Gauhati High Court
Crl.Pet./855/2015 on 29 September, 2023
GAHC010023682015
THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal
Pradesh)
PRINCIPAL SEAT AT GUWAHATI
Criminal Petition No. 855/2015
Shri Kaushik Baruah,
S/o Anil Barua, C/o Mocha (Restaurant),
Anil Plaza-II, G.S. Road, Guwahati-5,
Permanent resident of Flat No.2D,
Subham Residency, Kharghuli Road,
Guwahati-781001.
......Petitioner.
-Versus-
1. The State of Assam.
2. Shri Prasenjit Talukdar,
Labour Inspector cum Inspector under the
Inter State Migrant Workmen (R.E.C.S.) Act, 1979 and
their Rules thereunder.
(Complainant in C.R. Case No.4152/2013)
......Respondents.
BEFORE
HON'BLE MR. JUSTICE ROBIN PHUKAN
For the Petitioner : Mr. R. Sharma, Sr. Adv.
Ms. P. Phukan.
......Advocates.
For the Respondents : Mr. R. Dubey (R-2),
Mr. P. Borthakur, Addl.P.P., Assam.
......Advocates.
Date of Hearing : 26.09.2023
Date of Judgment : 29th September, 2023
JUDGMENT AND ORDER(CAV)
Heard Mr. R. Sharma, learned Senior Counsel assisted by Ms. P.
Phukan, learned counsel for the petitioner. Also heard Mr. R. Dubey,
learned counsel for the respondent No.2 and Mr. P. Borthakur,
learned Additional Public Prosecutor, Assam, appearing for the State
respondent No.1.
2. In this petition under Section 482 of the Code of Criminal
Procedure, 1973, the petitioner, namely, Shri Kaushik Baruah has
prayed for quashing the C.R. Case No.4152/2013, under Section 4/6
of the Inter-State Migrant Workmen (Regulation of Employment and
Conditions of Service) Act, 1979 (hereinafter referred to as "the 1979
Act") read with Section 25 of the 1979 Act and the order dated
28.05.2015 passed by the learned S.D.J.M.(S) No.1, Kamrup(M),
Guwahati, in C.R. Case No.4152/2013.
3. It is to be noted here that the above-noted case has been
registered on the basis of one complaint lodged by Shri Prasenjit
Talukdar, Labour Inspector cum Inspector under the 1979 Act and the
Rules framed thereunder.
4. The background facts leading to filing of the present petition is
adumbrated herein below:-
"On 27.08.2013, the respondent No.2, Shri Prasenjit Talukdar,
Labour Inspector cum Inspector under the 1979 Act, had visited
the work site, located at Anil Plaza-II, G.S. Road, Guwahati and
found that one Kaushik Baruah is executing a civil interior work
of his outlet "Mocha" (to be opened) by engaging 9 inter-
state migrant workers, whose names were being enclosed in a
separate sheet, through M/s K.R.M. Interiors Pvt. Ltd., New
Delhi (Contractor) without registering the establishment as
„Principal Employer‟ as required under Section 4 of the 1979
Act. Thereafter, the complainant had issued one notice to the
petitioner on 30.11.2013, and pursuant to the said notice, the
petitioner had filed his reply. But, having not been satisfied with
the reply, the respondent No.2 had lodged the aforesaid
complaint before the Court of learned Chief Judicial Magistrate,
Kamrup(M), Guwahati.
Upon the said complaint the learned Court below has
taken cognizance of the offences and issued process to the
petitioner. Accordingly, the petitioner had entered appearance
and filed a petition, being petition No. 142, for dismissal of the
complaint, on the ground that on the relevant date of
inspection, the restaurant was not inaugurated and no business
was carried out and as such the restaurant was not an
„establishment‟ with the meaning of definition of section 2 (d) of
the said Act of 1979, and that the petitioner has engaged one
contractor for interior decoration of the said restaurant and the
said contractor has employed the migrant workers.
But, after hearing the parties the learned court below, vide
impugned order dated 28.05.2015, had dismissed the petition
and explained the particulars of offence to the petitioner under
Section 4/6 and Section 25 of the 1979 Act and on to which the
petitioner pleaded not guilty and claimed to be tried.
Thereafter, the learned Court below has posted the case for
evidence."
