1 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 5207 OF 2009 M/s.Bharat Sanchar Nigam Ltd. .. Applicant versus Shri P.S. Karmase and Anr. ... Respondents ... Mr. N.V. Masurkar for the applicant. Mr.A.S.Shitole APP for the State. CORAM : D.G. KARNIK, J. DATED : 30th November 2009 ORAL ORDER 1. This application under section 482 of the Code of Criminal Procedure has been filed for quashing of the criminal proceedings bearing Sessions Case no.340 of 2009 pending in the Court of JMFC, Roha. 2. The State through its Labour Enforcement Officer (Central) Government of India filed a complaint against Bharat Sanchar Nigam Limited (for short " the BSNL) under section 22A of the Minimum Wages Act 1948. The various Infringement of the Minimum Wages Act alleged to have been committed by the BSNL are listed in the complaint as follows:- 2 1. Notice containing minimum rates of wages fixed, abstracts from the Act and Rules, Name and address of the Inspector made thereunder not displayed at the Worksite as required in English, Hindi and Marathi in violation of Rule 22. 2. Muster Roll in Form V made thereunder not maintained and kept at the worksite – violation of Rule 26(5) 3. Register of Wages in Form X made thereunder not maintained and kept at the Worksite – violation of Rule 25(2) 4. Register of overtime in Form IV made thereunder not maintained and kept at the Worksite – violation of Rule 25(2). 5. Register of fines in Form I made thereunder not maintained and kept at the Worksite – violation of Rule 21(4). 6. Register of deductions for damage or loss in Form II made thereunder not maintained and kept at the worksite – violation of Rule 21(4). 7. Wage Slips made thereunder not issued at all to the workers violation of Rule 26(2). 3 3. Learned counsel for the applicant submitted that the complaint has been filed because two persons who were engaged for day to day work of cable laying, digging, line fault under the Nagothane Telephone Exchange were not shown as employees of the BSNL and Minimum Wages were not paid to them. According to the complainant, the said two persons were not the employees of BSNL but they were engaged on a piece rate and therefore their names were not shown on the muster roll nor was minimum wages paid to them but they were paid an amount as per the “piece rate” agreed between them and the BSNL. He further submitted that the issue whether they were the workmen or not is pending before the competent authority under the Minimum Wages Act and therefore till the decision of the competent authority, no prosecution can be instituted. I am unable to agree for the reasons indicated below: 4. Admittedly, the two persons were engaged by the BSNL for doing the work. The contention of BSNL that they were engaged on a “piece rate” and were not its employees is a defence which may be raised by the BSNL at the trial. At the stage of issuance of a process, the Magistrate is not required to look into a probable defence but is required to see whether the facts as alleged in the complaint, if proved, make out an offence and if there is some material on record in support of the facts alleged. In the present case, the facts as alleged in the complaint, if proved, prima facie would constitute an offence and in view of the material placed on record, Magistrate was entitled to issue process and the order of issuance of a process cannot be faulted. 4 5. Learned counsel for the applicant then submitted that accused was the BSNL and not its officers. However the process (summons) has been issued in the name of its Director, HRD. I have perused the summons, a copy of which is annexed at page 739 (Exhibit F to the application) It is issued in the name of the BSNL and not in the name of any individual person. Since BSNL is an inanimate corporation, it would have to be represented by a human being and hence the summons on behalf of the corporation is served on one of its directors. Another summons has already been issued to BSNL and served on one of its local officers. I do not find any error committed by the Magistrate in serving the summons on human beings on behalf of the BSNL. It being a corporation it can only be represented by a human being. 6. In the circumstances, there is no merit in the application which is hereby rejected summarily (D.G. KARNIK,J.)