IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 2ND FEBRUARY 2011 / 13TH MAGHA 1932 Crl.MC.No. 4948 of 2010() ------------------------- ST.3521/2010 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II, ALUVA .................... PETITIONER(S)/ACCUSED: --------------- M.C.POOKOYA, FORMER GENERAL MANAGER, H.M.T. MACHINE TOOLS LTD., H.M.T. COLONY, KALAMASSERY P.O., ERNAKULAM DISTRICT. BY ADV. SRI.M.PATHROSE MATTHAI, SENIOR ADVOCATE SRI.SAJI VARGHESE SMT.MARIAM MATHAI RESPONDENT(S)/COMPLAINANT: --------------- 1. THE LABOUR ENFORCEMENT OFFICER(CENTRAL), OFFICE OF THE REGIONAL LABOUR COMMISSIONER, KENDRIYA SHRAM SADAN, OLIMUGAL, KAKKANAD, KOCHI- 682030. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI PUZHAKKARA MOHAMMD FOR R2 SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDIA FOR R1 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.4948 of 2010 -------------------------------------- Dated this the 2nd day of February, 2011. ORDER This petition is filed by the accused in S.T.No.3521 of 2010 of the court of learned Judicial First Class Magistrate-II, Aluva. That is a complaint case instituted by respondent No.1, the Labour Enforcement Officer (Central) alleging commission of offence under Section 7 of the Contract Labour (Regulation and Abolition) Act, 1970 (for short, “the Act”) read with Rules 17, 81 (1(i), 81(2) and 81(3) of the Rules. It is alleged in Annexure-4, complaint that petitioner is the principal employer within the meaning of Section 2(1)(g) read with Section 25 of the Act and that the Labour Enforcement Officer referred to above appointed vide Gazette Notification No. S.R.O.3451 dated November 30, 1987 of the Government of India, Ministry of Labour, New Delhi inspected the establishment of petitioner at Kalamassery on 08.02.2010 and detected offences as above stated. Based on that, respondent No.1 has preferred Annexure-4, complaint as aforesaid on which learned Magistrate has taken cognizance. That cognizance is sought to be quashed in this proceeding. It is contended by learned Senior Advocate appearing for petitioner that the Labour Enforcement Officer (respondent No.1) who is said to have conducted inspection in the establishment referred to in Annexure-4, complaint has no authority to do so as Crl.MC.No.4948/2010 2 on the date of inspection and hence the inspection as well as filing of the complaint and cognizance taken are illegal being without jurisdiction. Learned Senior Advocate has referred me to the relevant provisions of the Act. 2. Section 7 of the Act deals with registration of certain establishments and says that every principal employer of an establishment to which the said Act applied shall within such period as the “appropriate Government” may by notification in the Official Gazette fix in that behalf with respect to establishments generally or with respect to any class of them, make an application to the registering officer in the prescribed manner for registration of the establishment. Sections 24 and 25 of the said Act deal with offences and under Section 24, if a person contravenes any of the provisions of the said Act or any rules made thereunder for which no other penalty is elsewhere provided he shall liable for punishment referred to therein. Section 25 of the Act deals with punishment for offence committed by companies. 3. I referred to Section 7 of the Act which required every principal employer to get registration for the establishment as notified by the “appropriate Government”. Section 2(a)(i) of the Act defines “appropriate Government” as meaning, in relation to an establishment in respect of which the appropriate Government under the Industrial Disputes Act, 1947 (Act 14 of 1947) is the Central Government and under Sub-rule (ii), in relation to any other establishment, the Government of the State in which that other establishment is situated. 4. It is apposite to refer to the definition of “appropriate Government” Crl.MC.No.4948/2010 3 in Section 2(a)(i) of the Industrial Disputes Act. As the said definition originally stood it took in various establishments. The said definition was amended by Act 24 of 2010 with effect from September 15, 2010 as per which in Sub-clause (i) for the words “major port, the Central Government and” the words “major port, any company in which not less than fifty-one per cent of the paid-up share capital is held by the Central Government, or any corporation, not being a corporation referred to in this clause, established by or under any law made by Parliament, or the Central public sector undertaking, subsidiary companies set up by the principal undertaking and autonomous bodies owned or controlled by the Central Government, the Central Government and “ shall be substituted. In otherwords, the appropriate Government as defined before Act 24 of 2010 came into force with effect from September 15, 2010 did not take in subsidiary companies set up by principal undertaking. In short, the subsidiary companies set up by principal undertaking are also brought within the definition of appropriate Government under Section 2(a)(i) of the Industrial Disputes Act only with effect from September 15, 2010. 5. Question is whether in the light of above, the Labour Enforcement Officer (Central) had authority to conduct inspection in the premises of the establishment allegedly managed by petitioner and initiate prosecution. I stated that the offence alleged is under Section 7 of the Act read with relevant provisions of the Rules and Section 7 of the Act required the establishment concerned to obtain registration for such establishment within the time notified by the appropriate Government. So far as Section 2(a)(i) of the Act goes “appropriate Government” in relation to any other establishment is the Crl.MC.No.4948/2010 4 Government of the State. I stated that subsidiary companies set up by the principal undertaking is brought within the definition of “appropriate Government” under Section 2(a)(i) of the Industrial Disputes Act only by Act 24 of 2010 with effect from September 15, 2010. According to the petitioner and it is not disputed that respondent No.1 inspected HMT Machine Tools which according to petitioner, is a subsidiary company owned by the principal undertaking – HMT Ltd. which is a Central Government undertaking. I stated that the subsidiary company set up by the principal undertaking was brought within the definition of “appropriate Government” under Section 2(a)(i) of the Act only with effect from September 15, 2010. But the inspection in the present case was on February 8, 2010 and the complaint was preferred on May 7, 2010. It follows that inspection of the establishment and institution of proceeding was before the Act 24 of 2010 came into force in which case the appropriate authority so far as HMT Machine Tools which is a subsidiary of the principal undertaking – HMT Ltd. was the State Government. Learned Senior Advocate has pointed out from the inspection note attached to Annexure-4 that the establishment has obtained registration from the Government of Kerala (Registration No.KCLC/5/2007 dated 21.03.2007). It is seen from Annexure-3, letter dated May 5, 2010 addressed by respondent No.1 to the petitioner that the Central Government by notification No.G.S.R. 336(E) dated May 5, 2008 has declared in the Gazette of India that the Central Government is the appropriate Government under the Industrial Disputes Act, 1947 with respect to HMT Machine Tools. Assuming so, that notification only concerned the principal undertaking and not its subsidiary company, the HMT Machine Tools and hence, that notification referred to in Crl.MC.No.4948/2010 5 Annexure-3, letter cannot help respondent No.1. Hence only officials appointed by the State Government alone could inspect the subsidiary company and initiate action in case there was violation of any of the provisions of the Act. Though in the complaint the complainant is stated as 'State' represented by the Labour Enforcement Officer (Central), learned Public Prosecutor has submitted that it is not a complaint filed by the State or any of its officials. It follows that inspection and filing of the complaint, not to say about cognizance taken on that complaint is without authority and hence illegal. 6. Petitioner has a contention that he had retired from the establishment as early as on August 31,2010. But, that retirement comes only after inspection of the establishment and hence is not relevant for consideration. In the light of what I have stated, prosecution against petitioner cannot stand and is liable to be quashed. Resultantly this petition succeeds. Annexure-4, complaint in S.T.No.3521 of 2010 of the court of learned Judicial First Class Magistrate-II, Aluva and cognizance taken thereon against petitioner are quashed. THOMAS P.JOSEPH, Judge. cks