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Judgment
S.S. Mishra, J.
The aforementioned Criminal Miscellaneous Case arises out of the proceedings in 2(c) C.C. Case No.4 of 2019 pending before the learned Sub-Divisional Judicial Magistrate, Jajpur, whereby cognizance has been taken against the petitioner for the alleged violation of Section 15(2) of the Payment of Wages Act, 1936, treating the application filed by the Assistant Labour Officer as a criminal complaint case.
Heard Mr. Shibashis Mishra, learned counsel along with Mr. S.S. Tripathy, learned counsel appearing for the petitioner and Mr. Jateswar Nayak, learned Additional Government Advocate for the State.
The dispute traces its origin to a complaint dated 14.01.2019 submitted by Sri Nityananda Patra and sixty-seven other contract labourers before the Assistant Labour Officer, Jajpur Road, alleging that they had worked under different contractors, namely HAL & Company, Sri Sadananda Deo and M/s. Global Construction, during different periods between 2005 and 2018, but had been refused further employment with effect from 1st January, 2019 without justification. Acting upon the complaint, the District Labour Officer issued notice to the proprietor of M/s. Global Construction calling upon him to participate in a joint discussion regarding the grievance, while a copy of the notice was forwarded to the Unit Head of M/s. Visa Steel Ltd. for information. The company, through its Human Resources department, immediately advised the contractor to appear before the labour authorities with all relevant records to facilitate resolution of the dispute.
On 16.03.2019, the Assistant Labour Officer issued notices to the concerned contractors alleging illegal refusal of employment and non-payment of full and final dues of the workmen, requiring them to submit written explanations and clear the alleged outstanding dues, while also directing representatives of M/s. Visa Steel Ltd. to participate in the discussions and ensure compliance by the contractors. Thereafter, by communications dated 01.07.2019, the Assistant Labour Officer called upon the management of Visa Steel Ltd., as the principal employer, to pay the alleged dues payable to the contract labourers engaged through the respective contractors. In response, the company, through its DGM (HR & IR), informed the labour authorities that while the principal employer was obliged under Section 21(4) of the Contract Labour (Regulation and Abolition) Act, 1970 to ensure payment of unpaid wages where the contractor defaulted, the details and calculation of any alleged unpaid wages had not been furnished, and any such payment could only be made upon receipt of proper particulars so that the amount could thereafter be recovered from the defaulting contractor in accordance with law.
The correspondence between the parties continued thereafter. By communication dated 29.07.2019, the Assistant Labour Officer alleged that the management was attempting to evade its responsibility as principal employer and called upon it to show cause as to why proceedings should not be initiated for recovery of the workers' claims. The company, by its detailed reply dated 12.09.2019, reiterated that under Section 21 of the Contract Labour (Regulation and Abolition) Act, the primary responsibility for payment of wages rested upon the contractor, while the liability of the principal employer arose only in cases of non-payment or short payment of wages within the prescribed period. It was further contended that retrenchment compensation, terminal benefits and other closure-related dues did not fall within the ambit of wages contemplated under Section 21(4), and reliance was placed upon judicial precedent to support that position. The company also requested the Assistant Labour Officer to proceed with conciliation under the Industrial Disputes Act instead of initiating proceedings against the principal employer.
Despite the aforesaid exchanges, the Assistant Labour Officer filed an application under Section 15(2) of the Payment of Wages Act seeking recovery of an alleged amount of Rs.1,55,820/- on behalf of sixty-seven workmen towards their alleged unpaid wages and full and final dues arising out of termination of employment. The application was registered by the learned SDJM as 2(c) CC Case No.4 of 2019, and cognizance was taken against both the contractor and the present petitioner. The petitioner asserts that he initially received a witness summons before discovering that he had in fact been arrayed as an accused, whereupon he entered appearance through counsel, sought exemption from personal attendance and obtained certified copies of the record.
It is in the aforesaid background that the petitioner approached this Court invoking its inherent jurisdiction under Section 482 Cr.P.C., contending that the criminal proceedings initiated under Section 15(2) of the Payment of Wages Act had been wrongly instituted as a criminal complaint case and challenging the legality of the order dated 19.09.2019 whereby cognizance was taken against him in 2(c) C.C. No. 4 of 2019.
Mr. Mishra, learned counsel appearing for the petitioner although has extensively argued the matter pointing out the grave error committed by the learned S.D.J.M., Jajpur while taking cognizance of the offence under Section 15(2) of the Payment of Wages Act but also questioned the very maintainability of the proceedings by drawing the attention of this Court to various provisions of law.
