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1985 DIGILAW 423 (KER)

DASA PAI v. ASST. LABOUR OFFICER

1985-12-20

PADMANABHAN

body1985
Judgment :- 1. A batch of 13 petitions filed under S.482 of the Criminal Procedure Code involving common questions of law comes up for consideration. All of them are for quashing the judicial pronouncements of the Chief Judicial Magistrate, Alleppey invoking the inherent jurisdiction of this court. 2. In S.T.C. Nos. 40, 42, 45, 46, 49 and 53 of 1984 six business men at Alleppey were prosecuted by the Asst. Labour Officer, Alleppey (Town) for offences punishable under S.22A of the Minimum Wages Act (Central Act XI of 1948) for violations of R.26 (1), (2) and (5) thereunder. Each of the accused in the respective cases was convicted and sentenced under each count to pay a fine of Rs. 50/- and in default to undergo simple imprisonment for seven days under each count. Criminal M.C. Nos. 663 to 668 of 1985 are respectively, against those convictions and sentences. 3. In S.T.C. Nos. 48, 50, 52, 43, 44, 41 and 47 of 1984 before the same court also business men were prosecuted by the same officer for offences punishable under S.29(2) of the Kerala Shops and Commercial Establishments Act, 1960 for having violated R.10(1) and R.10(1A) of the Rules made thereunder. In those cases the concerned accused were convicted and sentenced to pay a fine of Rs.25/- under each rule and in default to undergo simple imprisonment for seven days under each rule. Crl. M.C. Nos. 673 to 679 respectively are against those convictions and sentences. 4. R.26(1), R.26(2) and R.26(5) of the Minimum Wages (Central) Rules reads: 26. Form of registers and records-(1) A register of wages shall be maintained by every employer at the work-spot in Form X. (2) A wage slip in From XI shall be issued by every employer to every person employed by him at least a day prior to the disbursement of wages. (5) A Muster Roll shall be maintained by every employer at the workshop in Form V and the attendance of each person employed in the establishment shall be recorded daily in that Form within 3 hours of the commencement of the workshift or relay for the day, as the case may be". The penal provision is S.22 A of the Minimum Wages Act and it reads: "22A. General provision for punishment of other offences. The penal provision is S.22 A of the Minimum Wages Act and it reads: "22A. General provision for punishment of other offences. Any employer who contravenes any provision of this Act or of any rule or order made thereunder shall, if no other penalty is provided for such contravention by this Act, be punishable with fine which may extend to five hundred rupees". Rules 10 (1) and 10 (1A) of the Shops ana Commercial Establishments Rules read: "10. Maintenance of registers and records and display of notices (1) Every employer shall maintain a register of employment in Form A provided that where the opening and closing hours are ordinarily uniform, the employer may maintain such register in Form B. (1A) Every employer shall maintain a register in form BB which shall be preserved for the period of the whole service of the employee concerned". The penal provision is S.29 (2) of the Shops and Commercial Establishments Act which reads thus: "29 (2) Whoever contravenes any of the provisions of S.7,19 20, 28 and 30 shall, on conviction, be punishable with fine which may extend to fifty rupees". 5. Violations alleged in the cases under the Minimum Wages Act and Rules are failure to maintain register of wages and muster-roll and failure to issue wage slips. Violations of the Shops and Commercial Establishments Act and Rules are failure to maintain register of employment and service records register. All these violations alleged are only relating to head load workers employed by them. 6. There is no dispute on facts. The fact that the respective head load workers are employed by the respective employers is admitted. It is also not disputed that the records were not maintained. The only contention is that after the Head Load Workers Act, 1978 and the Head Load Workers Rules, 1981 which came into force throughout the State of Kerala on 20-5-1981, the above provisions of the Minimum Wages Act and the Shops and Commercial Establishments Act as well as the Rules framed under those two Acts are not applicable in relation to the head load workers and their employers, at any rate, regarding the disputed provisions. The stand taken by the Public Prosecutor was that even though an employer of an establishment may employ different types of workers, the employers will have to maintain all the registers and records enjoined by different statutes in relation to different types of employees. In short the contention was that inspite of the provisions of the Head Load Workers Act and Rules the employers are not relieved of the liabilities under the Minimum Wages Act and Rules and the Kerala Shops and Commercial Establishments Act and Rules in the matter of maintaining registers and other records. 