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2009 DIGILAW 1107 (JHR)

Nilotpal Roy v. State of Jharkhand

2009-08-11

R.R.PRASAD

body2009
JUDGMENT : The extraordinary jurisdiction of the High Court has been invoked for quashing the order dated 28.6.2006 (Annexure-2), passed by learned Chief Judicial Magistrate, Chaibasa in C/7 Case No. 64 of 2006, whereunder cognizance of the offence under Section 10(I)(a) of the Equal Remuneration Act, 1976 has been taken against the petitioners and one Radha Krishna Yadav, General Manager (Mines), Gua Iron Ore Mines, a unit of M/s Indian Iron & Steel Company. Learned counsel appearing for the petitioners submits that when the complainant -Labour Enforcement Officer (Central), Chaibasa inspected Gua Iron Ore Mines, a unit of M/s Indian Iron & Steel Company, it was found that Form-‘D’ which was required to be maintained under the provisions, as contained in Section 8 of the Equal Remuneration Act, 1976 read with Rule 6 made thereunder, had not been maintained and as such, a complaint was filed not only against the General Manager (Mines) but also against these petitioners, who happened to be the Managing Director of IISCO, as well as the Executive Director, (C & M ), IISCO respectively, though these petitioners had nothing to do with the day to day affairs of Gua Iron Ore Mines nor they are the employers in terms of the provision of Equal Remuneration Act, 1976, whereas only the employer can be held responsible for commission of the offence under Section 10(I)(a) of the Equal Remuneration Act, 1976, if the provision of Section 8 of the Equal Remuneration Act, 1976 read with Rule 6 is contravened and, therefore, entire prosecution is bad so far these petitioners are concerned. A counter affidavit has been filed on behalf of the respondent no. 2-Labour Enforcement Officer (Central), Chaibasa, wherein it has been stated that both the petitioners can be said to be the employers in terms of the provisions, as contained under Section 2 (c) of the Equal Remuneration Act, 1976 read with Section 2(f)(iii) of the Payment of Gratuity Act, 1972 and, therefore, they can not escape from being prosecuted under the Equal Remuneration Act, 1976. In view of the stand taken on behalf of the parties, the first and foremost point falls for consideration as to whether these petitioners, being the Managing Director and the Executive Director (C & M), IISCO, are the ‘employers’ in terms of the provisions of the Equal Remuneration Act, 1976. In view of the stand taken on behalf of the parties, the first and foremost point falls for consideration as to whether these petitioners, being the Managing Director and the Executive Director (C & M), IISCO, are the ‘employers’ in terms of the provisions of the Equal Remuneration Act, 1976. The word ‘employer’ has been defined in Section 2(c) of the Equal Remuneration Act, 1976, which reads as follow : “ employer’ has the meaning assigned to it in clause (f) of section 2 of the Payment of Gratuity Act, 1972”. Section 2 (f) of the Payment of Gratuity Act, 1972 defines ‘employer’ which reads as follows :-“Employer” means, in relation to any establishment, factory, mine, oilfield, plantation, port, railway company or shop – (i) belonging to, or under the control of, the Central Government or a State Government, a person, or authority appointed by the appropriate Government for the supervision and control of employees, or where no person or authority has been so appointed, the head of the Ministry or the Department concerned, (ii) belonging to, or under the control of, any local authority, the person appointed by such authority for the supervision and control of employees or where no person has been so appointed, the Chief Executive Officer of the local authority, (iii) in any other case, the person, who, or the authority which has the ultimate control over the affairs of the establishment, factory, mine, oilfield, plantation, port, railway company or shop, and where the said affairs are entrusted to any other person, whether called a manager, managing director or by any other name, such person”. As per the stand of the respondent no. 2, these petitioners are being prosecuted, as they had ultimate control over the mines, a unit of IISCO, and as such, they can be said to be the employers in terms of Section 2 (f) (iii) of the Payment of Gratuity Act, 1972. The stand taken on behalf of the respondent no. 2 appears to be wholly misconceived. Gua Iron Ore Mines is a unit of M/s Indian Iron & Steel Company, which is admittedly an organization of the Central Government. That being the situation, employer would be the person who will be falling within clause (i) of Section 2(f) of the Payment of Gratuity Act. 2 appears to be wholly misconceived. Gua Iron Ore Mines is a unit of M/s Indian Iron & Steel Company, which is admittedly an organization of the Central Government. That being the situation, employer would be the person who will be falling within clause (i) of Section 2(f) of the Payment of Gratuity Act. In terms of subclause (i), a person would be employer if he is appointed by the appropriate Government for the supervision and control of employees, or where no person or authority has been appointed, the head of the Ministry or the Department concerned would be the employer. It is never the case of the prosecution that these petitioners have been appointed by the appropriate Government for the supervision and control of employees. In absence of such appointment only the head of the Ministry/Department would be the employer. Here in the instant case, one Radha Krishna Yadav, who is also being prosecuted, has been shown to be the General Manager, Mines. In this view of the matter, these petitioners can not be said to be the employers and so far stand taken on behalf of the respondent no. 2 is concerned, it be stated that sub-clause (iii) of Section 2(f) of the Payment of Gratuity Act would never be attracted in the instant case, as admittedly Gua Iron and Ore Mines is an establishment under the control of the Central Government, whereas sub-clause (iii) would only be coming into play when the establishment is not under the control of the Central Government or the State Government or any local authority. Once it has been found that these petitioners will not be falling within the definition of the employer. Any prosecution of the petitioners under Section 10(i)(a) of the Equal Remuneration Act, 1976 would be wholly illegal. Accordingly, order dated 28.6.2006 passed by learned Chief Judicial Magistrate, Chaibasa in C/7 Case No. 64 of 2006, under which cognizance of the offence under Section 10(i)(a) of the Equal Remuneration Act, 1976 has been taken, is hereby quashed so far these petitioners are concerned. In the result, this application is allowed.