*THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU +Crl.P. No.2786 OF 2010 % 20-04-2010 Between: # Bapineedu Chowdary …..Petitioner And: $ State of A.P., rep. by the PP., High Court of AP., Hyderabad and another ….Respondents. !Counsel for the Petitioner : Sri C.R. Sridharan Counsel for the 1st Respondent: Public Prosecutor Counsel for the 2nd respondent: --- <Gist : >Head Note: ? Cases referred: 1.(1998) 5 Supreme Court Cases 749 2.(2008) 5 Supreme Court Cases, 668 3.(2009) 6 Supreme Court Cases 475 4. (2009) 9 Supreme Court Cases 682 HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRL.PETITION NO.2786 OF 2010 Date: .04.2010 Between: Bapineedu Chowdary …..Petitioner And: State of A.P., rep. by the PP., High Court of AP., Hyderabad and another …Respondents. HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRL.PETITION NO.2786 OF 2010 ORDER: 1. The petitioner/accused seeks quashing of proceedings in S.T.C.No.75 of 2009 on the file of VII Metropolitan Magistrate, Hayatnagar, Ranga Reddy District relating to offence punishable under Section 13(1) of the Industrial Employment (Standing Orders) Act, 1946 (in short, the Act). 2. It is alleged that the petitioner’s Industrial Establishment was inspected by the Squad team on 30.01.2009 and 02.02.2009 and found that the accused failed to comply with Section 3 of the Act and that the accused was served notice by the Deputy Commissioner of Labour, Ranga Reddy District vide notice dated 05.02.2009 and acknowledged on 07.02.2009 by the petitioner and that the Certifying Officer under the Act viz., Joint Commissioner of Labour, Ranga Reddy Zone granted permission to prosecute the employer/accused of the Industrial Establishment for violation of Section 3(1) of the Act and permitted the Assistant Labour Officer, Ibrahimpatnam to institute the prosecution against the accused in Court vide proceedings dated 28.05.2009. 3. It is foremost contention of the petitioner that the petitioner’s establishment is registered under the Andhra Pradesh Shops and Establishment Act as Commercial Establishment and registration is being renewed from time to time and that therefore, the petitioner’s Establishment cannot be termed as Industrial Establishment within the meaning of the Act. This contention of the petitioner is fallacious. Simply because establishment of the petitioner is registered under one enactment like the A.P., Shops and Establishment Act, it cannot be said that except that enactment, no other enactment is applicable to that establishment. Applicability or otherwise of the Act to the petitioner’s establishment depends on definition of Industrial Establishment contained in the Act and it cannot be adjudged on the basis of registration of the petitioner’s establishment under the A.P., Shops and Establishment Act. Section 2(e) of the Act defines ‘Industrial Establishment’ as follows: “(e) “industrial establishment” means- (i) an industrial establishment as defined in clause (ii) of Section 2 of the payment of Wages Act, 1936, or (ii) a factory as defined in clause (m) of Section 2 of the Factories Act, 1948, or (iii) a railway as defined in clause (4) of Section 2 of the Indian Railways Act, 1890, or (iv) the establishment of a person who, for the purpose of fulfilling a contract with the owner of any industrial establishment, employs workmen” 4. Section 2(ii) of the Payment of Wages Act, 1936 reads as follows: “(ii) “industrial or other establishment” means any- (a) tramway service, or motor transport service engaged in carrying passengers or goods or both by road for hire or reward; (aa) air transport service other than such service belonging to, or exclusively employed in the military, naval or air forces of the Union or the Civil Aviation Department of the Government of India; (b) dock, wharf or jetty; (c) inland vessel, mechanically propelled; (d) mine, quarry or oil-field; (e) plantation; (f) workshop or other establishment in which articles are produced, adapted or manufactured, with a view to their use, transport or sale; (g) establishment in which any work relating to the construction, development or maintenance of buildings, roads, bridges or canals, or relating to operations connected with navigation, irrigation or the supply of water or relating to the generation, transmission and distribution of electricity or any other form of power is being carried on; (h) any other establishment or class of establishments which the appropriate Government may, having regard to the nature thereof, the need for protection of persons employed therein and other relevant circumstances, specify, by notification in the Official Gazette;” 5. The Public Prosecutor placed Andhra Pradesh Gazette dated 19.12.2007 wherein G.O.Ms.No.116, Labour, Employment, Training & Factories (Lab.II), 07.12.2007 was published relating to Revision of Minimum Rates of Wages in Shops and Commercial Establishments in Part-I of the Schedule of the Minimum Wages Act, 1948, and contended that Shops and Commercial Establishments governed by the A.P. Shops and Establishments Act will have to follow notifications under the Minimum Wages Act, 1948. But, the question here is whether the petitioner’s Establishment comes under ‘Industrial Establishment’ as defined in Section 2(ii) of the Payment of Wages Act or not; and not whether provisions of the Minimum Wages Act, 1948 are applicable to Commercial Establishments registered under the A.P. Shops and Establishments Act. Therefore, the above notification in G.O.Ms.No.116 dated 07.12.2007 is not helpful to the prosecution to bring the petitioner’s establishment within the meaning of ‘Industrial Establishment’ as defined in Section 2(ii) of the Payment of Wages Act, 1936. The Prosecution could not produce any notification issued by the appropriate Government under Section 2(ii) (h) of the Payment of Wages Act, 1936 to show that the petitioner’s establishment or class of such establishments are included within the purview of the said enactment. 