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Prakash Textile (Guj.) P. Ltd. and ors. Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal;Labour and Industrial
CourtGujarat High Court
Decided On
Judge
Reported in(1982)2GLR392
AppellantPrakash Textile (Guj.) P. Ltd. and ors.
RespondentState
Excerpt:
.....no. 167 and 168 of 1981 on the file of the learned metropolitan magistrate, 6th court, ahmedabad as well as proceedings therein are quashed and set..........schedule. section 5 prescribes procedure for fixing and revising minimum wages in respect of any scheduled employment for the first time under the act or in revising minimum rates of wages so fixed. for that purpose, appropriate government is required to carry out the procedure as indicated in section 5. as per section 12, it is provided that where in respect of any scheduled employment a notification under section 5 is in force, the employer shall pay to every employee engaged in a scheduled employment under him, wages at a rate not less than the minimum rate of wages fixed by such notification. section 13 lays down procedure for fixing hours for a normal working day for the concerned scheduled employment regarding which minimum rates of wages are fixed by the appropriate government......
Judgment:

S.B. Majmudar, J.

1. The petitioners who are original accused in criminal cases Nos. 167 and 168 of 1981 on the file of the learned Metropolitan Magistrate, 6th court, Ahmedabad, have filed this application under Section 482 of the Code of Criminal Procedure, 1973, (hereinafter referred to as 'the Code'), praying for quashing these proceedings arid the processes issued therein against the petitioners on the ground that these proceedings are ex-facie not maintainable.

2. The impugned criminal proceedings as filed against the petitioners refer to certain alleged non-compliance with the provisions of the Minimum Wages Act, 1948, (hereinafter referred to as 'the Act'). Respondent No. 2 herein who is the minimum wages inspector has filed the complaints against the petitioners on that ground. These complaints have resulted into the aforesaid two criminal cases against the petitioners. The learned Metropolitan Magistrate has issued process to the petitioners in these cases. The petitioners' contention is that the Act itself does not apply to their establishment and hence, there is no occasion for them to comply with the provisions of the Act or the rules framed there under. In their contention is true, it is obvious that the complaints are ex-facie not maintainable, and are liable to be quashed as amounting to abuse of the process of court.

3. A few relevant facts may be noted in this connection. The petitioner No. 1 is a private limited company registered under the provisions of the Indian Companies Act. The second petitioner is its managing director and third petitioner is its Director while the 4th petitioner is the Chief Executive of the first petitioner company. This company is running a processing house in this city. The company obtains gray cloth from the market and processes the same for re-sale and/or processes ready-made cloth for and on behalf of other textile units/merchants on contractual basis. In para 5 of the petition, it has been stated that the entire work of processing is done on ready made cloth and that the processing begins with the treatment of ready-made cloth. No weaving process is carried on by such processing houses. There are no looms whatsoever in the petitioners' processing house. The petitioners, therefore, submit that in view of this situation, under no circumstances can such processing house be classified as power loom industry. The aforesaid averments in the petition have remained uncontroverted on the record of this case. Rule was issued on this petition by D.C. Gheewala, J on 3-2-1982 and it has reached final hearing before me today. Till today, no affidavit-in-reply has been filed on behalf of the respondents to controvert the factual, averments made in the petition. It must, therefore, be taken as an uncontroverted position on the record of this case that petitioner No. 1 company is carrying on its business as a processing house where no looms whatsoever are being operated and that there is no question of the petitioner company running a power-loom factory.

4. It is in the background of this uncontroverted factual position that the short question regarding applicability of the Act has to be decided. The Act is passed by the Legislature to provide for fixing minimum rates of wages in certain employments. It states that whereas it is expedient to provide for fixing minimum rates of wages in certain employments, the Act has been enacted called Minimum Wages Act, 1948. Section 3 of the Act enjoins upon the appropriate Government in the manner thereinafter provided to fix the minimum rates of wages payable to employees employed in any employment specified in part I of the schedule. Section 5 prescribes procedure for fixing and revising minimum wages in respect of any scheduled employment for the first time under the Act or in revising minimum rates of wages so fixed. For that purpose, appropriate Government is required to carry out the procedure as indicated in Section 5. As per Section 12, it is provided that where in respect of any scheduled employment a notification under Section 5 is in force, the employer shall pay to every employee engaged in a scheduled employment under him, wages at a rate not less than the minimum rate of wages fixed by such notification. Section 13 lays down procedure for fixing hours for a normal working day for the concerned scheduled employment regarding which minimum rates of wages are fixed by the appropriate Government. Section 18 enjoins upon the employer to maintain such registers and records giving such particulars of employees employed by him, the work performed by them, the wages paid to them, the receipts given by them and such other particulars and in such form as may be prescribed. The term 'employer' is defined by Section 2(e) to mean any person who employs, whether directly or through another person, or whether on behalf of himself or any other person, one or more employees in any scheduled employment in respect of which minimum rates of wages have been fixed under the Act.

5. It is, therefore, obvious that the provisions of the Act can apply to any industry provided it offer a scheduled employment as laid down by the Act. It is, therefore, necessary to turn to the definition of the term 'scheduled employment'. Section 2(g) defines 'scheduled employment' to mean any employment specified in the schedule or any process of branch of work forming part of such employment. Section 27 of the Act confers power on the State Government to add to schedule and states that:

The appropriate Government, after giving by notification in the official gazette not less than three months' notice of its intention to do, may by like notification add to either Part of the Schedule any employment in respect of which it is of opinion that minimum rates of wages should be fixed under this Act, and thereupon the Schedule shall in its application to the State be deemed to be amended accordingly.

