CR.A/173/1987 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 173 of 1987 With CRIMINAL APPEAL No. 174 of 1987 For Approval and Signature: HONOURABLE MR.JUSTICE R.H.SHUKLA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= STATE OF GUJARAT - Appellant(s) Versus M P UDHYOG & 1 - Opponent(s) ========================================================= Appearance : MR KARTIK RAVAL, ADDL. PUBLIC PROSECUTOR for Appellant(s) : 1, MR AK CLERK for Opponent(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE R.H.SHUKLA Date : 06/02/2008 ORAL JUDGMENT The present appeals have been filed under Sec. 378 of the Criminal Procedure Code against the order of acquittal passed by the learned Metropolitan CR.A/173/1987 2/10 JUDGMENT Magistrate, Court No. 6, Ahmedabad, in Criminal Case Nos. 12445/86 and 12446/86, by which the learned Metropolitan Magistrate has acquitted the respondent- original accused. 2. The respondent-original accused have been charged with offences under the Minimum Wages Act, 1948 (hereinafter referred to as 'the Act'). A complaint was lodged by the Labour & Minimum Wages Inspector, under the Act, which was registered as Criminal Case No. 1725 and 1726 of 1985 (which have been re-numbered as Criminal Case Nos. 12445/86 and 12446/86) for the alleged violation of the Act. It made an order for proceeding in both the cases and the plea of the accused were recorded in the Metropolitan Court and the trial proceeded as a summary trial under Chapter XXI of Cr.P.C. and after recording the evidence, pronounced the impugned judgment and order dated 30.9.1986 acquitting the accused of the charges for violation of the Act. The learned Metropolitan Magistrate has recorded the evidence of the witnesses and also noticed that some of the records like overtime register, salary statement, etc. are not produced and also visit book was not produced. Therefore, Mr. Bhavsar, Labour & Minimum Wages Inspector, was summoned and the learned Metropolitan Magistrate, referring to his deposition at Exh.3, discussed the aspects as to whether the industry run by the accused persons could be covered as scheduled industry and also whether provisions of the Act would be attracted. Therefore, relying upon CR.A/173/1987 3/10 JUDGMENT the deposition of the complainant, Mr. Bhavsar, Labour & Minimum Wages Inspector, the court has clearly observed and discussed the evidence of Mr. Bhavsar, Labour & Minimum Wages Inspector, that he has not been able to specifically say whether 100 employees were working or less than 100 employees were working. In his Examination-in-chief he stated that when he visited there were 42 employees/workers he had found working there and some registers were not produced. However, in the cross-examination he has admitted that when he visited the place for inspection he found 100 workers working there and, therefore, the learned Metropolitan Magistrate has observed that if 100 workers were working, such an establishment or industry would not be covered under the scheduled industry, relying upon the deposition of Mr. Bhavsar, Labour & Minimum Wages Inspector, himself. Therefore, on consideration and appreciation of the evidence, the learned Metropolitan Magistrate has acquitted the accused persons by the impugned judgment and order dated 30.9.1986. 3. It is this judgment which has been challenged by the appellant-State herein on the ground mainly stated, inter alia, in the Memo of Appeal that the registers, as required under the Act and the Rules made thereunder, were not either maintained or shown. Further, it has been contended that as per the evidence of Mr. Bhavsar, Labour & Minimum Wages Inspector, there were only 42 workers working in the CR.A/173/1987 4/10 JUDGMENT factory, which the learned Metropolitan Magistrate has failed to appreciate and he has erred in misreading the cross-examination of Mr. Bhavsar, Labour & Minimum Wages Inspector, wherein he is said to have stated that a contractor was also working and taking into consideration the employees of the contractor, there were 100 employees. It has been specifically contended that the contractor is a separate establishment and, therefore, it could not have been included. Therefore, it has been contended that the learned Metropolitan Magistrate has erred in considering and appreciating the evidence of Mr. Bhavsar, Labour & Minimum Wages Act, and has erroneously observed that there were 100 employees of the accused No. 1 establishment, which is not true. Further, it has also been contended that the learned Metropolitan Magistrate has erred in not considering the fact that the accused had not produced documentary evidence in the form of registers, which were required to be maintained and, therefore, the present appeal has been filed. 