(f) Section 29 of the Act provides as under :
“29. Limitation of prosecutions No
court shall take cognizance of an offence
punishable under this Act unless the complaint
thereof is made within three months from the date
on which the alleged commission of the offence
came to the knowledge of the inspector or
authorised person concerned:
Provided that where the offence consists of
disobeying a written order made by an inspector or
Authorised person, complaint thereof may be made
within six months of the date on which the offence is
alleged to have been committed.”
9. (a) Rule 48 of the Rules provides as under :
“48. Registers of Contractors -
Every principal employer shall maintain in respect
of each registered establishment a register of
contractors in Form XII.”
(b) Rule 55(1)(i) of the Rules provides as under :
“55. Notices-
(1) (I).- Notices showing the rates of wages, hours
of work, wage periods, dates of payment of wages,
names and addresses of the Inspectors having
jurisdiction, and date of payment of unpaid wages,
shall be displayed in English and in Hindi and in the
local language understood by the majority of the
workers in conspicuous places at the establishment
and the work-site by the principal employer or the
contractor, as the case may be. ”
10. From the provision of Section 29 of the Act, it is clear
beyond doubt that the complaint for contravention of the
provisions of the Act and Rules has to be made within three
months from the date on which the commission of offence came to
the knowledge of the Inspector or authorised person concerned.
In the present case, admittedly, Shri K. A. Sebastian, who has
lodged the complaint against the present petitioner, is the
Inspector and authorised person concerned. Though the
inspection note dated 24/01/2012 mentions the name of the
establishment as M/s. Diebold, however, in clause 3 of the said
inspection note, there is mention regarding the work of furnishing
for new branch set up for Federal Bank Ltd at Vasco. This
inspection note reveals that the inspection was carried out at the
said premises of proposed new Branch at Vasco and not at the
premises of the establishment of M/s. Diebold. It is clearly stated
that at the premises Mr. S. R. Tikale, Branch Manager of Federal
Bank, Vasco was present. This inspection note is duly signed by
the said Inspector/ authorised officer namely K. A. Sebastian, by
the Branch Manager Mr. S. R. Tikale and by Mr. Balaji K.B.,
coordinator of M/s. Diebold. The notice bearing No.31(3)/2012-
ISMW-PE-LEO-Vasco dated 01/02/2012 addressed to the
petitioner says that during the inspection on 01/02/2012, certain
irregularities were observed. The inspection report annexed to
this notice is signed only by Shri K. A. Sebastian and not by Mr. S.
R. Tikale or Shri Balaji K. B.. It is pertinent to note that in the
complaint dated 30/04/2012, the inspection note and workers'
statement dated 24/01/2012 have been relied upon. The
inspection note dated 24/01/2012 specifically mentions the
alleged breaches noticed. It can, therefore, be said that the
authorised officer had knowledge of the alleged commission of
offence on 24/01/2012. As has been rightly contended by the
learned Counsel for the petitioner, in the notice dated
01/02/2012, the date of inspection has been mentioned as
01/02/2012 only to get over the provision of Section 29 of the Act.
In the circumstances above, the complaint filed on 30/04/2012 is
beyond the period of limitation as prescribed under Section 29 of
the Act. On this ground alone, the complaint (Criminal Case
18/L/2012/C) is bound to be quashed.
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL WRIT PETITION NO.66 OF 2012
THE CHIEF MANAGER,
Federal Bank Ltd.,
Vs.
THE STATE OF GOA,
CORAM :- U. V. BAKRE, J.
DATE : 26thMarch, 2014
Citation; 2015 ALLMR(cri) 4391
2. By this petition, the petitioner seeks quashing of the
complaint bearing Criminal Case No.18/L/12/C pending before the
Judicial Magistrate, First Class ('JMFC' for short) at Vasco-daGama
and also quashing of the summons dated 14/05/2012 issued
by the learned JMFC in the said case.
