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2018 DIGILAW 569 (GUJ)

LEMBAR SINGH v. STATE OF GUJARAT

2018-02-22

J.B.PARDIWALA

body2018
JUDGMENT : 1. The respondent No.2-original complainant, although served with the notice of rule issued by this Court, yet has chosen not to remain present before this Court and oppose this application. 2. By this application under Section 482 of the Cr.P.C., 1973, the applicant-original accused No.1 seeks to invoke the inherent powers of this Court praying for quashing of the proceedings of the Criminal Case No.13222 of 2007 pending in the court of the learned J.M.F.C., Gandhinagar arising from a complaint under Rule 22 of the Payment of Wages (Mines) Rules, 1956. The complaint lodged by the respondent No.2 is extracted hereunder; “IN THE COURT OF 4TH ADDL. SR. CIVIL JUDGE, GANDHINAGAR Represented by; Shri S.M. Shelke, Labour Enforcement Officer (Central) Shram Bhawan, 4th Floor, Near Gun House, Khanpur, Ahmedabad-380001 VERSUS 1, The O.N.G.C., Rep. Through Shri Lembar Singh-Executive Director. Avani Bhavan, Chandkheda, Dist. Gandhinagar. 2. The O.N.G.C., Ltd., Rep. through Shri J.S. Sajwan, Chief Manager (Security) Avani Bhavan, Chandkheda, Gandhinagar, Dist. Gandhinagar. 3. The O.N.G.C. Ltd., Rep. Through Shri A.K. Bhattacharyajee-DGM (F&A) Avani Bhavan, Chandkheda, Dist. Gandhinagar. 4. Capt. Swaran Salaria- Managing Director, M/s. Trig Guard Force Ltd., “Trig House” 10th Road, JVPD Scheme, Juhu, Mumbai-400049 5. Shri S.M. Bhatt- Manager, M/s. Trig Guard Force Ltd., 10-A, Maruti Complex, Memco, Naroda, Ahmedabad. COMPLAINT UNDER RULE 22 OF THE PAYMENT OF WAGES (MINES) RULES 1956. The complainant begs to submit as under; 1. That the complainant has been appointed as an “INPSPECTOR” under the Payment of Wages Act, 1936 the state of Gujarat under Notification No.S.O. 191(E), Dated 06.03.1990 of the Government of India, Ministry of Labour, New Delhi. 2. That the Accused mentioned above are engaged on the work namely Providing Security Services at O.N.G.C Ltd., Ahmedabad Asset and are employers as defined under section 3 of Payment of Wages Act, 1936. 3. Smt. Kalpana Shodia, the then Labour Enforcement Officer (Control), Ahmedabad visited the above said establishment on 21.3.07 and inspected the same under the provisions of the payment of Wages (Mines) Rules, 1956. 3. Smt. Kalpana Shodia, the then Labour Enforcement Officer (Control), Ahmedabad visited the above said establishment on 21.3.07 and inspected the same under the provisions of the payment of Wages (Mines) Rules, 1956. The Inspector Report Cum Shoe Cause Notice bearing No.LEO/ADI/22(26)/07 dated 21.3.2007 incorporating the following violations observations observed during the course of inspection was prepared and sent by Registered AD Post for the following branches; a. Breach of Rule 12(b): Approved list of acts and omission is not displayed in English and in the language of the majority of the person employed, which in Hindi; b. Breach of Rule 21 read with Sec. 25: Notice containing abstracts from the Act & Rules made thereunder in Form VII has not been displayed in English and in the language of the majority of the persons employed which is Hindi and required under; c. Breach of Rule 3: Register of Fines in Form-I is not kept at the workspot. d. Breach of Rule 5A: Register in Form ‘B’ has not been maintained. 4. That the accused did not submit any compliance report hence this complaint. 5. That the accused having thus contravened the provisions of the Payment of Wages Act, 1936 and Payment of Wages (Mine) Rules, 1956 have rendered themselves liable for penal action under Rule 22 of the above said Rules; PRAYER. 6. It is further prayed that a part of fine, if imposed on the accused may kindly be awarded to this department and be ordered to be deposited in the Head ‘087’ Receipts under Labour Laws, Payable to Pay and Accounts Officer, CLC(C), New Delhi in terms of Section 357(1) of the Cr.P.C. 1973; 7. That the complainant begs leave to add, abstract, amend or alter the complaint, if necessary, with the permission of the Hon’ble court; 8. That the complainant is a Public Servant and have extensive touring duties outside the Head Quarters. His personal appearance may, therefore, kindly be exempted in terms of section 256 of Cr.P.C 1973. 9. Documents and witnesses shall be produced at the time of hearing of the case. (S.M. SHELKE) Labour Enforcement Officer (Control) & Inspector under Payment of Wages, Act 1936, and complainant, Ahmedabad.” 3. On 23rd April, 2012, a Coordinate Bench of this Court passed the following order; “Mr. 9. Documents and witnesses shall be produced at the time of hearing of the case. (S.M. SHELKE) Labour Enforcement Officer (Control) & Inspector under Payment of Wages, Act 1936, and complainant, Ahmedabad.” 3. On 23rd April, 2012, a Coordinate Bench of this Court passed the following order; “Mr. R.R. Marshall, learned Senior Advocate for the applicant, submitted that the impugned complaint does not contain specific allegations qua the applicant, who happened to be an Executive Director. It is further submitted that in identical petitions arising out of similar complaint, this Court issued Rule and granted interim relief. Considering the above, at this stage, a case is made out to issue Rule. Learned APP, waives service of rule on behalf of respondent No.1. Ad-interim relief in terms of para 11(C). To be heard with Criminal Misc. Application No.5350 of 2012. and allied matters.” 4. It appears that the court below took cognizance upon the complaint and issued process to the applicant herein and the other co-accused. 5. Being dissatisfied with the issue of process, the applicant is here before this Court, praying for quashing of the complaint. 6. Mr. Marshal, the learned senior counsel appearing for the applicant submitted that even if the entire case of the respondent No.2, as put up in the complaint, is accepted as true, no liability can be fastened of any nature so far as the applicant is concerned, who happened to be, at one point of time, the Executive Director of O.N.G.C. Ltd. The argument of the learned senior counsel proceeds on the footing that in the complaint it is not made clear as to how the applicant is liable for the alleged breach of the rules. 7. Having heard the learned counsel appearing for the parties and having considered the materials on record, I am of the view that absolutely no case is made out to prosecute the applicant herein for the alleged offence under the Payment of Wages Act. The complaint is absolutely silent as regards the criminal liability of the applicant herein is concerned. I am informed that the applicant has retired from the service long time back. At the relevant point of time, he was the Executive Director of the O.N.G.C. Ltd. Unfortunately, the respondent No.2 is also not present before this Court to explain as to how the applicant has been arraigned as an accused. 8. I am informed that the applicant has retired from the service long time back. At the relevant point of time, he was the Executive Director of the O.N.G.C. Ltd. Unfortunately, the respondent No.2 is also not present before this Court to explain as to how the applicant has been arraigned as an accused. 8. In view of the above, this application is allowed. The proceedings of the Criminal Case No. 13222 of 2007 pending in the court of the learned J.M.F.C., Gandhinagar is hereby quashed so far as the applicant is concerned. Rule is made absolute to the aforesaid extent. Direct service is permitted.