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2008 DIGILAW 583 (JHR)

Prashant Swarup v. Union of India (UOI)

2008-06-11

RAKESH RANJAN PRASAD

body2008
ORDER R.R. Prasad, J. 1. This application filed under Section 482 of the Code of Criminal Procedure is directed against the order dated 24.4.2006 passed by Additional Sessions Judge, Ghatsila in Cr. Rev. No. 105 of 2003 affirming the order dated 11.3.2003 passed by Additional Chief Judicial Magistrate, Ghatsila in C/2 case No. 13 of 2003 taking cognizance of the offence under Section 9(2) of the Payment of Gratuity Act. 2. The facts giving rise this application are that Labour Enforcement Officer (Central), Chaibasa, opposite party No. 2, lodged complaint against the petitioner No. 1, General Manager, Hindustan Copper Limited, Ghatsila and also against the petitioner No. 2, Assistant General Manager, (Mines), Hindustan Copper Limited, Ghatsila alleging therein that petitioners being employers within the meaning of Section 2(f)(ii) of the Payment of Gratuity Act (hereinafter referred to as 'the Act') in respect of establishment of Masoboni Group of Mines, Surda, of Hindustan Copper Limited/Indian Copper Complex failed to pay the amount of gratuity to the employees within 30 days from the date it became payable and further failed to pay simple interest @ 10% per annum for delayed payment and hence they are liable to be prosecuted under Section 7(3) and 7(3A) of the said Act. 3. It appears that the complainant, Labour Enforcement Officer (Central), Chaibasa before lodging the complaint asked the petitioners to rectify the irregularities noted by the complainant and to submit compliance report which seems to have been submitted but it was not found to be satisfactory and hence, Labour Enforcement Officer (Central), Chaibasa, opposite party No. 2 lodged the complaint on 3.3.2003 before the Additional Chief Judicial Magistrate, Ghatsila along with application praying therein to condone the delay. Upon it a case was registered as C/2 case No. 13 of 2003 on 3.3.2003 and the Court, vide order dated 11.3.2003 took cognizance of the offence under Section 9(2) of the Act. 4. Thereafter the petitioners preferred criminal revision before the Additional Sessions Judge, Ghatsila praying therein to set aside the order taking cognizance of the offence on the ground that opposite party No. 2 being Labour Enforcement Officer (Central), Chaibasa is not competent in terms of Section 11 of the said Act. 4. Thereafter the petitioners preferred criminal revision before the Additional Sessions Judge, Ghatsila praying therein to set aside the order taking cognizance of the offence on the ground that opposite party No. 2 being Labour Enforcement Officer (Central), Chaibasa is not competent in terms of Section 11 of the said Act. Secondly, on the ground that the complaint being time barred still the cognizance has been taken though delay was sought to be condoned but without condoning the delay in a specific term, cognizance has been taken and thirdly, on the ground that the Payment of Gratuity Act being special Act having no provision for condonation of delay, the Court should not have taken cognizance when application was time barred. However, the said revision application was dismissed by negating all the submissions by holding that the complainant having been authorised in terms of Section 11(1) of the Act is competent to lodge the case and that the Court having taken cognizance would be deemed to have applied its mind and condone the delay. 5. Being aggrieved with the said order, this application has been filed. 6. Learned Counsel appearing for the petitioners submits that though the complaint was lodged by opposite party No. 2, Labour Enforcement Officer (Central), Chaibasa but in terms of provision as contained in Section 11 of the Act he is not at all competent to lodge the complaint for contravention of the provision of the Payment of Gratuity Act and Rules made thereunder as it is only the 'controlling authority', who is competent to lodge the complaint. 7. 7. Learned Counsel In this regard submits that "controlling authority" as defined under Section 2(d) of the said Act Is an authority appointed by the appropriate Government under Section 3 of the said Act and Annexure 5 would go to show that Assistant Labour Commissioner (Central) at Dhanbad, Hazaribagh, Patna and Chaibasa has been appointed under Section 3 of the Act as the controlling authority for the State of Bihar and as such only the Assistant Labour Commissioner (Central) Dhanbad could be the competent authority in terms of Section 2(d) of the Act who can lodge prosecution against the petitioners being employer in respect of Mosabani group of mines for the contravention of the Act and Rules and that being the situation, the Labour Enforcement Officer (Central), Chaibasa, opposite party No. 2 does not have any authority under the law to file complaint against the petitioners for contravention of the provision of the Act and Rules and as such cognizance taken on a complaint not lodged by the competent person is quite illegal and is fit to be set aside. 8. Learned Counsel further submits that in terms of provision as contained in Section 11 of the Act, the controlling authority was required to lodge the complaint within 15 days from the date of authorisation but here in the instant case, the complaint has been lodged by the opposite party No. 2 not being the controlling authority much beyond the prescribed period of 15 days, though an application for condonation also accompanied with the complaint but the Court below without condoning the delay in a specific term has taken cognizance of the offence though the Court had no authority to condone the delay as the Act which is a special legislation does not prescribe any provision for condonation of delay and on this ground also the impugned order suffers from illegality. 9. 9. As against this, learned Counsel appearing for the opposite parties submits that the Labour Enforcement Officer (Central), Chaibasa, opposite party No. 2 is quite competent to lodge the complaint for contravention of the provision of Section 7 of the Act and as such there has been no illegality in the order taking cognizance of the offence where prima facie it has been established that the petitioners did not pay the amount of gratuity to the employees within the prescribed time nor did they pay even the interest which they were entitled to. 10. It was also submitted that the revision preferred by the petitioners got dismissed by the learned Sessions Judge and against that order, the petitioners have preferred an application under Section 482 of the Code of Criminal Procedure in the grab of second revision which is barred under the provision of Section 397(3) of the Code of Criminal Procedure. 