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1994 DIGILAW 310 (GUJ)

STATE OF GUJARAT v. SANKHESHWAR JAIN AGAM MANDIR

1994-10-10

C.V.JANI

body1994
C. V. JANI, J. ( 1 ) THIS petition by the State of Gujarat and the Goverment Labour inspector under Art. 227 of the Constitution of India, is directed against the common judgment and order of the learned Sessions Judge, Mehsana, in Criminal Revision application Nos. 115 of 1992 and 116 of 1992 whereby the learned Judge was pleased to hold that the complaint filed by the Labour Inspector under Sec. 22-A of the minimum Wages Act, 1948, was barred by limitation, and as a consequence to set aside the order passed by the learned J. M. F. C. , Harij, below application Exh. 18 in Criminal Case No. 177 of 1991. ( 2 ) THE Government Labour Inspector, the petitioner No. 2 herein, filed a complaint against Shri Shankeshwar Jain Agam Mandir which is a Public Trust, and its Chairman Kanubhai Chimanlal Shah, under Sec. 22-A of the Minimum Wages act, 1948, hereinafter referred to as the act, for violation of Rules 26a, 21 (4) and 26-D of the Gujarat Minimum Wages Rules, 1961, made under Sec. 39 of the minimum Wages Act, 1948. This complaint was registered as Criminal Case No. 177 of 1991. It was alleged that when the Minimum Wages Inspector visited the institution on 5-12-1990 it was found that Inspectors visit book prescribed under the Minimum Wages Act was not maintained, as per Rule 26a; that the Annual return prescribed in Form No. 3 was not maintained as per Rule 21 (4), and the wages Register, Master Roll and Over-time Register subsequent to April, 1990 were not produced even though called upon, under Rule 26-D of the aforesaid Rules. The competent officer, namely, the Assistant Commissioner sanctioned prosecution on 5-4-1991. The complaint came to be filed on 27-5-1991. ( 3 ) THE Advocate for the respondent-accused submitted an application Exh. 18 on 12-3-1992 for dismissing the complaint and discharging the accused on two grounds : (i) That the complaint was not filed within six months as provided under Sec. 22b (2) (b) of the Act; and (ii)The complaint was not filed within one month after the grant of sanction as required under Sec. 22-B (2) (a) of the Act. ( 4 ) THE learned Magistrate dismissed the application by holding that the complaint had been filed clearly within six months after the offence was committed, as provided in clause (b) of Sec. 22-B (2 ). ( 4 ) THE learned Magistrate dismissed the application by holding that the complaint had been filed clearly within six months after the offence was committed, as provided in clause (b) of Sec. 22-B (2 ). ( 5 ) AS two Criminal Case Nos. 176 of 1991 and 177 of 1991 had been filed against the respondent Institution under the Minimum Wages Act, the respondent institution challenged the order of the learned Magistrate by filing Criminal Revision application Nos. 115 of 1992 and 116 of 1992. The learned Sessions Judge, Mehsana, allowed the revision applications by holding that the complaint was barred by limitation, provided under Sec. 22-B, as in the view of the learned Judge the complaint was required to be filed within one month of the grant of sanction, either under clause (a) or clause (b) of Sec. 22 of the Act. ( 6 ) I have gone through the revisional order of the learned Sessions Judge as well as the relevant provisions of the Act, and I find that the learned Sessions Judge had committed an error in holding that the complaint was barred by limitation. ( 7 ) A close look at the relevant provisions of the Minimum Wages Act, is necessary for apprehending this error. Sections 22, 22a and 22b of the Act, read as under : ( 8 ) CLAUSE (a) of Sec. 22-B (2) would apply if the complaint is made under clause (a) or clause (b) of Sec. 22 and such a complaint is required to be filed within one month of the grant of sanction. ( 9 ) CLAUSE (a) of Sec. 22 refers to the offence of paying to an employee less than the minimum rate of wages or less than the amount due to him under the provisions of the Act. No such allegation is made in the complaint filed against the respondent-Institution. Clause (b) of Sec. 22 refers to contravention of any Rule or order made under Sec. 13. Section 13 empowers an appropriate Government to fix the number of hours of work to provide for a lay off rest and to provide for overtime rate for working on a day of rest. Obvioulsy, the allegations made in the complaint against the respondent-Institution are not relating to violation of any such rules prescribed by the Government. Section 13 empowers an appropriate Government to fix the number of hours of work to provide for a lay off rest and to provide for overtime rate for working on a day of rest. Obvioulsy, the allegations made in the complaint against the respondent-Institution are not relating to violation of any such rules prescribed by the Government. On the other hand, the complaint has been filed against the respondent-Institution for non-compliance with certain provisions of Rule 26-A, Rule 21 (4) and Rule 26- d of the Gujarat Minimum Wages Rules, 1961 framed under Sec. 30 of the Act. The learned Judge seems to have made a confusion about the provisions of law under which the relevant Rules were framed. It may be again emphasised and repeated that the complaint was in respect of violation of certain rules framed under Sec. 30 of the Act, and not under Sec. 13 thereof. So even Cl. (b) of Sec. 22 would not apply in the present case. Thus, the learned Sessions Judge clearly committed an error in bringing the case under clause (a) of sub-sec. (2) of Sec. 22-B. ( 10 ) SUB-SEC. (2) of Sec. 22-B provides for six months limitation for filing the complaint under the general provision of Sec. 22-A which has been reproduced hereinabove. It provides for punishment for contravening any provision of the Act or any Rule or order made thereunder. As the Minimum Wages Inspector who visited the institution on 5-12-1990 came to know about the alleged offence on that day, the complaint filed by him on 27-5-1991 was clearly within the period of limitation. Thus, there was no substance in the objections taken on behalf of the respondent- institution either before the learned Magistrate or before the learned Sessions Judge. ( 11 ) THIS being a clear error of law apparent on the face of the record, which goes to the root and touched the jurisdiction of the learned Magistrate to try the offence under the Minimum Wages Act, 1948, this Court has no other alternative but to allow the petition and to confirm the order of the learned J. M. F. C. , Harij, below application Exh. 18, in Criminal Case No. 177 of 1991 and to set aside the revisional order of the learned Sessions Judge, Mehsana, which is rendered by him in Criminal Revision Application No. 116 of 1992 along with Criminal Revision application No. 115 of 1992. ( 12 ) RULE is made absolute accordingly. The learned J. M. F. C. , Harij, is directed to expedite the hearing of Criminal Case No. 177 of 1991, and also the connected cases, in accordance with law. .