1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL WRIT PETITION NO.1765 OF 2009 Agri Trade India Services Private Ltd. & Anr. : Petitioners V/s. Clearing and Forwarding Unprotected Dock Labour Board & Ors. : Respondents .... Ms Hutaxi Tavadia i/b. Mr.H.V.Kode for the petitioners. Ms Gunjan Shah for respondent no.2. Mrs.P.P. Bhosale, Addl. Public Prosecutor for the State. .... CORAM : S.A. BOBDE, J. DATE : SEPTEMBER 09, 2009. P.C.: 1. The petitioners have challenged the order of the learned Industrial Court, Mumbai, dismissing the revision preferred by the petitioners. 2. The petitioners are being prosecuted by the respondents for failure to register them as an “employer” under the Maharashtra Mathadi, Hamal and other Manual Workers (Regulation of Employment and Welfare) Act, 1969, hereinafter referred to as the “Mathadi Act”. According to the petitioners, they are not engaged in any activity specified in clause 14 of 2 the Scheme framed under the Mathadi Act such as clearing and forwarding. They are only importers. The clearing and forwarding is carried on by Clearing Agent who is said to be engaged by the petitioners. According to the respondents, the petitioners are responsible since they are an employer within the meaning of section 2(3) of the Mathadi Act since the employees who do the job of clearing and forwarding do it under the agent of the petitioners and at their instance. The petitioners challenged the issue of process before the Industrial Court in revision. The Industrial Court has declined to exercise its jurisdiction on the ground that it is for the trial Court to consider whether the petitioners are actually engaged in clearing and forwarding on the basis of evidence and the effect of the alleged admission made by the respondents. The petitioners have impugned that order in this Court. It appears from the proceedings that the revisional Court rightly declined to exercise the jurisdiction for quashing the process. The process was served on the petitioners sometime in 2007. In pursuance of the summons which followed, documents have been filed and oral evidence has been led. According to the petitioners, one of the documents filed by the respondents reveals that the petitioners are not liable. That document is a Gate Pass which shows that the petitioners’ clearing agents are the consignees of the goods which are imported and not the petitioners. According to the petitioners, this document was not produced before the trial Court before process was 3 issued and, therefore, they filed this revision. It is obvious that the petitioners are responsible for unjustified delay and laches in challenging the process by filing this petition on 15.6.2009 when the process was issued on 30.5.2007. There is no substance in the contention that the petitioners could not have challenged the process earlier. In fact, the main argument of the petitioners that they are not responsible since the work of clearing and forwarding and other allied work had been assigned by them to their clearing agents was always available to them. That argument does not depend on any document filed by the respondents, but substantially depends on the nature of the terms of engagement of clearing and forwarding agents with the petitioners which was always within their knowledge. Apparently, the petitioners allowed the matter to go on before the trial Court i.e. evidence to be led in its entirety and for same reason, chose to challenge the issue of process at this stage when the only thing that remains is recording of the statement under section 313 of the Cr.P.C. and hearing oral arguments. 3. In the circumstances, I am of view that this is not an appropriate case for questioning the process issued by the trial Court at this stage. In any event, the submission on behalf of the petitioners depends upon ascertaining of facts pertaining to the terms of engagement of the clearing and forwarding agent and whether the workmen are employed by their 4 clearing and forwarding agent on behalf of the petitioners or on their own behalf. This is, therefore, a matter which would be required to be dealt with on evidence. 4. In this view of the mater, the Writ Petition is liable to be dismissed and is, accordingly, dismissed. The petitioners shall be entitled to raise all such contentions as may be advised in accordance with law. 5. At this stage, the learned counsel for the petitioners make a prayer for stay of this order. The matter has been unduly delayed in the trial Court. In fact, apparently, there was a stay by the revisional Court also after this matter was decided by it. Having regard to the time taken, the learned counsel for the respondent no.2 strenuously opposes the application for stay. Having regard to the circumstances, the oral application for stay is rejected. S.A. BOBDE, J.