Samir Mazumdar vs The State

N.C. Talukdar, J.—This Rule is against an order dated February 23, 1968, passed by Sri R.K. Kar, Presidency Magistrate, Eighth Court, Calcutta, convicting the accused on three counts u/s 22A of the Minimum Wages Act, 1948 (XI of 1948), read with Section 18 of the said Act and Rules 22(1), 21(4), 23 and 23A of the West Bengal Minimum Wages Rules, 1951, and sentencing him thereunder to pay a fine of Rs. 35, in default, to suffer simple imprisonment for one week on each count, in case No. C-2588 of 1967.

The facts leading on to the present case are short and simple. The accused-Petitioner is said to be the owner of a printing press, carried on under the name and style of M/s. West Bengal Printers, at 117/A B.B. Ganguly Street, Calcutta, within the jurisdiction of the Muchipara Police Station. A complaint u/s 22A of the Minimum Wages Act, 1948, was filed by one Karuna Sankar Basu, an inspector appointed u/s 19 of the said Act, and it was alleged, inter alia, therein that the accused is the owner of the above-mentioned printing press and that u/s 27 of the said Act, the employment in printing press has been added to pt. I of the schedule under the Minimum Wages Act, 1948, by Government Notification No. 3048--L.W./LW/2W-29/61 dated June 20, 1961. The accused is an. ''employer'' within the meaning of Section 2(e) of the aforesaid Act of the said printing press concerned and u/s 18 of the said Act, it is obligatory on the part of the said accused as an employer to maintain registers and records, to exhibit notices and to submit returns as prescribed in Rules 21(4), 21(4A), 22(1) and 23 of the West Bengal Minimum Wages Rules, 1951. It is alleged that the accused had contravened the provisions of Section 18 of the Minimum Wages Act, 1948, and the relevant provisions of the West Bengal Minimum Wages Rules, 1951, by not maintaining the registers and records, by not producing the same at the time of inspection, by not displaying notices in form XIII and by not submitting annual return in form III for the year 1966. A notice under registered post was served on the accused on July 15, 1967, with acknowledgment due, directing the accused to show cause as to why he should not be proceeded against for the aforesaid violations of the above-mentioned Act and of the Rules made thereunder, but no reply was received by the complainant thereto and, as such, the present prosecution was filed.

The accused-Petitioner was ultimately placed on his trial before Sri R.K. Kar, Presidency Magistrate, Eighth Court, Calcutta, to answer the above-mentioned charges on three counts, and he pleaded not guilty thereto. The prosecution in this case besides proving several documents also examined three witnesses--one of whom is P.W. 1, Karuna Sankar Basu, an inspector appointed u/s 19 of the Minimum Wages Act, 1948, and the other two are the former employees of the accused-Petitioner. As a result of the trial the trying Magistrate, by his order dated February 23, 1968, convicted and sentenced the accused-Petitioner on all the three counts as mentioned above. It is this order of conviction and sentence that has been impugned and forms the subject-matter of the present Rule.

