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Madhya Pradesh High Court · body

2012 DIGILAW 551 (MP)

First Source Solutions Ltd. v. Union of India

2012-05-17

N.K.GUPTA

body2012
JUDGMENT : This order shall govern the disposal of above mentioned six petitions, as common question of facts and law are involved in these petitions. 2. Petitioner- Establishment has filed the above Mentioned petitions through its Managing Director against the proceedings initiated by the respondent-Inspector Shri D. K. Singh, which are pending before the Chief Judicial Magistrate, Bhopal. The particulars of Such proceedings are as under :- SI. No. Petition M.Cr. C. No Criminal Case No. Offence u/s Name of accused. 01. 772/2012 RTNo. 22536/1 S. 1of the Samaan Vetan Adhiniyam, 1976 Firstsource Solutions Ltd. another 02. 774/2012 RTNo.22560/1 S.1 of the Samaan Vetan Adhiniyam, 1976 Firstsource Solutions Ltd. 03. 998/2012 RTNo. 26898/1 S. 23 and 24 of Contract Labour (Regulation and Abolition Act, 1970) Firstsource Solutions Ltd. another 04 999/2012 RT No. 26899/09 S. 23 and 24 of Contract Labour (Regulation and Abolition Act, 1970) Firstsource Solutions Ltd. another 05. 1000/2012 RT Nos. 4399/10 S. 22 of the Minimum wages Act. Firstsource Solutions Ltd. 06. 1001/2012 RTNo. 26896/09 S. 23 and 24 of Contract Labour (Regulation and Abolition Act, 1970) Firstsource Solutions Ltd. 3. The facts related to the present case are that the petitioner-establishment is registered as an establishment with Government of Madhya Pradesh. It is a company which deals with I. T. Solutions with its Head Office at Mumbai. In various States, company is serving for such solutions and in so many States it is registered as an establishment with the concerned State Government. In State of Madhya Pradesh, initially the petitioner-establishment was registered with government of Madhya Pradesh (for short GOMP). Thereafter the company entered into a contract with Bharti Airtel Private Limited (for brevity Airtel) to provide call centre services to that company, whereas Airtel was an establishment registered with Government of India (for short GOF). The respondent-complainant D. K. Singh is a Labour Enforcement Officer (Central) in GOI, who is vested with power of Inspector under the Contract labour (Regulation and Abolition) Act, 197(hereinafter referred to as special Act, 1970). Inspector D. K. Singh inspected the registers and other documents of the petitioner-establishment and filed aforesaid six complaints from time to time before the Chief Judical Magistrate, Bhopal. 4. Inspector D. K. Singh inspected the registers and other documents of the petitioner-establishment and filed aforesaid six complaints from time to time before the Chief Judical Magistrate, Bhopal. 4. Being aggrieved with the orders passed by the Chief Judicial Magistrate, Bhopal registering the complaints submitted by the public servant, the petitioners have filed the present petitions under Articles 226 and 227 of the Constitution of India to quash the proceedings of aforesaid six complaints, but thereafter those petitions filed under Articles 226 and 227 of the Constitution of India were converted into petitions under Section 482 of Cr. P.C. The respondents were given an opportunity to submit reply to the petitions. 5. Heard the learned counsel for the parties at length. 6. Smt. Indira Nair, learned senior counsel for the petitioners has submitted that the petitioner is a global Company, which is an establishment set up with the funds of a private concern and according to the definition of appropriate Governmentin the Special Act, 1970, appropriate Government for the petitioner-establishment is GOMP, and therefore it was registered with GOMP. In support of her contention, learned senior counsel for the petitioners has relied upon the judgments of the Hon'ble Apex Court in the case of Tata Memorial Hospital Workers Union Vs. Tata Memorial Centre and another, [ (2010) 8 SCC 480 ] and in the case of Steel Authority of India Ltd. others Vs. National Union Waterfront Workers others, [ (2001) 7 SCC 1 ], to show that appropriate Government for the petitioner establishment is GOMP. Secondly, it is submitted that it is not expected from any establishment to get its registration with two different Governments, and therefore Inspector D. K. Singh has no right to inspect the establishment of the petitioner and to file such complaints before the Chief Judicial Magistrate, Bhopal. It is further submitted that agreement took place between Airtel and the petitioner-establishment on principal to principal basis, and therefore the petitioner-establishment was not at all a contractor to the Airtel to provide contract labour to them. Therefore, the provisions of the Special Act would not apply in such a manner so that Inspector of GOI may have any jurisdiction of inspect and to prosecute the officers of the petitioner-establishment. Under such circumstances, it is prayed that all the six complaints pending before the Chief Judicial Magistrate, Bhopal may be quashed. 7. Therefore, the provisions of the Special Act would not apply in such a manner so that Inspector of GOI may have any jurisdiction of inspect and to prosecute the officers of the petitioner-establishment. Under such circumstances, it is prayed that all the six complaints pending before the Chief Judicial Magistrate, Bhopal may be quashed. 