3. The said Criminal Case No.18/L/12/C arises out of a
private complaint filed by respondent no. 2, on 30/04/2012,
against the accused (petitioner), under Section 26 of the InterState
Migrant Workmen (Regulation of Employment and
Conditions of Service) Act, 1979 ('the Act' for short). It is alleged
that Shri K. A. Sebastian, Labour Enforcement Officer (Central),
Vasco-da-Gama, who is an Inspector under the Act, had inspected
the establishment of the accused at Vaddem, Vasco-da-Gama, Goa
on 01/02/2012 and had observed that the accused had committed
certain breaches. It is alleged that inter-state migrant workmen
numbering 23 were employed on 28/12/2011 without obtaining
the registration and, therefore, there is violation of Section 4(1) of
the Act. It is further alleged that the notices showing rates of
wages, hours of work, wage period, dates of payment of wages,
name and address of the Inspectors having jurisdiction and date
of payment of unpaid wages in English, Hindi and language
understood by the majority of the workers at the work site were
not displayed in conspicuous places at the establishment and,
therefore, there is violation of Rule 55(1)(i) of the Inter-State
Migrant Workmen (Regulation of Employment and Conditions of
Service) Central Rules, 1980 ('the Rules' for short). Lastly, it is
alleged that there was breach of rule 48 of the Rules on account
of non-maintenance of register of contractors. The place of
offence is stated to be “Federal Bank, Vasco-da-Gama” whereas
date of offences is stated to be 01/02/2012. All the said breaches
are stated to be punishable under Section 26 of the Act. It is
further alleged that an inspection report-cum-show cause notice
No.31(3)/2012-ISMW-PE-LEO-Vasco dated 1st February, 2012
incorporating the said breaches was prepared and issued to the
accused by Registered A.D. Post. It is further alleged that the
accused submitted the compliance report dated 05/03/2012, but
the same was not found to be satisfactory by the Sanctioning
Authority. Hence, the complaint. It is further stated in this
complaint that the same is required to be filed within three
months from the date of offence as per Section 29 of the Act and
last date of filing the complaint is 30/04/2012.
4. The petitioner alleges as follows:- He is the Chief
Manager of Federal Bank Ltd., which is a Scheduled Commercial
Bank and that vide work order dated 05/01/2012, M/s. Diebold
Systems Private Ltd.(M/s Diebold, for short) was entrusted with
turn key execution of interior furnishing works of the proposed
branch at Vasco. Clause 6 of the said work order specifically
provided that it shall be the responsibility of M/s. Diebold to
adhere to all provisions of Contract and Labour Act including
obtaining registration. The said Branch Office at Vasco was
completed and inaugurated on 17/03/2012. During the execution
of the work at the proposed Branch site, an inspection was
conducted by respondent no. 2 on 24/01/2012. Subsequently, a
show cause notice dated 01/02/2012 was issued by the
respondent no. 2 to the petitioner and vide reply dated
05/03/2012, the Branch Manager of the proposed Vasco Branch
requested the respondent no. 2 not to proceed against the Bank.
Further by letter dated 09/03/2012, the petitioner requested the
respondent no. 2 to accept the replies filed by the proposed
Branch Manager and exonerate from the charges. However, on
30/04/2012, respondent no. 2 filed the complaint and the said
complaint has been registered as Criminal Case No.18/L/2012/C
before the JMFC. Pursuant to the said complaint, the learned
JMFC issued summons to the petitioner. The said complaint was
not made within the prescribed limitation period of three months
as stipulated in Section 29 of the Act. Neither in the inspection
note nor in the show cause notice, respondent no. 2 has alleged
that the persons working were recruited from inter-states for
working at Goa by or through the Contractor. Hence, the Act has
no application in the present case. The petitioner, being the Chief
Manager, is not principal employer as defined in Section 2(1)(g)
(iv) of the Act and hence, no complaint could lie against him. The
person responsible for supervision and control would be the
Branch Manager of the said proposed Vasco Branch and not the
petitioner. The respondent no. 2 was well aware before filing the
complaint that Mr. Satish R. Tikale has been appointed as the
Branch Manager of the proposed Vasco Branch of the Federal
Bank Ltd. The Vasco Branch of Federal Bank started functioning
as from 17/03/2012 and on 24/01/2012 or even on 01/02/2012, the
said Vasco Branch could not be termed as an 'establishment' as
defined in the Act. Therefore, the said Criminal Case, along with
the summons issued against the petitioner is liable to be quashed
and set aside.
5. Mr. Nadkarni, learned Counsel appearing on behalf of
the petitioner read out the provision of Section 29 of the Act and
pointed out that the inspection was carried out by the
complainant, who is Inspector or authorised officer on
24/01/2012, but the complaint was filed on 30/04/2012, i.e.
beyond the period of three months, which is clearly barred by
limitation as prescribed under Section 29 of the Act. He further
pointed out that all the breaches alleged by respondent no. 2
require that there has to be an establishment. He invited my
attention to Section 2(1)(d) of the Act which defines the
establishment. He submitted that since no business, trade or
occupation was carried out in the said premises as on 24/01/2012
or even as on 01/02/2012, the said premises were not an
establishment. He, therefore, submitted that the provisions
pertaining to the alleged breaches are not at all applicable to the
petitioner's premises. He, therefore, submitted that the
complaint is filed beyond limitation period and also when none of
the provisions apply to the petitioner's premises. He, therefore,
urged that the said Criminal Case is liable to be quashed.