5. Being aggrieved, the petitioner has approached this Court by
filing the present petition mainly on the ground that no offence under
the aforesaid sections are made out even after a bare perusal of the
complaint petition as on the relevant date of inspection, the
restaurant „Mocha‟ was not inaugurated and no business was carried
out and as such the restaurant was not an establishment with the
meaning of definition of section 2 (d) of the said Act of 1979, and
that the petitioner has engaged one contractor, namely, M/s K.R.M.
Interiors Pvt. Ltd. of New Delhi to carry out the interior civil works of
the restaurant „Mocha‟, and the said contractor had employed the
migrant workers, and on that count and also in view of the law laid
down by Hon‟ble Supreme Court in the case of State of Haryana
Vs. Bhajan Lal reported in 1992 Supp (1) SCC 335, specially on
point No.(c), (e) and (g) of the aforesaid decision, the present
complaint is not at all maintainable and therefore, it is contended to
allow this petition.
6. Mr. R. Sharma, the learned Senior Counsel, appearing for the
petitioner, reiterates the grounds mentioned in the petition. Referring
to the notice, which is being enclosed with the additional affidavit as
Annexure-A, dated 30.10.2013, submits that the petitioner is not the
„principal employer‟ as defined in Section 2(g) of the 1979 Act. Mr.
Sharma further submits that the restaurant "Mocha" of the petitioner
was not opened at the relevant time as it has been mentioned in the
notice in no uncertain terms as "to be opened" and on such count,
it is not an establishment as defined in Section 2(d) of the 1979 Act.
Further, referring to the definition of „establishment‟ in Section 2(8) of
the Assam Shops and Establishments Act, 1971, Mr. Sharma submits
that both provisions are pari materia and that „Mocha‟, the restaurant
which was not inaugurated at the relevant time is not an
„establishment‟ and that the learned Court below, in spite of
submission of the petitioner, had failed to appreciate the aforesaid
aspect and dismissed the petition and as such, the impugned order
failed to withstand the legal scrutiny and that the complaint is also
not maintainable in view of the judgment of the Hon‟ble Supreme
Court in the case of Bhajan Lal (supra) and therefore, it is
contended to allow the petition.
7. On the other hand, Mr. Dubey, learned counsel for the
respondent No.2 submits that the „Mocha‟ is a partnership firm and
the petitioner has not enclosed the partnership deed along with his
petition. However, Mr. Dubey has not seriously disputed the
submissions so made by Mr. Sharma, learned Senior counsel for the
petitioner in respect of the definition of „establishment‟ and the
definition of „principal employer‟ as defined in Section 2(1)(d) and
2(1)(g) of the 1979 Act.
8. Having heard the submission of learned Advocates of both
sides, I have carefully gone through the petition and the documents
placed on record and also gone through the case law referred by Mr.
Sharma, learned Senior counsel for the petitioner.
9. Before delving a discussion into the submissions advanced at
the bar, it would be appropriate to understand the meaning of
„establishment‟ and „principal employer‟, as defined in the Act of 1979,
which are reproduced herein below for ready reference:-
"2. Definitions. - (1) In this Act, unless the context otherwise
requires, -
...... ..... ...... .....
(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;
...... ...... ..... .....
(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.
Explanation. - For the purposes of sub-clause (iii) of this
clause, the expression "mine", "owner" and "agent" shall have
the meanings respectively assigned to them in clause (j), clause
(1) and clause (c) of sub-section (1) of section 2 of the Mines
Act, 1952 (35 of 1952);"
10. Thus, a bare perusal of the definition of „establishment‟ it
appears that in order to become an „establishment‟ within the
meaning of definition, it must be place where any industry, trade,
business, manufacture or occupation is carried out. Further, it
appears that in order to become a principal employer, with in the
definition of section 2(g) of the Act of 1979, the person must be
responsible for the supervision and control of the „establishment‟. It is
also to be mentioned here that as per definition of „establishment‟ in
section 2(8) of the Assam Shops And Establishment Act 1979:-
"establishment" means a shop or a commercial establishment or an
establishment for public entertainment or amusement. And as per
section 2(9) of the said Act "establishment for public entertainment or
amusement" means a restaurant, eating house, cafe, cinema, theatre
and such other establishment or class thereof as the State
Government may by notification, declare to be, for the purposes of
this Act, an establishment for public entertainment or amusement,
but does not include a shop or a commercial establishment.