7. On the other hand, Shri R. L. Gupta, learned Assistant Solicitor General for the respondents No. 1 and 3 has submitted that the respondent Inspector was competent to inspect the establishment of the petitioner and to file various complaints against the petitioner-establishment. It is further submitted that the Airtel was the Company for which appropriate Government is GOI, and therefore it was Principal Employer for the employees of the petitioner establishment under Sections 7 and 12 (1) of the Special Act, 197and the petitioner-establishment was working as a contractor of Airtel, and therefore Inspector of GOI has every right to inspect the establishment of the petitioner and to file such complaints. It is specifically argued that duties as mentioned in the Special Act and various other laws, were not observed by the petitioner-establishment, and therefore crime was committed by the petitioner-establishment. In such circumstances, various complaints were filed against the petitioner-establishment before the competent Magistrate. Therefore, it is prayed that complaints filed by the Inspector of GOI are mandatory and such complaints cannot be quashed. 8. After considering the submissions made by learned counsel for the parties, the first question which arises from the facts of the present case is whether before the contract which took place between the petitioner-establishment and the Airtel, the appropriate Government for the petitioner-establishment was GOI or GOMP? For consideration of such question, provision of Section 2 (1) (a) of the Special Act may be perused. Such provision is amended by the Act No. 14 of 1986 and now it is provided that definition of appropriate Governmentshall be the same as it is mentioned in the Industrial Disputes Act, 1947 (for brevity I. D. Act). If definition of appropriate Government given in Section 2 (a) of the. I. d. Act. Is perused, then it would be manifestly apparent that in the light of the judgments of the Hon'ble Apex Court in the Case of Tata Memorial Hospital Workers Union (supra) and Steel Authority of India Ltd. (supra), the appropriate Government for the petitioner-establishment would be GOMP and not GOI. 9. I. d. Act. Is perused, then it would be manifestly apparent that in the light of the judgments of the Hon'ble Apex Court in the Case of Tata Memorial Hospital Workers Union (supra) and Steel Authority of India Ltd. (supra), the appropriate Government for the petitioner-establishment would be GOMP and not GOI. 9. Second question which arises in the present case is whether after entering into a contract with Airtel, appropriate Government for the petitioner-establishment would be changed? For that purpose, object of the Special Act, 197is to be perused and considered. The object of the Special Act, 197is that all the contract labours should get the amenities not only from the employer but also from the principal employer, and therefore in the interest of contract labour, the Special Act, 197is enacted, but by amendment in the Act with enactment No. 14 of 1986, it would be apparent that is was not the intention of the Parliament that one establishment is required to be registered with two different Governments, and therefore when the definition of appropriate Government was conflicting with the definition of the Special Act, 197and ID Act, 1947, that definition is changed in the Special Act, 197and it is mentioned that definition of the appropriate Governments hall remain the same as it is mentioned in the I. D. Act, and therefore it is clear that for the petitioner-establishment, appropriate Government is GOMP and due to contract with Airtel, which is registered as an establishment with GOI, appropriate Government for the petitioner-establishment will not change. 10. If provisions of Section 12 of the Special Act are perused, then it would be clear that the contractor is required to obtain the licence from the licensing authority. Obtaining such a licence is a different act from the act of registration of the establishment with appropriate Government. It a contractor takes some sort of contract with two or more establishments for supply of contract labour, and if the appropriate Government for those establishments are different then whether the contractor would get him self registered with two different appropriate Governments and certainly the answer to this question would be negative. A contractor is required to take a licence from the appropriate Licensing Authority. A contractor is required to take a licence from the appropriate Licensing Authority. By Rule 21 of the Indian Contract Labour (Regulation and Abolition) Central Rules, 1971 (hereinafter referred to as Special Rules) it is clear that if some one desires to get licence for an establishment whose appropriate Government is GOI then licence is to be obtained from licensing authority of that area appointed by the GOI. But appropriate Governments for that establishment will not change. 