For the purpose of adjudicating the issue involved in the present case, Sections 15 and 18 of the Payment of Wages Act, 1936, as well as Rule 11 of the Payment of Wages (Procedure) Rules, 1937, are relevant. Accordingly, the aforesaid provisions are reproduced for the convenience of ready reference hereunder:-
“15. Claims arising out of deductions from wages or delay in payment of wages and penalty for malicious or
vexatious claims.—[(1) The appropriate Government may, by notification in the Official Gazette, appoint—
(a)any Commissioner for Workmen's Compensation; or
(b)any officer of the Central Government exercising functions as,—
(i)Regional Labour Commissioner; or
(ii)Assistant Labour Commissioner with at least two years' experience; or
(c)any officer of the State Government not below the rank of Assistant Labour Commissioner with at least two year's experience; or
(d)a presiding officer of any Labour Court or Industrial Tribunal, constituted under the Industrial Disputes Act, 1947 (14 of 1947) or under any corresponding law relating to the investigation and settlement of industrial disputes in force in the State; or
(e)any other officer with experience as a Judge of a Civil Court or a Judicial Magistrate, as the authority to hear and decide for any specified area all claims arising out of deductions from the wages, or delay in payment of the wages, of persons employed or paid in that area, including all matters incidental to such claims:
Provided that where the appropriate Government considers it necessary so to do, it may appoint more than one authority for any specified area and may, by general or special order, provide for the distribution or allocation of work to be performed by them under this Act.]
(2)Where contrary to the provisions of this Act any deduction has been made from the wages of an employed person, or any payment of wages has been delayed, such person himself, or any legal practitioner or any official of a registered trade union authorised in writing to act on his behalf, or any Inspector under this Act, or any other person acting with the permission of the authority appointed under sub-section (1), may apply to such authority for a direction under sub-section (3):
Provided that every such application shall be presented within [twelve months] from the date on which the deduction from the wages was made or from the date on which the payment of the wages was due to be made, as the case may be:
Provided further that any application may be admitted after the said period of [twelve months] when the applicant satisfies the authority that he had sufficient cause for not making the application within such period.
[(3) When any application under sub-section (2) is entertained, the authority shall hear the applicant and the employer or other person responsible for the payment of wages under Section 3, or give them an opportunity of being heard, and, after such further enquiry, if any, as may be necessary, may, without prejudice to any other penalty to which such employer or other person is liable under this Act, direct the refund to the employed person of the amount deducted, or the payment of the delayed wages, together with the payment of such compensation as the authority may think fit, not exceeding ten times the amount deducted in the former case and not exceeding three thousand rupees but not less than one thousand five hundred rupees in the latter, and even if the amount deducted or delayed wages are paid before the disposal of the application, direct the payment of such compensation, as the authority may think fit, not exceeding two thousand rupees:
Provided that a claim under this Act shall be disposed of as far as practicable within a period of three months from the date of registration of the claim by the authority:
Provided further that the period of three months may be extended if both parties to the dispute agree for any bona fide reason to be recorded by the authority that the said period of three months may be extended to such period as may be necessary to dispose of the application in a just manner:
Provided also that no direction for the payment of compensation shall be made in the case of delayed wages if the authority is satisfied that the delay was due to—
(a)a bona fide error or bona fide dispute as to the amount payable to the employed person; or
(b)the occurrence of an emergency, or the existence of exceptional circumstances, the person responsible for the payment of the wages was unable, in spite of exercising reasonable diligence; or
(c)the failure of the employed person to apply for or accept payment.]
[(4) If the authority hearing an application under this section is satisfied—
(a)that the application was either malicious, or vexatious, the authority may direct that a penalty not exceeding [three hundred seventy-five] rupees be paid to the employer or other responsible for the payment of wages by the person presenting the application; or
(b)that in any case in which compensation is directed to be paid under sub-section (3), the applicant ought not to have been compelled to seek redress under this section, the authority may direct that a penalty not exceeding [three hundred seventy five] rupees be paid to [Appropriate Government] by the employer or other person responsible for the payment of wages.
(4-A) Where there is any dispute as to the person or persons being the legal representative or representatives of the employer or of the employed person, the decision of the authority on such dispute shall be final.
(4-B) Any inquiry under this section shall be deemed to be a judicial proceeding within the meaning of Sections 193, 219 and 228 of the Indian Penal Code (45 of 1860).]
(5)Any amount directed to be paid under this section may be recovered—
(a)if the authority is a Magistrate, by the authority as if it were a fine imposed by him as Magistrate, and
(b)if the authority is not a Magistrate, by any Magistrate to whom the authority makes application in this behalf, as if it were a fine imposed by such Magistrate
18. Powers of authorities appointed under Section 15.—
Every authority appointed under sub-section (1) of Section 15 shall have all the powers of a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), for the purpose of taking evidence and of enforcing the attendance of witnesses and compelling the production of documents, and every such authority shall be deemed to be a Civil Court for all the purposes of Section 195 and of [Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974)].
11.Exercise of powers.—In exercising the powers of a Civil Court conferred by Section 18, the Authority shall be guided in respect of procedure by the relevant orders of the First Schedule of the Code of Civil Procedure, 1908, with such alteration as the Authority may find necessary, not affecting their substance, for adapting them to the matter before him, and save where they conflict with the express provisions of the Act or these rules.”
