IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 10TH SEPTEMBER 2009 / 19TH BHADRA 1931 Crl.MC.No. 1886 of 2009() ------------------------- ST.180/2009 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I,CHALAKUDY .................... PETITIONER / ACCUSED ---------------------------------- K.R.AYYAPPA, THE SENIOR MANAGER, MALAKIPARAI ESTATE, PARIYARAM P.O., CHALAKUDY, THRISSUR - 680 721. BY ADV. MR. E.K.NANDAKUMAR MR. A.K.JAYASANKAR MR. K.JOHN MATHAI MR. P.BENNY THOMAS MR. ANIL D. NAIR RESPONDENTS / COMPLAINANT ---------------------------------------------- 1. INSPECTOR OF PLANTATIONS, ALUVA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. S.U.NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: kkms/ M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No.1886 OF 2009 =========================== Dated this the 10th day of September,2009 ORDER The senior manager of Malakiparai Estate, the accused in S.T.180/2009 on the file of Judicial First Class Magistrate Court, Chalakudy, filed this petition under section 482 of Code of Criminal Procedure to quash Annexure K complaint which was taken cognizance by the learned Magistrate. Annexure K complaint was filed by the first respondent Inspector of Plantations, Aluva alleging that petitioner committed an offence under section 20 of Plantation Labour Act and Rule 71 of Kerala Plantation Labour Rules. The prosecution case is that first respondent inspected the estate of M/s. Tata Coffee Ltd, Malakiparai on 7.7.2008 and several omissions and violations were found out and Annexure A notice of inspection was served on the petitioner for compliance and under Annexure B reply, petitioner reported compliance and though satisfactory reply for all the other violations were given, as pointed out in Annexure A notice violation of Section 20 read with Rule 71 was not complied with and Crl.M.C.1886/2009 2 therefore Annexure F show cause notice was issued by registered post why prosecution proceedings should not be taken for the said violations. After accepting the notice Annexure G reply was sent stating that when workers stayed away from work on normal working days, which is a full day work and report for work on weekly holidays when work is offered, they are given full day's wages for working half a day and it means that majority of the workers reporting for work on weekly holidays when work is offered are absenting for one day within a period of 10 days consecutively and therefore there is no violation of the provisions of the Act or the Rules. It was also contended that the reply is not satisfactory and as the offence is committed, petitioner is liable to be punished. Before filing Annexure K complaint, Annexure H communication was sent on 24.12.2008 by the first respondent directing petitioner to exhibit a notice in the notice board of the estate informing the workers that management does not compel any worker to work on a weekly off day and the option for working on Sundays is given to the workers. Petitioner was directed to exhibit the notice and then communicate to the first respondent urgently. According to petitioner, Annexure I notice was therefore exhibited on 17.1.2009 and the fact was intimated to the first respondent under Crl.M.C.1886/2009 3 Annexure J communication. But before receipt of the said communication, Anneuxre K complaint was lodged. This petition is filed to quash Annexure K complaint contending that there is no violation of the provisions of Section 20 or Rule 71 and therefore the prosecution is only an abuse of process of court and is to be quashed. 2. Learned counsel appearing for the petitioner and the learned Public Prosecutor were heard. 3. The only question for consideration in this case is whether there is any violation of the provisions of sub section (2) of Section 20 and Rule 71 of the Kerala Plantations Labour Rules as alleged by the first respondent and if not whether the prosecution is allowed to be continued. 4. Section 20 of the Plantations Labour Act,1951 (hereinafter referred to as the Act) deals with weekly holidays. Under sub section (1) the State Government by rules has to provide for a day of rest in every period of seven days, which shall be allowed to all workers. The proviso makes it clear that the adult worker could be required or allowed to work overtime. But sub section (2) regulate the overtime. Under the sub section, a worker willing to work on any day of rest but not a closed holiday can be permitted to work but he cannot be allowed to work Crl.M.C.1886/2009 4 continuously for ten days without a holiday for a whole day. Sub section (2) with the explanation reads:- “(2) Notwithstanding anything contained in clause (a) of sub- section (1) where a worker is willing to work on any day of rest which is not closed holiday in the plantation, nothing contained in this section shall prevent him from doing so. Provided that in so doing a worker does not work for more than ten days consecutively without a holiday for a whole day intervening. Explanation I:- Where on any day a worker has been prevented from working in any plantation by reason of tempest, fire, rain or other natural causes, that day, may, if he so desires, be