IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.03.2010 CORAM THE HONOURABLE MR. JUSTICE C.T.SELVAM CRL.O.P.Nos.30346, 30341 and 34413 of 2007 and M.P.Nos.1+1+1 of 2007 1.Brig Harish Chandra Chawla 2.Capt B Sasidharan 3.The Management of SDB Cisco (India) Limited ...Petitioners in Crl.O.P.No.30346/07 1.Craig Grosgard 2.Munish Parashar 3.R.D.Kaneshan 4.M/s.D.H.L. Express (India) Pvt. Ltd. ...Petitioners in Crl.O.P.No.30341/07 1.Subhashish Chakraborthy 2.Renjith Nair 3.D.T.D.C.Couriers and Cargo Ltd. ...Petitioners in Crl.O.P.No.34413/07 -Vs- The Deputy Inspector of Labour 6th Division, Chennai ...Respondent in Crl.O.P.No.30346/07 N.Kumar Kesavan Deputy Inspector of Labour 5th Circle, 33, Venkata Narayana Road, Chennai – 600 035. ...Respondent in Crl.O.P.No.30341/07 State represented by Deputy Inspector of Labour V Circle, 33, Venkata Narayana Road, Nandananam, Chennai – 600 035....Respondent in Crl.O.P.No.34413/07 Criminal Original Petitions filed under Section 482 of Criminal Procedure Code to call for the records in C.C.Nos.5705, 3713 and 5843 of 2007 pending trial on the file of the learned XI https://hcservices.ecourts.gov.in/hcservices/ Metropolitan Magistrate, Saidapet, Chennai and quash the prosecution against them. For Petitioners : Mr.V.Karthik for M/s.T.S.Gopalan & Co. For Respondent : Mr.J.C.Durairaj Government Advocate (Crl.Side) C O M M O N O R D E R All these three petitions arise out of and in challenge to proceedings pending trial in C.C.Nos.5705, 3713 and 5843 of 2007 on the file of the learned XI Metropolitan Magistrate, Saidapet, Chennai wherein offences under Motor Transport Workers Act, 1961 (hereinafter referred as Act) are alleged. 2.In Crl.O.P.No.30346/07, the 3rd accused is the concern, while the accused 1 and 2 are arrayed in their capacity as Managing Director and General Manager of the 3rd accused concern. In Crl.O.P.No.30341/07, the 4th accused is the concern, while the accused 1, 2 and 3 are arrayed in their capacity as employees/persons incharge of the business of the 4th accused concern. In Crl.O.P.No.34413/07, the 3rd accused is the concern, while the accused 1 and 2 are arrayed in their capacity as Chairman cum Managing Director and Regional Manager of the 3rd accused concern. 3.All these three petitions can be disposed of by a common order since the contentions made on behalf of the petitioners are one and the same. 4.The first contention is that all the three concerns are concerns to which The Tamil Nadu Shops and Establishments Act,1947 applies. While so, by application of the Section 2(h)(ii) of the Act, the persons engaged by these concerns even if otherwise would fulfill the definition of the motor transport workers would stand excluded by virtue thereof. 5.In support of the above contentions, the learned counsel took this Court to the materials available and impressed that (a)the 3rd petitioner concern in Crl.O.P.No.30346 of 2007 is a commercial establishment within the meaning of Section 2(3) of The Tamil Nadu Shops and Establishments Act,1947. It is engaged in providing security for various commercial establishments since 1971 and as an expansion of the services rendered by it, it has established cash management service division which has been engaged in providing security for to and fro transport of cash to nationalised banks, scheduled banks and other commercial establishments. For such purpose, it is having several vehicles https://hcservices.ecourts.gov.in/hcservices/ specially designed for the purpose which are manned by armed personnel. (b)the primary business of the 4th accused company in Crl.O.P.No.30341 of 2007 was of providing courier services and the concern was one which fall within the definition of shop as defined in The Tamil Nadu Shops and Establishments Act,1947. The 4th petitioner concern engages two other concerns which again are covered by The Tamil Nadu Shops and Establishments Act,1947 for its purposes such as providing vehicles and drivers, pick up and delivery boys. (c)the 3rd petitioner concern in Crl.O.P.No.34413 of 2007 is a commercial establishment within the meaning of Section 2(3) of The Tamil Nadu Shops and Establishments Act,1947. It is engaged in providing courier services. It had entered into contract with various third parties for the purpose of transportation. 6.It is contended that the 3rd petitioner in Crl.O.P.Nos.30346 of 2007, 34413 of 2007 and 4th petitioner in Crl.O.P.No.30341 of 2007 are concerns to which The Tamil Nadu Shops and Establishments Act,1947 apply. Even if it be taken for the purpose of argument that the persons engaged by these concerns, in the vehicles used by them, are motor transport workers as defined in Section 2(h)(ii) of the Act, still, by virtue of operation of Section 2(h)(ii) of the Act, the concerns would fall outside the ambit of the Act. When the concerns so fall outside such ambit, the other petitioners who are arrayed as accused also cannot be prosecuted. 