6. On the contrary, Mr. Amonkar, learned Central
Government Standing Counsel appearing on behalf of respondent
no.2 read out the definition of “Inter-State Migrant Workman” as
given in Section 2(1)(e) of the Act. He further submitted that the
inspection carried out on 24/01/2012 and the inspection note
prepared on that day was not in respect of the present petitioner,
but pertained to M/s. Diebold. He submitted that, therefore, the
petitioner cannot base his contentions on the said inspection note.
He pointed out from the notice dated 01/02/2012 sent to the
petitioner by the complainant that it is specifically stated therein
that the inspection of the establishment of the petitioner was
carried out on 01/02/2012. He invited my attention to the
inspection report prepared by the complainant wherein the
violations are specifically mentioned. He, therefore, submitted
that the complaint filed on 30/04/2012 is within three months and
is not time barred. Mr. Amonkar, learned Central Government
Standing Counsel further submitted that the question whether
the business or occupation was already started in the
establishment of the petitioner or not would be a question of fact
to be decided on merits and, therefore, the same should not be
decided at this stage only. He, therefore, submitted that there is
no substance in the present petition and the same be dismissed.
7. I have perused the entire material on record. I have
considered the submissions made by the learned Counsel for both
the parties.
8. It would be advantageous to see the relevant
provisions of the Act and the Rules, before proceeding further.
(a) Section 2(1)(d) of the Act defines 'establishment' as
under :
“2(1)(d)- 'establishment' means-
(i) any office or department of the Government or a
local authority; or
(ii) any place where any industry, trade, business,
manufacture or occupation is carried on.”
(b) Section 2(1)(e) of the Act defines 'inter-state migrant
workman' as under :
"2(1)(e).- Inter-State migrant workman" means any
person who is recruited by or through a contractor
in one State under an agreement or other
arrangement for employment in an establishment in
another State, whether with or without the
knowledge of the principal employer in relation to
such establishment.”
(c) Section 2(1)(g) of the Act provides as under :
“2(1)(g).- 'principal employer' means, -
(i) in relation to any office or department of the
Government or a local authority, the head of that
office, department or authority or such other officer
as the Government or the local authority, as the case
may be, may specify in this behalf;
(ii) in relation to a factory, the owner or occupier of
the factory and where a person has been named as
the manager of the factory under the Factories Act,
1948 (63 of 1948), the person so named;
(iii) in relation to a mine, the owner or agent of the
mine and where a person has been named as the
manager of the mine, the person so named;
(iv) in relation to any other establishment, any person
responsible for the supervision and control of the
establishment.”
(d) Section 4(1) of the Act provides as under :
“4. Registration of certain establishments -
(1).- Every principal employer of an establishment
to which this Act applies shall, within such period as
the appropriate Government may, by notification in
the Official Gazette, fix in this behalf with respect to
establishments generally or with respect to any class
of them, make an application to the registering
officer, in such form and manner and on payment of
such fees as may be prescribed, for the registration
of the establishment:
Provided that the registering officer may
entertain any such application for registration after
the expiry of the period fixed in that behalf, if the
registering officer is satisfied that the applicant was
prevented by sufficient cause from making the
application in time.”
(e) Section 26 of the Act provides as under :
“26. Other offences-
If any person contravenes any of the provisions of
this Act or of any rules made there under for which
no other penalty is elsewhere provided, he shall be
punishable with imprisonment for a term which may
extend to two years, or with fine which may extend
to two thousand rupees, or with both.”
(f) Section 29 of the Act provides as under :
“29. Limitation of prosecutions No
court shall take cognizance of an offence
punishable under this Act unless the complaint
thereof is made within three months from the date
on which the alleged commission of the offence
came to the knowledge of the inspector or
authorised person concerned:
Provided that where the offence consists of
disobeying a written order made by an inspector or
Authorised person, complaint thereof may be made
within six months of the date on which the offence is
alleged to have been committed.”
9. (a) Rule 48 of the Rules provides as under :
“48. Registers of Contractors -
Every principal employer shall maintain in respect
of each registered establishment a register of
contractors in Form XII.”
