M C POOKOYA Vs. LABOUR ENFORCEMENT OFFICER CENTRAL

JUDGEMENT

(1.) THIS petition is filed by the accused in S.T.No.3521 of 2010 of the court of learned Judicial First Class Magistrate-II, Aluva. That is a complaint case instituted by respondent No.1, the Labour Enforcement Officer (Central) alleging commission of offence under Section 7 of the Contract Labour (Regulation and Abolition) Act, 1970 (for short, "the Act") read with Rules 17, 81 (1(i), 81(2) and 81(3) of the Rules. It is alleged in Annexure-4, complaint that petitioner is the principal employer within the meaning of Section 2(1)(g) read with Section 25 of the Act and that the Labour Enforcement Officer referred to above appointed vide Gazette Notification No. S.R.O.3451 dated November 30, 1987 of the Government of India, Ministry of Labour, New Delhi inspected the establishment of petitioner at Kalamassery on 08.02.2010 and detected offences as above stated. Based on that, respondent No.1 has preferred Annexure-4, complaint as aforesaid on which learned Magistrate has taken cognizance. That cognizance is sought to be quashed in this proceeding. It is contended by learned Senior Advocate appearing for petitioner that the Labour Enforcement Officer (respondent No.1) who is said to have conducted inspection in the establishment referred to in Annexure-4, complaint has no authority to do so as on the date of inspection and hence the inspection as well as filing of the complaint and cognizance taken are illegal being without jurisdiction. Learned Senior Advocate has referred me to the relevant provisions of the Act.

(2.) SECTION 7 of the Act deals with registration of certain establishments and says that every principal employer of an establishment to which the said Act applied shall within such period as the "appropriate Government" may by notification in the Official Gazette fix in that behalf with respect to establishments generally or with respect to any class of them, make an application to the registering officer in the prescribed manner for registration of the establishment. SECTIONs 24 and 25 of the said Act deal with offences and under SECTION 24, if a person contravenes any of the provisions of the said Act or any rules made thereunder for which no other penalty is elsewhere provided he shall liable for punishment referred to therein. SECTION 25 of the Act deals with punishment for offence committed by companies.

(3.) QUESTION is whether in the light of above, the Labour Enforcement Officer (Central) had authority to conduct inspection in the premises of the establishment allegedly managed by petitioner and initiate prosecution. I stated that the offence alleged is under Section 7 of the Act read with relevant provisions of the Rules and Section 7 of the Act required the establishment concerned to obtain registration for such establishment within the time notified by the appropriate Government. So far as Section 2(a)(i) of the Act goes "appropriate Government" in relation to any other establishment is the Government of the State. I stated that subsidiary companies set up by the principal undertaking is brought within the definition of "appropriate Government" under Section 2(a)(i) of the Industrial Disputes Act only by Act 24 of 2010 with effect from September 15, 2010. According to the petitioner and it is not disputed that respondent No.1 inspected HMT Machine Tools which according to petitioner, is a subsidiary company owned by the principal undertaking - HMT Ltd. which is a Central Government undertaking. I stated that the subsidiary company set up by the principal undertaking was brought within the definition of "appropriate Government" under Section 2(a)(i) of the Act only with effect from September 15, 2010. But the inspection in the present case was on February 8, 2010 and the complaint was preferred on May 7, 2010. It follows that inspection of the establishment and institution of proceeding was before the Act 24 of 2010 came into force in which case the appropriate authority so far as HMT Machine Tools which is a subsidiary of the principal undertaking - HMT Ltd. was the State Government. Learned Senior Advocate has pointed out from the inspection note attached to Annexure-4 that the establishment has obtained registration from the Government of Kerala (Registration No.KCLC/5/2007 dated 21.03.2007). It is seen from Annexure-3, letter dated May 5, 2010 addressed by respondent No.1 to the petitioner that the Central Government by notification No.G.S.R. 336(E) dated May 5, 2008 has declared in the Gazette of India that the Central Government is the appropriate Government under the Industrial Disputes Act, 1947 with respect to HMT Machine Tools. Assuming so, that notification only concerned the principal undertaking and not its subsidiary company, the HMT Machine Tools and hence, that notification referred to in Annexure-3, letter cannot help respondent No.1. Hence only officials appointed by the State Government alone could inspect the subsidiary company and initiate action in case there was violation of any of the provisions of the Act. Though in the complaint the complainant is stated as 'State' represented by the Labour Enforcement Officer (Central), learned Public Prosecutor has submitted that it is not a complaint filed by the State or any of its officials. It follows that inspection and filing of the complaint, not to say about cognizance taken on that complaint is without authority and hence illegal.