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Himachal Pradesh High Court · body

2016 DIGILAW 924 (HP)

Bharat Heavy Electrical Limited v. Union of India

2016-05-25

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. The learned counsel for the petitioner contends with vigor before this Court of with the petitioner assigning the apposite work for execution to M/S Purvanchal Engineering Projects, B/M-27, Nehru Nagar, Bhopal which work hitherto stood allotted to it by National Thermal Power Limited (for short “NTPC”) ipso facto ex facie absolves it of its liability to mete adherence or beget compliance with the apposite provisions of the Minimum Wages Act provisions whereof stand concluded by the respondent herein to beget infraction by the petitioner herein. Hence he contends of the complaint instituted by the respondent herein before the learned Chief Judicial Magistrate, Bilaspur under the apposite provisions of the Minimum Wages Act, 1948 (for short “the Act) suffering from non-application of mind. He also contends of the learned Chief Judicial Magistrate while dismissing under Annexure P-12 an application preferred before it by the petitioner herein under Section 190(1)(a), 204, 203 read with Section 245(2) Cr.P.C wherein relief of dismissal of the complaint besides a relief for the petitioner-company standing discharged as an accused stood ventilated, also suffering with a vice of non-application of mind qua the apposite averments constituted therein displaying its penal inculpation in the apposite complaint instituted thereat by the respondent herein being merit less. 2. This Court has considered all the aforesaid submissions addressed by the learned counsel for the petitioner before this Court. 2. This Court has considered all the aforesaid submissions addressed by the learned counsel for the petitioner before this Court. However even if the petitioner has assigned to M/s Purvanchal Engineering Projects, B/M-27, Nehru Nagar, Bhopal the hitherto work allotted to it for completion besides execution by National Thermal Power Corporation nonetheless with the provisions of Section 2(e) of the Minimum Wages Act, 1948 (for short “Act”) while therein constituting the definition of an employer rendering a communication of its embodying within its fold “any person” who employs man power either directly or through another person also hence brings within its amplitude the petitioner who even while assigning the work hitherto allotted to it for execution by NTPC to M/S Purvanchal Engineering Projects, B/M-27, Nehru Nagar, Bhopal yet it indirectly or through its assignee employing work force or labourers for execution of the work of erection, testing and commissioning of 4X200 MW Hydroelectric Project and material testing at Kol Dam Hydroelectric Project, Barmana, District Bilaspur, H.P. With the aforesaid signification standing imputed by this Court to the apposite phrase occurring in Section 2(e) of the Act (extracted hereinafter) the inevitable ensuing deduction therefrom is with hence strict vicarious penal liability upon the petitioner-company alongwith its assignee on its standing contemplated therein qua it arouse-able from its falling within the ambit of definition of an “employer” constituted in Section 2(e) of the Act also concomitantly attracts qua it the penal inculpation alongwith its assignee. For reasons aforesaid it also holds a strict statutory vicarious penal inculpablity alongwith M/S Purvanchal Engineering Projects, B/M-27, Nehru Nagar, Bhopal its assignee of the work hitherto allotted to for execution by NTPC qua infraction, if any, of the apposite provisions of the Act especially when given its falling within the definition of an employer under the apposite provisions of the Act also enjoined upon it to conjointly alongwith its assignee mete adherence to the apposite provisions of the Act hence empowered the respondent herein to institute a complaint also against the petitioner. Consequently, its standing arrayed as an accused in the apposite complaint also the order of learned Chief Judicial Magistrate dismissing its application preferred before it merits no interference. Hence, the instant petition stands dismissed. 3. Consequently, its standing arrayed as an accused in the apposite complaint also the order of learned Chief Judicial Magistrate dismissing its application preferred before it merits no interference. Hence, the instant petition stands dismissed. 3. In holding the aforesaid conclusion the factum of the provisions of “the Act” being a welfare beneficent legislative mechanism to ensure defrayment of minimum wages by the employer to the workmen, cannot remain unslighted hence with reverence standing enjoined to be meted to a labour welfare beneficent legislative mechanism constituted in the apposite legislation, concomitantly enjoins of the assignor not holding any leverage to shrug off its responsibility to ensure payment of minimum wages contemplated under the apposite Act even by its assignee to workmen engaged in the project. Hence it appears of the legislature in its wisdom to fasten a liability also upon the assignor to ensure of the assignee defraying minimum wages to workmen deployed by it in the project has taken also the assignor within the fold of the definition of “employer” constituted in the apposite provisions aforesaid, also the aforesaid interpretation standing lent to the definition of “employer” occurring in the apposite provisions of the Act would facilitate even the assignor to ensure the defraying of minimum wages by its assignee to workmen employed by the latter for executing the project. With aplomb it can be held of the expression “employer” occurring in the apposite provisions of Section 2(e) of the Act ought to take within its ambit the assignor company as also its assignee also it has to be held of hence the phrase “employer” holding the apposite contemplation of the legislature of the latter on the formers behalf for carrying forward the salutary mission of the Act of ensuring defrayment of minimum wages to workmen though standing engaged by its assignee renders their engagement by the assignee Co. being amenable to a construction of it being also on behalf of the assignor Co. The purveying of the aforesaid definition would facilitate the carrying forward of the salutary beneficent provisions of the Act also would enable the assignor Co. to monitor adherence thereof by its assignee Co. being amenable to a construction of it being also on behalf of the assignor Co. The purveying of the aforesaid definition would facilitate the carrying forward of the salutary beneficent provisions of the Act also would enable the assignor Co. to monitor adherence thereof by its assignee Co. moreso when hence a power of monitoring qua facets embodied in the Act stands foisted upon the assignor Co., it is expected to efficaciously monitor the apposite facets by keeping a close vigil qua its assignee meteing compliance qua the apposite provisions of the Act. It appears that the aforesaid positivist interpretation is renderable to the definition of an “employer” occurring in the apposite provisions of the Act as it would obviate any departure by any assignor from the beneficent salutary provisions occurring therein in favour of workmen. “(e) “employer” means any person who employs, whether directly or through another person, or whether on behalf of himself or any other person, one or more employees in any scheduled employment in respect of which minimum rates of wages have been fixed under this Act, and includes, except in sub-section (3) of Section 26, - (i) in a factory where there is carried on any scheduled employment in respect of which minimum rates of wages have been fixed under this Act, any person named under {Clause (f) of sub section (1) of Section 7 of the Factories Act, 1948 (63 of 1948)}, as manager of the factory; (ii) In any scheduled employment under the control of any Government in India in respect of which minimum rates of wages have been fixed under this Act, the person or authority appointed by such government for the supervision and control of employee or where no person or authority is so appointed, the head of the department; (iii) in any scheduled employment under any local authority in respect of which minimum rates of wages have been fixed under this Act, the person appointed by such authority for the supervision and control of employees or where no person is so appointed, the chief executive officer of the local authority’ (iv) In any other case where there is carried on any scheduled employment in respect of which minimum rates of wages have been fixed under this Act, any person responsible to the owner for the supervision and control of the employee or for the payment of wages.” 3. In view of the above discussion, the instant petition stands dismissed, so also the pending applications, if any. 4. Any observation made herein-above shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made hereinabove.