Madhya Pradesh High Court

Rajiv Lochan Soni Through ... vs Inspector Under Payment Of Wages ... on 25 February, 2021

Author: Vivek Rusia

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                                                     M.Cr.C. No.25490/2017




     HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
        (SINGLE BENCH : HON. Mr. JUSTICE VIVEK RUSIA)

                     M.Cr.C. No. 25490 of 2017
(Rajiv Lochan Soni S/o. Janak Raj Soni. V/s. Inspector under Payment
                           of Wages Act.)

Date : 25.02.2021 :
            Applicant by Shri Prateek Patwardhan, Advocates.
            Respondent/State by Shri Valmik Sakargayen, Govt.
                  Advocate.
            Heard the learned counsel for the parties.
                              ORDER

The applicant has filed the present petition u/s. 482 of the Cr.P.C. seeking quashment of the proceedings of Case No.25632/2011 initiated by the respondent under the provisions of Payment of Wages Act, 1936 (hereinafter referred to as "the Act of 1936" for short).

2. Brief facts of the case are as under :

The applicant is a Director of the company viz. M/s. Metalman Industries Ltd has an Industrial unit at 17-19, Sector-B, Sanwer Road, Industrial Area, Indore under the provisions of Section 2(m)(i) of the Factories Act, 1948. The company is engaged in the manufacturing of steel pipes tubes and sheet.

The Inspector under the Act of 1936 carried out a surprise inspection 15.10.2011 and directed the applicant to produce the register for salary & wages for the month of August and September, 2011. After inspection and taking the statement of the workmen/employees, it was found that the wages for the July, 2011 to October, 2011 were not paid . Despite directions u/s. 14(4)

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M.Cr.C. No.25490/2017

(d) of the Act of 1936, balance-sheet and Accounts were not produced before the Inspector up to 28.10.2011, therefore, such an act is punishable u/s. 20 of the Act of 1936. Accordingly, Mukesh Jain, Inspector under the Act of 1936 submitted a complaint u/s. 21 of the Act of 1936 before the Judicial Magistrate, First Class, Indore on 28.11.2011. Along with the complaint, Inspector has filed as many as 31 documents and list of three witnesses. After receipt of the complaint summon was issued to the present applicant In presence of the applicant ld authority has framed the following charges against the applicant :

1- vkids }kjk dkj[kkus esa fu;ksftr Jehdks dk ekg tqykbZ 2011 ls ekg vDVwEcj 2011 rd ds osru ds Hkqxrku esa foyEc fd;k vkSj ekg vDVwEcj &2011 dk osru dk Jehdksa dks Hkqxrku ugh fd;kA 2- vkids dkj[kkuk fujh{k.k }kjk fnukad [email protected]@2011 dks fd, x, fujh{k.k ds nkSjku osru Hkqxrku vf/kfu;e 1936 dh /kkjk&14¼4½¼Mh½ ds vUrxZr okafNr [email protected];[email protected]= izLrqr djus ds fn, x, funsZ'kksa ds ikyu esa okafNr izi= daiuh dh o"kZ&2009 ls 2011 rd dh csysUl 'khV ,oa vU; izi= fofgr le; esa izLrqr ugh fd;kA"

3. The applicant has filed the present petition challenging the aforesaid prosecution on the ground that u/s. 21(1) no court is competent to take cognizance for an offence under sub-section (1) of Section 21 of the Act of 1936 unless there is an adjudication by the competent authority about non payment of wages or deduction from wages u/s. 15 of the Act of 1936. There has to be a finding about the deduction from wages or delay in payment of wages and in the event of recording such finding, the employer is

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M.Cr.C. No.25490/2017

liable to be tried as per procedure prescribed u/s. 21 of the Act of 1936. In support of his contention, learned counsel for the applicant has relied on the judgment passed by this Court in the case of Mukul Kasliwal V/s. State of M.P. (M.Cr.C. No.4622/2016 decided on 13.10.2016). He further submits that the applicant was a Director of the company and he cannot be prosecuted because he is not responsible for payment of wages. A person so named as Manager of a Factory under the provisions of the Factories Act were responsible for payment of wages and he alone can not be prosecuted. In support of his contention, he has placed reliance over the judgment of the apex Court in the case of P.C. Agarwala V/s. Payment of Wages Inspector : (2005) 8 SCC 104.

4. On the other hand, learned Govt. Advocate appearing for respondent/State, opposes the prayer by submitting that the trial is pending since 2011 and now after ten years, the trial has reached to the evidence stage, the applicant may appear before the trial Court and take defence available to him in accordance with law. No case for quashment of the proceedings is made out and this petition u/s. 482 of the Cr.P.C. is liable to be dismissed.

I have heard the learned counsel for the parties at length and perused the record.

5. The Payment of Wages Act, 1936 is a complete code in it. Inspector of Factories appointed u/s. 14 shall be an Inspector for the purposes of this Act by way of Notification issued by the appropriate Government to make such inquiry and examination, inspect and search the premises of any Railway, factory, industry, etc, supervise payment of wages, issue a written order for production of wage register and seize copies of such registers or

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M.Cr.C. No.25490/2017

documents. Section 15 provides appointment of Presiding Officer of Labour Court or Industrial Court as an authority to hear and decide for any specified all claims arising out of deductions from the wages, or delay in payment of wages of persons employed or paid in that area including all matters incidental to such claims. Section 17 provides remedy of appeal against the order passed u/s. 15 to a District Court.

Section 20 of the Act of 1936 provides penalty for offences under the Act. As per sub-section (3) of Section 20, whoever being required under this Act to maintain any records or registers or to furnish any information or return fails to maintain such register and refuses to furnish such an information or return, shall be punishable with fine and which shall not be less than Rs.1,500/- and may extend to Rs.7,500/-. Sub-section (3)(a) of Section 21 provides that no court shall take cognizance of any offence punishable under sub-section (3) or sub-section (4) of Section 20 except on a complaint made an Inspector under this Act.

In the present case, the complaint has been filed against the applicant for violation of Section 14(4)(d) of the Act of 1936 as he has failed to produce the record and register pertaining to the wages, which is punishable u/s. 20(3) and accordingly, under sub- section (3)(a) of Section 21, the Inspector is competent to file a complaint before the competent Court and upon filing such complaint, the Court can take cognizance, therefore, there is no substance in the argument advanced by Shri G.S. Patwardhan, learned counsel for the applicant that unless there is an adjudication u/s. 15 of the Act of 1936, the employer or any person or Manager cannot be tried u/s. 20 and 21 of the Act of 1936.

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M.Cr.C. No.25490/2017

6. So far as judgment passed by the Apex Court in the case of P.C. Agarwala (supra) is concerned, it is held that the Director should be both employer as well as Manager of the factory. Therefore, it is a matter of trial that the applicant was an employer or Manager of the factory at the time of commission of offence. No material has been produced along with this petition u/s. 482 of the Cr.P.C. or before the trial Court so far that the applicant was only a Director alone and not the employer or Manager. He appeared only once at the time of framing of the charges and thereafter, there is no progress in the trial. No case for interference is made out.

Accordingly, this M.Cr.C. u/s. 482 of the Cr.P.C. is dismissed.

( VIVEK RUSIA ) JUDGE Alok/-