From a conjoint reading of the aforesaid provisions, it is evident that the Payment of Wages Act, 1936 empowers the Authority appointed under Section 15 of the Act to adjudicate upon claims arising out of deductions from wages or delay in payment of wages. While exercising the powers conferred under Section 18 of the Act, such Authority is vested with the powers of a Civil Court under the Code of Civil Procedure, 1908, for the purposes of taking evidence, enforcing the attendance of witnesses and compelling the production of documents. The Payment of Wages (Procedure) Rules, 1937 prescribe the procedure to be followed in proceedings under Section 15 of the Act. Rule 3 provides that an application under Section 15(2), made by or on behalf of an employed person or a group of employed persons, shall be presented in duplicate in Form-A, Form-B or Form-C, as the case may be. Rule 4 prescribes that the authority to act on behalf of an employed person or persons under Section 15 shall be evidenced by a certificate in Form-D, which is required to be presented before the Authority hearing the application and shall form part of the record. Rule 8 further provides that, upon entertaining an application under Section 15(2) of the Act, the Authority shall issue notice in Form-E to the employer, requiring him to appear on the specified date along with all relevant documents and witnesses, if any, and shall intimate the applicant of the date so fixed. Rule 11 of the said Rules further provides that, while exercising the powers of a Civil Court conferred under Section 18 of the Act, the Authority shall, in regard to matters of procedure, be guided by the relevant provisions contained in the First Schedule to the Code of Civil Procedure, 1908, subject to such alterations as may be necessary for adapting the same to the proceedings before it, without affecting their substance, and subject to there being no conflict with the express provisions of the Act or the Rules. Therefore, conjoint reading of Sections 15 and 18 of the Payment of Wages Act, 1936, along with the Rules framed thereunder, makes it abundantly clear that the proceedings before the Authority under Section 15 are quasi-judicial in nature and, while exercising the powers conferred by Section 18, the Authority follows a procedure which substantially partakes of the character of civil proceedings.
The submission of Mr. Mishra, learned counsel appearing for the petitioner, is that, in view of the provisions contained in Sections 15 and 18 of the Act read with the Rules framed thereunder, the proceeding initiated by the opposite party ought to have been treated as a quasi-civil proceeding. However, according to learned counsel, the learned Magistrate not only entertained the matter as a criminal proceeding and registered it as 2(c)C.C. Case No. 4 of 2019, but also took cognizance of an alleged offence under Section 15(2) of the Act and designated the petitioner as an “accused”. He is right in his submission that Section 15of the Act only provides the procedure to initiate a proceeding against the employer for realization of any deduction made by the employer from the wages of an employed person contrary to the provisions of the said Act or any payment of wages has been delayed. However, the learned Magistrate apparently registered the criminal complaint by erroneous interpretation of law and took cognizance of offence under Section 15(2) of the Act. It is further relevant to note that Section 15(2) of the Act does not, per se, constitute an offence; rather, it prescribes the procedure for initiating a claim before the Authority in respect of deductions from wages or delay in payment of wages. Therefore, the learned Magistrate ought not have taken cognizance of an offence under Section 15(2) of the Act.
Mr. Nayak, learned Additional Government Advocate, on the other hand, contended that invocation of the jurisdiction of this Court under Section 482 of the Cr.P.C. by the petitioner, at this stage, is not permissible in law. According to him, the petitioner ought to raise the issues urged before this Court before the learned trial Court by filing an appropriate application at the appropriate stage of the proceedings. He further submitted that the order taking cognizance is a well-reasoned order and does not suffer from any infirmity warranting interference by this Court.
I have carefully gone through the records and analysed the provisions of law as have been reproduced in the preceding paragraph. Upon such consideration, I am unable to accept the submission advanced by learned counsel for the State. Rather, I have no hesitation in holding that the impugned order passed by the learned S.D.J.M., Jajpur, taking cognizance of the alleged offence under Section 15(2) of the Act, is devoid of law. In fact, the procedure contemplated under the Act and Rules thereunder, the complaint filed by the workmen/employees through the opposite parties ought to have been registered as a Miscellaneous Jurisdiction Case (MJC) and by following the procedure under Section 18 of the Act read with Sections 3, 4 and 11 of the Rules framed thereunder, the proceedings should have been initiated and carried out against the petitioner. In view of the aforementioned, without adverting to the merits of the case and going into further detail regarding the claim of the workmen/employees, this Court is of the humble view that the impugned order is bad in law and is set aside. However, liberty is granted to the opposite parties to resort to the right remedy under law seeking adjudication of the claim of the employees. It is made clear that this Court has not expressed any opinion on the merits of the case and the contention raised by both the learned counsel for the parties are kept open to be agitated before the authority where the proceeding is to be initiated under the right provisions of law.
Accordingly, the order dated 19.09.2019 passed by the learned S.D.J.M., Jajpur in 2(c) C.C. Case No.4 of 2019 is hereby set aside, reserving liberty of the opposite parties to initiate appropriate proceeding in accordance with law.
With this observation, the CRLMC is disposed of.