(b) Rule 55(1)(i) of the Rules provides as under :
“55. Notices-
(1) (I).- Notices showing the rates of wages, hours
of work, wage periods, dates of payment of wages,
names and addresses of the Inspectors having
jurisdiction, and date of payment of unpaid wages,
shall be displayed in English and in Hindi and in the
local language understood by the majority of the
workers in conspicuous places at the establishment
and the work-site by the principal employer or the
contractor, as the case may be. ”
10. From the provision of Section 29 of the Act, it is clear
beyond doubt that the complaint for contravention of the
provisions of the Act and Rules has to be made within three
months from the date on which the commission of offence came to
the knowledge of the Inspector or authorised person concerned.
In the present case, admittedly, Shri K. A. Sebastian, who has
lodged the complaint against the present petitioner, is the
Inspector and authorised person concerned. Though the
inspection note dated 24/01/2012 mentions the name of the
establishment as M/s. Diebold, however, in clause 3 of the said
inspection note, there is mention regarding the work of furnishing
for new branch set up for Federal Bank Ltd at Vasco. This
inspection note reveals that the inspection was carried out at the
said premises of proposed new Branch at Vasco and not at the
premises of the establishment of M/s. Diebold. It is clearly stated
that at the premises Mr. S. R. Tikale, Branch Manager of Federal
Bank, Vasco was present. This inspection note is duly signed by
the said Inspector/ authorised officer namely K. A. Sebastian, by
the Branch Manager Mr. S. R. Tikale and by Mr. Balaji K.B.,
coordinator of M/s. Diebold. The notice bearing No.31(3)/2012-
ISMW-PE-LEO-Vasco dated 01/02/2012 addressed to the
petitioner says that during the inspection on 01/02/2012, certain
irregularities were observed. The inspection report annexed to
this notice is signed only by Shri K. A. Sebastian and not by Mr. S.
R. Tikale or Shri Balaji K. B.. It is pertinent to note that in the
complaint dated 30/04/2012, the inspection note and workers'
statement dated 24/01/2012 have been relied upon. The
inspection note dated 24/01/2012 specifically mentions the
alleged breaches noticed. It can, therefore, be said that the
authorised officer had knowledge of the alleged commission of
offence on 24/01/2012. As has been rightly contended by the
learned Counsel for the petitioner, in the notice dated
01/02/2012, the date of inspection has been mentioned as
01/02/2012 only to get over the provision of Section 29 of the Act.
In the circumstances above, the complaint filed on 30/04/2012 is
beyond the period of limitation as prescribed under Section 29 of
the Act. On this ground alone, the complaint (Criminal Case
18/L/2012/C) is bound to be quashed.
11. The petitioner has produced on record the invitation
card of inauguration of their new Branch at Vasco-da-Gama on
17/03/2012. In the Inspection Note dated 24/01/2012, as far as
the Federal Bank at Vasco is concerned, it is mentioned that the
nature of the work was furnishing of new Branch set up. This
means that as on 24/01/2012, the branch was not ready for
operation. By letter dated 05/03/2012, the petitioner had
informed the respondent no. 2 that as on that day, the proposed
branch had not yet started functioning and the works were under
progress.
12. For application of Section 4(1) of the Act, there has to
be an establishment. Similarly, for application of Rules 48 and
55(1)(i) of the Rules, existence of an establishment is a must. As
already seen above, establishment means any place where
industry, trade, business, manufacture or occupation is carried
on. In the premises of the petitioner at Vasco, the work of setting
up of the establishment was going on and the establishment as
such, had not started its work, till 17/3/2012. Therefore, there
was no establishment at all. In such circumstances, there could
not be any breach of Section 4(1) of the Act or Rules 48 and 55(1)WPCR66-12
… 14 …
(i) of the Rules.
13. In view of the above, the complaint filed by
respondent no. 2 and registered as Criminal case No. 18/L/2012/C
cannot sustain and the Magistrate ought not to have taken
cognizance of the same. The said Criminal Case No.18/L/12/C is
bound to be quashed and set aside.
14. In the result, the petition is allowed.
(a) The Criminal Case No.18/L/2012/C pending before the
JMFC, Vasco-da-Gama is quashed and set aside.
(b) The summons dated 14/05/2012 issued by the learned
JMFC in the said case is also quashed.
(c) Rule is made absolute in the aforesaid terms.
15. The petition stands disposed of accordingly, with no
order as to costs.