7.Strong reliance is placed on the judgment of the Division Bench of the Andhra Pradesh High Court in A.P.State Trade Federation v. Commissioner of Labour and another (1992) LAB.I.C.158. 8.The second contention is that as per Section 35 of the Act, the complaint ought to be made by either by an officer in the category of Inspector or under his specific written instruction and only then, a Court could take cognizance. In the instant cases, the complainant are Deputy/Assistant Inspectors and a reading of the complaints does not inform that any permission of a inspector has been obtained in the filing thereof. Thus, the complaints would be bad also on this ground. 9.The third contention is that Section 34 of the Act provides for vicarious liability for offences committed by a company. The persons incharge of and responsible to a company could be held liable for offences committed thereby. But for such provision to apply, a specific averment ought to be made in the complaint to such effect and in the instant cases, the same was lacking. In the absence of such necessary averment, the complaint again would fail. https://hcservices.ecourts.gov.in/hcservices/ 10.The learned Government Advocate (Crl.Side) appearing for the respondents would contest the contention regarding the applicability of the Act in the facts of the case. The contention is that the three concerns were engaged in different businesses and as a particular and distinct limb of their operations, they were engaged in using and hiring vehicles for transport of cash currencies for purpose of banks and other institutions and for such purpose they have engaged paid workmen. Thus, they would fulfill the definition of motor transport industry as informed in the Act and the persons engaged by them also would be motor transport workers. When the twin circumstances exist, the prosecution of the concerns would be in order. Consequentially, the prosecution of persons incharge thereof also would be sustainable. 11.I have considered the rival submissions and perused the materials available on record. 12.Section 3(g) and (h) reads as follows: "(g)"motor transport undertaking" means a motor transport undertaking engaged in carrying passengers or goods or both by road for hire or reward, and includes a private carrier; (h)"motor transport worker" means a person who is employed in a motor transport undertaking directly or through an agency, whether for wages or not, to work in a professional capacity on a transport vehicle or to attend to duties in connection with the arrival, departure, loading or unloading of such transport vehicle and includes a driver, conductor, cleaner, station staff, line checking staff, booking clerk, cash clerk, depot clerk, time-keeper, watchman or attendant, but except in Section 8 does not include - (i)any such person who is employed in a factory as defined the Factories Act, 1948 (63 of 1948); (ii)any such person to whom the provisions of any law for the time being in force regulating the conditions of service or persons employed in shops or commercial establishments apply;" 13.In all the three cases, it is apparent that the concerns are engaged in business activities as would attract the provisions of The Tamil Nadu Shops and Establishments Act,1947. By way of typed set documents which would show compliance by the three concerns with the provisions of The Tamil Nadu Shops and Establishments Act,1947 and rules thereunder are produced. It really is not necessary that the petitioner concerns should show compliance with the requirements of such enactment. All that is required is that The Tamil Nadu https://hcservices.ecourts.gov.in/hcservices/ Shops and Establishments Act,1947 should apply in the particular cases. Given the nature of businesses and the facts of the case, it is apparent that The Tamil Nadu Shops and Establishments Act,1947 does apply to the respective concerns. In the course of one of several lines of businesses carried on by them, it might well be true that the workers engaged by them would fall within the definition of motor transport workers under the Act. Again, it might well be true that the concerns being engaged by them for the purpose of transporting cash and collecting a charge therefor, do fall within the definition of motor transport undertaking as defined in the Act. But despite such position, they would fall outside the ambit of the Act if The Tamil Nadu Shops and Establishments Act,1947 applied, as they do in the instant cases, to the particular concerns. 