treated as his day of rest for the relevant period of seven days within the meaning of Crl.M.C.1886/2009 5 sub section (1).” From sub section (2) it is clear that notwithstanding anything contained in clause (a) of sub section (1), which enables an adult worker to work overtime or the Manager to allow the worker to work on a holiday, where a worker is willing to work on any day of rest, which is not a closed holiday in the plantation, nothing contained in the Act shall prevent him from doing so. The first proviso mandates that even then such worker cannot be allowed to work consecutively for ten days without one intervening day of rest. Therefore eventhough by offering the double wages for a holiday, a worker who is willing to work on a day of rest could be allowed to work, he cannot be allowed to work consecutively for ten days without an intervening day of rest as provided under sub section (2) of Section 20. 5. Rule 71 of the Kerala Plantation Labour Rules 1959 (hereinafter referred to as the Rules) provides for weekly holidays. Rule 71 reads:- “71. Weekly Holidays:- (1) Unless otherwise permitted by the State Government no worker shall be required or permitted to work on Crl.M.C.1886/2009 6 any plantation on a Sunday except when he has had or will have a day of rest on one of the three days immediately preceding or succeeding that Sunday.” Under the proviso to Rule 71, a weekly holiday can be substituted by any other day. So also the second proviso enables every worker to work on a day of rest, which is not a general holiday. But in doing so he shall not work for more than ten days consecutively without having a holiday for a full one day. It is as provided under the proviso to sub section (2) of Section 20 of the Act. Sub rule (2) provides that every worker shall be paid for work on his day of rest, at the overtime rate prevailing in a particular areas as fixed under the Minimum Wages Act and if there is no such rate, he shall be paid double the ordinary rate. 6. As is clear from Annexure A report, though it is alleged that there is violation of Section 20 and Rule 71 alleging that workers were employed consecutively for ten days without providing a day of rest, it does not show the name of the worker who was employed consecutively for ten days without a day of rest. Even when petitioner Crl.M.C.1886/2009 7 under Annexure E contended that there was no violation of Section 20 and Rule 71 when Annexure F notice was issued, there is no mention of any particular worker or workers who were allowed to work consecutively for ten days without a day of rest. Under Annexure H notice, first respondent had directed the petitioner to exhibit a notice so that the workers would be made aware of the fact that no worker could be compelled to work on a day of rest and by Annexure I the said demand was also complied with. In fact Annexure K complaint is seen filed immediately after issuance of Annexure H notice, before compliance could be reported. There is no case that subsequent to Annexure H there was any violation of Section 20 of the Act or Rule 71 of the Rules. 7. Though learned counsel appearing for the petitioner submitted that no worker was compelled to work on a day of rest and only those workers who were willing to work on a day of rest were allowed to work, even if a worker is willing to work consecutively for ten days in view of the proviso to sub section (2) of Section 20 of the Act and proviso (2) of Sub rule (1) of Rule 71 of the Rules, no worker could be permitted even if the worker is willing to work consecutively for ten days without an intervening day of rest for one full day. But the question Crl.M.C.1886/2009 8 is whether there is any material to prove that any worker was allowed to work consecutively for ten days without an intervening day of rest so as to prosecute the petitioner for an offence under section 20 of the Act read with Rule 71 of the Rules. 8. Learned Public Prosecutor was directed to verify the records and submit whether on the materials it could be shown that any particular worker was allowed to work consecutively for ten days without enjoying a day of rest intervening. Learned Public Prosecutor submitted that neither the complaint nor the documents produced before the learned Magistrate or Anneuxure A notice of inspection show that any particular worker or workers were allowed to work consecutively for ten days without a day of rest. If in fact any worker was allowed to work consecutively for ten days without a day of rest, there will be records with the petitioner like muster roll or wages register to show that a worker was allowed to work consecutively for ten days without a day of rest. No such muster roll or other record was produced. If that be so, petitioner cannot be prosecuted for an offence under section 20 of the Act and Rule 71 of the Rules. In such circumstance, even if petitioner is to be tried, there is no chance for a conviction. If so, it is not in the interest of justice to Crl.M.C.1886/2009 9 continue the prosecution. Petition is allowed. S.T.180/2009 on the file of Judicial First Class Magistrate Court,Chalakudy is quashed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006