U. V. BAKRE, J.
SMA
Print Page
“29. Limitation of prosecutions No
court shall take cognizance of an offence
punishable under this Act unless the complaint
thereof is made within three months from the date
on which the alleged commission of the offence
came to the knowledge of the inspector or
authorised person concerned:
Provided that where the offence consists of
disobeying a written order made by an inspector or
Authorised person, complaint thereof may be made
within six months of the date on which the offence is
alleged to have been committed.”
9. (a) Rule 48 of the Rules provides as under :
“48. Registers of Contractors -
Every principal employer shall maintain in respect
of each registered establishment a register of
contractors in Form XII.”
(b) Rule 55(1)(i) of the Rules provides as under :
“55. Notices-
(1) (I).- Notices showing the rates of wages, hours
of work, wage periods, dates of payment of wages,
names and addresses of the Inspectors having
jurisdiction, and date of payment of unpaid wages,
shall be displayed in English and in Hindi and in the
local language understood by the majority of the
workers in conspicuous places at the establishment
and the work-site by the principal employer or the
contractor, as the case may be. ”
10. From the provision of Section 29 of the Act, it is clear
beyond doubt that the complaint for contravention of the
provisions of the Act and Rules has to be made within three
months from the date on which the commission of offence came to
the knowledge of the Inspector or authorised person concerned.
In the present case, admittedly, Shri K. A. Sebastian, who has
lodged the complaint against the present petitioner, is the
Inspector and authorised person concerned. Though the
inspection note dated 24/01/2012 mentions the name of the
establishment as M/s. Diebold, however, in clause 3 of the said
inspection note, there is mention regarding the work of furnishing
for new branch set up for Federal Bank Ltd at Vasco. This
inspection note reveals that the inspection was carried out at the
said premises of proposed new Branch at Vasco and not at the
premises of the establishment of M/s. Diebold. It is clearly stated
that at the premises Mr. S. R. Tikale, Branch Manager of Federal
Bank, Vasco was present. This inspection note is duly signed by
the said Inspector/ authorised officer namely K. A. Sebastian, by
the Branch Manager Mr. S. R. Tikale and by Mr. Balaji K.B.,
coordinator of M/s. Diebold. The notice bearing No.31(3)/2012-
ISMW-PE-LEO-Vasco dated 01/02/2012 addressed to the
petitioner says that during the inspection on 01/02/2012, certain
irregularities were observed. The inspection report annexed to
this notice is signed only by Shri K. A. Sebastian and not by Mr. S.
R. Tikale or Shri Balaji K. B.. It is pertinent to note that in the
complaint dated 30/04/2012, the inspection note and workers'
statement dated 24/01/2012 have been relied upon. The
inspection note dated 24/01/2012 specifically mentions the
alleged breaches noticed. It can, therefore, be said that the
authorised officer had knowledge of the alleged commission of
offence on 24/01/2012. As has been rightly contended by the
learned Counsel for the petitioner, in the notice dated
01/02/2012, the date of inspection has been mentioned as
01/02/2012 only to get over the provision of Section 29 of the Act.
In the circumstances above, the complaint filed on 30/04/2012 is
beyond the period of limitation as prescribed under Section 29 of
the Act. On this ground alone, the complaint (Criminal Case
18/L/2012/C) is bound to be quashed.
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL WRIT PETITION NO.66 OF 2012
THE CHIEF MANAGER,
Federal Bank Ltd.,
Vs.
THE STATE OF GOA,
CORAM :- U. V. BAKRE, J.
DATE : 26thMarch, 2014
Citation; 2015 ALLMR(cri) 4391
2. By this petition, the petitioner seeks quashing of the
complaint bearing Criminal Case No.18/L/12/C pending before the
Judicial Magistrate, First Class ('JMFC' for short) at Vasco-daGama
and also quashing of the summons dated 14/05/2012 issued
by the learned JMFC in the said case.
