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Allahabad High Court · body

2019 DIGILAW 277 (ALL)

Ntpc Lted v. State of U. P.

2019-02-01

SAURABH SHYAM SHAMSHERY

body2019
JUDGMENT : Saurabh Shyam Shamshery, J. 1. Case called out in the revised list. None appears on behalf of the applicant to address the Court, however, learned Additional Government Advocate is present. 2. The matter is of the year 2010 and involved legal issue regarding which is the 'appropriate government' to file complaint in the present matter and therefore, I proceed to decide the application. The facts of the cases are similar in all three applications of the applicants, therefore, decided by a common judgment and order. 3. The present application u/s 482 Cr.P.C. has been filed for quashing the entire proceedings of Complaint Case No.2896 of 2008, pending before the learned Judicial Magistrate/Civil Judge (Junior Division), Duddhi, Sonebhadra, which has been instituted by State of Uttar Pradesh through Labour Enforcement Officer, Pipri, Sonebhadra under Section 18 of the Minimum Wages Act, 1948. 4. From the perusal of the application, it appears that applicant establishment is Singrauli Super Thermal Power Station, situated at Shaktinagar, District Sonebhadra is a unit of the NTPC, owned and controlled by the Central Government. 5. The appellant has mentioned following grounds in the application for quashing of criminal proceedings:- (i) That under Section 20 of the Minimum Wages Act, the Central Government has appointed the Assistant Labour Commissioner, Allahabad to be the competent authority for enforcing the provisions of the Minimum Wages Act, 1948 in regard to the scheduled establishments under the Central Government. (ii) That on the objection made against the proceeding initiated by the Labour Enforcement Officer, Pipri, Sonebhadra who is only competent to take action against the scheduled establishments under the State Government, dropped the proceeding vide order dated 29.7.2009 for want of jurisdiction in the similarly connected cases. (iii) That the complaint case filed against the applicant is without jurisdiction and authority. It is further noteworthy that the complaint is not in consonance with the provisions of Section 22-C of the Minimum Wages Act, 1948. (iii) That the complaint case filed against the applicant is without jurisdiction and authority. It is further noteworthy that the complaint is not in consonance with the provisions of Section 22-C of the Minimum Wages Act, 1948. (iv) That on 15.5.2008 when the alleged inspection by Sri R.K. Rai, the Labour Enforcement Officer is said to have been done, at that time, Sri G. Vijay Kumar was the General Manager of the NTPC Limited/Singrauli Super Thermal Power, Shaktinagar, District Sonebhadra but later on he was relieved and the present General Manager Sri Jai Narain Singh has assumed the charge in September, 2009 as the General Manager, NTPC Limited/Singrauli Super Thermal Power Station, Shaktinagar, District Sonebhadra. (v) That under the proviso to Section 22-C of the Minimum Wages Act, the General Manager, Sri Jai Narain Singh, is not liable to prosecute as at the relevant time of the alleged offence, neither he was holding the offence of the General Manager nor he had any knowledge about the same. (vi) That the opposite party no.2 has no jurisdiction or authority to initiate prosecution against the applicant for want of jurisdiction and authority, as such, the complaint is liable to be quashed. (vii) That the proceeding initiated against the applicant vide Complaint Case No.2896 of 2008 is absolutely illegal and malafide and is an abuse process of the court. 6. The Court passed the following order on 9.3.2010 which is reproduced below:- “Heard learned counsel for the applicant and the learned AGA for the State-respondent. The present petition under Section 482 Cr.P.C. has been filed for quashing the proceedings of Complaint Case No. 2896 of 2008 pending before the Judicial Magistrate/Civil Judge (Junior Division), Duddhi, Sonebhadra initiated by the State of U.P. through the Labour Enforcement Officer, Pipri, Sonebhadra under Section 18 of the Minimum Wages Act, 1948. The present petition under Section 482 Cr.P.C. has been filed for quashing the proceedings of Complaint Case No. 2896 of 2008 pending before the Judicial Magistrate/Civil Judge (Junior Division), Duddhi, Sonebhadra initiated by the State of U.P. through the Labour Enforcement Officer, Pipri, Sonebhadra under Section 18 of the Minimum Wages Act, 1948. It is contended by learned counsel for the applicant that the Singrauli Super Thermal Power Station is a unit of the National Thermal Power Corporation Ltd., owned and controlled by the