14.I am in agreement with the observation of the Honourable Division Bench of the Andhra Pradesh High Court in A.P.State Trade Federation v. Commissioner of Labour and another (1992) LAB.I.C.158 where it informs "11.A plain reading of the definition in S.2(h) shows that though a person may be a 'motor transport worker' falling under the main part of the definition, he will be taken out of the purview of the said expression if he is a person to whom the provisions of any law relating to Shops and Establishment which regulates the conditions of service of persons employed therein apply. Therefore, if the driver of the private carrier employed by the owner thereof is governed by the provisions of the Shops Act, the said worker cannot obviously be treated as a 'motor transport worker'. In such an event, even if the undertaking was a 'private carrier' operated by a transport worker and therefore becomes a 'motor transport undertaking' as defined in S.2 (g), the Act will not, as stated in S.1(4) apply, because the second condition stated above is not satisfied. 13.We respectfully dissent from a contrary view expressed by the Patna High Court in Bihar State Road Transport Corporation v. Orang Bahadur, AIR 1968 Patna 200: (1968 Lab IC 801) and from the later Full Bench decision of the same High Court in Amarnath Singh v. Presiding Officer, Industrial Tribunal, AIR 1970 Pat 269:20 Fac LR 64, wherein it was held that the Bihar Shops and Establishments Act, 1954 was a general Act repugnant to the Workers Act, 1961 which was a special Act, to the extent of the former's applicability to 'motor transport workers'. We are unable to accept the Patna view inasmuch as, in our opinion, under S.1(4) of the Workers Act, 1961 not only the undertaking must be a 'motor transport undertaking' but it must also employ 'motor transport workers'. If the Workers governed https://hcservices.ecourts.gov.in/hcservices/ by Shops and Establishments Act are expressuly excluded from the definition of 'motor transport workers' S.2(h) of the Workers Act,1961, it cannot still be said that the Worker's Act, 1961 will apply to a motor transport undertaking employing workers who are covered by the Shops and Establishments Act. It will amount to implying an inconsistency between the State law and the Central law in spite of a deliberate provision in the Central law for avoiding such an inconsistency. The reasoning of the Patna High Court that if a repugnancy was not implied, the Workers Act, 1961 cannot possibly apply to any undertaking what-so- ever does not, with great respect, appeal to us. In our view, the Workers Act would apply to all other undertakings employing workers covered by the main part of S.2(h). The specific exclusion by Parliament of two types of workers from S.2(h) shows that Parliament was of the view that such exclusion will not leave the main part of S.2(h) otiose. 15."........ In our view, what is contemplated by Cl. (ii) of S.2(h) of the Workers Act is that if a transport worker is governed by a law regulating the conditions of service of persons employed in shops or commercial establishments, that person shall not be deemed to be a motor transport worker within the meaning of S.2(h) of the Workers Act and a person employing him need not get his undertaking registered under the Workers Act. Whether the employee works within shop premises or elsewhere is really irrelevant. The real object of this exclusionary clause seems to be to ensure that the additional benefits conferred by the Shops Act are not denied to the class of workers who fall within the scope of the Shops Act, even though they might also come within the fold of the Workers' Act. Point No.3 is held accordingly." 15.On this ground alone, these Criminal Original Petitions deserve to be allowed. 16.It may in passing be stated that the other challenges made on the grounds of non-compliance of Sections 35 and 34 of the Act and of there being not the necessary averments as would make the petitioners accused in the case also are raised well. https://hcservices.ecourts.gov.in/hcservices/ 17.Accordingly, the Criminal Original Petitions shall stand allowed. The proceedings in C.C.Nos.5705, 3713 and 5843 of 2007 pending trial on the file of the learned XI Metropolitan Magistrate, Saidapet, Chennai shall stand quashed. Consequently, the connected miscellaneous petitions are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar gm To 1.The XI Metropolitan Magistrate, Saidapet, Chennai. 2.The Chief Metropolitan Magistrate, Egmore,Chennai. 3.The Deputy Inspector of Labour, 6th Division, Chennai. 4.Deputy Inspector of Labour, 5th Circle, 33, Venkata Narayana Road, Chennai – 600 035. 5.The Deputy Inspector of Labour V Circle, 33, Venkata Narayana Road, Nandananam, Chennai – 600 035. 6.The Public Prosecutor, High Court, Madras. +3ccs to Mr.T.S.Gopalan & co., Advocate Sr 20193,20192,20194 TRM(CO) km/19.4. CRL.O.P.Nos.30346, 30341 and 34413 of 2007 and M.P.Nos.1+1+1 of 2007 https://hcservices.ecourts.gov.in/hcservices/