Gujarat High Court

Ashok Kumar Agarwal vs State Of Gujarat on 11 August, 2023

Bench: Sandeep N. Bhatt

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      R/CR.MA/3510/2021                               ORDER DATED: 11/08/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 3510 of 2021

                                  With
               R/CRIMINAL MISC.APPLICATION NO. 3511 of 2021
                                  With
               R/CRIMINAL MISC.APPLICATION NO. 3513 of 2021
==========================================================
                               ASHOK KUMAR AGARWAL
                                       Versus
                                 STATE OF GUJARAT
==========================================================
Appearance:
MR YOGI K GADHIA(5913) for the Applicant(s) No. 1
MR. SOAHAM JOSHI, APP for the Respondent(s) No. 1
RULE NOT RECD BACK for the Respondent(s) No. 2
==========================================================

 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                 Date : 11/08/2023
                               COMMON ORAL ORDER

1. Since the issues involved in the present applications

are identical in nature, Criminal Misc. Application

No.3510 of 2021 is considered as leading matter and all

the applications are decided together.

2. The present application is filed for seeking following

main reliefs:-

"(A) This Hon'ble court may be pleased to admit and

allow the present application.

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(B) This Hon'ble Court may be pleased to quash the

impugned complaint being the Criminal Case no.

340/2019 dtd. 16/09/2019 filed by the respondent no. 2

before the Judicial Magistrate First Class and Judge

Labour Court, Valsad, for the offences punishable under

Rule 26(A), 26(D) and 26(2) of the Minimum Wages

(Gujarat) Rules.

(C) This Hon'ble Court may kindly be pleased to stay

the proceedings of Criminal Case no. 340/2019 dtd.

16/09/2019 filed by the respondent no. 2 before the

Judicial Magistrate First Class and Judge Labour

Court, Valsad, for the offences punishable under Rule

26(A), 26(D) and 26(2) of the Minimum Wages

(Gujarat) Rules pending hearing till final disposal of

the present petition.

(D) This Hon'ble Court may be pleased to grant ad-

interim relief in terms of the above mentioned clause.

(E) This Hon'ble Court may be pleased to grant such

other and further relief as the nature and

circumstances of the present case may require in the

interest of justice."

3.1 Brief facts as per the case of the applicant in this

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application, i.e., Criminal Misc. Application No.3510 of

2021 are as such that the the applicant herein seeks

quashing of Criminal Case No. 340/2019 filed by the

Respondent No. 2 Govt. Labour Officer under Sec. 26(A),

26(D) & 26(2) of Minimum Wages Rules alleging that

the applicant have committed offences of the said Act. It

is further the case of the applicant in this application

are as such that the respondent no.2 Govt. labour Officer

had visited the establishment on 19.07.2019 and gave

inspection note under the Minimum Wages Act regarding

various alleged violations under the minimum Wages

Gujarat Rules. As is apparent from the complaint, the

Accused No.1 did not comply with the same and hence

the criminal case came to be lodged against the applicant being accused no. 2. Thereafter, the

complainant has lodged 3 different complaints

enumerating different offenses in different complaints

from the inspection report dtd. 19.07.2019.

3.2 It is further the case of the applicant in this

application that the applicant had resigned from the

company as a Director on 01/04/2017. Necessary

communications were sent to the office of the Dy.

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Director of Industrial Safety and Health, Labour

Commissioner etc. at the relevant time. But due to

change in management, the same could not be updated

with the Registrar of Companies. Then again the

applicant resigned again from the company vide letter

dtd; - 04/09/2018 which was allowed by the Board of

Directors passed vide resolution on 13/09/2018. It is

further the case of the applicant in this application that

the applicant was not in charge of day to day affairs of

the company or even a Director at the time of inspection

dtd: - 19/07/2019. He had officially resigned on

04/09/2018. Even otherwise considering the averments of

the complaint on their face value and accepted in

entirety do not constitute the offence as alleged. Hence, as per the Law laid down by the Apex Court in case of

State of Haryana vs. Bhajanlal, the present is a fit case

for invoking the inherent powers of the Hon'ble Court as

the complaint lacks in all material particulars.

3.3 It is further the case of the applicant in this

application that the applicant herein has resigned from

the post of Director on 04.09.2018 which was accepted on

13.09.2018. Hence, the applicant was not a Director of

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the Company and not looking after day to activities nor

was in charge of such affairs related to affairs of the

company. Yet he is shown as Accused in the impugned

complaint. Hence the present application is preferred.