Mr. Abinash Chandra Bose, Advocate (with Mr. N. Khastagir, Advocate) appearing on behalf of the accused-Petitioner, has made a fivefold submission. The first contention of Mr. Bose is that the prosecution has not legally proved that the employment in printing press has been added to pt. I of the schedule of the Minimum Wages Act, 1948, by not, inter alia, proving the first notification, indicating the notice of intention, before publishing the second notification No. 3048--L.W./LW/2W-29/61 dated June 20, 1961. Therefore, the employment in the printing press industry has not been legally included in the schedule under the Minimum Wages Act, 1948, nullifying thereby the prosecution based thereupon; the second contention of Mr. Bose is that no minimum rates of wages, payable to the employees, have been proved to have been fixed as enjoined u/s 3 of the Minimum Wages Act, 1948 (XI of 1948), and, therefore, there is a resultant non-conformance to the mandatory provisions of the said section of the Minimum Wages Act, 1948, and consequently of Section 2, Sub-section (e) of the said Act, because the instant case does not relate to any "scheduled employment in respect of which minimum rates'' of wages have been fixed under this Act". The accused-Petitioner being thus not an ''employer'' within the meaning of the Act, employing some employees in any scheduled employment in respect of which minimum rates of wages have been fixed u/s 3 of the Act, would not come within the ambit of the penal provisions thereof. Mr. Bose next contended that, even if the schedule has been properly amended, the expression ''printing press'' has not in fact been added to pt. I of the schedule of the Minimum Wages Act, 1948. The expression ''printing press industry'' as added thereto is not the same as ''printing press'' which according to the prosecution the accused-Petitioner is purported to own. Mr. Bose has further submitted in this context that the term ''industry'' has not been defined in the said Act and in the absence thereof it cannot be held that the expression ''printing press'' and ''printing press industry'' are synonymous and, accordingly, the present prosecution started on that basis is unfounded, unwarranted and untenable. The fourth contention advanced on behalf of the accused-Petitioner is that in view of the language of Section 22B(2)(b) of the Minimum Wages Act, 1948, and also in view of the finding arrived at by the trying Magistrate, that one of the counts of charges purporting to be a non-conformance to Rule 21(4A) of the West Bengal Minimum Wages Rules, 1951, relating to the non-submission of annual return in form III of the year 1966 is time-barred, the other counts of charges also should have been found to be so. The fifth and the last contention of Mr. Bose is that mens rea, which is an essential ingredient of an offence under the Minimum Wages Act, 1948 (XI of 1948), is not only non est in the present case but is clearly ruled out by the facts and circumstances which establish undoubted bona fides on the part of the accused-Petitioner who is but a first offender and whose business even if it could be called a ''printing-press industry'', was added recently to the schedule provided for under the Minimum Wages Act, 1948, and as such he as well as many other similar employers were not aware of it. In the absence of any such blameworthy mind, Mr. Bose submits, the present prosecution is wholly untenable.

Mr. Dipak Kumar Sengupta, Advocate, appearing on behalf of the State, has submitted that the first contention of Mr. Bose is unfounded, inasmuch as the first notification No. 1037--L.W./LW/2W-7/59 dated February 24, 1961, has in fact been made, though not proved in the Court below. In this context Mr. Sengupta further submits that there is indeed a reference to the said first notification dated February 24, 1961, in the latter notification dated June 20, 1961, which has been duly published and proved in this case. Mr. Sengupta''s second contention is that the expression ''printing press'' is included in the expression ''printing press industry'' which has been added to pt. I of the schedule under the Minimum Wages Act, 1948, and, therefore, this hypertechnical distinction sought to have been made" between the two expressions is unwarranted. Mr. Sengupta next contended that minimum rates of wages have in fact been fixed u/s 3 of the Minimum Wages Act, 1948, but through inadvertence the same has not been proved in the Court below. He contended, however, that the purported failure to fix the minimum rates of wages u/s 3 of the Minimum Wages Act, 1948, will not vitiate the present proceedings and the expression ''shall'' as used in the said section is only directory and not mandatory, and in any event the accused-Petitioner had sufficient notice of the allegations preferred against him and was not prejudiced in any way in meeting the same. Mr. Sengupta submits with regard to the fourth contention advanced by Mr. Bose that it is clearly unfounded because the count of charge relating to the purported non-conformance to Rule 21(4A) of the West Bengal Minimum Wages Rules, 1951, that was in fact time-barred, has been found to be so by the trying Magistrate himself because the case was not filed within six months of the date of the commission of the offence, but the same does not hold good with regard to the other counts. The last submission of Mr. Sengupta is that the Act XI of 1948 is a special Act, creating a statutory offence requiring no mens rea, and as such the contentions put forward by Mr. Bose in this behalf are unwarranted and untenable.