11. Now, adverting to the facts and circumstances herein this case
I find from the complaint as well as from the notice, dated
30.10.2013, (Annexure-A), that the respondent No.2 has visited the
site i.e. Anil Plaza, on 27.08.2023. It also appears from the notice
(Annexure-A) that on that day the restaurant, namely, "Mocha" was
not opened. And this is clear from the word "to be opened" used in
the notice by the respondent No.2. Since the said restaurant, namely,
"Mocha" was not opened on that day and no industry, trade,
business, manufacture or occupation was carried out, and on such
count, said restaurant cannot be termed as an „establishment‟ within
the meaning of the definition of in Section 2(1)(d) of the 1979 Act
and also under Section 2(8) of the Assam Shops and Establishment
Act, 1971. To become an establishment it must be the industry and
trade, business, manufacture or occupation has to be carried out
therein.
12. Further, it appears that the allegations made in the complaint
that the petitioner is the „principal employer‟ and as such, he has not
registered under the aforesaid Act as required by Section 4 of the
1979 Act. But, it appears that the aforesaid restaurant, namely,
"Mocha" is not an „establishment‟ within the meaning of definition in
Section 2(1)(d) of the 1979 Act and as such, the petitioner cannot be
termed as a „principal employer‟ as per definition in Section 2(1)(g) of
the 1979 Act. The petitioner engaged only one firm M/s K.R.M.
Interiors Pvt. Ltd., New Delhi, who had allegedly engaged 9 inter-
state migrant workmen. The petitioner has not engaged them.
13. In view of above, and after perusal of the complaint as well as
the Annexure-A and Annexure-B, it cannot be said that any offence
under Section 4/6 and 25 of the 1979 Act is made out against the
petitioner from a bare perusal of the complaint and accepting the
allegation made therein as correct, and as such, the ratio laid down in
the case of Bhajan Lal (supra), specially the point Nos. (a), (c), (e)
and (g) are squarely applicable here in this case. Mr. R. Sharma,
learned Senior counsel has rightly pointed this Court during
argument. And in the given facts and circumstances, this Court is
inclined to record concurrence with the same. It is to be noted here
that in the case of Bhajan Lal (supra) it has been held by the
Hon‟ble Supreme Court that :-
In the exercise of the extra-ordinary power
under Article 226 or the inherent powers
under Section 482 of the Code of Criminal
Procedure, the following categories of cases are
given by way of illustration wherein such power
could be exercised either to prevent abuse of the
process of any Court or otherwise to secure the ends
of justice, though it may not be possible to lay down
any precise, clearly defined and sufficiently
channelised and inflexible guide- ï7 myriad kinds of
cases wherein such power should be exercised:
(a) where the allegations made in the First Information
Report or the complaint, even if they are taken at
their face value and accepted in their entirety do not
prima facie constitute any offence or make out a
case against the accused;
(b) where the allegations in the First Information
Report and other materials, if any, accompanying
the F.I.R. do not disclose a cognizable offence,
justifying an investigation by police officers
under Section 156(1) of the Code except under an
order of a Magistrate within the purview of Section
155(2) of the Code;
(c) where the uncontroverted allegations made in the
FIR or 'complaint and the evidence collected in
support of the same do not disclose the commission
of any offence and make out a case against the
accused;
(d) where the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-
cognizable offence, no investigation is permitted by
a police officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code;
(e) where the allegations made in the FIR or complaint
are so absurd and inherently improbable on the
basis of which no prudent person can ever reach a
just conclusion that there is sufficient ground for
proceeding against the accused;
(f) where there is an express legal bar engrafted in any
of the provisions of the Code or the concerned Act
(under which a criminal proceeding is instituted) to
the institution and continuance of the proceedings
and/or where there is a specific provision in the
Code or the concerned Act, providing efficacious
redress for the grievance of the aggrieved party;
(g) where a criminal proceeding is manifestly attended
with mala fide and/or where the proceeding is
maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view
to spite him due to private and personal grudge.
14. In the result, I find sufficient merit in this criminal petition and
accordingly the same stands allowed. The proceeding, being C.R.
Case No.4152/2013, under Section 4/6, read with Section 25 of the
1979 Act and the impugned order dated 28.05.2015, passed by the
learned S.D.J.M.(S) No.1, Kamrup(M), Guwahati, in C.R. Case
No.4152/2013, stands set aside and quashed. The parties have to
bear their own costs.
Sd/- Robin Phukan
JUDGE
Comparing Assistant