Central Government and under the Minimum Wages Act, the appropriate authority with regard to the enforcement of the provisions of the Minimum Wages Act, 1948 is the Assistant Labour Commissioner (Central) situated at Allahabad which has the jurisdiction and the appropriate government of the National Thermal Power Corporation Ltd., Singrauli Super Thermal Power Station, Shaktinagar, District Sonebhadra is the Central Government and the competent authority is the Assistant Labour Commissioner (Central), Allahabad with regard to the scheduled establishments under the Central Government and not the Judicial Magistrate/Civil Judge (Junior Division), Dudhdhi, Sonebhadra. It is further contended that the proceedings are not in consonance with the provisions of Section 22-C of the Minimum Wages Act, 1948 in as much as the person who was incharge General Manager at the relevant time, when the proceedings were initiated, responsibility may be fixed only upon him and not on the person, who has subsequently joined on the said post. Issue notice to opposite party no.2 returnable within a period of four weeks. Steps be taken within a week. Learned A.G.A. prays for and is granted four weeks time for filing counter affidavit. Opposite party no.2 may also file counter affidavit within the same period. As prayed by learned counsel for the applicant, two weeks thereafter is granted for filing rejoinder affidavit. List immediately after expiry of the aforesaid period. Till the next date of listing, no coercive action shall be taken against the applicant in the aforesaid case.” 7. Opposite party no.2 may also file counter affidavit within the same period. As prayed by learned counsel for the applicant, two weeks thereafter is granted for filing rejoinder affidavit. List immediately after expiry of the aforesaid period. Till the next date of listing, no coercive action shall be taken against the applicant in the aforesaid case.” 7. Opposite Party No.2 i.e. Labour Enforcement Officer has filed counter affidavit, wherein he has stated that :- (i) That under the aforesaid Notification dated 23.4.1976 and under the provisions of the Minimum Wages Act, 1948, the aforesaid establishment lies within the jurisdiction of the State of Uttar Pradesh as the term “Appropriate Government” defined under Section 2 – B(ii) of the Minimum Wages Act, 1948, provides that in relation to any other “scheduled employment” the appropriate Government is the State Government. From the perusal of facts mentioned hereinabove and from the perusal of aforesaid provisions as well as Schedule-I of the Minimum Wages Act, 1948, the appropriate Government for the aforesaid establishment is the State of Uttar Pradesh. (ii) That the right of minimum wages is statutory right of any labour working any establishment and the employer of the said establishment is duty bound to make payment of minimum wages to the labour working under the said establishment. The violation of such legal position is also violative of Article 23 of the Constitution of India. (iii) That under the aforesaid facts, circumstances and position of law, an inspection was conducted by the answering Opposite Party No.2 in the establishment of M/s N.T.P.C. Limited/Singrauli Super Thermal Power Station, Shaktinagar, District Sonebhadra under the Government Order No.283-36-03-08 dated 28.3.2008 issued for the compaign dated 20.4.2008 to 20.5.2008 for effective enforcement of revised minimum rate of payment of wages to the contracted labours and its payment under the New Minimum Wages Ac, 1948 (hereinafter referred as “the Act”). Under such campaign, the aforesaid establishment was inspected and a notice under Section 12 and 18 of the aforesaid Act and Rule 21 and 26 thereof for violation of said Act. (iv) That the Chief Employer and the Contractor appointed by the Chief Employer of the aforesaid establishment did not comply the inspection note despite the grant of sufficient time period for compliance. (iv) That the Chief Employer and the Contractor appointed by the Chief Employer of the aforesaid establishment did not comply the inspection note despite the grant of sufficient time period for compliance. As such, under the provisions of the Act, the complaint case was filed against the Chief Employer and the Contractor appointed by the Chief Employer of the aforesaid establishment. (v) That the Opposite Party No.2 had full jurisdiction and authority to inspect the aforesaid establishment for the aforesaid purpose under the Act on the basis of registration and authority letter issued to the Chief Employer of the aforesaid establishment under the Contracted Labour Act, 1970 and on the basis of licenses issued by the licensing authoirty t the contractor