11. If reply given by the respondent-Inspector is perused, then it would be clear that respondent-Inspector was not inspecting the establishment of the petitioner, because its appropriate Governmentwas GOI, but he inspected the establishment of the petitioner, because it was a contractor to the establishment which was registered with GOI. Under such circumstances, it is not a case of the respondents that after entering into a contract with Airtel, the appropriate Government for the petitioner-establishment will change. Therefore, it can be said that after agreement with the Airtel. appropriate Government for the petitioner-establishment will remain to be GOMP. 12. Now third question which arises that if the petitioner-establishment is a contractor to the Airtel and whether respondent Inspector is competent to inspect the establishment of the petitioner and to file complaints against the petitioner-establishment, whereas appropriate Government for the petitioner-establishment is GOMP. The respondent-Inspector has claimed his rights under Sections 7 and 12 (1) of the Special Act, 197that Airtel was the establishment registered with GOI and the petitioner-establishment was contractor to that establishment of principal employer. Learned senior counsel for the petitioners has submitted that contract between Airtel and the petitioner-establishment was principal to principal basis, and therefore the petitioner-establishment was not the contractor of Airtel. Therefore, the nature of contract may be examined. 13. The object of the Special Act is considered, then it is enacted to give safeguard with the amenities and rights to the contract labour employed by the contractor in the office of principal employer. But for which it is to be proved that there is a principal employer and other establishment is a contractor. If para 5 of second page of Call Centre Master Services Agreementis perused, then it is mentioned that contract Airtel and Service Provider took place on principal to principal basis. But for which it is to be proved that there is a principal employer and other establishment is a contractor. If para 5 of second page of Call Centre Master Services Agreementis perused, then it is mentioned that contract Airtel and Service Provider took place on principal to principal basis. Similarly, in Article 6 of the agreement, the responsibilities of Airtel are mentioned in which it is mentioned that training to the employees of the petitioner-establishment will be given by the Aritel, but no more responsibility of the employees of the petitioner would not be borne by the Airtel. It is nowhere mentioned that contract labours of the petitioner-establishment will go and serve in the establishment of the Airtel. Similarly, in Article 7 of the agreement, responsibility of the service provider is mentioned. It is clearly mentioned in the agreement that both the establishments can punish the employees of each and other if any default has been done by them. Under such circumstances, it appears that the petitioner-establishment has to provide services of Call Centre facility to the Airtel, but in such services, there is no possibility of providing contract labours of the petitioner-establishment to Airtel. Therefore, if definition of the contractorwhich is given in Section 2 (1) (c) of the Special Act, is to be perused. For the ready reference, provision of sub-section (2) (1) (c) of the Special Act, 197maybe reproduced as under-contractor, in relation to an establishment, means a person who undertakes to produce a given result for the establishment, other than a mere supply of goods of articles of manufacture to such establishment, through contract labour or who supplies contract labour for any work of the establishment and includes a sub-contractor. On bare perusal of the said provision, it would be clear that contractor is a person who supplies contract labour for any work in the establishment of the principal employer. But looking to the agreement between the Airtel and the petitioner-establishment, it would be clear that no contract labour was to be supplied by the petitioner-establishment to the Airtel, and therefore petitioner-establishment was not at all a contractor in the eye of law. The relation between the Airtel and the petitioner-establishment as principal employer and the contractor is not establishment by the respondent-Inspector. 14. The relation between the Airtel and the petitioner-establishment as principal employer and the contractor is not establishment by the respondent-Inspector. 14. It appears that since the petitioner was providing the various employees to run the call Centres for Airtel, the respondent Inspector presumed that the petitioner is a contractor. But such Call Centres were to be run by the petitioner independently and therefore it cannot be said that the petitioner was doing some work of Airtel with contract labours of his establishment. As per the provisions of Sections 12 of the Special Act, 1970, it is necessary for a contractor to obtain a licence from the licensing authority of the appropriate Government, but it is nowhere alleged by the respondent-Inspector that the Petitioner-establishment has obtained such licence of contractor from the licensing authority of GOI. No steps were taken by the Inspector concerned against the Airtel that being a principal employer, it entered into a contract with a contractor who did not have any licence from GOI. No criminal complaint has been filed against Airtel in that respect by the Inspector of GOI. Some provisions of the Special Act are enacted so as to provide various facilities and amenities to contract labours which they might receive from their employer