7. In appreciating the rival contentions the provisions of the Kerala Head Load Workers Act, 1978 and the Rules framed in 1981 are very much relevant. The preamble to the Kerala Head Load Workers Act shows that it is intended as a comprehensive legislation to regulate the employment, welfare and all conditions of service including settlement of disputes concerning head load workers in the State. It is thus a comprehensive and self contained regulation regarding that category of workers for whom the Government wanted to make independent provisions. The statement of objects and reasons in the Kerala Head Load Workers Bill 1976 shows that the Government are convinced that headload workers in the State are being exploited by their employers in the matter of payment of wages and other matters connected with their welfare and therefore it was considered necessary to enact a legislation for regulating their employment, and making provision for their welfare, settlement of disputes in respect of their employer and non-employment and for matters connected therewith. The memorandum regarding delegated legislation contained in the bill shows that the legislation seeks to empower the Government to prescribe the registers and records to be maintained by the employers and the particulars which they should contain and also the officers by whom they shall be countersigned and the place where they shall be kept. 8. S.9 of the Act provides for wages as may be prescribed and S.11 provides for enforcement of wages. Chapter IX provides for registers and. records to be maintained by employers. Chapter X provides for penalties. Penalties are higher than those under the Minimum Wages Act and the Shops and Commercial Establishments Act. 8. S.9 of the Act provides for wages as may be prescribed and S.11 provides for enforcement of wages. Chapter IX provides for registers and. records to be maintained by employers. Chapter X provides for penalties. Penalties are higher than those under the Minimum Wages Act and the Shops and Commercial Establishments Act. There is the non-obstante clause under S.39 which says that the provisions of the Act and the Schemes shall have effect notwithstanding anything inconsistent contained in any other law, award, agreement, contract etc. whether made before or after. Chapter IV of the Rules under the Kerala Head Load Workers Rules, 1981, prescribed under Chapter IX of the Act provides for registers and records. "26. Preparation of Registers. The Assistant Labour Officer shall be the authority to prepare a Register of Headload workers working in the area within his jurisdiction and the Register shall be in Form No.IV. 27. Maintenance of Registers and records by employers. (1) Every employer shall maintain a Register of Employment and Wages in Form No.V. (2) Every employer shall supply to every headload worker wage cards in Form No.VI on every Saturday, containing particulars for the week ending on that day. (3) The entries in the Register of Employment and Wages shall be got countersigned by the Inspector once in three months. (4) The registers and records required to be maintained under these rules shall be kept at the work-spot or at a place approved for the purpose, by the Inspector, in writing and the the entries therein relating to each day shall be made on the same day. (5) The employer shall obtain the signature or thumb impression of every headload worker in the Register of Employment and Wages and on the wage card at the time of the disbursement of wages." It is a complete code of the registers and records to be maintained and provided by the employer in relation to the head load workers employed by him. These provisions fully cover the field occupied by the Minimum Wages Act and the Shops and Commercial Establishments Act and Rules in the matter of the liability of the employer to maintain registers and records and the penal consequences for failure. Penal consequences are more severe when compared to the other two Acts and the Rules. 9. These provisions fully cover the field occupied by the Minimum Wages Act and the Shops and Commercial Establishments Act and Rules in the matter of the liability of the employer to maintain registers and records and the penal consequences for failure. Penal consequences are more severe when compared to the other two Acts and the Rules. 9. I have already stated that in all these cases we are concerned only with the liability of the employers in relation to registers and records. Employer and employee are defined in all the three Acts with the difference that in the Head Load Workers' Act instead of employee "head load worker" alone has been defined. Head load worker has not been defined in the other two Acts. Thus regarding maintenance of registers and records and regarding the penal consequences there are provisions in all the three Acts and they are overlapping. id the other two Acts these provisions are general in relation to the employers and all their employees which include the head load workers also. But in the Head Load Workers Act which deals only with that category of employers the overlapping provisions are exclusively in relation to the head load workers and their employers. These provisions are expressly stated to be applicable notwithstanding anything inconsistent contained in any other law, etc. 10. Head Load Workers Act is a special enactment which is applicable only to a special category of employees namely Head load workers. Minimum Wages Act and Shops and Commercial Establishments Act, when compared to Head Load Workers Act, are general legislations, the provisions of which are applicable to all employees in certain employments. In the Minimum