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2004 DIGILAW 1036 (JHR)

A. Naresh v. State Of Jharkhand

2004-10-15

HARI SHANKAR PRASAD

body2004
ORDER Hari Shankar Prasad, J. 1. In both the Cr. Misc. Petitions facts involved are the same and, therefore, both the applications are being disposed "of by this common order. 2. Both the Cr. Misc. Petitions have been filed .for quashing the cognizance order dated 26.8.2002 passed by learned CJM, Jamshedpur in C/2 Case Nos. 2009/ 2002 and 2010/2002 respectively. 3. The prosecution case in Cr. Misc. Petition No. 1529/2003 in brief is that a prosecution report has been filed by the opposite party No. 2 against the petitioner and one another in the Court of CJM Jamshedpur and in the said prosecution report it is alleged that some violations of Sections 12(1) and 18 of the Minimum Wages Act, Rules 21(4), 22, 25(2), 26(1), 26(2) and 26(5) have been made. It is alleged that the opposite party No. 2 has made an inspection on 15.7.2002 at about 11.45 a.m. of Graduate Engineers Hostel (Mess) Telco, Jamshedpur along with some other officers of the Labour Department and during inspection one Anup Maithy was present and in course of inspection he found the following irregularities. (i) As per requirement of Rule 21(4) no register in Forms 1 and 2 was kept showing deduction from payments to the labours on account of penalty and compensation. (ii) As per requirement of Requirement of Rule 22 required informations and rates of wages were not displayed at the work site. (iii) As per requirement of Rule 25(2) register for overtime was not kept. (iv) As per requirement of Rule 26(1) register of wages was not kept. (v) As per requirement of Rule 26(2) no wage slip was given to the labourer. (vi) As per requirement of Rule 26(5) no muster roll was kept. 4. By memo No. 2340 dated 26.7.2002 through office-peon, notice was served on the petitioner to file show cause, which was filed on 29.7.2002 but the same was found unsatisfactory and, thereafter, case was lodged. 5. The prosecution case in Cr. Misc. Petition No. 1535/2003 in brief is that a prosecution report has been filed by the opposite party No. 2 against the petitioner and one another in the Court of CJM Jamshedpur and in the said prosecution report it is alleged that some violations of Sections 12(1) and 18 of the Minimum Wages Act, Rules 21(4), 22, 25(2), 26(1), 26(2) and 26(5) have been made. It is alleged that the opposite party No. 2 has made an inspection on 15.7.2002 at about 6.45 p.m. of M/s. Telco Engineers Hall (Mess), Telco Colony, Telco, Jamshedpur along with some other officers of the Labour Department and during inspection one Madhumita Roy was present and in course of inspection he found the following irregularities. (i) As per requirement of Rule 21(4) no register in Forms 1 and 2 was kept showing deduction from payments to the labours on account of penalty and compensation. (ii) As per requirement of Requirement of Rule 22 required informations and rates of wages were not displayed at the work site. (iii) As per requirement of Rule 25(2) register for overtime was not kept. (iv) As per requirement of Rule 26( 1) register of wages was not kept. (v) As per requirement of Rule 26(2) no wage slip was given to the labourer. (vi) As per requirement of Rule 26(5) no muster roll was kept. 6. By Memo No. 2336 dated 26.7.2002 through office peon, notice was served on the petitioner to file show cause, which was filed on 29.7.2002 but the same was found unsatisfactory and, thereafter, case was lodged. 7. Learned counsel appearing for the petitioners submitted that petitioner is not concerned in any way with the maintenance of work of M/s. Graduate Engineers Hostel (Mess), Telco and M/s. Telco Engineers Hall (Mess), Telco Colony as they have constituted a committee and they have employed persons, who worked as domestic persons and they do not come under the "schedule employment" and when they do not come under the "Schedule Employment", application of Minimum Wages Act will not come into force. It was further submitted that allegations have been levelled against the petitioner, although the petitioner is not in any way concerned with the maintenance of register etc. and no such violation can be attributed due to him. It was further pointed out that no specific allegation has been levelled against him as to how he was responsible for the business of M/s. Graduate Engineers Hostel (Mess) and M/s. Telco Engineers Hall (Mess), Telco. In this connection reliance was placed upon 1998 Cr LJ 4521, wherein it has been held that when no specific allegations are made against the persons that they were incharge and responsible for conduct of business, then they cannot be held liable. In this connection reliance was placed upon 1998 Cr LJ 4521, wherein it has been held that when no specific allegations are made against the persons that they were incharge and responsible for conduct of business, then they cannot be held liable. Reliance was further placed upon AIR 1983 SC 67 , wherein it has been held that when there is no specific allegation against the persons that they were responsible for the conduct of business, then proceeding can be quashed against such persons. Reliance was also placed upon 1998 (5) SCC 343 , wherein it has been held that simply because a person is Director of the Company, he does not vicariously become liable for the offence committed by the company, it must be shown that he was incharge of the company and was responsible to the company frit the conduct of its business. 8. Here in the instant case, opposite party No. 2 has failed to point out as to whether the petitioner was concerned with the day-to-day work of the management or was employer of the persons engaged in the management of the Graduate Engineers Hostel (Mess), Telco and M/s. Telco Engineers Hall (Mess), Telco and simply because he was holding a particular post, he was responsible, that cannot be a ground. No specific allegation about his role for the maintenance of work of the management has been alleged and further that the management has constituted a committee and they engaged the persons as domestic persons and, therefore, they do not come under "Schedule Employment" and if there is any violation and if they come under "Schedule Employment", for that the petitioner is not responsible. 9. In that view of the matter, from the discussions made above, I am of the view that the petitioner is not responsible for any lapses that have been found in course of inspection of the premises. 10. In the result, both the applications are allowed and impugned order taking cognizance dated 26.8.2002 is hereby quashed.