or from the principal employer. Specially it was from the principal employer. Specially it was for the principal employer to give the entire facility to such contract labour who are employed through a contractor. According to the provisions of Section 21 of the Special Act, it is for the principal employer to see that appropriate wages are given to the contract labours of contractor and it is also to be arranged that a representative will go to the office of the contractor and see and certify that wages are paid within time. In the case of default, it is for the principal employer to pay wages directly to the contract labour and to recover such amount from the contractor. In nutshell by the special act, duty over the principal employer is imposed to perform so many actions in the benefit of contract labours employed by the contractor. It is strange that Inspector of GOI lodged so many complaints against the contractor including a complaint of Minimum Wages Act, but for those offences no complaint has been lodged against the principal employer i.e. Airtel. It is strange that Inspector of GOI lodged so many complaints against the contractor including a complaint of Minimum Wages Act, but for those offences no complaint has been lodged against the principal employer i.e. Airtel. By conduct of Inspector, it would be clear that he knew that Airtel was not the principal employer and the petitioner-establishment was not the contractor to the Airtel as defined in the Special Act. Therefore, by conduct of the Inspector, it would be apparent that he himself presumed that the petitioner-establishment was not the contractor of Airtel as defined under Section 12 of the special Act, and therefore when there was no relation of the petitioner-establishment with Airtel as a contractor, then the Inspector of GOI had no right to inspect the institution, which was registered with GOMP. 15. Learned senior counsel for the petitioners has cited a judgment of the Hob'ble Apex Court in the case of Heavy Engineering Mazdoor Union Vs. State of Bihar others, [196(1) SCC 765], in which it is considered that whether State Government which was appropriate Governmentcan refer the dispute under section 1of the I. A. Act in respect of The Central Government Company. The Hon'ble Apex court has also held that being appropriate Governmentsuch dispute could be referred. In the present case appropriate Governmentis GOMP for the petitioner-establishment, and therefore if complaint could be filed, then it would have been filed by the Inspector of GOMP. As per the provisions of Section 26 of the special Act, 1970, it is apparent that complaint could be entertained by the concerned Magistrate, if it is filed by the concerned Inspector or with previous sanction of the concerned Inspector. As per the provisions of sections 28 of the Special Act, Inspecting staff be appointed for the inspection of the establishment, by the appropriate Governments, then an establishment which is not registered with GOI, cannot be inspected by the Inspecting staff appointed by the GOI. Therefore in the case of petitioner-establishment, concerned Inspector is Inspector of GOMP and not the Inspector of GOI. 16. Under such circumstances, where the petitioner-establishment was neither the contractor to the Airtel according to the definition of section 2 (1) (c) of the special Act nor it was registered as establishment with GOI, and therefore Inspector of GOI had no authority to inspect or to prosecute the present petitioner-establishment. 16. Under such circumstances, where the petitioner-establishment was neither the contractor to the Airtel according to the definition of section 2 (1) (c) of the special Act nor it was registered as establishment with GOI, and therefore Inspector of GOI had no authority to inspect or to prosecute the present petitioner-establishment. In the process of protecting the interests of various contract labours, when the Inspector of GOI found some irregularities, in the establishment of the petitioner, which according to him was a crime in the eye of law then he would have transferred the intimation to his counter part of GOMP for prosecution etc. But Inspector of GOI could not file any criminal complaint against the establishment for whom the appropriate Governmentis GOMP, and therefore the prosecution directed by the respondent-Inspector could not be prosecuted for want of his jurisdiction over the petitioner-establishment. 17. It is observed that all the six complaints filed by the respondent-Inspector are not tenable, because respondent-Inspector was not competent to prosecute such cases under the provisions of the Special Act, 197as well as provisions of other Labour Laws, therefore such complaints cannot be maintained or directed to be prosecuted. In such circumstances, the present six petitions filed under Section 482 of Cr. P. C. by the petitioner-establishment deserve to be allowed. It is a fit case in which inherent jurisdiction of this Court may be invoked. 18. Consequently, all the above mentioned petitions are allowed and all six complaints filed by the respondent-Inspector, which are pending before the Chief Judicial Magistrate, Bhopal are hereby quashed. 19. A copy of this order be sent to the learned Chief Judicial Magistrate, Bhopal for information and to drop the proceedings of the six complaints.