4. Heard learned advocate Mr. Yogi K. Gadhia for the

applicant and Mr Soaham Joshi, learned Additional

Public Prosecutor (APP) for the respondent No.1 - State.

5.1 Learned advocate Mr. Yogi K. Gadhia for the

applicant has submitted that though there is material

available on the record, which indicates that the

applicant, being a director of the company against whom

the complaint is filed, has resigned much prior to filing of the impugned F.I.R., which filed on 16.9.2019

pursuant to the inspection dated 19.7.2019, He has

submitted that applicant has resigned himself as director

on 4.9.2018, and the same was reported to the Ministry

of Corporate Affairs, as such resignation under Section

168 of the Companies (Incorporation) Rules, 2014 is

required to be recorded with the concerned Ministry.

Furthermore, he has drawn my attention towards the

receipt issued by the company about the receipt of the

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resignation letter and also resolution passed by the

company to the effect that Ashok Kumar Agarwal has

resigned as a director w.e.f. 4.9.2018.

5.2 Thereafter, he has placed reliance upon the

judgments of this Court in the case of Kanubhai

Chunibhai Patel versus State of Gujarat and Others

reported in 2016 II CLR 172 as well as judgment of the

Madras High Court in the case of Parag M. Munot

versus State and Another reported in 2020 LLR 993, and

the judgment of Jharkhand High Court in the case of

Rakesh Dixit @ Ajay Kumar Dixit @ Ajay Dixit versus

State of Jharkhand and Anr. reported in 2019 LLR 1117.

5.3 He has also submitted that looking to the

averments made in the complaint, there is no whisper

about the fact that how the applicant is responsible for

day to day work of the company. Therefore, he has

submitted that since the applicant has already resigned

as director, the complaint filed under the provisions of

Rule 26(A), 26(D) and 26(2) of the Minimum Wages

(Gujarat) Rules, 1961 is erroneous and continuation of

such proceeding would amount to abuse of process of

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law, resultantly, harassment to the applicant and

therefore, in view of the judgment of the Hon'ble

Supreme Court in the case of State of Haryana V/s

Bhajan Lal reported in AIR 1992 SC 604, and other

judgments, this Court should exercise the powers under

Section 482 of the Criminal Procedure Code, 1973 to

prevent the abuse of process of law.

6. Conversely, Mr Soaham Joshi, learned Additional

Public Prosecutor (APP) for the respondent No.1 - State

has submitted that prima facie, complaint is lodged

against the company as well as the applicant as the

applicant was holding the post of director. He has

further submitted that from bare reading of tenor of the impugned complaint, prima facie, case is made out

against the applicant herein and therefore, this Court

should not exercise the inherent discretion at this stage

by relegating the applicant to face the proceeding of trial

as essentially the grievance raised in the present

application is required further adjudication at the time of

trial. Therefore, he prays to dismiss this application as

no case is made out to exercise the powers under

Section 482 of the Criminal Procedure Code, which

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should be exercised very sparingly.

7.1 I have heard the learned advocates for the

respective parties. I have considered the prayers made in

the present application. On bare reading of the complaint

filed under the provisions of Rule 26(A), 26(D) and 26(2)

of the Minimum Wages (Gujarat) Rules, prima facie, it is

revealed that except mentioning the present applicant as

director of the company no averment is made against the

present applicant, which remotely connects the present

applicant in the allegedly commenced F.I.R. Additionally,

it also becomes evident that the applicant has resigned

from accused No.1 - company much prior to the filing of

the complaint in the month of September, 2018 and the complaint is filed on 16.9.2019 and even inspection which

is carried out on 19.7.2019. Therefore, all the incident

inspection and pursuant to that complaint are happened

subsequent to the resignation of the applicant. Hence,

the applicant cannot be connected in the offence allegedly

committed by the company under the provisions of Rule

26(A), 26(D) and 26(2) of the Minimum Wages (Gujarat)

Rules, which creates great hardship to the applicant.

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7.2 It is required to refer the provisions of Section 22(c)

and Rule 26(A), 26(D) and 26(2) of the Minimum Wages

(Gujarat) Rules, as under:

"Section 22C in The Minimum Wages Act, 1948:-

22C Offences by companies.