3. The said Criminal Case No.18/L/12/C arises out of a
private complaint filed by respondent no. 2, on 30/04/2012,
against the accused (petitioner), under Section 26 of the InterState
Migrant Workmen (Regulation of Employment and
Conditions of Service) Act, 1979 ('the Act' for short). It is alleged
that Shri K. A. Sebastian, Labour Enforcement Officer (Central),
Vasco-da-Gama, who is an Inspector under the Act, had inspected
the establishment of the accused at Vaddem, Vasco-da-Gama, Goa
on 01/02/2012 and had observed that the accused had committed
certain breaches. It is alleged that inter-state migrant workmen
numbering 23 were employed on 28/12/2011 without obtaining
the registration and, therefore, there is violation of Section 4(1) of
the Act. It is further alleged that the notices showing rates of
wages, hours of work, wage period, dates of payment of wages,
name and address of the Inspectors having jurisdiction and date
of payment of unpaid wages in English, Hindi and language
understood by the majority of the workers at the work site were
not displayed in conspicuous places at the establishment and,
therefore, there is violation of Rule 55(1)(i) of the Inter-State
Migrant Workmen (Regulation of Employment and Conditions of
Service) Central Rules, 1980 ('the Rules' for short). Lastly, it is
alleged that there was breach of rule 48 of the Rules on account
of non-maintenance of register of contractors. The place of
offence is stated to be “Federal Bank, Vasco-da-Gama” whereas
date of offences is stated to be 01/02/2012. All the said breaches
are stated to be punishable under Section 26 of the Act. It is
further alleged that an inspection report-cum-show cause notice
No.31(3)/2012-ISMW-PE-LEO-Vasco dated 1st February, 2012
incorporating the said breaches was prepared and issued to the
accused by Registered A.D. Post. It is further alleged that the
accused submitted the compliance report dated 05/03/2012, but
the same was not found to be satisfactory by the Sanctioning
Authority. Hence, the complaint. It is further stated in this
complaint that the same is required to be filed within three
months from the date of offence as per Section 29 of the Act and
last date of filing the complaint is 30/04/2012.
4. The petitioner alleges as follows:- He is the Chief
Manager of Federal Bank Ltd., which is a Scheduled Commercial
Bank and that vide work order dated 05/01/2012, M/s. Diebold
Systems Private Ltd.(M/s Diebold, for short) was entrusted with
turn key execution of interior furnishing works of the proposed
branch at Vasco. Clause 6 of the said work order specifically
provided that it shall be the responsibility of M/s. Diebold to
adhere to all provisions of Contract and Labour Act including
obtaining registration. The said Branch Office at Vasco was
completed and inaugurated on 17/03/2012. During the execution
of the work at the proposed Branch site, an inspection was
conducted by respondent no. 2 on 24/01/2012. Subsequently, a
show cause notice dated 01/02/2012 was issued by the
respondent no. 2 to the petitioner and vide reply dated
05/03/2012, the Branch Manager of the proposed Vasco Branch
requested the respondent no. 2 not to proceed against the Bank.
Further by letter dated 09/03/2012, the petitioner requested the
respondent no. 2 to accept the replies filed by the proposed
Branch Manager and exonerate from the charges. However, on
30/04/2012, respondent no. 2 filed the complaint and the said
complaint has been registered as Criminal Case No.18/L/2012/C
before the JMFC. Pursuant to the said complaint, the learned
JMFC issued summons to the petitioner. The said complaint was
not made within the prescribed limitation period of three months
as stipulated in Section 29 of the Act. Neither in the inspection
note nor in the show cause notice, respondent no. 2 has alleged
that the persons working were recruited from inter-states for
working at Goa by or through the Contractor. Hence, the Act has
no application in the present case. The petitioner, being the Chief
Manager, is not principal employer as defined in Section 2(1)(g)
(iv) of the Act and hence, no complaint could lie against him. The
person responsible for supervision and control would be the
Branch Manager of the said proposed Vasco Branch and not the
petitioner. The respondent no. 2 was well aware before filing the
complaint that Mr. Satish R. Tikale has been appointed as the
Branch Manager of the proposed Vasco Branch of the Federal
Bank Ltd. The Vasco Branch of Federal Bank started functioning
as from 17/03/2012 and on 24/01/2012 or even on 01/02/2012, the
said Vasco Branch could not be termed as an 'establishment' as
defined in the Act. Therefore, the said Criminal Case, along with
the summons issued against the petitioner is liable to be quashed
and set aside.
5. Mr. Nadkarni, learned Counsel appearing on behalf of
the petitioner read out the provision of Section 29 of the Act and
pointed out that the inspection was carried out by the
complainant, who is Inspector or authorised officer on
24/01/2012, but the complaint was filed on 30/04/2012, i.e.
beyond the period of three months, which is clearly barred by
limitation as prescribed under Section 29 of the Act. He further
pointed out that all the breaches alleged by respondent no. 2
require that there has to be an establishment. He invited my
attention to Section 2(1)(d) of the Act which defines the
establishment. He submitted that since no business, trade or
occupation was carried out in the said premises as on 24/01/2012
or even as on 01/02/2012, the said premises were not an
establishment. He, therefore, submitted that the provisions
pertaining to the alleged breaches are not at all applicable to the
petitioner's premises. He, therefore, submitted that the
complaint is filed beyond limitation period and also when none of
the provisions apply to the petitioner's premises. He, therefore,
urged that the said Criminal Case is liable to be quashed.