Wages Act the definitions of employer and employee are in relation to certain scheduled employments and provisions for minimum wages are applicable to all the employees in such employments. When the Kerala Head Load Workers Act is a comprehensive self-contained Code in matters concerning employers and employees including maintenance of registers and records and their penalties, in respect of a particular category of employees namely the Head Load Workers, the provisions of that Act must prevail over the provisions of the other two Acts so far as such matters are concerned and for which provisions are made in the Head Load Workers Act. After the commencement of the Head Load Workers Act, the provisions of the other two Acts on such matters must be taken to have been excluded so far as head load workers are concerned. 11. Minimum Wages Act is a Central Act. Head Load Workers Act and Shops and Commercial Establishments Act are State legislations. Head Load Workers Act relates to matters enumerated in the concurrent list in the Constitution. It has received the assent of the President of India on 28-9-1980. It contains provisions repugnant to the provisions of the other Acts. According to Art.254(1) of the Constitution of India if any provision in a State legislation is repugnant to any provision in a Central legislation which the Parliament is competent to enact or to any provision of an existing law concerning any one of the matters in the concurrent list, the law made by the Parliament, whether passed before or after the State legislation, or as the case may be, the existing law, shall prevail and the law made by the State legislature shall, to the extent of the repugnancy, be void. But this is subject to Art.254(2) which reads: "Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State." 12. Kerala Head Load Workers Act is with respect to one of the matters enumerated in the Concurrent List. It received the assent of the President on 28-9-1980. As earlier stated the Head Load Workers Act and rules cover the entire area of the Minimum Wages Act, Shops and Commercial Establishments Act and the rules framed under those Acts, at least in the matter of maintaining registers and other records and the penalties so far as head load workers are concerned, of which alone we are bothered in these cases. If so even without any repugnancy the provisions of the Head Load Workers Act and rules will have to prevail in the State. In this case Parliament has not made law as stated in the proviso. R.26(1), (2) and (5) of the Minimum Wages Rules provide for maintenance of wage register, issue of wage slips and maintenance of muster-roll and the penalty provided under S.22 A of the Act is fine upto Rs.500/-. R.10(1) and 10(1A) of the Shops and Commercial Establishments Rules provide for maintenance of register of employment and service records register and the penalty prescribed under S.29(2) of the Act is only fine upto Rs.50-. R.27 under Chapter V of the Head Load Workers Rules provide for maintenance of Register of employment and wages, supply of wage cards to workers on every Sundays, getting register of employment and wages counter-signed by the Inspector, keeping these registers written up to date every day is the work spot and obtaining signature or thumb impression of every head load worker in the register when wages are disbursed. These rules provide for more stringent conditions than in the provisions in the other two Acts and rules. Penalty prescribed under S.29 is imprisonment upto six months or fine upto Rs.1,000/-or both and for continuing offence additional fine per day is also provided. S.30 provides for enhanced penalties in cases of previous conviction also. It is thus evident that the Head Load Workers Act and rules provide for more comprehensive provisions for maintenance of registers and records in cases of head load workers and violations are provided with more severe penalties also. It has also to be noted that Head Load Workers Act and rules are included as a self-contained comprehensive legislation to cover a special category of workers who come within the general category of employees under the other two legislations. Intention of the legislature is evident. It is clear that the legislature thought that the provisions in the Minimum Wages Act and rules and Shops and Commercial Establishments Act and rules are not sufficient to cover the interest of the Head Load Workers. That is why a separate legislation was enacted with a non-obstante clause. Intention of the legislature is evident. It is clear that the legislature thought that the provisions in the Minimum Wages Act and rules and Shops and Commercial Establishments Act and rules are not sufficient to cover the interest of the Head Load Workers. That is why a separate legislation was enacted with a non-obstante clause. If the provisions of the other two Acts and rules were considered sufficient and operative for head load workers there was absolutely no reason for the comprehensive legislation for the particular category alone being enacted while the other two were in force. 