B.L. Raina vs State of Jharkhand and Others

Rongon Mukhopadhyay, J.—Heard Mr. Manish Kumar, learned counsel for the petitioner and Mr. Pankaj Kumar, learned counsel for the opposite party No. 1 and 2.

In this application, the petitioner has prayed for quashing the order dated 13.8.2002, passed by learned Judicial Magistrate, 1st class, Jamshedpur in C/2 case No. 1905 of 2002, whereby and whereunder cognizance has been taken as against the petitioner for the offence under section 22A of the Minimum Wages Act.

The prosecution story as would appear from the complaint filed by the opposite party No. 2, Labour Superintendent, Jamshedpur, is that while carrying out inspection of M/s. Kanak Engineering (opposite party No. 3) on 9.7.2002, he had detected that there is a violation of rules 21(c), 22, 25(2), 26(1), 26(2) and 26(5) of the Minimum Wages Rules, 1951. After the prosecution report was submitted by the opposite party No. 2 herein, cognizance was taken as against the petitioner for the offence under section 22 A of the Minimum Wages Act.

Learned counsel for the petitioner has assailed the order taking cognizance dated 13.8.2002 by submitting that the petitioner at the relevant point of time was the Managing Director of M/s. Tinplate Company of India Limited and the workers and the premises, which were inspected, in which the alleged violations of the Minimum Wages Rules were detected belonged to M/s. Kanak Engineering, who was the contractor of M/s. Tinplate Company of India Limited. He has further submitted that it was the responsibility of the contractor-M/s. Kanak Engineering for adhering to the provisions of Minimum Wages Rules and for maintaining the records and documents of the Firm. No liability, according to learned counsel for the petitioner, can be fixed for any omission or commission on the part of the contractor employed by M/s. Tinplate Company of India Limited.

Learned counsel for the opposite party Nos. 1 and 2, on the other hand, has submitted that the petitioner being the Principal Employer of M/s. Kanak Engineering and therefore under section 2(e) of the Minimum Wages Act, the liability of the petitioner cannot be discarded on the ground that it was the responsibility of the contractor (M/s. Kanak Engineering) to maintain the records and documents in terms with the provisions of the Minimum Wages Rules.

After hearing learned counsel for the parties and after going through the records, I find that the opposite party No. 2 had inspected the premises of the contractor of M/s. Tinplate Company of India Limited and had found certain irregularities, which were inconsistent with the provisions of the Minimum Wages Rules. In this context, it is to be seen as to whether the petitioner comes under the definition of an employer as defined in section 2(e) of the Minimum Wages Act, 1948. Section 2(e) of the Minimum Wages Act, 1948 defines an employer and which reads as follows:--

"2(e) "employer" means any person who employs, whether directly or through another person, or whether on behalf of himself or any other person, one or more employees in any scheduled employment in respect of which minimum rates of wages have been fixed under this Act, and includes, except in Sub-section (3) of section 26,--

(i) in a factory where there is carried on any scheduled employment in respect of which minimum rates of wages have been fixed under this Act, any person named under (clause (f) of Sub-section (1) of section 7 of the Factories Act, 1948(63 of 1948), as manager of the factory;

(ii) in any scheduled employment under the control of any Government in India in respect of which minimum rates of wages have been fixed under this Act, the person or authority appointed by such Government for the supervision and control of employees or where no person or authority is so appointed, the dead of the department;

(iii) in any scheduled employment under any local authority in respect of which minimum rates of wages have been fixed under this Act, the person appointed by such authority for the supervision and control of employees or where no person is so appointed, the chief executive officer of the local authority;

(iv) in any other case where there is carried on any scheduled employment in respect of which minimum rates of wages have been fixed under this Act, any person responsible to the owner for the supervision and control of the employees or for the payment of wages;"

This question was raised earlier before this Court in Cr.M.P. No. 1383 of 2003 and vide order dated 22.09.2004 it was held there is no concept of principal employer as it was defined under section 2(e) of the Minimum Wages Act. It is an admitted fact that the irregularities pertaining to violation of the provisions of the Minimum Wages Rules were found in the establishment of the contractor and the said contractor was in agreement with M/s. Tinplate Company of India Limited and any violation with respect to the provisions of Rules, as has been referred in the complaint petition, would concern the contractor and not M/s. Tinplate Company of India Limited, of whom, the petitioner was the then Managing Director. Therefore, the submission made by learned counsel for the opposite party Nos. 1 and 2 that the petitioner is equally liable for the offences under the Minimum Wages Act being the principal employer, is rejected. In Cr. M.P. No. 1383 of 2003, this Hon''ble Court on a similar issue had passed an order on 22.09.2004 that there is no concept of principal employer as defined under section 2(e) of the Minimum Wages Act, 1948.

In the facts and circumstances, as noted above, this application is allowed. The order dated 13.8.2002, passed by learned Judicial Magistrate, 1st class, Jamshedpur in C/2 case No. 1905 of 2002, whereby and whereunder cognizance has been taken as against the petitioner for the offence under section 22A of the Minimum Wages Act, is hereby quashed.