6. On the contrary, Mr. Amonkar, learned Central
Government Standing Counsel appearing on behalf of respondent
no.2 read out the definition of “Inter-State Migrant Workman” as
given in Section 2(1)(e) of the Act. He further submitted that the
inspection carried out on 24/01/2012 and the inspection note
prepared on that day was not in respect of the present petitioner,
but pertained to M/s. Diebold. He submitted that, therefore, the
petitioner cannot base his contentions on the said inspection note.
He pointed out from the notice dated 01/02/2012 sent to the
petitioner by the complainant that it is specifically stated therein
that the inspection of the establishment of the petitioner was
carried out on 01/02/2012. He invited my attention to the
inspection report prepared by the complainant wherein the
violations are specifically mentioned. He, therefore, submitted
that the complaint filed on 30/04/2012 is within three months and
is not time barred. Mr. Amonkar, learned Central Government
Standing Counsel further submitted that the question whether
the business or occupation was already started in the
establishment of the petitioner or not would be a question of fact
to be decided on merits and, therefore, the same should not be
decided at this stage only. He, therefore, submitted that there is
no substance in the present petition and the same be dismissed.
7. I have perused the entire material on record. I have
considered the submissions made by the learned Counsel for both
the parties.
8. It would be advantageous to see the relevant
provisions of the Act and the Rules, before proceeding further.
(a) Section 2(1)(d) of the Act defines 'establishment' as
under :
“2(1)(d)- 'establishment' means-
(i) any office or department of the Government or a
local authority; or
(ii) any place where any industry, trade, business,
manufacture or occupation is carried on.”
(b) Section 2(1)(e) of the Act defines 'inter-state migrant
workman' as under :
"2(1)(e).- Inter-State migrant workman" means any
person who is recruited by or through a contractor
in one State under an agreement or other
arrangement for employment in an establishment in
another State, whether with or without the
knowledge of the principal employer in relation to
such establishment.”
(c) Section 2(1)(g) of the Act provides as under :
“2(1)(g).- 'principal employer' means, -
(i) in relation to any office or department of the
Government or a local authority, the head of that
office, department or authority or such other officer
as the Government or the local authority, as the case
may be, may specify in this behalf;
(ii) in relation to a factory, the owner or occupier of
the factory and where a person has been named as
the manager of the factory under the Factories Act,
1948 (63 of 1948), the person so named;
(iii) in relation to a mine, the owner or agent of the
mine and where a person has been named as the
manager of the mine, the person so named;
(iv) in relation to any other establishment, any person
responsible for the supervision and control of the
establishment.”
(d) Section 4(1) of the Act provides as under :
“4. Registration of certain establishments -
(1).- Every principal employer of an establishment
to which this Act applies shall, within such period as
the appropriate Government may, by notification in
the Official Gazette, fix in this behalf with respect to
establishments generally or with respect to any class
of them, make an application to the registering
officer, in such form and manner and on payment of
such fees as may be prescribed, for the registration
of the establishment:
Provided that the registering officer may
entertain any such application for registration after
the expiry of the period fixed in that behalf, if the
registering officer is satisfied that the applicant was
prevented by sufficient cause from making the
application in time.”
(e) Section 26 of the Act provides as under :
“26. Other offences-
If any person contravenes any of the provisions of
this Act or of any rules made there under for which
no other penalty is elsewhere provided, he shall be
punishable with imprisonment for a term which may
extend to two years, or with fine which may extend
to two thousand rupees, or with both.”
(f) Section 29 of the Act provides as under :
“29. Limitation of prosecutions No
court shall take cognizance of an offence
punishable under this Act unless the complaint
thereof is made within three months from the date
on which the alleged commission of the offence
came to the knowledge of the inspector or
authorised person concerned:
Provided that where the offence consists of
disobeying a written order made by an inspector or
Authorised person, complaint thereof may be made
within six months of the date on which the offence is
alleged to have been committed.”
9. (a) Rule 48 of the Rules provides as under :
“48. Registers of Contractors -
Every principal employer shall maintain in respect
of each registered establishment a register of
contractors in Form XII.”