(1) If the person committing any offence under this Act

is a company, every person who at the time the offence

was committed, was incharge of, and was responsible

to, the company for the conduct of the business of the

company as well as the company shall be deemed to be

guilty of the offence and shall be liable to be proceeded

against and punished accordingly: Provided that nothing

contained in this sub-section shall render any such

person liable to any punishment provided in this Act if

he proves that the offence was committed without his

knowledge or that he exercised all due diligence to

prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section

(1), where any offence under this Act has been

committed by a company and it is proved that the

offence has been committed with the consent or

connivance of, or is attributable to any neglect on the

part of, any director, manager, secretary or other officer

of the company, such director, manager, secretary or

other officer of the company shall also be deemed to be

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guilty of that offence and shall be liable to be

proceeded against and punished accordingly.

Explanation. For the purposes of this section,

(a) "company" means any body corporate and includes a

firm or other association of individuals; and

(b) "director" in relation to a firm means a partner in

the firm.] State Amendments

Section 22CC Madhya Pradesh. After section 22C, add

the following section, namely: 22CC. Liability of

principals in certain cases.

(1) Subject to the provisions of sub-section

(2), where in any scheduled employment in respect of

which minimum rate of wages have been fixed under

this Act, any person (hereinafter in this section referred

to as principal) contracts with any other person

(hereinafter in this section referred to as contractor) for

having any goods made for sale for the purposes of the

trade or business of the principal either wholly or

partly out of materials supplied to the contractor by

the principal, then, notwithstanding that the employees

for making such goods are employed by the contractor,

the principal shall also in addition to the contractor be

deemed for all purposes of this Act to be the employer

in relation to the employees:

Provided that where by virtue of the provision of sub-

section

(1), a principal is convicted of an offence punishable

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under section 22, he shall be punishable only with fine

as provided for in that section.

(2) The provisions of this section shall apply only to

such scheduled employments as the State Government

may, by notification, specify in this behalf.'' [ Vide

Madhya Pradesh Act 11 of 1959, sec. 2 (w.e.f. 12-6-

1959 ) as amended by Madhya Pradesh Act 23 of 1961,

sec. 21(b) (w.e.f. 23-6-1961 ).]

Manipur After section 22C, insert the following section,

namely:22CC. Compounding of offences. An officer

specially empowered by the State Government in this

behalf by notification in the Official Gazette may,

subject to any general or special order of the State

Government in this behalf, compound any offence

punishable under this Act with fine only committed for

the first time, either before or after the institution of

the prosecution, on realization of such amount of

composition fee as he thinks fit, not exceeding the

maximum amount of fine fixed for the offence, and

where the offence is so compounded

(i) before the institution of the prosecution, the offender

shall not be liable to prosecution for such offence and

shall, if in custody, be set at liberty;

(ii) after the institution of the prosecution, the

composition shall amount to acquittal of the offender.

Vide Manipur Act 5 of 1993, sec. 2.] Uttar Pradesh.

After section 22C, insert the following section, namely:

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22CC. Compounding of offences. An officer specially

empowered by the State Government in this behalf by

notification may, subject to any general or special order

of the State Government in this behalf, compound any

offence punishable under this Act with fine only

committed for the first time, either before or after the

institution of the prosecution, on realisation of such

amount of composition fee as he thinks fit, not

exceeding the maximum amount of fine fixed for the

offence; and where the offence is so compounded

(i) before the institution of the prosecution, the offender

shall not be liable to prosecution for such offence and

shall, if in custody, be set at liberty;

(ii) after the institution of the prosecution, the

composition shall amount to acquittal of the offender.

26A. Maintenance of Inspection Book :-

Every employer shall maintain a bound Inspection Book

and shall produce it when so required by the Inspector.

26D. Powers of revenue officers appointed as Inspectors :-

The registers and records prescribed under sub-rule (2)

of rule 25 and sub-rule (1) and (5) of rule 26 shall be

preserved for a period of three years after the last

entry is made therein and shall be produced when so

required by Inspector.

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26(2) [Provided that the Muster Roll may not be

maintained by an employer who maintains a like roll

under the Factories Act, 1948.

(a) Notwithstanding anything contained in this rule, the

employer shall in the case of employment in Agriculture

(i) issue wage slip in Form V-C for daily or non-yearly-

rated workers in lieu of wage slip referred to in sub-

rule (2),

(ii) maintain a combined register of wages and wage

slip in form VB for yearly-rated workers in lieu of the

combined Register of wages and Muster Roll and wage

slip referred to in sub-rules (1) and (5) and sub-rule (2)

respectively.

