashtra Shops and
Establishments Act, 1948, the said criminal complaint stood
registered against the applicants. It was submitted that the very
initiation of proceedings under the provisions of the Maharashtra
Shops and Establishments Act, 1948, was stillborn because there
was no determination as to whether under the provisions of the
said Act, the Trust was covered under the definitions of
"Establishment" or "Commercial Establishment" or any other such
expression. On this basis, it was submitted that the present
application deserved to be allowed.
10. Mr. Ashirgade, learned APP for the respondents
submitted that the definition of commercial establishment under
section 2(4) of the Maharashtra Shops and Establishment Act,
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1948, clearly covered the applicant-Trust. This was because the
applicants were earning handsome profit from their activities by
renting out the property. It was further submitted that the
question as to whether the applicant-Trust was covered under the
provisions of the Maharashtra Shops and Establishments Act, 1948
or not could be agitated in the pending proceedings before the
Magistrate and that therefore, the present writ petition deserved
to be dismissed.
11. Heard the learned counsel for the parties and perused
the material on record. This Court has perused the provisions of
the Maharashtra Shops and Establishments Act, 1948. It is clear
from sections 1, 2 (particularly definitions of "Commercial
Establishment" and "Establishment") as also, section 5 onwards of
the said Act that there is a procedure contemplated for
determining and ensuring applicability of the said Act to a
particular establishment. There can be no doubt about the fact
that a prosecution under the provisions of the Maharashtra Shops
and Establishments Act, 1948, can be launched against an entity
only when the provisions of the said Act can be said to be
applicable to such an entity. A perusal of the complaint lodged by
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the respondent No.1-Inspector under the provisions of the
Maharashtra Shops and Establishments Act, 1948, before the
Magistrate, show that it has proceeded on the basis that the
provisions of the said Act apply in full force upon the applicants.
There is admittedly no determination of the said question
regarding applicability of the provisions of the Maharashtra Shops
and Establishments Act, 1948, to the applicant-Trust. This exercise
is necessarily required to be anterior in point of time to filing of
such a complaint or launching of such a prosecution.
12. In this context, when section 60 of the Maharashtra
Shops and Establishments Act, 1948, is perused, it becomes clear
that a safeguard has been provided. The said provision reads as
follows:
"60. Cognizance of Offences
(1) No prosecution under this Act or the rules or
orders made thereunder shall be instituted except
by an Inspector and except with the previous
sanction of the (District Magistrate)(Additional
District Magistrate, Sub-Divisional Magistrate,
Commissioner of Labour, Additional Commissioner
of Labour or Deputy Commissioner of Labour) or
the local authority as the case may be [or,
without any such sanction, by an aggrieved
person, or by a representative of the registered
union of which the aggrieved person, is a
member]:
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Provided that any local authority may direct that
the powers conferred on it by this sub-section
shall, in such circumstances and subject to such
condition, if any, as may be specified in the
direction, be exercised by its standing committee
or by any committee appointed by it in this behalf
or, if such local authority is a municipal
corporation, by its Municipal Commissioner,
Deputy Municipal Commissioner or Assistant
Municipal Commissioner.
13. A bare perusal of the above quoted provision shows
that no prosecution under the Maharashtra Shops and
Establishments Act, 1948, can be instituted, except by an Inspector
and further only with previous sanction of specific Authorities
stated in the above quoted provision. Therefore, it is clear that
unless there is sanction order from one of the said Authorities,
which include Commissioner of Labour, Additional Commissioner
of Labour and Deputy Commissioner of Labour or the Local
Authority, no prosecution can be instituted by an Inspector. The
safeguard so provided is obviously, inter alia, to ensure that
prosecution is instituted only against establishments that are
covered under the provisions of the Maharashtra Shops and
Establishments Act, 1948. It appears that under the scheme of the
said Act, proper previous sanction is necessary so as to ensure that
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prosecution is not instituted in a frivolous manner.
14. In the present case, the respondents have failed to
show any document or order showing previous sanction granted
to the respondent No.1-Inspector to institute the said criminal
complaint against the applicants under the provisions of the
Maharashtra Shops and Establishments Act, 1948. The reply filed
on behalf of the respondents is completely silent on this aspect of
the matter and the learned APP has fairly conceded that there is
no previous sanction order in the present case.
15. In this backdrop, it becomes clear that the said
criminal complaint launched against the petitioners is stillborn
and prohibited under the above quoted section 60 of the
Maharashtra Shops and Establishments Act, 1948. Therefore,
there is no substance in the contention raised on behalf of the
respondents that the applicants could demonstrate before the
Magistrate regarding inapplicability of the provisions of the
Maharashtra Shops and Establishments Act, 1948. The
prosecution or the complaint has been lodged against the
applicants on the basis that the provisions of the Maharashtra
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Shops and Establishments Act, 1948, apply. Therefore, the said
contention cannot be accepted.
16. In view of the above, this Court is of the opinion that
the present application deserves to be allowed, so as to ensure
that a complaint not maintainable in view of section 60 of the
Maharashtra Shops and Establishments Act, 1948, against the
applicants is quashed at this stage itself.
17. Hence, the application is allowed in terms of prayer
clause (ii), which reads as follows:
"(ii) To quash and set aside the Criminal Complaint
No.6428 of 2016 (Annexure I) pending in the
court of the Judicial Magistrate First Class,
Nagpur (Court No.1) holding that same is
untenable at law."
18. Rule is made absolute in the aforesaid terms.
JUDGE
KHUNTE