(b) Rule 55(1)(i) of the Rules provides as under :
“55. Notices-
(1) (I).- Notices showing the rates of wages, hours
of work, wage periods, dates of payment of wages,
names and addresses of the Inspectors having
jurisdiction, and date of payment of unpaid wages,
shall be displayed in English and in Hindi and in the
local language understood by the majority of the
workers in conspicuous places at the establishment
and the work-site by the principal employer or the
contractor, as the case may be. ”
10. From the provision of Section 29 of the Act, it is clear
beyond doubt that the complaint for contravention of the
provisions of the Act and Rules has to be made within three
months from the date on which the commission of offence came to
the knowledge of the Inspector or authorised person concerned.
In the present case, admittedly, Shri K. A. Sebastian, who has
lodged the complaint against the present petitioner, is the
Inspector and authorised person concerned. Though the
inspection note dated 24/01/2012 mentions the name of the
establishment as M/s. Diebold, however, in clause 3 of the said
inspection note, there is mention regarding the work of furnishing
for new branch set up for Federal Bank Ltd at Vasco. This
inspection note reveals that the inspection was carried out at the
said premises of proposed new Branch at Vasco and not at the
premises of the establishment of M/s. Diebold. It is clearly stated
that at the premises Mr. S. R. Tikale, Branch Manager of Federal
Bank, Vasco was present. This inspection note is duly signed by
the said Inspector/ authorised officer namely K. A. Sebastian, by
the Branch Manager Mr. S. R. Tikale and by Mr. Balaji K.B.,
coordinator of M/s. Diebold. The notice bearing No.31(3)/2012-
ISMW-PE-LEO-Vasco dated 01/02/2012 addressed to the
petitioner says that during the inspection on 01/02/2012, certain
irregularities were observed. The inspection report annexed to
this notice is signed only by Shri K. A. Sebastian and not by Mr. S.
R. Tikale or Shri Balaji K. B.. It is pertinent to note that in the
complaint dated 30/04/2012, the inspection note and workers'
statement dated 24/01/2012 have been relied upon. The
inspection note dated 24/01/2012 specifically mentions the
alleged breaches noticed. It can, therefore, be said that the
authorised officer had knowledge of the alleged commission of
offence on 24/01/2012. As has been rightly contended by the
learned Counsel for the petitioner, in the notice dated
01/02/2012, the date of inspection has been mentioned as
01/02/2012 only to get over the provision of Section 29 of the Act.
In the circumstances above, the complaint filed on 30/04/2012 is
beyond the period of limitation as prescribed under Section 29 of
the Act. On this ground alone, the complaint (Criminal Case
18/L/2012/C) is bound to be quashed.
11. The petitioner has produced on record the invitation
card of inauguration of their new Branch at Vasco-da-Gama on
17/03/2012. In the Inspection Note dated 24/01/2012, as far as
the Federal Bank at Vasco is concerned, it is mentioned that the
nature of the work was furnishing of new Branch set up. This
means that as on 24/01/2012, the branch was not ready for
operation. By letter dated 05/03/2012, the petitioner had
informed the respondent no. 2 that as on that day, the proposed
branch had not yet started functioning and the works were under
progress.
12. For application of Section 4(1) of the Act, there has to
be an establishment. Similarly, for application of Rules 48 and
55(1)(i) of the Rules, existence of an establishment is a must. As
already seen above, establishment means any place where
industry, trade, business, manufacture or occupation is carried
on. In the premises of the petitioner at Vasco, the work of setting
up of the establishment was going on and the establishment as
such, had not started its work, till 17/3/2012. Therefore, there
was no establishment at all. In such circumstances, there could
not be any breach of Section 4(1) of the Act or Rules 48 and 55(1)WPCR66-12
… 14 …
(i) of the Rules.
13. In view of the above, the complaint filed by
respondent no. 2 and registered as Criminal case No. 18/L/2012/C
cannot sustain and the Magistrate ought not to have taken
cognizance of the same. The said Criminal Case No.18/L/12/C is
bound to be quashed and set aside.
14. In the result, the petition is allowed.
(a) The Criminal Case No.18/L/2012/C pending before the
JMFC, Vasco-da-Gama is quashed and set aside.
(b) The summons dated 14/05/2012 issued by the learned
JMFC in the said case is also quashed.
(c) Rule is made absolute in the aforesaid terms.
15. The petition stands disposed of accordingly, with no
order as to costs.
U. V. BAKRE, J.
SMA
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