Pallav Roy vs State Of Jharkhand
2023 Latest Caselaw 1683 Jhar

                                                    1                   Cr.M.P. No. 136 of 2012


                   IN THE HIGH COURT OF JHARKHAND AT RANCHI
                             Cr.M.P. No. 136 of 2012
                 Pallav Roy                                       ... Petitioner
                                         -Versus-
            1.    State of Jharkhand
            2.    Labour Enforcement Officer (Central), Dhanbad I/c, Bermo, Dhanbad
                                                                 ... Opposite Parties
                                           -----

            CORAM:        HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                                            -----
            For the Petitioner       : Mr. Soumitra Baroi, Advocate
            For the State            : Mr. Vijay Kumar Sinha, A.P.P.
            For the UOI              : Mr. Anil Kumar, A.S.G.I.
                                       Mr. Shiv Kumar Sharma, C.G.C.
                                            -----

10/20.04.2023     Heard Mr. Soumitra Baroi, learned counsel for the petitioner, Mr. Vijay

Kumar Sinha, learned counsel for the State and Mr. Anil Kumar, learned

A.S.G.I. appearing for the Union of India.

2. Mr. Baroi, learned counsel appearing for the petitioner at the outset

submits that this matter was earlier conducted by Mr. Tapash Kabiraj and

this file has been entrusted to him and he will file Vakalatnama on behalf of

the petitioner.

3. Mr. Baroi is a regular practitioner of this Court and in view of his

submission, he is allowed to argue the matter.

4. This petition has been filed for quashing the entire criminal

proceeding of Complaint Case No.01/2008 filed by opposite party no.2

under Section 22-A of the Minimum Wages Act, 1948 against the petitioner

including the order taking cognizance dated 30.01.2008 passed in Complaint

Case No.1/2008, whereby, cognizance has been taken under Section 22-A of

the Minimum Wages Act against the petitioner, pending in the court of the

learned Judicial Magistrate, 1st Class, Bermo at Tenughat in T.R. No.

786/2008.

5. The complaint case was filed alleging therein that the accused person

is the employer as defined under Section 2(e) of the Minimum Wages Act,

1948 and engaged for the work guarding, Horticulture beautification for

DVC, Chandrapura, District- Bokaro, which is a scheduled employment

under the Minimum Wages Act, 1948 and the minimum rates of wages fixed

vide SO No.1520(E) dated 20.10.2005 of Government of India read with

notification order No.1/2(1)/2007-LS-II dated 02.04.2007 of the Chief

Labour Commissioner (Central), New Delhi. It was further alleged that the

complainant- opposite party no.2 is an Inspector under Section 19 of the

Minimum Wages Act, 1948 and Shri D.P. Sahu, Labour Enforcement Officer

(Central), Dhanbad II, Incharge Bermo, who is also an Inspector under

Section 19 of the said Act. It was further alleged that having jurisdiction

over the establishment of the accused persons, the complainant inspected

Pit on 26.09.2007 at 14:00 hours and detected the offences mentioned in

the complaint and served the inspection report-cum-show cause notice

No.26(17)/2007-B dated 04.10.2007 through registered post wherein the

accused persons were asked to comply with the provisions of the Minimum

Wages Act, 1948 and Rules thereunder and report compliance within the

stipulated period direct to the Deputy Chief Labour Commissioner (Central),

Dhanbad endorsing a copy of same to the complainant but the accused

persons failed to comply the directive and hence, the complaint was filed. It

was also alleged that the accused persons contravened the provisions of the

Act and Rules and rendered themselves liable for prosecution.

6. Learned counsel for the petitioner submits that in absence of any

enquiry, the learned court has taken cognizance under Section 22-A of the

Minimum Wages Act, 1948 against the petitioner, which is against the

mandate of law. He further submits that the case has been filed by the

Labour Enforcement Officer (Central), Dhanbad. He also submits that the

matter is arising under Minimum Wages Act and in view of the judgment

passed by the Hon'ble Supreme Court dated 30.08.2001 in SAIL v.

National Union Waterfront Workers and others; [(2001) 7 SCC 1] ,

the appropriate Government in respect of the above establishment would be

the State Government. He also submits that the Labour Enforcement Officer

(Central), Dhanbad is not competent to lodge the complaint against the

petitioner. He submits that the petitioner was the Director of Chandrapura

Thermal Power Station and Bokaro Thermal Power Station of Damodar

Valley Corporation. He further submits that in view of Section 22-C of the

Minimum Wages Act, 1948, the person who is looking day-to-day affairs of

the company can be charged. He submits that there is no averment in the

complaint that the petitioner was looking day-to-day affairs of the company

being the Director of the Chandrapura and Bokaro Thermal Power Station,

Damodar Valley Corporation. On these grounds, he submits that entire

criminal proceeding may be quashed.

7. Learned counsel for opposite party no.2 submits that illegality was

found and that is why the complaint case was filed and the learned court

has taken cognizance, which is in accordance with law. He submits that this

Court may not entertain this petition, at this stage.

8. In view of the above submissions of the learned counsel appearing for

the parties, the Court has gone through the materials on the record and

finds that admittedly the complaint was filed by the Labour Enforcement

Officer (Central), Dhanbad. The documents annexed at Annexures- 2 and 3

of the petition suggest that in view of the judgment passed by the Hon'ble

Supreme Court in SAIL (supra), the State Government would be the

appropriate Government, whereas, the complaint case was filed by the

Labour Enforcement Officer (Central), Dhanbad. The Court finds that in view

of Section 22-C of the Minimum Wages Act, 1948, there is no averment in

the complaint that the petitioner was looking day-to-day affairs of the

company and on this point there are several judgments which are not

required to be quoted here as it is well known and if that averment is not

there, the criminal proceeding will not survive. However, the Court finds that

Section 22-B of the Minimum Wages Act, 1948 speaks of filing the case by

the appropriate Government or an officer authorised by it in this behalf has

sanctioned the making of the complaint. There is no sanction order attached

with the complaint petition. The Court further finds that even the order

taking cognizance is also bad in law as the order date and transferee court

has been filled up in blank space, which suggest that there in non-

application of mind.

9. In view of the above facts, reasons and analysis, the entire criminal

proceeding of Complaint Case No.01/2008 including the order taking

cognizance dated 30.01.2008 passed in Complaint Case No.1/2008, pending

in the court of the learned Judicial Magistrate, 1 st Class, Bermo at Tenughat

in T.R. No. 786/2008 is quashed.

10. Accordingly, this petition is allowed and disposed of.

11. Pending I.A., if any, is disposed of.

12. Interim order, if any granted by this Court, stands vacated.

(Sanjay Kumar Dwivedi, J.) Ajay/