I will now proceed to determine the points at issue in the light of the submissions ably made by the Learned Counsel appearing on behalf of both the sides as also of the provisions of the relevant Acts and Rules. The points involved, upon ultimate analysis, are points of law and are indeed of some importance. For the sake of convenience, I will group together the last three contentions advanced by Mr. Bose and take them up for consideration in the first instance. The first one of these is that the expression ''printing press industry'' as added to pt. I of the schedule to Act XI of 1948 is not the same as sprinting press and, as such, even if the said schedule under the Minimum. Wages Act, 1948, has been properly amended, the expression that has in fact been incorporated therein is merely ''printing press industry'' and not ''printing press''. Therefore, the very basis of the prosecution is untenable. Mr. Sengupta appearing on behalf of the State has submitted in this context that the expression ''printing press industry'' is the genus and ''printing press'' is but a species thereunder, and, as such, when the schedule was amended by the inclusion of the expression ''printing press industry'', the same did include ''printing press''. Mr. Sengupta urges that this is in accordance with the canons of interpretation based upon a natural and grammatical meaning. It is undoubtedly true that the expression ''industry'' has not been defined in the Minimum Wages Act, 1948. The definition thereof however contained in other Acts will not be in pari materia. In the case of Pandit Ram Narain Vs. The State of Uttar Pradesh and Others, Mr. Justice S.K. Das, who delivered the judgment of the Court, observed that it was rightly pointed out that it is no sound principle of construction to interpret expressions used in one Act with reference to their use in another Act. The meanings of words and expressions used in an Act must take their colour from the context in which they appear.

I respectfully agree with the said observations and will, therefore, neither try to define the expression ''industry'' on my own in this case nor attempt to import any definition thereof from some other Act. It has been observed in Maxwell in the Interpretation of Statutes that the first and most elementary rule of construction is that it is to be assumed that the words and phrases of technical legislation are used in their technical meaning, if they have acquired one, and otherwise in their ordinary meaning; and, secondly; that the phrases and sentences are to be construed according to the rules of grammar. This is known as the Rule of Literal Construction. I may refer in this connection to the observations of Viscount Simond, L.C. in the case of Noakes v. Doncaster Collieries Ltd. (1940) 3 All E.R. 549 (553) H.L. that

the golden rule is that the words of a statute must prima facie be given their ordinary meaning.

It has also been observed by Viscount Haldane, L.C. in the case of Attorney-General v. Milne (1914) All E.R. 1061 (1063), that if the language used

has a natural meaning, we cannot depart from that meaning unless, reading the statute as a whole, the context directs us to do so.

I respectfully agree with the said observations and I hold upon rules of literal construction that the term ''printing press'' is included within the term ''printing press industry'' and that the latter expression having been added to pt. I of the schedule provided under the Minimum Wages Act, 1948, the present prosecution is neither unfounded nor untenable on that count. The next contention in this group as advanced on behalf of the accused-Petitioner is that in view of the finding arrived at by the trying Magistrate himself that one of the counts of the charges relating to the non-submission of annual return in form III for the year 1966 is time-barred, the other counts of charges also should have been found to be so. It must be held upon ultimate analysis that the consideration that holds good in the case of the former charge does not hold good with regard to the other ones and, as such, this contention of Mr. Bose also fails. The other submission of Mr. Bose in this group is that mens rea is an essential ingredient of an offence under the Minimum Wages Act, 1948, and the same being conspicuous by its absence in the present case, the order of conviction and sentence as passed by the trying Magistrate has been bad in law and improper. Mr. Sengupta''s reply thereto has already been noticed above, namely, that Act XI of 1948 is a special Act creating a statutory offence requiring no mens rea and as such the said contention of Mr. Bose is unfounded in law. It is undoubtedly true that ordinarily a person cannot be convicted of a crime unless he has committed an overt act prohibited by law or has made default in doing some act in which there was a legal obligation upon him to do. The act or omission, however, must be voluntary and the same should be associated with ''a legally blameworthy condition of mind''. This concept is as old as the hills and has traditionally been expressed in the maxim actus non facit reum nisi mens sit rea. In Russell on Crime (11th ed.) it has been stated that if the special instances are left aside wherein

the ancient doctrine of absolute liability has been retained under the fiction of ''implied'' or ''constructive'' mens rea, it cannot well be controverted that, at common law, there cannot be criminal guilt where mens rea is absent.