4. Learned APP, Mr. Kartik Raval, appearing for the appellant-State has referred to the pleadings as well as the evidence on record and tried to emphasise and submit that the respondent herein-original accused had failed to produce the record, which they were obliged to maintain under the Act, and an adverse inference could have been drawn. Mr. Raval, learned APP, for the appellant-State has further strenuously submitted that the learned Metropolitan Magistrate CR.A/173/1987 5/10 JUDGMENT has also erred in appreciating the evidence of Mr. Bhavsar, Labour & Minimum Wages Inspector, inasmuch as on one hand in Examination-in-chief it has been stated by him that there were only 42 workers working, whereas in the cross-examination he admitted that there were 100 workers, but the learned Metropolitan Magistrate has failed to appreciate that it included the workers employed by the contractor also, which would be a separate establishment and, therefore, relying on the discrepancies in the evidence, the acquittal has been given wrongly and, therefore, the present appeal may be allowed. 5. Learned advocate Mr. Clerk appearing for the respondent-accused, referring to the pleadings and the evidence, particularly the deposition of Mr. Bhavsar, Labour & Minimum Wages Inspector, Exh. 3, has submitted that he would be the best person to give the idea. He has himself visited and inspected the place and in the cross-examination he has specifically admitted that there were 100 workers working at the relevant time and, therefore, it would not be covered under the scheduled industry. Moreover, learned advocate Mr. Clerk also referred to the correspondence and tried to submit that it has also been clarified that they would not be covered under the scheduled industry. Mr. Clerk, learned advocate for the respondents, further submitted, referring to the Act and referring to the provisions of Sec. 3(2A), that as provided in this section, when the reference is pending, the proceedings cannot be CR.A/173/1987 6/10 JUDGMENT initiated. In the facts of the present case, the reference has already been made and it was pending and, therefore, also these proceedings under the Act could not have been initiated. Mr. Clerk, learned advocate for the respondents, submitted that the appellant-State cannot approbate and reprobate. On one hand, they are claiming that it is a scheduled industry. On the other hand, they are claiming that as the workers employed were only 42, it would not be a scheduled industry. Further, Mr. Clerk, learned advocate for the respondents, submitted that it is not in dispute, referring to the deposition of Mr. Bhavsar, Labour & Minimum Wages Inspector, at Exh. 3, that 100 employees were there. In the petition it has been much emphasised by Mr. Raval, learned APP, that it included the workers employed through contractor. Mr. Clerk, learned advocate for the respondents, submitted that for the purpose of such provisions under the Act, even the workers employed through whatever agency in whatever form would be covered, and if the workers employed are 100, then it would not be a scheduled industry and, therefore, even according to the deposition of Mr. Bhavsar, Labour & Minimum Wages Inspector, even if it is accepted that there were workers employed through contractor, still, they could be included for the purpose of the Act. 6. In support of this submission, Mr. Clerk, learned advocate for the respondents, referred to and relied upon the judgment of the Hon'ble Bombay High CR.A/173/1987 7/10 JUDGMENT Court in the case of Surya Rau V.V., E.D. NOCIL & others v. Surendra Ramkrishna Tendulkar and Others, 198(1) LLJ 629 and submitted that it was considered as to the meaning of employer which would mean the person who engages workers through another like a contractor would also be employer. He also referred to the aspect discussed in this judgment with regard to the word 'includes' and submitted that the word 'includes' is construed and interpreted to mean inclusive and not exhaustive. Referring to Para 16, it was emphasised that whether the definition of 'employer' is inclusive or exhaustive, it has been observe that the word 'includes' can be a word of extension and referring to the earlier judgment of the Hon'ble