Madras High Court
Shri. Vinod Kumar vs Labour Enforcement Officer ... on 23 November, 2021
Crl. O.P. No.16168 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 23.11.2021
CORAM
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
Crl. O.P. No.16168 of 2017 &
Crl.M.P.Nos.9983 and 9984 of 2017
1. Shri. Vinod Kumar
Managing Director
M/s. Tata Communications Limited
VSB, No.4, Swami Sivananda Salai
Chennai – 600 002
2. Shri. Kesavaprasad
DGM-HR
M/s. Tata Communications Limited
VSB, No.4, Swami Sivananda Salai
Chennai – 600 002 ... Petitioners / Accused
Versus
Labour Enforcement Officer (Central)
Government of India
Ministry of Labour and Employment
“Shastri Bhavan”, No.26, Haddows Road
Chennai – 600 006 ... Respondent/ Complainant
1/8
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Crl. O.P. No.16168 of 2017
PRAYER : Criminal Original Petition filed under Section 482 of Cr.P.C. to
quash the proceedings initiated by the Respondent herein in C.C.No.2909 of
2016 on the file of XVI Metropolitan Magistrate Court, George Town,
Chennai.
For Petitioners ... Mr.B.Kumar
Senior Counsel
for Mr.C.Mohan
of M/s.King & Partridge
For Respondent ... Mr.Perumbur E.Palani
ORDER
This Criminal Original Petition has been filed to quash the private
complaint filed by the respondent alleging violation of certain mandatory
provisions particularly not maintaining the Register of the Contractor. The
prosecution was launched for the offences under Section 24 of the Contract,
Labour (Regulations and Abolition) Act, 1970 and Rule 81 of the Contract
Labour (Regulation and Abolition) Central Rules, 1971.
2. The main contention of the learned counsel Senior counsel
appearing for the petitioners is that the very complaint filed by the
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Crl. O.P. No.16168 of 2017
respondent is not maintainable as the Company has not been made as an
accused. The allegations in the complaint proceed as if the Contractor
committed violation, whereas now the Employer has been made as an
accused. Further, it is his main submission that the Managing Director was
residing elsewhere and hence, he cannot be construed as a Principal
Employer. Similarly, under Form VI-B, the Company has already notified
Principal Employer, which has not been taken note of and the prosecution
has been launched against a wrong person without application of mind.
Even in the counter statement, the respondent admitted about the defects in
their complaint. It is his further submission that taking of cognizance by the
learned Magistrate is not in accordance with law. The learned Senior
Counsel placed reliance on two judgments, namely i) Uday Kotak and
others V. State, represented by Labour Enforcement Officer (Central)
reported in MANU/TN/0064/2005 and Aneeta Hada v. Godfather Travels
& Tours (P) Ltd., reported in (2012) 5 SCC 661. It is submitted by learned
senior counsel that prosecution as against the principal employer cannot be
maintained in the eye of law as the allegation has been made only against
the contractor in the very complaint itself.
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Crl. O.P. No.16168 of 2017
3. Per contra, learned counsel appearing for the respondent submitted
that the petitioners themselves have admitted in paragraph 4 of the petition
that they are principal employer and therefore, the complaint is
maintainable.
4. I perused the entire materials placed before this Court. In the very
complaint, the contractor was shown as accused within the meaning of
Section 2(c)g of the Act, whereas Managing Director and Deputy General
Manager – HR were prosecuted for offences under Section 24 of the Act.
The main allegation in the complaint is that Labour Enforcement Officer
(Central – II), Chennai inspected the petitioners' establishment on
30.08.2016 and sent the inspection report to the petitioners/accused and the
petitioners were requested to rectify the irregularities mentioned therein.
Since the explanation submitted by the contractor was not found
satisfactory, a private complaint has been filed:
5. It is relevant to extract the definition of 'Contractor' found in Section
2(c) and 'Principal Employer' found in 2(g), which read as follows:
'' Section 2(c) : “Contractor”, in relation to an
establishment, means a person who undertakes to produce a given
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Crl. O.P. No.16168 of 2017
result for the establishment, other mere supply of goods or articles of
manufacture to such establishment, through contract labour or to
supplies contract labour for any work of the establishment and
includes a sub-contractor;”
“2(g) “Principal Employer” means --
(i) in relation to any office or Deparqtment of the Government
or a local authority, the head of that office or Department or such
other officer as the Government or the local authority, as the case
may be, may specify in this behalf,”
(ii)in 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 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 any other establishment, any person responsible for the
supervision and control of the establishment. "
6. The above definition makes it clear that the principal employer is the
person who is responsible for the control of the establishment at the relevant
point of time. The very complaint filed before the learned Magistrate
indicates that the allegations have been predominantly made against the
contractor for certain violation. Despite the fact that the contractor has given
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Crl. O.P. No.16168 of 2017
the explanation, the Labour Officer has chosen to file a complaint
contending that the same was not found satisfactory. It is to be noted that
what was the nature of the irregularities found which was sought to be
rectified is absent in the very complaint itself. Therefore, in the absence of
any decision rejecting the explanation, the prosecution cannot be launched
mechanically even without indicating the nature of the violation said to be
have been committed by the contractor. The entire complaint is bereft of
details of any violation except contending that the accused has violated the
Rules. The nature of the violations stated to have been committed by the
Contractor is not even whispered in the entire complaint. Further, having
alleged that the entire violation is committed by the Contractor, now the
prosecution has been launched as against the Managing Director as well as
Deputy General Manager (HR). It is also to be noted that in every
establishment, in the event of the Company, there shall be a notification
under Form VI-B for naming somebody as Principal Employer. The Labour
Officer has not even verified the Form VI-B to find out who is the person
actually notified as Principal Employer. Without verifying the Register,
prosecution cannot be launched. On a perusal of the entire complaint, this
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Crl. O.P. No.16168 of 2017
Court is of the view that this complaint has been made against the
contractor, whereas principle employer who are noway connected have been
prosecuted.
In such view of the matter, the present Criminal Original Petition is
allowed and the case pending in C.C.No.2909 of 2016 on the file of XVI
Metropolitan Magistrate Court, George Town, Chennai is quashed.
Consequently, the connected miscellaneous petitions are closed.
23.11.2021
gba/gpa
To
1. XVI Metropolitan Magistrate Court
George Town, Chennai
2. The Public Prosecutor
Madras High Court
Chennai.
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Crl. O.P. No.16168 of 2017
N. SATHISH KUMAR, J
gba/gpa
Crl. O.P. No.16168 of 2017 &
Crl.M.P.Nos.9983 and 9984 of 2017
23.11.2021
https://www.mhc.tn.gov.in/judis