As Lord Russell of Killowen, C.J. observed--

the general rule of law is, that no crime can be committed unless there is mens rea.

It may be pertinent in this context to consider that inadvertence also can form a part of the doctrine of mens rea. A reference in this connection may be made to the Monograph on Mens Rea in Statutory Offences (English Studies in Criminal Science Series, vol. VIII) by Prof. Edwards. I agree with the author''s conclusion at p. 206 that so far as the field of criminal liability is concerned, negligence or blameful inadvertence may properly be designated as mens rea. There is a reference in Halsbury''s Laws of England, vol. 10 (3rd ed., Simond''s ed.) to a division of offences as favoured by older authorities into two classes termed mala in se and mala prohibita. According to Halsbury--

a statutory crime may or may not contain an express definition of the necessary state of mind. A statute may require a specific intention, malice, knowledge, wilfulness or recklessness. On the other hand, it may be silent as to any requirements of mens rea. In such a case in order to determine whether or not mens rea is an essential element of the offence, it is necessary to look at the objects and terms of the statute. In some cases the Courts have concluded that despite the absence of express language the intention of Legislature was that mens rea was a necessary ingredient of the offence. In others, the statute has been interpreted as creating a strict liability irrespective of mens rea. Instances of this strict liability have arisen on the legislation concerning food and drugs, liquor licensing and many other matters.

In this connection a reference may be made to the case of Srinivas Mall Bairoliya v. Emperor AIR 1947 P.C. 135 wherein Lord Du Parcq agreed with the view expressed by Lord Goddard, C.J. in the case of Brend v. Wood (1945) 175 L.T. 306 (307) as follows:

It is of the utmost importance for the protection of the liberty of the subject that the Court should always bear in mind that, unless a statute, either clearly or by necessary implication, rules out mens rea as a constituent part of a crime, the Court should not find a man guilty of an offence against the criminal law unless he has a guilty mind.

Their Lordships of the Judicial Committee also referred in this context to the observations of Wright, J. in the case of Sherras v. De Rutzen (1895) 1 Q.B. 918. In the case of Ravula Hariprasada Rao Vs. The State, Mr. Justice Fazal Ali delivering the judgment o� the Court held that--

in our opinion the view of the law as propounded by the Privy Council is the correct rule.

In this context a reference may also be made to the case of Indo-China Steam Navigation Co. Ltd. Vs. Jasjit Singh, Additional Collector of Customs and Others, . Chief Justice Gajendragadkar delivering the judgment held that in order to establish a contravention of Section 52A of the Sea Customs Act, no mens rea need be proved and observed that--

the knowledge of the owners, or even of the master is, in the context of Section 52A, entirely irrelevant. What is relevant Is the proof of the fact that the vessel answering the description prescribed by Section 52A entered within the limits of Calcutta which is a port in India.

In a recent decision, namely, in the case of Nathulal Vs. State of Madhya Pradesh, Mr. Justice Subba Rao (as his Lordship then was) on behalf of himself and Mr. Justice Bachawat observed that--

mens rea is an essential ingredient of a criminal offence. Doubtless a statute may include the element of mens rea, but it is a sound rule of construction adopted in England and also accepted in India to construe statutory provision creating an offence in conformity with the common law rather than against it unless the statute expressly or by necessary implication excluded mens rea.

I respectfully agree'' with the observations made by their Lordships in the above-mentioned cases and upon going through the language of the provisions of the Minimum Wages Act, 1948, I hold that it only brings to light a statutory offence of strict liability requiring no mens rea. This contention of Mr. Bose accordingly fails.

