BHUBANESHWAR MUKHERJEE Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The short and the only point urged in this Rule seeking to quash a proceeding pending against the petitioner No.1 in the. Court of the learned Chief Judicial Magistrate, Alipore under section 22A of the Minimum Wages Act is that the learned Magistrate was wrong in taking cognizance in as much as it was not shown that any notice as contemplated by Rule 26B of the Minimum Wages Act was served upon the offending employer.

(2.) Sub-rule (2) of Rule 26-B provides that any infringement of the provisions of the Act or the rules made thereunder noticed by the Inspector and communicated to the employer during the course of inspection or otherwise shall be rectified by the employer and compliance report in respect thereof shall be submitted to the Inspector on or before the date specified. Therefore this Rule contemplates communication to the employer of any infringement of the provisions of the Act and giving him an opportunity to rectify the same. It is only if rectification is not made in spite of communication of infringement of the provisions of the Act then and then only the employer can be prosecuted under the Act. In the instant case the petition of complaint states that the Inspector visited the establishment in question on a certain date when statutory contraventions were detected and the Inspector served a notice upon the employer directing him to show cause why legal proceeding should not be taken against him: This is not the kind of notice within the contemplation of Rule 26B, sub-rule (2) as it does not specify any date to report compliance. Therefore it must be held that the provisions of Rule 26B, sub-rule (2) has not been followed or at least the same has not been disclosed in the petition of complaint.

(3.) A question now arises whether it was incumbent upon the complainant to state in the complaint that the communication of the Infringement of the provision was made to the employer and if the petition of complaint does not mention any such averment, whether the proceeding is liable to be quashed. There cannot be any manner of doubt that Rule 26B, sub-rule (2) contains a mandate regarding the communication of infringement of the provisions of the Act to the offending employer and it is only if no rectification is made by the employer in spite of such communication, in that case alone he can be prosecuted. Therefore communication as contemplated by the aforesaid Rule is a condition precedent to the institution of a prosecution and consequently a Magistrate has to satisfy himself that this requirement of the aforesaid Rule which no doubt has the force of law was fulfilled. As there was noting before the learned Magistrate except the petition of complaint he cannot be possibly satisfied about the fulfillment of the requirement unless there was an averment in the petition of complaint. In other words, it is absolutely essential that the petition of complaint must contain an averment regarding compliance with the provisions of Rule 26B, subrule (2) of the Rules made under the Act. As there was no such averment in the case before me it should be held that the learned Magistrate was not right in taking cognizance and the proceeding is liable to be quashed.