State by Public Prosecutor vs R. Sundararajan

K.N. Mudaliyar, J.—This is an appeal filed by the State against the order of the court of the Sub Divisional Magistrate; Sankari, acquitting the accused (R. Sundararajan) of the offence of contravening rules 35 and 37 of the Madras Motor Transport Workers Rules, 1965. P.W. 1 is the Deputy Inspector of Labour, Salem. He had the necessary territorial jurisdiction over the entire Salem district for inspection of the motor undertakings including the Namakkal Bus service, Namakkal. On 12th March, 1970, at 12.25 p.m., P. W. 1, inspected this undertaking and the accused was then present. The accused was the managing partner of this undertaking. The complaint of P. W. 1 is that Form XV was not maintained properly because the accused failed to make entries relating to the periods of work, the time at which the work commenced, the rest intervals and the time at which the work ceased for the motor transport workers employed in this undertaking. Thus, the accused has contravened 35 of the Madras Motor Transport Workers Rules 1965,punishable u/s 32 of the Motor Transport Workers Act, 1961 (Central Act XXVII of 1961). The accused also failed to maintain the Register under Form XVII which amounts to contravention of Rule 37 of the Madras Motor Transport Workers Rules, punishable u/s 32 of the Central Act XXVII of 1961.

P. W. 1 prepared Ex. P. 3, inspection notes, at the spot. On 16th March, 1970, P. W. 1 issued Ex. P. 4, a show cause notice, to the accused enclosing Ex. P. 5, a copy of the inspection order. In Ex. P. 6 the accused sent the reply on 18th March, 1970. P. W. 1 received the reply, Ex. P.

6 from the accused, and thereafter, P. W. 1 sent a letter dated 30th March, 1970 under the original of Ex. P. 7, intimating to the accused that he was at liberty to file an appeal within 30 days to the Chief Inspector of Madras. In reply to Ex. P. 7, the letter of P. W. 1, the accused sent Ex. P.

8 reply dated 27th May, 1970 enclosing certain documents and the same was received by P. W. 1 only on 5th June, 1970.

The accused was examined u/s 342 Crl. P.C. He contended that in form XV there are no columns for noting the details of the work, etc. and form XVII was not filled up as there was no necessity for the same. The accused further contended that in his undertaking, the workers work three days in a week, and therefore, no question of compensatory holidays arises and if so, no entry was made in form XVII. His further plea is that in form XV, for the running staff, the available details were made in the register. The accused did not examine any defence witnesses.

The learned Magistrate found the accused not guilty of contravening rules 35 and 37 of the Madras Transport Workers Rules.

Section 37 of Central Act XXVII of 1961 (the Motor Transport Workers Act, 1961) is extracted here below:-

1 Section 37: Effect of laws and agreements inconsistent with this Act; (1) The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law or in the terms of any award, agreement or contract of service, whether made before or after the commencement of this Act.;

Provided that where under any such award, agreement, contract of service or otherwise, a motor transport worker is entitled to benefits in respect of any matter which are more favourable to him than those to which he would be entitled to under this Act, the motor transport worker shall continue to be entitled to the more favourable benefits in respect of that matter, notwithstanding that he receives benefits in respect of other matters under this Act.

(2) Nothing contained in this Act shall be construed as precluding any motor transport worker from entering into an agreement with an employer for granting him rights or privileges in respect of any matter which are more favourable to him than those to which he would be entitled under this Act.

The said section refers to any agreement or contract of service between a motor transport worker and his employer, which confers benefits on the worker in respect of any matter, which are more favourable to him than those to which he would be entitled under this Act''. The worker shall continue to be entitled to the more favourable benefits notwithstanding the provisions in the Act No. XXVII of 1961. In regard to Ex. P. 8, sent by the Namakkal Bus service managing partner (the accused) to the Deputy Inspector of Labour (P. W. 1) there is an enclosure wherein the accused pleads an agreement or a contract of service which is undoubtedly more favourable to the motor worker. Paragraph 2 of the appeal petition of the accused is extracted here below:

None of the workers had more than 15 days work in a month and originally were working on alternate days. The workers found it inconvenient and there was an oral agreement in the beginning of 1968 whereunder each driver and conductor was required to work only for 12 days in the month to entitle him to draw his monthly wages. For each extra day's work, the driver was to get daily wages of Rs. 9 and the conductor Rs. 8, apart from their daily batta of Rs. 5. Thus a driver and a conductor worked for three days and took rest for four days in the week. This was of great advantage to the workers as barely worked for 36 hours in the week.

The averments in paragraph 2 indicating the benefits for the workers would satisfy the requirements of the proviso to S. 37(1). In my view, the non-observance of the requirements under Rr. 35 and 37 of the Madras Motor Transport Workers Rules, 1965, cannot be made punishable in the light of the plea of the accused which satisfies the requirements of S. 37 of the Central Act XXVII of 1961. Rr. 35 and 37 of the Madras Motor Transport Workers rules 1965 cannot be permitted to override the substantive provision contained in S. 37 of the Central Act No. XXVII of

1961.

The averments in paragraph 2 of the appeal petition enclosed along with Ex. P. 8 may result in the contravention of the requirements of S 13 of the Central Act XXVII of 1961, but I am not expressing any final opinion on the breach or otherwise of S. 13 of the Act on the basis of the contents of paragraph 2 already extracted above. It is open to the accused to obtain the approval of "such authority" within the meaning of S. 13 of the Central Act XXVII of 1961 for the agreement or the contract of service obtaining from the year 1968 between the Motor undertaking and the motor workers of the said undertaking. I confirm the order of acquittal of the accused on different grounds. The Criminal appeal filed by the State is dismissed,