COCONUT DEVELOPMENT BOARD v. UNION OF INDIA & Ors

A. V. RAMAKRISHNA PILLAI, J. ---------------------------------------------W.P(C) No.19866 of 2006.---------------------------------------------Dated this the 23rd day of March, 2012.JUDGMENTThe petitioner Board has come up with this petition aggrieved bythe criminal prosecution launched against their chairman by the secondrespondent, alleging violation of the provisions of Contract Labour(Regulation and Abolition) Act, 1970 (hereinafter referred to as, the Act)and the Rules made therein .2. The second respondent filed Ext.P4 complaint under Section23 of the Act alleging breach of Section 7 r/w. Section 17 and breach ofRule 81(3). The basis of the complaint was that the petitioner Board hasexecuted works by employing contract labourers more than 100, throughfew contractors without registering the establishment under the Act. InExt.P5 complaint, the second respondent alleged breach of Rules 81 (1)(i), which pertains to display of notice of rates of wages, hours of work,wage period, date of payment, name and address of inspector and date ofpayment of undisbursed wages in English, Hindi and Malayalam. It isfurther alleged that there was breach of Rule 81(2), that is, non W.P(C) No.19866 of 2006 -:2:-submission of copies of notices displayed/required to be displayed underRule 81 (1) to the inspector, etc.3. The petitioner alleges that Ext.P4 and P5 complaints are illegalas the provisions of the Act are not applicable to the petitioner Board.The reason stated is that no contract labourer is employed at thepetitioner's head office at Kochi, where the second respondent allegedlyconducted an inspection. It is further stated in the petition that not morethan 15 contract labourers have been engaged in any day in one yearpreceding the date of inspection. So, according to the petitioner theprovisions of the Act cannot be made applicable to the Board. 4. The contention is that even if, there is an engagement of morethan 20 contract labourers in any day in the year preceding the date ofinspection, the DSP Farm of the board is exempted from coverage of theAct as per provisions contained in Section 1(5)(a) of the Act. Hence, thepetitioner sought following reliefs:(i)To declare that the provisions of the Contract Labour(Regulation and Abolition) Act is not applicable to thepetitioner, the Coconut Development Board.(ii)Issue a writ of certiorari, order or direction or any otherappropriate writ quashing Exts.P4 and P5 complaints and all W.P(C) No.19866 of 2006 -:3:-further proceedings against the petitioner board in STNos.1071/05 and 1072/05 pending before the Court of JudicialFirst Class Magistrate-II, Ernakulam.5. I have heard the learned counsel for the petitioner. Hisargument were not resisted at the Bar by the respondent. 6. The learned counsel for the petitioner invited my attention toSection 1 of the Act, which reads as follows:“1. Short title, extent, commencement and application.-(1)This Act may be called the Contract Labour (Regulation andAbolition) Act, 1970.(2) It extends to the whole of India.(3) It shall come into force on such date as the CentralGovernment may, by notification in the Official Gazette, appoint anddifferent dates may be appointed for different provisions of this Act.(4) It applies-(a) to every establishment in which twenty or more workmenare employed or were employed on any day of thepreceding twelve months as contract labour ; (emphasis supplied)(b) to every contractor who employs or who employed onany day of the preceding twelve months or moreworkmen: Provided that the appropriate Government may, after givingnot less than two months notice of its intention so to do, by notificationin the Official Gazette, apply the provisions of this Act to any W.P(C) No.19866 of 2006 -:4:-establishment or contractor employing such number of workmen lessthan twenty as may be specified in the notification.(5) (a) It shall not apply to establishments in which work onlyof an intermittent or casual nature is performed. (b) If a question arises whether work performed in anestablishment is of an intermittent or casual nature, the appropriateGovernment shall decide that question after consultation with theCentral Board or, as the case may be, a State Board, and its decisionshall be final.”(emphasis supplied)7. Inviting my attention to Section 1(a), it was argued that theestablishment will come under the purview of the Act, only in cases 20 ormore workmen are employed or were employed on any day of thepreceding twelve months as contract labour. Allegedly, while the secondrespondent made a surprise visit to the office of the petitioner, she notedthe presence of about 100 contract labourers in the office. It wassubmitted by the learned counsel for the appellant that, the sanctionedstrength of the regular employees of the Board all over India will come to97 only. So, according to the learned counsel for the petitioner,deployment of another 100 contract labourers is improbable, rather thanimpossible, as far as the petitioner Board is concerned. W.P(C) No.19866 of 2006 -:5:-8. The present writ petition was instituted as the second respondentinitiated criminal prosecution against the chairman of the petitioner Boardlaunching Exts.P4 and P5 complaints. 9. It was further argued by the learned counsel for the petitionerthat the petitioner Board preferred Ext.P3 reply to the notice issued tothem informing that establishments, in which work of an intermittent orseasonal nature only is performed, are not covered under the Act. It wasfurther stated in Ext.P3 that the operational works of the petitioner Boardare carried out on a seasonal basis and that the petitioner Board is not amanufacturing unit. It was urged that in the light of Section 1(5)(b), it isfor the Government to take a final decision whether the work performedis of an intermittent or casual nature. Under such a situation, the propercourse open to the second respondent was to refer the matter to theGovernment for a final decision under Section 1(5)(b), so submitted thelearned counsel for the petitioner. 10. I do notice that it is the Government on such references has totake a final decision as per Section 1(5)(b). I see considerable force in thesubmission made by the learned counsel for the petitioner. As the W.P(C) No.19866 of 2006 -:6:-petitioner Board by Ext.P3 has informed the second respondent that thework performed was of an intermittent nature, the proper course open tothe second respondent was to refer the matter to the Government, whichis the final authority in taking a decision. As this course was not opted bythe second respondent, I am of the definite view that Exts.P4 and P5complaints preferred by the second respondent, are liable to be quashed, Ido so.In the result, the writ petition is allowed. Exts.P4 and P5 complaintspreferred by the second respondent before the Judicial First ClassMagistrate-II, Ernakulam, and all consequential proceedings against thepetitioner Board in ST Nos.1071/05 & 1072/05 pending before theaforesaid court is hereby quashed. However, it is made clear that thisorder will not stand in the way of the second respondent from referringthe matter to the Government for taking a final decision under Section 1(5)(b). No costs. Sd/- A. V. RAMAKRISHNA PILLAI JUDGE//TRUE COPY// P.A TO JUDGEkrj