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Andhra High Court · body

2002 DIGILAW 1167 (AP)

N. D. Chowda v. State

2002-09-26

S.R.K.PRASAD

body2002
S. R. K. PRASAD, J. ( 1 ) THE petitioner being accused invoked the inherent powers vested in this Court under section 482 of the Code of Criminal Procedure to quash the proceedings in S. T. C. No. 331 of 1999 of the file of the Special Judicial First class Magistrate (Labour and Factory Act) north and East, Ranga Reddy District. ( 2 ) A brief resume of background of facts is necessary: the petitioner-accused is the Director of m/s Bhagyanagar Metals Limited, a company registered under the Companies act, established for the manufacture of jelly filled telephone cables and it is having its registered office at Surya towers, secunderabad and the factory at Uppal Kalan, uppal, Hyderabad. For the purpose of carrying out its manufacturing activities, it has engaged some skilled and unskilled persons. The State Government of Andhra pradesh, in exercise of the powers conferred by sub-section (1) of Section 10 of the Contract labour (Regulation and Abolition) Act, 1970 (Central Act 37 of 1970), issued G. O. Ms. No. 287, LEN and TE (Lab-II), dt. 7-5-1981, published in issue No. 225 of Part I, Ext. A. P. Gazetted, dated 8-5-1981 prohibiting the employment of contract labour in the following process of operations in the establishments in which contract labour is employed in all the factories in the State of andhra Pradesh: (1) Watch and ward personnel, if not hired through specialized agencies provided the employees of such agencies are getting better wages and conditions of services than the lowest paid employee with the principal employer. (2) Routine sweeping and scavenging personnal working inside the factory. 3. Boiler house workers. 4. Workers employed in the routine maintenance of plant machinery. 5. Persons engaged in automobile garages and workshops inside the factory where the work is continues. The Assistant Labour Officer, Hyderabad, respondent herein, inspected the petitioner s premises on 5-1-1998 at 11. 30 a. m. and noticed the following:"the principal employer has engaged contract labour in prohibited processes and operations. Mr. Sailu is the only contractor as per the records who is holding a licence to engage maximum 80 contract labours. All the workers who are not engaged by Mr. Sailu and found working in the establishment at the time of inspection during general and first shift and some others employed in second and third shift are the workers employed by principal employer. All the workers who are not engaged by Mr. Sailu and found working in the establishment at the time of inspection during general and first shift and some others employed in second and third shift are the workers employed by principal employer. Thus the accused violated Section 10 (1) read with g. O. Ms. No. 287 LEN and TE (Lab-II) dated 7-5-1981 Gazette dated 8-5-1981. "thereupon, the respondent launched a complaint against the petitioner-accused before the Special Judicial First Class magistrate (Labour and Factory Act), North and East, Ranga Reddy district. There was a delay of four days in presenting the complaint. Thereupon, the learned magistrate condoned the delay in the interest of justice and took cognizance of the offence and the same was taken on file as s. T. C. No. 331 of 1999 on 1-10-1999. ( 3 ) THE learned counsel for the petitioner, ms. G. Sudha, assails the proceedings on the following grounds: (1) Similar notification which has been issued by the Government of Andhra pradesh, namely, G. O. Ms. No. 287 dated 7-5-1981 has been issued by the central Government and the Supreme court has considered the same in Steel authority of India Ltd. v. National Union water Front Workers and it has declared that the notification does not satisfy the aforesaid requirements of section 10 (1) of the Contract Labour (Regulations and Abolition) Act 1970 and quashed the same. As the notification issued by the State government is almost similar to that of the Central Government, it has also to be declared as not valid. (2) The G. O. prohibits the employment of contract labour for routine sweeping and scavenging personnel working inside the factory. The company is said to have engaged a licensed contractor by name P. V. Prasad for loading, unloading and cleaning operations. The G. O. covers the routine cleaning and not specialized cleaning. Its cleaning has to be made in various modes in respect of machinery etc. , the cleaning includes sweeping at the time of loading and unloading operations. It is not covered by the g. O. Hence the proceedings are liable to be quashed. The G. O. covers the routine cleaning and not specialized cleaning. Its cleaning has to be made in various modes in respect of machinery etc. , the cleaning includes sweeping at the time of loading and unloading operations. It is not covered by the g. O. Hence the proceedings are liable to be quashed. (3) The petitioner was holding the position of a Director responsible for the Board as well as to inform the board with regard to the production and to assist the Board and frame policy for production and implement the same in factory and he has nothing to do with the cleaning and maintenance operation. (4) It is also contended that there is no charge framed or an allegation made against the petitioner that he was solely responsible for the cleaning and maintenance operations. In the absence of the same, the complaint is bad and has to be quashed. (5) No part of cause of action is narrated in the complaint and so the claim that the petitioner was personally liable for the alleged offence to fasten criminal liability under Section 10 of the Act does not arise. ( 4 ) THE learned Public Prosecutor contends that the impugned G. O. issued by the State government has not been challenged, and the G. O. issued by the Central