IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 3RD APRIL 2009 / 13TH CHAITHRA 1931 Crl.MC.No. 474 of 2006() ------------------------ ST.91/2006 of ADDL.CHIEF JUDICIAL MAGISTRATE, ERNAKULAM .................... PETITIONER(S): SECOND ACCUSED ----------------------------- M/S.ANSAL BUILDWELL LTD., ANSAL RIVERDALE, EROOR-682 306, REPRESENTED BY ITS GENERAL MANAGER, SRI.M.P.MATHEWS. BY ADV. SRI.JOSEPH MARKOSE, SENIOR ADVOCATE SRI.MATHEWS K.UTHUPPACHAN RESPONDENT(S): COMPLAINANT AND STATE ------------------------------------ 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. ASST. LABOUR OFFICER, ERNAKULAM IST CIRCLE, KAKKANAD, COCHIN-682 030. PUBLIC PROSECUTOR SHRI C.M.KAMMAPPU THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 31/3/2009 ALONG WITH CRMC NO. 1022 OF 2006 THE COURT ON 03/04/2009 PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.763/06 IN Crl.M.C.NO.474/06 //DISMISSED// 3.4.09 SD/-M.C.HARI RANI, JUDGE. TRUE COPY P.A.TO JUDGE M.C.HARI RANI, J. ----------------------------------------------------- CRL.M.C.Nos.474 & 1022 OF 2006 ----------------------------------------------------- DATED THIS THE 3rd DAY OF APRIL, 2009 O R D E R The petitioner in Crl.M.C.No.1022/06 is the first accused and the petitioner in Crl.M.C.No.474/06 is the second accused in S.T.No.91/06 pending before the Court of Additional Chief Judicial Magistrate, Ernakulam. These petitions are filed under Section 482 of Cr.P.C. to quash Annexure A complaint filed against them by the second respondent herein as the complainant. 2. Common facts of the case as stated in these petitions are as follows: The first and second accused in S.T.No.91/06 are respectively the Managing Director and the General Manager of the Company Ansal Buildwell Limited, Eroor. On 16.8.2005, the second respondent conducted an inspection in the office of the second accused Company at Ernakulam and issued an inspection note- cum-inspection order on the same day, copy of which is produced as Annexure C, wherein, certain violations under various provisions including the Minimum Wages Act were noted and CRL.M.C.Nos.474 & 1022/06 -2- directed the accused to appear before the second respondent on 29.8.2005. Second accused sent a reply on 27.8.2005, copy of which is produced as Annexure D. The relevant service records were also forwarded and obtained receipt dated 29.8.2005 from the second respondent produced as Annexure E. The second accused appeared before the second respondent on 29.8.2005 and submitted that the Company is an establishment covered under the Shops and Commercial Establishments Act and that they are maintaining registers as per Section 30 of the Shops and Commercial Establishments Act and the Rules made thereunder. Without considering the contentions of the petitioners, the second respondent issued a show cause notice dated 31.8.2005, copy of which is produced as Annexure F. The petitioners replied on 28.9.2005, copy of which is produced as Annexure G. Thereafter, the 2nd respondent filed Annexure A complaint on 31.12.2005, before the Court of Additional C.J.M., Ernakulam which was taken on file as S.T.No.91/06. In the said complaint filed by the 2nd respondent herein, it was alleged that the petitioners have violated Rule 29(8) and Rule 21(4) (iii) of the Kerala Minimum Wages Rules, which is punishable under Section 22A of the Minimum Wages Act, 1948. Hence, these petitions are filed to quash CRL.M.C.Nos.474 & 1022/06 -3- Annexure A complaint pending before the Court of Additional C.J.M., Ernakulam. 3. Heard the learned counsel appearing for the petitioners and also the learned Public Prosecutor. 4. It is submitted by the learned counsel for the petitioners that the petitioners' Company is incorporated under the Companies Act, 1956 and is a commercial establishment as defined under the Shops and Commercial Establishments Act, 1960 and they have produced all the registers and records maintained by them under the Kerala Shops and Commercial Establishments Act, even then the second respondent insisted them to maintain the records and registers under the Minimum Wages Act, which is illegal. Thus according to the learned counsel for the petitioners, the allegations contained in Annexure A complaint are not sustainable and therefore Annexure A complaint is not maintainable. As per Section 30 of the Kerala Shops and Commercial Establishments Act, the establishment is required to maintain registers and records mentioned under Rule 10 of the Kerala Shops and Commercial Establishments Rules. As per Section 5A(7) of the Kerala Shops and Commercial Establishments Act, renewal of the registration certificate of the Company valid upto 31.12.2006 issued by CRL.M.C.Nos.474 & 1022/06 -4- the Assistant Labour Officer, Ernakulam, 1st Circle, copy of which is produced as Annexure B, is a conclusive proof that the Company is maintaining all the registers and records under the Kerala Shops and Commercial Establishments Act. Therefore, the prosecution for not maintaining registers and records under the Minimum Wages Act is not maintainable. It is also submitted by the learned counsel for the petitioners that in view of Article 254(2) of the Constitution of India, the Kerala Shops and Commercial Establishments Act, 1960 will prevail in the State in preference to the Minimum Wages Act. Therefore, the allegations in Annexure A complaint do not constitute an offence punishable under the Minimum Wages Act. 5. It is submitted by the learned Public Prosecutor that Minimum Wages Act is applicable to the company, M/s. Ansal Buildwell Ltd. which is incorporated under the Companies Act and that the petitioner's company, though an establishment covered under the provisions of the Shops and Commercial Establishments Act, 1960, they are bound to maintain all the registers and records under the Minimum Wages Act also. 6. The offences alleged in S.T.No.91/2006 are under Rule 29 (8) and Rule 21(4)(iii) of the Minimum Wages Rules which