CR.A/1123/1995 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1123 of 1995 With CRIMINAL APPEAL No. 1129 of 1995 With CRIMINAL APPEAL No. 1158 of 1995 For Approval and Signature: HONOURABLE MR.JUSTICE J.C.UPADHYAYA ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== STATE OF GUJARAT - Appellant(s) Versus BHAGWANJI VALLABHDAS & 4 - Opponent(s) ====================================== Appearance : MR M.R.MENGDE A.P.P. for Appellant(s) : 1, NOTICE SERVED for Opponent(s) : 1 - 5. ====================================== CORAM : HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 18/02/2008 COMMON ORAL JUDGMENT Being aggrieved and dissatisfied with the judgment and CR.A/1123/1995 2/6 JUDGMENT order passed by learned Judicial Magistrate First Class, Rajkot (for short 'ld.Magistrate') dated 01.09.1995 in Criminal Case No.2500, 2501 and 2626 of 1988, the State of Gujarat has preferred these 3 appeals under Section 378 of the Criminal Procedure Code, 1973. By virtue of the impugned judgment and order, the ld.Magistrate acquitted the respondents–accused persons from the offence punishable under Section 22-A of the Minimum Wages Act, 1948, read with Section 18 of the Minimum Wages Act, and Rules 26-B, 26(2) and 22 of the Gujarat Minimum Wages Rules, 1961. 2. Mr.P.P. Joshi, who was Government Labour Officer and Authority appointed under the Minimum Wages Act ('Act' for short) had on 11.03.1988 visited the shop of the respondents, and during his visit, it was disclosed that certain labourers who were working in the shop were not issued presence-cards, pay-slips and the notice containing the details regarding rate of minimum wage etc. was not displayed in the shop. That despite the notice issued on 25.03.1988, the accused persons did not comply with the notice, and therefore, in respect of each labourer, separate criminal complaints were filed by the original complainant Mr.P.P. Joshi against the respondent–accused persons in the Court of ld.Magistrate, Rajkot. Ld.Magistrate recorded the plea of the accused persons. Since the accused did not plead guilty, the ld.Magistrate recorded the evidence adduced by the prosecution. Deposition of the complainant Mr.P.P.Joshi was recorded. The prosecution examined Mr.B.M.Parmar as its witness. The prosecution produced certain documentary evidence in the case. After hearing arguments advanced on behalf of both the parties, the ld.Magistrate by virtue of the impugned judgment and order acquitted the accused persons. 3. On behalf of the appellant–State, ld.A.P.P. Mr.Mengde CR.A/1123/1995 3/6 JUDGMENT submitted that the ld.Magistrate committed serious error in not properly appreciating the evidence on record. That there was no reason to discard the testimony of the complainant, who is an independent person. By virtue of his duty, he inspected the shop of the accused, and the irregularities as contemplated under the Act were traced out. That the ld.Magistrate did not properly consider the relevant provisions of the Act. That the ld.Magistrate committed error in holding that there was no relationship between the accused and the labourers as that of master and servants. Therefore, it was submitted that the impugned judgment and order passed by the ld.Magistrate be set-aside, and the respondents– accused be punished in accordance with law. 4. I have gone through the record and proceedings of the Trial Court, and the impugned judgment and order passed by the ld.Magistrate. Perusing the impugned judgment delivered by the ld.Magistrate, the ld.Magistrate on the basis of the evidence on record, came to the conclusion that the nature of profession of the accused was to engage labourers for the purpose of loading and unloading goods in railway wagons. Even, it transpires that during the course of inspection visit, statement of respondent–accused No.2 Pranlal Vallabhdas who was one of the partners of the shop was recorded. The ld.Magistrate observed in the judgment that keeping aside the evidential value of the statement of the accused recorded by the complainant in this case, even if such statement is considered, yet it clearly transpires that the shop had engaged one Raidhan Meraman as contractor for the purpose of undertaking work of loading and unloading in railway wagons, and the labourers who were found present in the shop at the time of inspection visit of the complainant–Government Labour Officer, and Inspector of Minimum Wages were in fact the employees of Raidhan Meraman. It is further observed in the judgment that even the statement of contractor CR.A/1123/1995 4/6 JUDGMENT Raidhan Meraman was also recorded by the complainant. The ld.Magistrate took into consideration the definition of employer as defined in the Act, but, on the basis of evidence on record, the ld.Magistrate observed that even as per the case of the prosecution, those labourers who were found working in the shop were not directly employed by the partners of the shop. But, as per the case of the prosecution, the labourers were employed by contractor Raidhan Meraman. However, the ld.Magistrate observed that considering the fact that the definition of employer as defined in the Act is very wide, but whether the prosecution proved beyond reasonable doubt that even the labourers who were found in the shop, were employed by contractor Raidhan Meraman? The ld.Magistrate observed that to prove this aspect beyond reasonable doubt, it was the bounden duty of the prosecution to examine the said contractor Raidhan Meraman as witness in this case. It is important to note that the complainant did not join Raidhan Meraman as one of the accused persons in any criminal complaint. Still, however, even considering the statement of Raidhan Meraman, recorded by the complainant even the labourers were not directly employed by said Raidhan Meraman, but the labourers were employed by some sub- contractor. That the complainant did not record statement of such sub- contractor. Appreciating the testimony of complainant and witness B.M.Parmar, the ld.Magistrate observed that the statement of Raidhan Meramal bears thumb impression, but neither the complainant nor witness Parmar or anybody identified the said thumb impression below the so-called statement of Raidhan Meraman. However, the fact remains that the prosecution did not examine the important witness Raidhan Meraman. Ld.Magistrate observed that the complainant recorded common statement of about 58 labourers, but none out of them was examined as witness in this case. Ld.Magistrate observed that even considering the statement of respondent–accused Pranlal Vallabhdas, CR.A/1123/1995 5/6 JUDGMENT who is one of the partners of the shop, it transpires that the accused never employed any labourer, but depending upon the quantum of work of loading and unloading goods in the railway wagons, the accused used to get services of different contractors, and from the labourers employed by those different contractors, the work was undertaken. Under such circumstances, the ld.Magistrate observed that none of the labourers were under the direct control or authority of the accused persons. That the prosecution therefore, failed to prove that any salary was paid by the accused to any of the labourers. Ld.Magistrate further observed that even considering the overall evidence on record, it clearly transpires that those labourers who were found working in the shop were labourers of more than one contractors, and simultaneously in a day they were working for more than one contractors in different shops and doing identical work of loading and unloading goods in railway wagons. Therefore, the ld.Magistrate came to the conclusion that there was no evidence whatsoever on record, as to exactly who was employer of those labourers. However, in nutshell, the ld.Magistrate came to the conclusion that so far as the present accused persons who are partners in the shop are concerned, the prosecution failed to prove beyond reasonable doubt, the relationship between the accused and the labourers was that of master and servants or employer and employees. 5. In light of the above discussions, it cannot be said that the ld.Magistrate committed any error in acquitting the respondents–accused persons. Needless to say that even if two views are possible, one leading to the guilt of the accused and another leading to innocence, the view leading to the innocence of the accused is required to be taken by the Appellate Court dealing with the appeal under Section 378 of the Criminal Procedure Code. Thus, there is no reason to interfere with the impugned judgment and order passed by the ld.Magistrate. CR.A/1123/1995 6/6 JUDGMENT 6. In the result, the appeals deserve to be dismissed, and the same are hereby dismissed. (J.C. Upadhyaya, J.) binoy