Apex Court in the case of The South Gujarat Roofing Tiles Manufacturers Association & Anr. v. The State of Gujarat & Anr. reported in AIR 1977 SC 90 with regard to the provisions of Minimum Wages Act itself, observations have been made, which has been relied upon by learned advocate Mr. Clerk. He has pointedly referred to the observation, “considering the above test, it can be seen that the word 'includes' is used as a word of extension or is exhaustive of the meaning. In so far as definition of employer is concerned in the Minimum Wages Act there an be no doubt that the word is 'inclusive' as 'person' who otherwise could not be 'employer', is included within the definition of 'employer' under the Act. For example, Clause (iv) of sub-section (e) of Section 4 of the Minimum Wages Act, 1948 reads as follows...... CR.A/173/1987 8/10 JUDGMENT “(iv) in any other case where there is carried on any scheduled employment in respect of which minimum rates of wages have been fixed under this Act, any person responsible to the owner for the supervision and control of the employees or for the payment of wages.” Therefore, referring to this learned advocate Mr. Clerk submitted that the judgment and order recording the acquittal is just and proper and the appeal may be dismissed. 7. In view of these rival submissions, it is required to be considered whether the present appeal recording the acquittal by the learned Metropolitan Magistrate with regard to the charges under the Act calls for any interference by this Court in the present appeals or not. As it transpires from the record, and in particular the deposition of Mr. Bhavsar, Labour & Minimum Wages Inspector, which has been referred and relied upon by both the sides, a close scrutiny would reveal that in Examination-in- chief he has stated that 42 workers were employed, whereas in the cross-examination he has admitted that there were 100 workers employed, though as could be read from the evidence, it was suggesting that it included even the workers employed through contractor. Therefore, as rightly submitted by learned advocate Mr. Clerk, for the purpose of the Act, whether the industry would be a scheduled industry or not, and whether the workers engaged are 100 or less than 100, is required to be considered. CR.A/173/1987 9/10 JUDGMENT For that purpose, even the workers engaged through contractor would also be included. Reliance placed by learned advocate Mr. Clerk, referring to the judgment reported in the case of Surya Rau V.V., E.D. NOCIL & others (supra) (Bombay High Court), which has specifically observed, while interpreting and construing the word 'includes' in the context of the Act and the 'employer' that it would be include even the contractor. Further, it is well-settled as per the provisions in the light of the judgment of the Apex Court, that for the purpose of the Act even the workers employed through contractor under the Contract Labour (Regulation and Abolition) Act, 1970 could be included inasmuch as the Act is applicable to even the workers employed through contractor under the Contract Labour (Regulation and Abolition) Act, 1970. Therefore, even as per the say of the prosecution, if the workers employed through contractor are considered, there were 100 workers. Therefore, in light of the evidence on record, the judgment and order recording acquittal by the learned Metropolitan Magistrate and the view taken by him cannot be said to be perverse. In the circumstances, the appellate court should not interfere with the acquittal as held by the Hon'ble Apex Court in the case of Awadhesh and another v. State of Madhya Pradsh, AIR 1988 SC 1158. Therefore, as this Court is in entire agreement with the findings and conclusion arrived at by the leaned Metropolitan Magistrate, the entire evidence is not discussed threadbare as observed in the judgment of the Hon'ble CR.A/173/1987 10/10 JUDGMENT Supreme Court in the case of State of Karnataka v. Hemareddy and another, AIR 1981 SC 1417. 8. In the facts and circumstances, this Court is of the opinion that the view taken by the learned Metropolitan Magistrate recording the acquittal is just and proper and do not call for any interference by this Court. Therefore, the impugned judgment and order dated 30.9.1986 passed by the Metropolitan Magistrate, Court No. 6, Ahmedabad, in Criminal Case Nos. 12445/86 and 12446/86 is hereby confirmed and the present appeals require to be dismissed. In the result, the appeals are dismissed. (R.H. Shukla, J.) (hn)