(b) The wage slip for daily or non-yearly-rated workers

and the combined Register of wages and wage slip for

yearly rated workers shall be maintained by the

employer in Gujarati language in duplicate and one

copy shall be given to the employee. The employer shall

preserve this record for three years.

for yearlyrated workers shall be made on each occasion

in presence of the employed person by the employer or

any person authorised by him in that behalf and the

employer shall produce it whenever required for this

purpose.

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(d) If the employed person loses his copy of combined

payment of twenty five paise, provide him within a

week, with another copy duly completed from his

record; 3 [Provided that in the employment in

agriculture, the employer shall not be required to

maintain the inspection book, but the Inspector shall

maintain such inspection book, and shall give a copy of

his inspection note to the employer at the time of

inspection."

7.3 It is required to refer the judgment of this Court in

the case of Kanubhai Chunibhai Patel (supra), more

specifically, paragraphs 3 and 6 are relevant, as under:

"3. Five private complaints came to be lodged by the

respondent No.3 for contravention of the provisions of

Rules 24(2), 22 and 21(4) of the Minimum Wages

Rules, 1961. The principal argument of the learned

counsel appearing for the petitioner is that the

petitioner was the Chairman of the Bank for a limited

period. He was an honorary Chairman and was not

drawing any salary for the duties performed by him.

The learned counsel would submit that his client was

not in charge and responsible for the day to day

affairs of the Bank. He would submit that there is not

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a whisper of any such averment in the complaint. He

would submit that his client would not fall within the

definition of the term "employer" as defined in section

2(e) of the Minimum Wages Act.

6. Having heard the learned counsel appearing for the

parties and having considered the materials on record,

the only question that falls for my consideration is

whether the criminal cases should be quashed. The

learned counsel appearing for the petitioner invited my

attention to a judgment and order passed by a learned

Single Judge of this Court in Criminal Misc.

Application No.668 of 2010 and an allied matter

decided on 9th June, 2015. He pointed out that

identical complaints were lodged against the Bank and

the petitioner herein with the only difference that in

those cases, the contravention was in the provisions of

the Payment of Gratuity Act. He submitted that the

provisions of the Payment of Gratuity Act are more or

less pari-materia with the provisions of the Minimum

Wages Act. He pointed out that the learned Single

Judge has recorded specific findings as regards the

role, function and position of the petitioner herein. I

have gone through the judgment and order. The

judgment reads as under;

"The present petition under Section 482 of the

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Code of Criminal Procedure, 1973 (the Code,

for short) is filed by the petitioner for the

following prayers:

6. On the grounds submitted above and others

that may be urged at the time of hearing of

this application Your Lordships may be pleased

to:

(A) To quash and set aside the complaint and

the proceedings of Criminal Case No.944 of

2009 pending in the Court of the learned

Judicial Magistrate, First Class, Talod qua the

petitioner;

(B) To stay the further proceedings of Criminal

Case No.944 of 2009 pending in the Court the

earned Judicial Magistrate, First Class, Talod

qua the petitioner pending the adminssion,

hearing and final disposal of this petition;

found just and necessary in this case.

2 The brief facts giving rise to the present

petition are that the petitioner was the

honorary Chairman of Talod Janta Sahkari

Bank Limited, Talod, District Sabarkantha. The

Labour Officer and Payment of Gratuity

Inspector visited the Bank on 27th December

2000. At that time, the Manager of the bank,

Narendrabhai S Mistri was present. Thereafter,

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a notice for breach of the provisions of the

Payment of Gratuity Act, 1972 (the Gratuity

Act, for short) came to be issued to the

petitioner and ultimately a Criminal Case was

filed against the Bank - Talod Janta Sahkari

Bank Limited, Talod being the first accused

and the present petitioner being the second

accused in the court of the learned Chief

Judicial Magistrate, Himatnagar by Respondent

No.2 for various violations of the provisions of

the Gratuity Act. The complaint was registered

as Criminal Case No.944 of 2009 and summons

came to be issued against the petitioner. The

petitioner moved an application dated 10th July

2003 to drop the proceedings against him,

which came to be rejected by the learned Chief

Judicial Magistrate, Himatnagar by his order

dated 27th October 2009. Therefore, the

petitioner has preferred the present petition for

quashing the complaint.

3 I have heard Mr Nitin M Amin, learned

advocate for the petitioner and Ms Mehta,

learned APP for Respondents Nos.1 and 2.