are failure CRL.M.C.Nos.474 & 1022/06 -5- to maintain a visit book and to submit annual return. According to the petitioners, they were not maintaining any registers as per the Minimum Wages Act,1948. The point that was raised by the petitioners is that they are maintaining registers under the Shops and Commercial Establishments Act, which provides all the necessary information required under the Minimum Wages Act and therefore, there was no necessity to maintain a duplicate set of registers for the purpose of Minimum Wages Act. Thus the question for determination is whether the petitioners can be penalised for not producing the registers under the Minimum Wages Act and Rules as mentioned in Annexure-C notice dated 16-8-2005 and in the complaint Annexure-A. 7. The offence alleged against the petitioners mentioned in Annexure A complaint filed by the 2nd respondent herein are violations of Rules 21(4)(iii) and 29(8) of the Kerala Minimum Wages Rules, which is punishable under Section 22A of the Minimum Wages Act, 1948. Rules 21(4)(iii) and 29(8) of the Kerala Minimum Wages Rules reads: “21. Time and conditions of payment of wages and the deductions permissible from wages.- (4)(iii) All realisations under clause (i) and all deductions under clause (ii) shall be recorded in registers maintained in Form I and Form II respectively. A return in Form III shall CRL.M.C.Nos.474 & 1022/06 -6- be submitted annually by every employer, who has made any realisation or deduction as aforesaid, to the (Inspector of plantations in respect of employments in plantations or to the Assistant Labour Officer in respect of other employments) having jurisdiction over the area, so as to reach him on or before the 1st day of February of the succeeding year. In case no realisation under clause (i) or deduction under clause (ii) is made during any year, the employer shall submit an annual return in Form III-A, to the (Inspector of plantations in respect of employments in plantations or to the Assistant Labour Officer in respect of other employments) having jurisdiction over the area, so as to reach him on or before the said date.” Rule 29(8) reads as follows: “29. Form of registers and records. Xxxxxx xxxxxxxxx xxxxxxxxxx xxxxxxxx xxxxxxxxxx xxxxxxxxxx (8) Every employer shall maintain a visit book in which an inspector visiting the establishment may record his remarks regarding any defects that may come to his notice at the time of his inspection and shall produce it whenever required to do so by any Inspector having jurisdiction.” The penal provision is S.22A of the Minimum Wages Act and it reads: “22A. General Provision for punishment of other offences.- Any employer, who contravenes any provision of this Act or of any rule or order made thereunder CRL.M.C.Nos.474 & 1022/06 -7- shall, if no other penalty is provided for such contravention by this Act, be punishable with fine, which may extend to five hundred rupees.” Rule 29B of the Kerala Minimum Wages Rules, 1958 and Rule 11 of the Kerala Shops and Commercial Establishments Rules, 1961 are also relevant for the purpose of deciding the dispute in the present case. Rule 29B of the Kerala Minimum Wages Rules, 1958 reads as follows: “29B. Use of alternative form in certain cases.- Notwithstanding anything contained in these Rules, where a combined (alternative) form is sought to be used by the employer to avoid duplication of work for compliance with the provisions of any other Act or the Rules framed thereunder, an alternative suitable form in lieu of any of the forms prescribed under these Rules may be used with the previous approval of the Labour Commissioner) (or any other officer authorised by the Labour Commissioner in writing in this behalf). Rule 11 of the Kerala Shops and Commercial Establishments Rules, 1961 reads as follows: “11. Admissibility of forms other than those prescribed in the rule.- Where the Commissioner of Labour ( or any other officer authorised by him in writing) considers that the forms maintained in an establishment give the particulars required by the forms prescribed in these rules, he may direct that such forms be kept in the place of CRL.M.C.Nos.474 & 1022/06 -8- the forms prescribed in these rules and such forms shall thereupon for purpose of these rules, be deemed to be forms so prescribed” 8. As per the above provision, it is evident that Labour Commissioner or any other officer authorised by the Labour Commissioner in writing in this behalf can direct and approve that a combined (alternative) form of registers and records can be used by the employer to avoid duplication of work. Thus, it is evident that those forms of registers and records may be used only by the previous approval or as per the direction of the Labour Commissioner or any other officer authorised by the Labour Commissioner in writing in this behalf. It is the admitted case that the petitioners' Company is a commercial establishment within the purview of the Kerala Shops and Commercial Establishments Act, 1961. The petitioners have no case that any such approval or direction has been received by them as provided under the above-mentioned Rules, that is Kerala Minimum Wages Rules, 1958 and Kerala Shops and Commercial Establishments Rules, 1961. There is no repugnancy in these two enactments as contended by the petitioners' counsel and there are no inconsistent or irreconcilable provision therein, so that they cannot stand together or operate in the field. So, both the statutes can be operated in the same CRL.M.C.Nos.474 & 1022/06 -9- field without coming into collision with each other and no repugnancy results so as to attract Article 254(2) of the Constitution of India. Therefore, the petitioners are bound to maintain the registers as provided under both Acts and the Rules thereunder. Hence, there is no merit in these two petitions and both petitions are liable to be dismissed. In the result, both these Crl.M.Cs.are dismissed. M.C.HARI RANI, JUDGE. dsn