11. Having heard learned Counsel appearing for the parties, it appears that the petitioners have sought to quash the impugned order on more than one grounds but the main thrust of the argument is directed towards the in competency of the Labour Enforcement Officer (Central), Chaibasa, opposite party No. 2 to lodge the complaint for contravention of the provision of the Act and Rules. However, the said argument appears to be fallacious in terms of the provision Itself as contained in Section 11 of the Act which reads as follows: Cognizance of offences.- (1) No Court shall take cognizance of any offence punishable under this Act save on a complaint made by or under the authority of the appropriate Government. Provided that where the amount of gratuity has not been paid, or recovered, within six months from the expiry of the prescribed time, the appropriate Government shall authorise the controlling authority to make a complaint against the employer, whereupon the controlling authority shall within fifteen days from the date of such authorisation, make such complaint to a Magistrate having jurisdiction to try the offence. (2) No Court inferior to that of a [Metropolitan Magistrate or a Judicial Magistrate of the first class) shall try any offence punishable under this Act. 12. From perusal of the main provision of Section 11 it would appear that one is quite competent to lodge the complaint but that person should be authorised by the appropriate Government to lodge the complaint. 12. From perusal of the main provision of Section 11 it would appear that one is quite competent to lodge the complaint but that person should be authorised by the appropriate Government to lodge the complaint. However, proviso of that provision does stipulate that it is only the controlling authority, which has been defined in Section 2(d) of the Act can lodge the complaint against the employer. Thus, the provision indicates that a person under the authority of the appropriate Government as also the controlling authority as has been defined under Section 2(d) of the Act can lodge the complaint but the situations are different. In one situation a person authorised by the appropriate Government can lodge the case whereas in other situation controlling authority can file the complaint and those situations are embedded in the provision itself. 13. The proviso 2, of the said provision clearly stipulates that in situation where the amount of gratuity has not been paid or recovered within six months from the expiry of the prescribed time which in terms of Section 7(C) is within 30 days from the date it becomes payable, the appropriate Government shall authorise the controlling authority to make a complaint against the employer, but if a complaint is lodged before expiry of six months, then, in my view, main provision of Section 11 would come into play and in that event, a person authorised by the appropriate Government would be quite competent to lodge the case. The appears to be some purpose on the part of the Legislature to make such distinction which can be found out from the provision as contained in Section 7 of the Act which deals with determination of the amount of gratuity. The appears to be some purpose on the part of the Legislature to make such distinction which can be found out from the provision as contained in Section 7 of the Act which deals with determination of the amount of gratuity. From perusal of this provision, it would appear that as soon as gratuity becomes payable, employer shall arrange to pay the amount of gratuity within 30 days from the date it becomes payable to the person but if the amount of gratuity is not paid within the period specified, the employer shall be liable to pay even the interest but at the same time, the provision also does stipulate that if the delay in payment is due to fault of the employee and the employer has obtained permission in writing from the controlling authority for the delayed payment, the employer shall not be liable to pay interest but where there is some dispute with regard to the amount of gratuity payable to employer, the matter needs to be adjudicated by the controlling authority. 14. Thus, it appears that there may be two situations for launching the prosecution against the employer, one being of non-payment of the gratuity by the employer within the prescribed time as has been given under Section 7(C) of the Act and other being non-payment of the amount of gratuity by the employer due to some dispute which is to be resolved by the controlling authority and, therefore, Legislature in his wisdom thought it proper that it would be the competent authority, who would be lodging the complaint if the amount of gratuity is not paid within six months as the controlling authority may be in seisin with the matter of non-payment of the amount of gratuity by the employer but in other situation, any person authorised by an appropriate Government would be competent to lodge the complaint and as such, it is never the intent of the Legislature that in every eventuality of non-payment of the gratuity amount only the controlling authority would be competent to make complaint under the Act. 15. 15. Now coming to the instant case it appears that the complainant (opposite party No. 2) has been authorised by the appropriate Government under Annexure 6 to lodge the case who, in the facts and circumstances of the case, is quite competent to lodge the complaint as it is not the situation where the complainant has come with the case falling within the purview of the provision to Section 11 of the Act as it is never the case of the complainant that even after expiry of six months, the employees have not been paid gratuity amount, rather complaint is quite specific on the point that the employer failed to pay the amount of gratuity to the employees within 30 days from the date it became payable contravening Section 7(3) of the Act and also employer failed to pay simple interest @ 10% per annum for delayed payment of gratuity to the employees attracting the main provision of Section 11 of the Act. 16. As I have come to the conclusion that the instant case falls within the parameter of the main provision and not within the purview of the proviso of Section 11 any further requirement on the part of the competent authority to lodge the complaint within 15 days from the authorisation would not be applicable and hence, any submission made in this respect appears to be fallacious. So far question of maintainability of this application is concerned, the instant case appears to be maintainable, even if the revision application preferred by the petitioners got dismissed by the Sessions Court as any finding given by the Court of session is open to scrutiny to the High Court in exercise of its inherent power under Section 482 of the Code of Criminal Procedure. 17. However, due to reason discussed hereinabove, I do not find any merit in this application. Accordingly, it is dismissed. Application dismissed.