4 Mr Amin, learned advocate for the petitioner

has vehemently submitted that the petitioner

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was only an honorary Chairman of the Bank

for limited period and it is his further

contention that the petitioner was rendering

gratis services as an honorary Chairman of the

Bank and was not drawing the salary for the

duties performed by him. He would also

contend that the petitioner was not in-charge

and was not responsible day-today affairs of

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the Bank and used to attend the meeting of

the Bank as and when he was invited. Mr

Amin, learned advocate for the petitioner has

relied upon the provisions of sub- clause (iii) of

clause (f) of Section 2 of the Gratuity Act.

Clause (f) defines term employer and sub-clause

(iii) of Clause (f) is relevant for the purpose of

this case and the same is extracted

hereinbelow:

2. Definitions. -- In this Act, unless the context

otherwise requires -

           (f)         employer                means,             in        relation

           to         any establishment,                                    factory,

           mine,              oilfield,    plantation,           port,      railway

           company or shop

(i) xxx (ii) xxx (iii) in any other case, the

person, who, or the authority which, has the

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ultimate control over the affairs of the

establishment, factory, mine, oilfield, plantation,

port, railway company or shop, and where the

said affairs are entrusted to any other person,

whether called a manager, managing director

or by any other name, such person;

5 Relying upon the above definition of the

employer, Mr Amin has submitted that the

petitioner would not fall within the definition

of term employer and therefore the petitioner

cannot be held responsible under Section 9(2)

of the Gratuity Act for he violation of the

provisions of the Gratuity Act. Mr Amin has

further contended that the provisions of this

Section are mandatory in nature and

Respondent No.2 is not supplied with the list

of witnesses along with the complaint and

therefore in absence of such list of witnesses

the learned Magistrate ought not to have

issued the process against the present

petitioner. In support of this contention, he has

relied upon the following decisions:

1. Saroj Kumar Poddar v. State (NCT of Delhi)

& Anr. 2007(2) SCALE 36.

2. Padamsingh Bhakhatawarlal Soni & Ors. v.

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Chandrakala Padamsingh Soni, 1984 GLT 171.

6 On the other hand, Ms Mehta, learned APP

has submitted that the application submitted

by the petitioner for dropping him from the

proceedings was rejected by the learned trial

Magistrate. It is her further contention that

the plea is also recorded and therefore the

present petition cannot be entertained. It is her

further contention that the petitioner being the

Chairman of the Bank alone was responsible

for the day-today affairs of the Bank and

therefore the petitioner would squarely fall

within the definition of Section 2(f)(iii) of the

Gratuity Act and hence when the petitioner is

not in a position to show that he was not

responsible for day- today affairs of the Bank,

the same cannot be accepted and therefore she

has urged that the petition may be dismissed.

7. The provisions of Section 2(f)(iii) make it

manifestly clear that the employer in relation

to any establishment would mean a person who

has ultimate control over the affairs of the

establishment or a person who is entrusted

with the said affairs. The criminal proceedings

under the Gratuity Act can be lodged under

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Section 9(2) of the Gratuity Act against an

employer who contravenes or makes default in

complying with any of the provisions of the

Gratuity Act. Therefore, the moot question that

is involved in this petition is whether the

petitioner being an honorary Chairman of the

Bank would come within the sweep of Section

2(f)(iii) so as to bring him within the definition

of employer and thereby make him liable for

punishment under Section 9(2) of the Gratuity

Act. The petitioner has come with a specific

case that he was giving gratis services as the

Chairman of the Bank and was in no way

associated with the day-today affairs and

management of the Bank. The complaint filed

by Respondent No.2 against the Bank and

present Respondent No.2 nowhere states that

the petitioner was involved in the day-today

affairs of the Bank and therefore he was

covered under the definition of the employer.

8. The Supreme Court in the case of

Sarojkumar (supra), which is relied upon by

the learned counsel for the petitioner, has held

that when there is no averment in the

complaint that in what manner the accused

was responsible for the conduct of the business

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of the company or otherwise the responsibility

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cannot be arraigned as an accused. Here, in

the present case also there is no whisper in

the impugned complaint as to in what manner

the appellant was involved or responsible for

the day-today functioning of the Bank and

therefore, in my opinion, he cannot be held

responsible for the alleged breach of the

Gratuity Act. Even otherwise, as submitted by

the learned advocate for the petitioner, the

alleged violations of the Gratuity Act are in

respect of the period when the petitioner was

not honorary Chairman of the Bank and

therefore also, in my view, criminal liability for

the breach of the Gratuity Act cannot be

foisted on him.