6. It is further contended for the petitioner that the Magistrate while taking cognizance of the offence and summoning the accused/petitioner did not follow the following guidelines laid down by the High Court in Pepsi Food Limited v. Special Judicial Magistrate[1]: “28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in brining charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused. 29. No doubt, the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial.” The above reported decision was rendered by the Supreme Court having regard to procedure prescribed under Section 200 Cr.P.C and language employed in Section 204(1) Cr.P.C. In the case on hand, the complaint was filed by a Public Servant in discharge of his official duties and it comes under exception covered by Proviso (a) to Section 200 Cr.P.C., in which case the Magistrate need not examine the complainant and the witnesses before issuing summons to the accused. At any rate, under Section 204(1) Cr.P.C, it is minimum duty of the Magistrate to form opinion regarding existence of sufficient ground for proceedings, before taking cognizance of the offence complained in the complaint. The petitioner’s counsel also placed reliance on Maksud Saiyed v. State of Gujarat[2], Keki Hormusji Gharda v. Mehervan Rustom Irani[3] and M.N. Ojha v. Alok Kumar Srivastav[4] on the same aspect of procedure for taking cognizance by the Magistrate and application of mind by the Magistrate before taking cognizance of the offence and sending summons to the accused. Even though voluminous case law is dumped by the petitioner’s counsel, the petitioner did not file certified copy/copy of order of the Magistrate taking cognizance of the offence and summoning of the accused in this case, in order to scrutinise whether the Magistrate had followed the above guidelines or not. Without production of order passed by the Magistrate along with this petition, this Court can only observe that argument built by the petitioner’s counsel on this aspect is without any foundation. 7. Even though it is mentioned in grounds of attack in this petition that there was no valid sanction for prosecution given by the appropriate Government in terms of Section 13(3) of the Act, the petitioner’s counsel did not urge that ground at the time of arguments before this Court. In this case, sanction for prosecution is stated to have been given by the Certifying Officer cum Joint Commissioner of Labour, Ranga Reddy Zone and not by the appropriate Government. 8. It is further contended by the petitioner’s counsel that the Act applies only if the Industrial Establishment employ 100 or more workmen. Section 1(3) of the Act reads as follows: “(3) It applies to every industrial establishment wherein one hundred or more workmen are employed, or were employed on any day of the preceding twelve months: Provided that the appropriate Government may, after giving not less than two months’ notice of its intention so to do, by notification in the Official Gazette, apply the provisions of this Act to any industrial establishment employing such number of persons less than one hundred as may be specified in this notification:” Thus, assuming for the sake of argument that the petitioner’s Establishment is an Industrial Establishment, even then the Act applies only in case 100 or more workmen are employed on any day of the preceding 12 months. It is not prosecution case that there is any notification given by the appropriate Government under Proviso to Sub Section (3) of Section 1 of the Act. It is contended by the Public Prosecutor that it is a question of fact whether the petitioner’s establishment employed 100 workmen or more or less on any day preceding 12 months. But, at the same time, there must be foundation in the complaint filed by the complainant before the Magistrate to the effect that the Act applies to the petitioner’s establishment because on a particular day occurring within 12 months of the inspection, 100 or more workmen were employed. Inspection report of the Squad team is attached to the complaint filed before the lower court. It is noted in the inspection report by the Inspecting Squad that there were 1100 employees working in the petitioner’s establishment on the date of inspection. Thus, there is no basis for the prosecution/complainant to show that the Act is applicable to the petitioner’s establishment. 9. Having regard to the above discussion of admitted material on record and respective contentions of both the parties, this Court is of the opinion that the prosecution of the petitioner for offence punishable under Section 13(1) of the Act has no legs to stand. 10. Hence, the petition is allowed quashing proceedings in S.T.C.No.75 of 2009 on the file of VII Metropolitan Magistrate, Hayatnagar, Ranga Reddy District. ____________________________________ SAMUDRALA GOVINDA RAJULU,J. Date: .04.2010. Note: L.R. Copy to be marked. //By Order// Gk. HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRL.PETITION NO.2786 OF 2010 Date: .04.2010 Gk. [1] (1998) 5 Supreme Court Cases 749 [2] (2008) 5 Supreme Court Cases, 668 [3] (2009) 6 Supreme Court Cases 475 [4] (2009) 9 Supreme Court Caes 682