employed by the aforesaid Chief Employer of the aforesaid establishment. At the time of inspection and initiation of criminal proceedings, the Opposite party No.2 had full jurisdiction and authority to ensure the payment of minimum wages by the aforesaid establishment to the contracted labours and to ensure the working atmosphere of employed contracted labours. The complaint case in question was filed by the Opposite party No.2 against the present applicant for the violation of Section 80, Rule 26 of the said Act. (vi) That the contents of paragraph no.6 of the affidavit are matters of records, however, denied being correctly stated in reply thereto, it is stated that the contents of the preceding paragraphs of this counter affidavit are reiterated and reaffirmed as correct for the sake of brevity. It is further submitted that the order dated 29.7.2009 was obtained by the present applicant in a misconceived manner by placing incorrect and misleading facts before the prescribed authority. It is further submitted that the said proceedings and the order dated 29.7.2009 does not make any bar for initiation and continuation of present criminal proceedings. The prescribed authority is a quasi-judicial authority and the order passed by such prescribed authority does not restrict the jurisdiction of learned Chief Judicial Magistrate, District Sonebhadra, which is a court of law. Moreover, the order dated 29.7.2009 was obtained on the basis of one notification of Union of India dated 5.5.2008, which is also mentioned in the Annexure No.2 of the above noted Criminal Misc. Moreover, the order dated 29.7.2009 was obtained on the basis of one notification of Union of India dated 5.5.2008, which is also mentioned in the Annexure No.2 of the above noted Criminal Misc. Application filed under section 482 of Cr.P.C. It is very humbly submitted that the said notification of Union of India dated 5.5.2008 was issued under the Industrial Dispute Act, 1947. A copy of the notification dated 5.5.2008 issued by the Union of India is being filed herewith and marked as Annexure No.CA-2 to this Counter Affidavit. It is further submitted that the law laid down by this Hon'ble Court in; N.T.P.C. Versus Industrial Tribunal – I reported in labour I.C., 1992 (25) Page – 984 as well as, the Hon'ble Apex Court in; Heavy Engineering Majdoor Union vs. State of Bihar, reported in 1969 (19) F.L.R. 27 , specifically provides that fact that the entire share capital of any corporation is contributed by the Central Government and the said corporation works under the Control of Central Government does not make it an industry carried on under the authority of Central Government. It has further been held that in such situation the appropriate Government is the State Government. (vii) That the contents of paragraphs no.13 and 14 of the affidavit are denied being incorrectly stated. In reply thereto, it is stated that the proceedings of complaint case have been initiated against the General Manager of the aforesaid establishment and not against any individual person. As such the averments made in paragraphs under reply are wholly misconceived and irrelevant to the present controversy. 8. Having heard learned Additional Government Advocate for the State and perused the record. 9. N.T.P.C. is registered under the Factories Act, 1948. As per the Notification dated 23.4.1976 issued under Section 26 (2) of Minimum Wages Act, 1948 which was extended to 'Employment in all registered factories not covered before' (at Sr. No.62), directed that provision of Minimum Wages Act, 1948 would not be applicable for a period of one year from the date of Notification. It means that after one year provision of the Act of 1948 shall be applicable to all the registered factories i.e. Act of 1948, is applicable on N.T.P.C. also and the Appropriate Government as defined under Section 2-B (ii) of the Act of 1948 for any scheduled employment is 'The State Government'. 10. It means that after one year provision of the Act of 1948 shall be applicable to all the registered factories i.e. Act of 1948, is applicable on N.T.P.C. also and the Appropriate Government as defined under Section 2-B (ii) of the Act of 1948 for any scheduled employment is 'The State Government'. 10. In view of the above, there is no illegality in the summoning order passed on the complaint which has been submitted by Labour Enforcement Officer on behalf of the State Government. 11. In the complaint, N.T.P.C. is through the General manager and not in the name of particular General Manager, hence, the contention raised by the applicant in the applications are liable to be rejected. 12. In view of the above discussions, the 482 Cr.P.C. applications are dismissed.