Mr. K.V.B. Reddy vs State Of Telangana
2023 Latest Caselaw 1773 Tel

         THE HONOURABLE SRI JUSTICE K.SURENDER

             CRIMINAL PETITION No.1991 OF 2021

ORDER:

1. This Criminal Petition is filed to quash the proceedings in

STC No.1 of 2021 on the file of XII Additional Metropolitan

Magistrate of First Class at Nampally, Hyderabad.

2. The petitioners are questioning their prosecution on the basis

of complaint filed by the 2nd respondent, who is the Labour

Enforcement Officer (Central), Government of India. On the basis of

the complaint filed by the 2nd respondent, learned Magistrate has

taken cognizance of the complaint and directed issuance of notice

to the 2nd respondent.

3. The complaint is filed under Section 24 of the Contract

Labour (Regulation and Abolition) Act, 1970 (for short 'the Act of

1970) for breach of Section 7 r/w Section 9, Rule 18(1)(i), Rule

81(3), Rule 82(2) and Rule 74 of Contract Labour (Regulation and

Abolition) Central Rules, 1971 (for short 'the Rules').

3. The allegation of the 2nd respondent is that the petitioners

have employed 3000 contract labourers without obtaining valid

certificate of registration. Further, the petitioners have failed to

display on the notice board giving details in accordance with the

Rule 18(1)(i) of the Rules. The petitioners have failed to intimate the

notice of commencement of work in Form VII to the Inspector,

which is in violation of Rule 81(3). Also failed to submit unified

Annual Return in Form XXV for the year 2019 through shram

suvidha web portal and also failed to submit Form-XII to the

Inspector which are in violation of Rules 82(2) and 74 of the Rules

respectively.

4. The said complaint was filed after the 2nd respondent

inspected and issued a report-show-cause notice on 02.03.2020

along with all relevant documents.

5. Learned counsel appearing for the petitioners would submit

that the 2nd respondent does not have jurisdiction to lodge

compliant against these petitioners for the reason of the 2nd

petitioner's company being registered with the State Government.

The registration was done with the State Government and

certificate of registration was also issued from time to time and the

registration has been renewed. Further, the Central Labour

Enforcement Officer has issued notice dated 24.09.2014. In view of

Section 27 of the Act of 1970, the Court is barred from taking

cognizance of an offence punishable under the Act unless the

complaint is made within the three months from the date of which,

the alleged commission of offence came to the knowledge of the

Inspector. Further, the proviso extends the limitation to six months

if there is any disobedience for the written order made by an

Inspector.

6. The petitioners also raised several grounds for seeking

quashment of the complaint on the ground that the learned

Magistrate has mechanically summoned the petitioners.

Summoning a person is a serious matter in a criminal case and the

order reflects non-application of mind while summoning the

petitioners. Learned counsel also relied on the judgments; i) CMRL

Employees Union & others v. The Ministry of Housing and

Urban Affairs and others1; ii) Victor Joseph, Regional Managing

Director, Group 4 Securities Guarding Ltd., v. State (rep. by

Labour Enforcement Officer (Central), Government of India,

Ministry of Labour2; iii) Cochin International Airport Ltd v. The

Regional Labour Commissioner3; iv) Group 4 Securities

Guarding Pvt. Ltd., v. Labour Enforcement Officer (Central),

2019 (IV) LLJ 739 Mad

2006 (2) LLN 259

2009(3) LLN 350

Hyderabad and another4 and v) GMR Hyderabad International

Airport Limited v. The State of A.P, rep. by the Commissioner

of Labour, Hyderabad5.

7. On the other hand, learned counsel appearing for the Central

Government would submit that the prosecution by the Central

Labour Enforcement Officer is valid. The petitioners in one of the

writs have taken stand that they are governed by Central Rules and

now they cannot urge that they are registered with the State

Government. For violation of Section 7 of the Act, petitioners are

bound to undergo the process of trial. Accordingly, prayed to

dismiss the petition.

8. Under Section 7 of the Act of 1970, every principal employer

of an establishment shall register in the manner prescribed for

registration of the establishment. If the application of registration is

complete, the registering authority shall register the establishment

and shall issue a certificate of establishment.

9. Under Section 6 of the Act of 1970, the appropriate

government is empowered to appoint Gazetted Officers for issuance

of such registration certificates. There is a clear demarcation in the

W.P.No.3198 of 2006 dated 07.02.2014

WP No.24041 of 2008, dated 14.07.2014

Act about the Central Government and the State Government.

Section 2(1) of the Act reads as follows:

"2 (1) In this Act, unless the context otherwise requires,-

(a) 'appropriate Government' means,-

(i) in relation to an establishment in respect of which the appropriate Government under the Industrial Disputes Act, 1947 (14 of 1947), is the Central Government;

(ii) in relation to any other establishment, the Government of the State in which that other establishment is situated."

10. It is not in dispute that the 2nd petitioner company was

registered with the erstwhile Government of Andhra Pradesh and

certificate of registration dated 11.11.2010 is filed. Thereafter, the

certificate of registration dated 25.10.2019 issued by the

Government of Telangana, Labour Department is also filed. The

said registration certificates are not in dispute.

11. The ground of limitation under Section 27 of the Act is not

available to the petitioners Since the Hon'ble Supreme Court in Suo

moto Writ (Civil) No.3 of 2020 extended the limitation in view of the

pandemic up to 14.03.2021 and in the event of any violations that

are detected by the Labour Enforcement Officer either the Central

or State Governments, having issued such notice, prosecution can

be launched. In the present case, after notice was issued on

02.03.2020, complaint was filed on 20.02.2021.

12. Learned Magistrate has taken cognizance on 20.02.2021. The

docket order dated 20.02.2021 reads as follows:

"Issue notice to respondent. Call on 12.03.2021.".

13. At the stage of taking cognizance, it is just and necessary that

the learned Magistrate applies his mind to the facts of the case. The

order does not reflect that the Magistrate has even gone through

the complaint before taking cognizance of the offence and issuing

summons for trial of the petitioners. The Hon'ble Supreme Court in

Pepsi Foods Limited v. Special Judicial Magistrate6 held that

summoning a person in a criminal case is a serious matter and

the Magistrate taking cognizance of an offence has to be prima facie

satisfied about the case. As already said, the cognizance order is

bereft of any reasons and liable to be set aside.

14. This Court, by order dated 18.04.2023 in Criminal Petition

No.3615 of 2023 given directions regarding cognizance orders by

Courts.

15. In view of the cognizance order not reflecting any reasons for

taking cognizance order dated 20.02.2021 in STC No.01 of 2021 on

the file of XII Additional Chief Metropolitan Magistrate, Hyderabad

and the same is liable to be set aside and accordingly, set aside.

(1998) 5 Supreme Court Cases 749

However, the trial Court is not precluded from taking cognizance

order by following the directions in Criminal Petition No.3615 of

2013, dated 18.04.2023.

16. Accordingly, the Criminal Petition is allowed. Consequently,

miscellaneous applications, if any, shall stand closed.

_________________ K.SURENDER, J Date: 25.04.2023 kvs