9. Section 204 of the Criminal Procedure Code,

1973 reads as under:

204. Issue of process. (1) If in the opinion of a

Magistrate taking cognizance of an offence

there is sufficient ground for proceeding, and

the case appears to be-

(a) a summons-case, he shall issue his

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summons for the attendance of the accused, or

(b) a warrant-case, he may issue a warrant, or,

if he thinks fit, a summons, for causing the

accused to be brought or to appear at a

certain time before such Magistrate or (if he

has no jurisdiction himself) some other

Magistrate having jurisdiction.

2. No summons or warrant shall be issued

against the accused under sub-section (1) until

a list of the prosecution witnesses has been

filed.

3. In a proceeding instituted upon a complaint

made in writing every summons or warrant

issued under sub-section (1) shall be

accompanied by a copy of such complaint.

4. When by any law for the time being in

force any process-fees or other fees are payable,

no process shall be issued until the fees are

paid and, if such fees are not paid within a

reasonable time, the Magistrate may dismiss

the complaint.

5. Nothing in this section shall be deemed to

affect the provisions of Section 87.

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The bare reading of the above provisions

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ORDER explicitly clear that before issuing the

process the Magistrate should verify as to

whether the complainant has supplied the list

of witnesses whom he proposes to examine in

support of the complaint. Learned counsel for

the petitioner has relied upon the decision in

the case of Padamsingh Bhakhatawarlal Soni &

Ors (supra), it is held as under:

It is stated in the complaint that all accused

were present at the time of marriage but it is

not mentioned as to who else was present at

the time of the said marriage. In fact, in para

8 of the complaint it is stated by the

complainant that she craves leave of Hon'ble

Court to produce documentary and other

evidence and to adduce oral evidence by

examining witnesses in support of this case.

This clearly shows that a complainant has

neither filed, a list of prosecution witnesses nor

made a mention of any of witnesses in the

complainant. In view of this, the learned

Metropolitan Magistrate was clearly in error in

issuing process. It is clear that the process

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issued by the learned Metropolitan Magistrate

requires to be quashed.

10. Thus, it is clear from the bare reading of

Section 204 of the Code and above cited

judgment of this Court that the provisions of

Section 204 of the Code are mandatory. In the

instant case, the Respondent No.2 has not

stated in the impugned complaint that he does

not propose to examine witness or witnesses in

support of the impugned complaint. In the

backdrop of these facts, the learned Magistrate

could not have issued the process in absence of

list of witnesses being supplied by Respondent

No.2 and therefore the process issued against

the petitioner deserves to be quashed and set

aside.

11. In the premises aforesaid, the order dated

27th October 2009 passed by the learned Chief

Judicial Magistrate, Himatnagar passed below

application Exhibit 8 for dropping the

proceedings against the petitioner as well as

the complaint and the proceedings of Criminal

Case No.944 of 2009 pending in the Court of

the learned Judicial Magistrate, First Class,

Talod qua the petitioner are quashed and set

aside."

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7.4 Hence, considering the above settled position of law

and considering the fact that this Court has also

considered the judgment in case of the Narendrabhai

Balvantrai Vashi reported in Criminal Misc. Application

No.16704 of 2019 dated 5.7.2023, of course, under the

provisions of another statues, which is under the

Factories Act but principles are broadly remain same in

both the statues for considering the provisions of statues.

Paragraphs 7 and 8 of that judgment is relevant, as

under:

"7. I have considered the rival submissions made at

the bar. It is relevant to note that the present

application is filed by the Narendra Balvantrai Vashi,

who is at the relevant point of time shown as Director

of the Valsad District Co-operative Milk Federation.

The said Valsad District Co-operative Milk Federation

is a society engaging in the activity of procuring,

processing and distribution of milk and milk products

procured through its members and is doing the same

for almost 47 years now since its inception. There has

been no untoward incident or accident or any

complaint by any authority under the Labour Law

against the society or its officials except for the

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present complaint. The respondent no.2 had visited the

factory premises of the society on 18.12.2018 alongwith

the Joint Director, Director of Industrial Safety and

Health and had given a visit note for the same

interalia making various observations. The alleged issue

in question for which the criminal complaint is filed

was observed at Sr. No.4 in the inspection note. As

per the same, the society had employed more than 500

workers and yet Welfare Officer was not appointed by

the society and therefore, it is fount that breach of

Section-49 of the Factories Act. It also transpires from

the record that the present applicant has filed detailed

reply alongwith the annexures to the said inspection

note on 16.01.2019, whereby, the applicant has

informed that the Welfare Officer is already appointed

and appointment letter is also annexed with the reply.