13. The provisions of the Cochin Agriculturists Relief Act, 1114 and the Kerala Agriculturists Debt Relief Act, 1970 came up for consideration before a Division Bench of this court in Venugopal Co. (P) Ltd. v. Varghese (1984 KLT.190). The two provisions were such that they cannot go together. The term'debt' in the Cochin Act took in various kinds of liabilities excluded from the definition of 'debt' in the Kerala Act It was held that Cochin Act was impliedly intended to be superceded. It is true that the principle as such may not be applicable here. Here the question of repeal by implication does not and need not arise. Under Art.254 (2) of the Constitution the provisions of the Head Load Workers Act and rules will have to prevail in the State in preference to or to the exclusion of the provisions of the other two Acts and Rules. During the period when the provisions of the Head Load Workers Act and rules are in force employers are evidently bound to maintain registers and records mentioned above in relation to the head load workers and they will have to suffer the penalties for violation. The legislature could never have intended the contingency of those employers continuing to have the liability of maintaining registers and records under the provisions of the Minimum Wages Act and rules and Shops and Commercial Establishments Act and rules and suffering the penalties under those provisions also. That may amount to violation of Art.20(2) of the Constitution and S.300 of the Crl. P. C. A later Act conferring new rights and imposing new liabilities would repeal earlier rights and liabilities if the effect of the two rights coexisting produces conflict or inconvenience as held in Tata Tea Ltd. v. State of Kerala (1984 KLT. That may amount to violation of Art.20(2) of the Constitution and S.300 of the Crl. P. C. A later Act conferring new rights and imposing new liabilities would repeal earlier rights and liabilities if the effect of the two rights coexisting produces conflict or inconvenience as held in Tata Tea Ltd. v. State of Kerala (1984 KLT. 645) because in such a case it is legitimate to infer that the legislature did not intend such a consequence. In this case on account of the non-obstante clause the question of implied intention need not be considered. Further Head Load Workers Act is a special legislation exclusively applicable to a particular category of employees and the other two are general legislations applicable to those category of employees along with others. It is an accepted rule of construction of statutes that a special enactment covering a particular area alone is having the effect of overriding a general enactment. The purpose behind the legislation also necessitates such an interpretation. 14. The reasons alleged by the Chief Judicial Magistrate for making the provisions of the Minimum Wages Act and rules and Shops and Commercial Establishments Act and rules applicable along with the provisions of the Head Load Workers Act and rules in relation to employers and the head load workers employed by them on matters covered by the provisions of the latter Act and rules are fallacious. It is true that S.24 of the Head Load Workers Act makes the provisions of the Workmen's Compensation Act applicable to the head load workers and they are deemed to be workmen under that Act. This provision ought not have been taken as an indication that provisions of other Acts are also applicable. On the other hand a contra indication ought to have been inferred. So also S.1(5) of the Employees State Insurance Act which empowers the Government to extend the provisions of that Act to any other establishment ought not have been quoted in support of the view. The Magistrate wrongly rejected the applicability of AIR. 1976 S. C. 1654 without assigning any reason at all. 15. It follows that the impugned provisions of the Minimum Wages Act and rules and the Shops and Commercial Establishments Act and rules were not available for prosecuting the employers after the commencement of the Head Load Workers Act and rules. The Magistrate wrongly rejected the applicability of AIR. 1976 S. C. 1654 without assigning any reason at all. 15. It follows that the impugned provisions of the Minimum Wages Act and rules and the Shops and Commercial Establishments Act and rules were not available for prosecuting the employers after the commencement of the Head Load Workers Act and rules. Provisions on those matters concerning liability of the employers to maintain registers and records and the penalties for violations contained in the Head Load Workers Act and rules, in the circumstances detailed above, definitely have the effect of overriding and excluding those provisions in relation to employers and the head load workers employed by them. On those matters prosecutions could be had only under the provisions of the Head Lord Workers Act and rules or scheme as the case may be. Since there are no prosecutions under the provisions of the Head Load Workers Act and rules we are not concerned whether those provisions are violated in the matter of maintaining registers and records. 16. Prosecutions under the provisions which are not applicable will be illegal. Cognisance could not have been taken on those complaints. Cognisance amounts to illegality. The accused were subjected to unnecessary harassment. The entire proceedings were illegal and consequently the convictions and sentences are abuses of process of court and must be treated as non est. All the petitions are allowed and the entire proceedings including the convictions and sentences are hereby quashed. Allowed.