Coming now to the first two submissions of Mr. Bose, as catalogued in this second group, I find that those are quite tenable and are of some importance. In connection with the first of these submissions, Mr. Bose urges that there has indeed been a non-conformance to the material provisions of Section 27 of the Minimum Wages Act, 1948, whereunder it is enjoined on the appropriate Government that before adding by like notification to either part of the schedule, any employment in respect of which it is of opinion that minimum rates of wages should be fixed under this Act, it must give not less than three months'' notice of such intention by notification in the Official Gazette to that effect. I have gone through the records of the case and I do not find that there is anything in the evidence to establish that there has been such earlier notification given indicating this ''notice of its intention''. This earlier notification is the sine qua non before by a like notification'' or the subsequent notification an employment may be added to either part of the schedule provided under the Minimum Wages Act, 1948. Mr. Sengupta appearing on behalf of the State has submitted that Mr. Bose''s contention is not wholly correct inasmuch as the said first notification dated February 24, 1961, appears to have been made though not proved in accordance with law in the Court below through inadvertence. He has referred in this connection to the second notification No. 3048--L.W./LW/2W-29/61 dated June 20, 1961, which has been proved in this case, but therein there is only a vague and indirect reference to the notification dated February 24, 1961, as follows:

After giving, by notification published at page 786 of part I of the ''Calcutta Gazette'' of the 16th March, 1961, notice of her intention so to do, is pleased hereby to add to part I of the schedule to that Act the following employment etc.

This is not, however, a proper compliance with the mandatory provisions of Section 27 of Act XI of 1948 and the accused has been denied due notice and the right of cross-examination to establish whether the said notification was duly made and was in terms of Section 27 of the Act, properly indicating a notice of its intention. In this context a reference may be made to the case of Harla Vs. The State of Rajasthan, . Mr. Justice Bose, delivering the judgment of the Court, observed as follows:

In the absence of any special law or custom, we are of opinion that it would be against the principles of natural justice to permit the subjects of a State to be punished or penalised by laws of which they had no knowledge and of which they could not even with the exercise of reasonable diligence have acquired any knowledge. Natural justice requires that before a law can become operative it must be promulgated or published. It must be Jaroadcast in some recognisable way so that all men may know what it is; or, at the very least, there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence.

The principle underlying the question has been judicially considered in England and it was held in the case of Johnson v. Sargent (1918) 1 K.B. 101 that an order of the Food Controller under the Beans, Peas and Pulse (Requisition) Order, 1917, does not become operative until it is made known to the public. I agree with the said observations and I hold that in the instant case also there has been no proof of a due promulgation or publication of the first notification, resulting in a non-conformance to the provisions of. Section 27 of the Minimum Wages Act, 1948, The contention of Mr. Bose in this behalf, therefore, succeeds and I hold that in the absence of a proper compliance to the provisions of Section 27 of the Minimum Wages Act, 1948, and the proof thereof by legal and proper evidence, the employment in the ''printing press industry'' has not been duly included in the schedule under the Minimum Wages Act, 1948, nullifying thereby the present prosecution based thereupon. The next submission made by Mr. Bose, as catalogued in this group, relating to the non-conformance to the mandatory provisions of Section 3 of the Minimum Wages Act, 1948, and consequently of Section 2(e) of the said Act, is also a substantial one and goes to the very root of the case. There is no evidence at all to indicate that any minimum rates of wages payable to employees employed in an employment specified in either part of the schedule or in any employment added to either part by a notification u/s 27 of the Act has been fixed in the present case by the prosecution, as enjoined u/s 3 of the Minimum Wages Act, 1948. One looks in vain through the evidence on record for the same. The result is a non-conformance to the mandatory provisions of the said section and consequently of Section 2(e) of the said Act, because the instant case does not relate to any "scheduled employment in respect of which minimum rates of wages have been fixed under this Act". The accused-Petitioner, therefore, is not an ''employer'' within the meaning of the Act, employing 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 whereof such minimum rates of wages have been fixed u/s 3 of the Act and, as such, he would not come within the penalty of Section 22A of Act XI of 1948. Mr. Sengupta has submitted in the context that in fact such minimum rates of wages have been fixed but through inadvertence, as in the case of the earlier notification enjoined u/s 27 of the Act, the same has not been legally proved in the Court below and brought on the record. Mr. Sengupta ultimately submits that there had indeed been some laches on the part of the prosecution in this case, but this Court may take into consideration that such minimum rates of wages have in fact been fixed or in the alternative may accord an opportunity to the prosecution, by remanding the case to the Court below, for proving by cogent evidence that such minimum rates of wages have been fixed. It is difficult for me to decide here, sitting in revision, as to whether such minimum rates have been properly fixed with regard to all the branches of the work of any scheduled employment or of the material branch of work thereof, merely from the publication of such fixation of minimum rates of wages but in the absence of any relevant evidence tested by cross-examination. The question of remand also at this stage does not arise after a protracted trial merely to give an opportunity to the prosecution to fill up the gaps in its case. It is an ill-wind that blows and does nobody any good and it is unfortunate that the prosecution has conducted the case in such a manner. Mr. Bose has referred in this connection to the case of Nathuram Shukla Vs. State of Madhya Pradesh, . Mr. Justice K.L. Pandey delivering the judgment observed that having regard to the definition of ''employer'' as occurring in Section 2(e) of the Minimum Wages Act, 1948,