That reply seems to be received by the office of the

respondent no.2 on 18.01.2019, thereafter, without any

further communication or intimation or show-cause

notice, straight-way the proposal for criminal

prosecution has filed on 26.02.2019, even after

observation made at the time of visit regarding the

Section-49 is applied much earlier by 16.01.2019 by the

society. Therefore, it transpires that primafacie the

proceedings initiated pursuant to the alleged breach of

Section-49 and for the offence under Section-92 of the

Factories Act is prima-facie initiated on perception and

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without considering the materials available on record at

the relevant point of time, otherwise also, without

giving proper opportunity to the applicant, the

respondent should not have initiated such criminal

proceedings for the alleged breach. It transpires that

the allegations made in the complaint does not

discloses any offence as alleged as the allegation is

mainly on the ground that the Welfare Officer is not

appointed, however, on perusal of the complaint, it

appears that the authority has not considered the reply

filed by the applicant where it is specifically mentioned

that the Welfare Officer is appointed and the order is

annexed with the reply. Therefore, at the time of

complaint, it cannot be said that there is breach of

Section49 as there is no cause to file such complaint.

It is also required to be noted that on examining the

complaint, it is alleged that the applicant has

committed breach of Section-49 of the Act, however, the

same is totally silent on the reply filed by the society

and the compliance thereof. Therefore, the said FIR is

totally lacking to show how and when the offence

alleged is constituted. Therefore, prima-facie, it is found

that no case is made out to attract the provisions of

Section-92 of the Factories Act. Therefore, considering

this aspect, as well as also considering the material

available on record, it transpires that the State

Government has given direction on 12.02.2016 to the

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Society whether the applicant is one of the Board of

Director. Regarding the position about the same, the

amendment is carried out for recruitment, as per

section-76 of the amended act of Gujarat Co-operative

Societies Act and therefore, no appointment cane be

made and in view of that, it cannot be said that the

society has not deliberately complied with the necessary

requirement of Section-49 of the Factories Act at the

relevant point of time prior to visit of the respondent

no.2. It is also transpires that the Managing Director

of the Society i.e. present applicant shown as an

accused in the criminal complaint and from the

complaint, it is found that there is whisper of anything

about the applicant being In-charge and responsible for

day-to-day affairs of the factory in the entire complaint.

Therefore, it is necessary to reproduced Section-49 and

92 of the Factories Act as under:-

49. Welfare officers.--

(1) In every factory wherein five hundred or more

workers are ordinarily employed the occupier

shall employ in the factory such number of

welfare officers as may be prescribed.

(2) The State Government may prescribe the

duties, qualifications and conditions of service of

officers employed under sub-section (1). 92.

General penalty for offences.--Save as is

otherwise expressly provided in this Act and

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subject to the provisions of section 93, if in, or

in respect of, any factory there is any

contravention of any of the provisions of this Act

or of any rules made thereunder or of any order

in writing given thereunder, the occupier and

manager of the factory shall each be guilty of an

offence and punishable with imprisonment for a

term which may extend to 1 [two years] or with

fine which may extend to 2 [one lakh rupees] or

with both, and if the contravention is continued

after conviction, with a further fine which may

extend to 3 [one thousand rupees] for each day

on which the contravention is so continued: 4

[Provided that where contravention of any of the

provisions of Chapter IV or any rule made

thereunder or under section 87 has resulted in

an accident causing death or serious bodily

injury, the fine shall not be less than 5 [twenty-

ive thousand rupees] in the case of an accident

causing death, and 6[five thousand rupees] in the

case of an accident causing serious bodily injury.

Explanation.--In this section and in section 94

"serious bodily injury" means an injury

whichinvolves, or in all probability will involve,

the permanent loss of the use of, or permanent

injury to, any limb or the permanent loss of, or

injury to, sight or hearing, or the fracture of any

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bone, but shall not include, the fracture of bone

or joint (not being fracture of more than one

bone or joint) of any phalanges of the hand or

foot.]