The Schedule annexed to the Act shows that it has been prepared as per the statutory requirements of Sections 2(g) and 27 of the Act. Part I of the Schedule lists various employments. It is the case of the second respondent that the establishment of petitioner No. 1 company falls within entry 18 of Part I of the said Schedule. Para 4 of the complaint mentions that petitioner No. 1 company carries on scheduled industry as it runs a power loom factory. It is, therefore, obvious that entry 18 of Part I of the Schedule is pressed in service by respondent No. 2 against the petitioners for sustaining the impugned complaints against the petitioners. It is, consequently necessary to look at the said entry 18 in Part I of the Schedule accompanying the Act. It runs as under:

Employment in any power loom industry, in which any of the processes of winding, warping, beaming, sizing, drawing, reaching, weaving, dyeing, bleaching, calendering, folding, finishing or similar processes are carried on.

A mere look at the aforesaid entry shows that before any employment is held to be a scheduled employment as per that entry, it must be shown that any of the processes as mentioned in entry 18 is carried on therein as a part and parcel of a powerloom industry. The entry in terms takes in its fold employment in any powerloom industry and treats it as scheduled employment. In the course of running of such powerloom industry, if various types of processes are carried on by the employer like dyeing, bleaching etc. as mentioned in the entry, these processes would all be covered by the net-work of entry 18. It is true that the petitioner No. 1 company is running a processing house wherein grey cloth is subjected to the process of bleaching and dyeing. However, merely because process of bleaching and dyeing of grey cloth is carried on by petitioner No. 1 company, it cannot be termed as a scheduled employment as per entry 18 unless it is further shown that the said process of bleaching and dyeing of grey cloth iscarried on by petitioner No. 1 company as an integral part and a component of the main powerloom industry. Unless that is established, entry 18 cannot apply at all. In short, before entry 18 can apply to an industry, it must be shown that it is a powerloom industry and in the process of its running, looms on power, various other processes of winding, warping, dyeing, bleaching etc. are being carried on by the establishment. Thus, for the applicability of entry 18, existence of a powerloom industry is a sine qua non or a condition precedent. It must, therefore, be alleged and shown that a powerloom industry is being run by the concerned accused and in the process, they are also offering employment in their bleaching or dyeing departments and that, therefore, they are required to comply with the statutory provisions of the Act. In the present case, it is an uncontroverted factual position on record that the petitioner company is merely running a processing house and is not operating any looms whatsoever in its processing house. As these averments in para 5 of the petition have stood uncontroverted it must necessarily be held that petitioner No. 1 company is not running any powerloom industry. It is, therefore, obvious that the provisions of the Act cannot apply to petitioner No. 1's processing house in the light of entry 18 of Part 1 of the schedule. It may be stated that it is not the case of the respondents that the provisions of the Act apply to petitioner No. 1's processing house on account of any other entry in the Schedule. As I have already shown earlier, entry 18 cannot be pressed in service by the respondents for invoking the applicability of the provisions of the Act to the petitioners' processing house. Ones this conclusion is reached on the uncontroverted facts on the record of this case, the result is obvious. The complaints filed against the company for the alleged breach of the provisions of the Act would ipso facto become unauthorised and non-maintainable. They would represent an exercise in futility and would clearly amount to a totally unauthorised and ultra vires act on the part of the respondent No. 1. If that is so, no useful purpose can be served by allowing the prosecutions to proceed against the petitioners for the alleged breach of the provisions of the Act committed by them while running their processing house when the Act itself does not apply to them. Consequently, the process issued against the petitioners in both these complaints will have to be quashed in exercise of inherent powers of this court to prevent abuse of the process of court and also to secure ends of justice. To allow such proceedings which are still born from their very inception, to proceed further would amount to waste be of public time and would serve no useful purpose as these proceedings would be totally unauthorised and ultra vires. Consequently, such proceedings are required to be quashed without least hesitation.

6. Before parting, I may mention that in miscellaneous criminal application No. 969 of 1981 with other companion matters, N. H. Bhatt, J. by his decision dated 15-10-1981 has taken the view that a textile industry is not covered by entry 18 of Part I of the Schedule to the Act and as the concerned industry was not covered by the said entry, the prosecution against the directors of the textile industry was found to have resulted into abuse of the process of court and hence, such proceedings were quashed in exercise of inherent powers of this Court under Section 482 of the Code. N.H. Bhatt, J. in this connection observed as under:

The Minimum Wages Act is applicable only to those industries which are set out in the schedule appended to the said Act or industries which were added to the list by the Government in exercise of its powers conferred on it under Section 27 of the said Act. I have gone through the entire schedule but nowhere do I find the textile industry or a textile mill popularly so called figuring there. This would mean that in terms of Section 2(g) of the said Act read with Sections 3 and 18 of the Act the accused Nos. 2 and 3 cannot be said to be liable. They cannot be said to be the 'employer' as defined in Clause (e) of Section 2 of the said Act because 'employer' means any person who employs, one or more employees in any Scheduled employment in respect of which minimum rates of wages have been fixed under this Act.

I fully concur with the aforesaid reasoning adopted by N.H. Bhatt, J. In the facts of the present case also, no other conclusion is possible save and except the one that neither the Act nor any of the rules framed thereunder apply to the petitioners' processing house. It is not offering scheduled employment falling within any of the entries of the said Schedule and consequently there is no question of alleged breach of any of the provisions of the Act and the rules by the petitioners who are not employers within the meaning of the Act.

7. Rule issued in the application, therefore, is made absolute. Processes issued in criminal cases Nos. 167 and 168 of 1981 on the file of the learned Metropolitan Magistrate, 6th Court, Ahmedabad as well as proceedings therein are quashed and set aside.


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