IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22-2-2011 CORAM THE HONOURABLE MR. JUSTICE G.M. AKBAR ALI CRL.O.P.No.14509 of 2008 and M.P.No.1 of 2008 1.Cyrus Guzdar 2.Sivashanmugam 3.K.A.Prakas 4.M/s AFI Private Limited .... Petitioners vs N. Kumar Kesavan .... Respondent Criminal Original Petitions filed under Section 482 Cr.P.C. for the reliefs as stated therein. For petitioners : Mr.S. Kalayanaraman For Respondent : Mr.S. Rajakumar Govt.Advocate (Crl.Side) ORDER The petition is filed seeking a direction to call for the records in C.C.No.3712 of 2007 on the file of the learned XI Metropolitan Magistrate, Saidapet, Chennai and quash the same. 2. The petitioners are accused in a complaint given by the respondent for the alleged offence under Motor Transport Workers Act, 1961 (hereinafter referred to as "Act"). 3. The 1st petitioner is the Chairman cum Managing Director of AFL Private Limited; the 2nd petitioner is the Regional Manager, Courier Division of AFL Private Limited; the 3rd petitioner is the Area Manager and the 4th petitioner is the Company. 4. The respondent issued notice to the petitioners on 28.2.2007 alleging certain contraventions in the company of the petitioners under the provisions of the Act. Since the courier company is utilising the motor vehicles, the respondent has issued the above said notice. 5. On failure of the compliance to notice, the respondent has initiated prosecution as stated above. Aggrieved by which, the petitioners have filed the present petition seeking for the above relief. https://hcservices.ecourts.gov.in/hcservices/ 6. The first contention is that the company is a concern to which the Tamil Nadu Shops and Establishments Act, 1947 applies. While so, by the application of the Section 2 (h)(ii) of the Act, the persons engaged by the company even if otherwise would fulfil the definition of the Motor Transport workers would stand excluded by virtue thereof. 7. In support of the above contentions, the learned counsel took this court to the materials available and impressed that the company is a commercial establishment within the meaning of Section 2(3) of the The Tamil Nadu Shops and Establishments Act, 1947. It is engaged in courier service and the concern was one which fall within the definition of The Tamil Nadu Shops and Establishments Act, 1947. 8. According to the petitioner, the persons engaged by the company used the vehicles 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 Company would fall outside the ambit of the Act. When the company so falls outside such ambit, the other petitioners who are arrayed as accused also cannot be prosecuted. 9. Strong reliance is placed on the judgment of the Division Bench of the Andhra Pradesh High Court in AP State Trade Federation vs Commissioner of Labour and another (1992) LAB.I.C.158. 10. The second contention is that as per Section 35 of the Act, the complaint ought to be made either by an officer in the category of Inspector or under his specific written instruction and only then, a Court could take congnizance . 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 on this ground also. 11. The third contention is that Sec.34 of the Act provides for vicarious liability for offences committed by a company. The persons in-charge 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. 12. The learned Government Advocate (Crl.Side) appearing for the respondents would contend that the company is engaged in courier service and utilising the motor vehicles and engaged paid workmen. 13. Thus they would fulfil 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. Consequently, the prosecution of persons in-charge thereof also https://hcservices.ecourts.gov.in/hcservices/ would be sustainable. 14. I have considered the rival submissions and perused the materials available on record. 15. Section 3(g) and (h) of the Act reads as follows: 3 (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; 3 (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;" 16. In a similar facts and circumstances of a case, this Court by order dated 26.3.2010 in Crl.O.P.Nos 30346 etc., of 2007 (C.T. SELVAM,J.,) has held that 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 company 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 company should show compliance with the requirements of such enactment. All that is required is that the Tamil Nadu Shops and Establishments Act, 1947 should apply in the particular https://hcservices.ecourts.gov.in/hcservices/ cases. Given the nature of business and the facts of the case, it is apparent that The Tamil Nadu Shops and Establishments Act, 1947 does apply to the respective company. It might 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 company being engaged by them for the purpose of transporting , 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 company. I am in agreement with the observation of the Honourable Division Bench of the Andhra Pradesh High Court in A.P state Trade Federatiion vs Commissioner or Labour and another(1992) LAB.T.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 provisiions 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 threfore 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. https://hcservices.ecourts.gov.in/hcservices/ 13. We respectfully dissent from a contrary view expressed by the Patna High Court in Bihar State Road Transport Corporation vs 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 vs Presiding Officer, Industrial Tribunal, AIR 1970 Pat 269;20 Fac LR 64, wherein it was held that the Bihar Shops and Establishment 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 by Shops and Establishments Acts 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 inspite 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 whosoever 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 Parliment or two types of workers from S.2(h) shows that Parliament was of the view that such exclusion will not https://hcservices.ecourts.gov.in/hcservices/ leave the main part of S.2(h) otiose. 15. ... In our view, that 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 establishements, that person shall not be deemed to be a motor transport worker within the meaning of S.2(g) of the Workers Act and a person employing him need not get his undertaking registred 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. On this ground alone, the criminal original petition deserves to be allowed. 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. 17. Following the ratio of judgment made in Crl.O.P.Nos 30346 etc., of 2007 which applies squarely to the present case, this criminal original petition shall stand allowed and the proceedings in C.C.No.3712 of 2007 on the file of the learned XI Metropolitan Magistrate, Saidapet, Chennai shall stand quashed. Consequently, connected MP is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ sr To 1.The XI Metropolitan Magistrate, Saidapet, Chennai 2.-do- Thro' the Chief Metropolitan Magistrate, Chennai. 3.The Public Prosecutor, High Court,Madras-104. SGL(CO) km/15.3. Crl.O.P.No.14509/2008 https://hcservices.ecourts.gov.in/hcservices/