8. Considering the one more aspect coming to the

notice of the Court that while issuing process pursuant

to the proposal of the respondent no.2 to the learned

Labour Court, Navsari, straight-way the order is passed

to register the criminal case and further directed to

process for the breach of Section-49 and 92 of the

Factories Act without recording any statement or

without recording any prima-facie reason for issuance of

process that is also not permissible in view of the

provision under Section-204 of the Cr.P.C., which reads

as under:-

204. Issue of process.

(1) If in the opinion of a Magistrate taking

ognizance of an offence there is sufficient ground

for proceeding, and the case appears to be- a) a

summons- case, he shall issue his summons for

the attendance of the accused, or (b) a warrant-

case, he may issue a warrant, or, if he thinks

fit, a summons, for causing the accused to be

brought or to appear at a certain time before

such Magistrate or (if he has no jurisdiction

himself) some other Magistrate having

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jurisdiction.

(2) No summons or warrant shall be issued

against the accused under sub-section (1) until a

list of the prosecution witnesses has been filed.

(3) In a proceeding instituted upon a complaint

made in writing every summons or warrant

issued under sub- section (1) shall be

accompanied by a copy of such complaint.

(4) When by any law for the time being in force

any process- fees or other fees are payable, no

process shall be issued until the fees are paid

and, if such fees are not paid within a

reasonable time, the Magistrate may dismiss the

complaint.

(5) Nothing in this section shall be deemed to

affect the provisions of section 87."

7.5 Further, it will also be fruitful to mention the

judgment of the Hon'ble Supreme Court in the case of

State of Haryana V/s Bhajan Lal reported in AIR 1992

SC 604, wherein the Hon'ble Supreme Court has

observed thus -

"In the backdrop of the interpretation of the

various relevant provisions of the Code under

Ch.XIV and of the principles of law

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enunciated by this court in a series of

decisions relating to the exercise of the

extraordinary power under Art.226 or the

inherent powers under sec.482 of the Code

which we have extracted and reproduced

above, we give the following categories of

cases 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 guidelines or rigid

formulae and to give an exhaustive list of

myriad kinds of cases wherein such power

should be exercised.

(1) 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.

(2) Where the allegations in the first

information report and other materials, if

any, accompanying the FIR do not disclose a

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cognizable offence, justifying an investigation

by police officers under sec.156(1) of the Code

except under an order of a Magistrate within

the purview of sec.155(2) of the Code.




                    (3)     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.

(4) 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

sec.156(2) of the Code.

(5) 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.

(6) Where there is an express legal bar

engrafted in any of the provisions of the

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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.

(7) 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."

7.6 It is also relevant to refer to the judgment of the

Hon'ble Apex Court in the case of Inder Mohan Goswami

and Another versus State of Uttaranchal reported in

(2007) 12 SCC 1, more particularly para : 23 & 24

thereof, which read as under :

"23. This Court in a number of cases has

laid down the scope and ambit of courts'

powers under Sec. 482 CrPC. Every High

Court has inherent power to act ex debito

justitiae to do real and substantial justice, for

the administration of which alone it exists, or

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to prevent abuse of the process of the court.

Inherent power under Sec. 482 CrPC can be

exercised:

[(i) to give effect to an order under

the Code;]

[(ii) to prevent abuse of the process of

court, and]

[(iii) to otherwise secure the ends of

justice.]

24. Inherent powers under Sec. 482 CrPC

though wide have to be exercised sparingly,

carefully and with great caution and only

when such exercise is justified by the tests

specifically laid down in this section itself'.

Authority of the court exists for the

advancement of justice. If any abuse of the

process leading to injustice is brought to the

notice of the court, then the court would be

justified in preventing injustice by invoking

inherent powers in absence of specific

provisions in the statute. Discussion of

decided cases."

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7.7 In view of the above, this is fit case to exercise my

power under Section 482 of the Criminal Procedure Code,

1973 to prevent to abuse of process of law.

8. Accordingly, all the captions applications are allowed

qua the present applicant herein.

9. The impugned complaint being the Criminal Case No.

340 of 2019 dtd. 16.09.2019 filed by the respondent No.2

before the Judicial Magistrate First Class and Judge

Labour Court, Valsad, for the offences punishable under

Rule 26(A), 26(D) and 26(2) of the Minimum Wages

(Gujarat) Rules is hereby quashed and set aside qua the

present applicant herein in Criminal Misc. Application No.3510 of 2021.

10. The impugned complaint being the Criminal Case

no. 338 of 2019 dtd. 16.09.2019 filed by the respondent

no.2 before the Judicial Magistrate First Class and Judge