a person employing persons in any scheduled employment is not an employer within the meaning of that Act, unless, in respect of that employment, minimum wages have been fixed under the Act. By parity of reasoning, if minimum wages have not been fixed for any branch of work of any scheduled employment, the person employing workers in such branch is not an employer within the meaning of the Act.

I agree with the said observation and I hold that the factum of publication alone of some minimum rates will not prove that the minimum rates of wages were indeed fixed for the particular branch of work of the scheduled employment in question. In this context Mr. Sengupta further urges that the expression ''shall'', as used in Section 3 of the Act, is only directory and not mandatory and, as such, the resultant non-conformance thereto is only an irregularity and not an illegality vitiating the entire prosecution. This submission of Mr. Sengupta again is unfounded and will give an interpretation to the provisions of Section 3, not intended by the Legislature and will not be in keeping with the scheme of this special Act creating statutory offences requiring no mens rea. A reference in this context may be made to the case of The State of Uttar Pradesh and Others Vs. Babu Ram Upadhya, wherein Mr. Justice K. Subba Rao (as his Lordship then was) observed that--

when a statute uses the word ''shall'', prima facie, it is mandatory, but the Court may ascertain the real intention of the Legislature by carefully attending to the whole scope of the statute.

I, accordingly, hold that minimum rates of wages as enjoined u/s 3 of the Act have not been legally proved to have been fixed with regard to the particular branch of work of the scheduled employment in question and that the accused-Petitioner has not accordingly been legally proved to be an ''employer'' within the meaning of the Act, coming within the penalty of Section 22A of the Minimum Wages Act, 1948 (XI of 1948). The contention of Mr. Bose advanced in this behalf accordingly succeeds and the impugned order of conviction and sentence of the accused-Petitioner is not maintainable in law.

In the result, the Rule is made absolute; the impugned order dated February 23, 1968, passed by Sri R.K. Kar, Presidency Magistrate, Eighth Court, Calcutta, convicting the accused-Petitioner on three counts u/s 22A of the Minimum Wages Act, 1948, read with Section 18 of the said Act and Rules 22(1), 21(4), 23 and 23A of the West Bengal Minimum Wages Rules, 1951, and sentencing him thereunder to pay a fine of Rs. 35, in default, to suffer simple imprisonment for one week on each count in case No. C 2588 of 1967, is set aside, and the fines, if paid, are to be refunded.