Government alone has been challenged and quashed as it is not in accordance with the provisions of section 10 of the Act and therefore the aforesaid decision of the Supreme Court cannot be made applicable to the G. O. issued by the State Government by analogy. Hence, it cannot be said that the complaint is not maintainable. It is also contended that it is not a fit case where inherent powers can be exercised to quash the proceedings. ( 5 ) ADVERTING to the said contentions, the central Government has issued a notification under Section 10 of the Act at the earliest point of time prohibiting the application of provisions of contract labour in certain industrial concerns. The Government of andhra Pradesh soon after followed in the footsteps and issued G. O. Ms. No. 287 dated 7-5-1981. ( 5 ) ADVERTING to the said contentions, the central Government has issued a notification under Section 10 of the Act at the earliest point of time prohibiting the application of provisions of contract labour in certain industrial concerns. The Government of andhra Pradesh soon after followed in the footsteps and issued G. O. Ms. No. 287 dated 7-5-1981. The Supreme Court in Steel authority of India Ltd. (1 supra) has observed at para 122 as follows:"the impugned notification issued by the Central Government on December 9, 1976 does not satisfy the aforesaid requirements of Section 10, it is quashed but we do so prospectively i. e. , from the date of this judgment and subject to the clarification that on the basis of this judgment no order passed or no action taken giving effect to the said notification on or before the date of this judgment, shall be called in question in any Tribunal or Court including a High Court if it has otherwise attained finality and or it has been implemented. " ( 6 ) THEREFORE, the G. O. issued by the State government is also not sustainable as being not in accordance with the provisions of section 10 of the Act. Unfortunately the inherent powers of this Court are invoked by the petitioner instead of invoking the writ jurisdiction of the High Court to quash the said G. O. When the petitioner has not chosen the correct remedy, this Court becomes helpless in granting a relief. I leave it open for the petitioner to seek appropriate remedy in appropriate forum. This Court while exercising the in herent powers cannot declare a particular Act as invalid. ( 7 ) COMING to the aspect of interpretation of the G. O. issued by the State Government, there is much force in the contention canvassed by the learned counsel for the petitioner that it prohibits only engagement of contract labour for routine sweeping and scavenging personnel working inside the factory and it does not cover the case of specialized contract of labour engaged for loading, unloading and cleaning. I also state that loading, unloading and cleaning operations is not mentioned in any portion of the said G. O. When such is the case, the petitioner cannot be prosecuted for engaging mr. Sailu, a licensed contractor for loading, unloading and cleaning operations. I also state that loading, unloading and cleaning operations is not mentioned in any portion of the said G. O. When such is the case, the petitioner cannot be prosecuted for engaging mr. Sailu, a licensed contractor for loading, unloading and cleaning operations. Moreover, the word routine means a "regular course or procedure, an unvarying performance of certain acts" as per the concise Oxford Dictionary of Current english, 8th edition, edited by R. E. Allen. It is not in dispute that the company has got regular sweepers. Cleaning may give rise to the overlapping of the duties of cleaning. But the cleaning is expected in respect of loading and unloading operations and not a routine matter. The sweepers are always available in the factory for attending to the routine work. In that view of the matter, I am of the considered view that the engagement of a licensed contractor for loading, unloading and cleaning operations is not prohibited by the aforesaid G. O. ( 8 ) COMING to the aspect of limitation, the trial Court has applied its mind, condoned the limitation and took cognizance of the offence. It is not shown as to how the said proceedings are invalid. Section 473 of the code of Criminal Procedure gives ample power to the Court to take cognizance of an offence after the expiry of the period of limitation, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice. The trial Court rightly applied its mind in condoning the delay and took cognizance of an offence. ( 9 ) THE last contention canvassed is that no averments were made in the complaint that the petitioner, who was a Director, was authorised to be in charge of conducting business of directly responsible for engaging the contract labour under the prohibited process operations. There is some force in that argument. But one cannot absolve himself from his liability, as the petitioner is a Director. His liability is always there for the acts and omissions of the company. In any case, I accept the contention of the learned counsel for the petitioner on ground No. 2, that loading, unloading and cleaning operations will not fall under the G. O. 1 find that launching of prosecution is bad in law. His liability is always there for the acts and omissions of the company. In any case, I accept the contention of the learned counsel for the petitioner on ground No. 2, that loading, unloading and cleaning operations will not fall under the G. O. 1 find that launching of prosecution is bad in law. As such there is no offence made out against the petitioner. Therefore, the proceedings in s. T. C. No. 331 of 1999 are liable to be quashed and are accordingly quashed. The petitioner is at liberty to challenge the validity of the g. O. Ms. No. 287 dated 7-5-1981 in appropriate forum or in appropriate proceeding. ( 10 ) THE Criminal Petition is accordingly allowed.