Riji G. Nair v. Assistant Labour Officer, 1st Circle, Civil Station, Kottayam & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** ## **WEDNESDAY, THE 29TH DAY OF JANUARY 2014/9TH MAGHA, 1935** ## **Crl.MC.No. 3197 of 2012 ()** **--------------------------AGAINST ST 723/2012 of JUDL. MAGI. OF FIRST CLASS-III, KOTTAYAM** **PETITIONER(S)/ACCUSED:** **------------------------------------------** **RIJI G. NAIR, MANAGING DIRECTOR KERALA STATE CO-OPERATIVE CONSUMERS FEDERATION LTD.. GANDHI NAGAR ERNAKULAM-682020.** **BY ADVS.SRI.A.SUDHI VASUDEVAN SMT.K.PUSHPAVATHI** ## **RESPONDENTS/COMPLAINANT:** **------------------------------------------------------** ## **1. ASSISTANT LABOUR OFFICER** **1ST CIRCLE, CIVIL STATION, KOTTAYAM-686 001.** ## **2. STATE OF KERALA** **REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM- 682 031.** **R BY SRI. JITHESH. R. - PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 29-01-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** _acd_ ## _**Crl.MC.No. 3197 of 2012**_ ## _**APPENDIX**_ |**ANNEX-A1:**|**COPY OF THE AUDIT CERTIFICATE FOR THE YEAR 2009-10 ISSUED ON**| |---|---| ||**9.3.2012 BY THE KERALA STATE CO-OPERATIVE DEPARTMENT IN**| ||**RESPECT OF THE PETITIONER.**| |**ANNEX-A2:**|**COPY OF THE APPOINTMENT ORDER NO.(G.O.) (Rt)NO.452/2006/CO-**| ||**OP DATED 12.10.2006 ISSUED TO THE PETITIONER.**| |**ANNEX-A3:**|**COPY OF THE COMPLAINT DATED 28.3.2012 FILED BEFORE THE**| ||**JUDICAL FIRST CLASS MAGISTRATE.**| |**ANNEX-A4:**|**COPY OF THE SUMMONS DATED 22.5.2012 ISSUED BY THE**| ||**JFCM-III, KOTTAYAM TO THE PETITIONER.**| |**ANNEX-A5:**|**COPY OF THE SHOW CAUSE NOTICE BEARING NO.738/2011**| ||**DATED 16.1.2012 ISSUED BY THE COMPLAINANT.**| ||**True copy**| ||**P.A. to Judge.**| |_acd_|| ## **P.D. RAJAN, J.** ------------------------------------------Crl.M.C.No.3197 of 2012 ---------------------------------------------Dated this the 29[th] day of January, 2014 ## **ORDER** This petition is filed under Section 482 Cr.P.C. to quash Annexure-A3 and A4 of the Judicial First Class Magistrate Court-III, Kottayam, alleging commission of offence punishable under Section 29 of the Kerala Shops and Commercial Establishment Act (hereinafter referred to as the 'Act' in short) 2. The petitioner is the Managing Director of the Kerala State Co-operative Consumers Federation Ltd., which is an apex body under the control of the Government of Kerala. He approached this Court to quash Annexures A3 and A4 to prevent abuse of process of law and to secure the ends of justice. The 1[st] respondent, who is the Assistant Labour Officer, First Circle, Civil Station, Kottayam filed a complaint under Section 29(3) of the Kerala Shops and Crl.M.C.No.3197/12 2 Commercial Establishment Act. , 1960 and Rules 1961 before Judicial First Class Magistrate-III, Kottayam. The 1[st] respondent alleged that on 4.10.2011 at 12.15 p.m, he inspected Thriveni Super Market functioning under the Kerala State Co-operative Consumer Federation Ltd, Chingavanam, which is an establishment defined under Section 2(1) of the Kerala Shops and Commercial Establishment Act, 1960 and noticed that 8 persons were employed therein. The petitioner, who is the employer of the said establishment under Section 2(7) of the Act failed to apply for registration of the establishment under Section 5A of the Act, failed to maintain and produce service records and to keep visit books under Rule 10(1) A and Rule 10(ii) of the Act. Therefore, the 1[st] respondent filed Annexure-A3 complaint before the Court. In the circumstances, the petitioner has approached this Court to quash the above proceedings. 3. Heard both sides. The learned counsel appearing for the petitioner contended that while he was working as Assistant Executive Engineer, the Government Crl.M.C.No.3197/12 3 of Kerala granted deputation to the petitioner by virtue of order dated 12.10.2006 as the Managing Director of the Kerala State Co-operative Consumers Federation Ltd., for a period of one year, the office of which is functioning at Kochi. The Kerala State Co-operative Consumers Federation Ltd is an apex body of the Government and Thriveni supermarket is one of the shops functioning at Chingavanam. The Kerala State Co-operative Consumer Federation being functioning under the State Government, its officers are appointed by the Managing Committee and the petitioner has no role in their appointment. There are District Managers and Regional Managers, in each District at various levels. They are looking after the day- to-day affairs of the shops and other institutions of this Consumer Federation. According to Section 2(7) of the Act, the employer means a person owning, or having ultimate control over the affairs of an establishment and includes the manager, agent or other person acting in the general management or control of an establishment. There is no allegation in Crl.M.C.No.3197/12 4 the complaint that the petitioner wilfully failed to apply the requirement as per Section 5A of the Act. Moreover, the petitioner, who is a public servant as defined under Section 21 of IPC, is entitled to get sanction under Section 197 of the Cr.P.C. from appropriate Government. Therefore, without considering the aforesaid aspect, Annexure-A3 complaint was filed before the Court. 4. The learned Public Prosecutor strongly opposed the argument and contended that the Kerala Co-operative Consumer Federation is not exempted from the purview of the Act. Therefore, the 1[st] respondent has every power to proceed against the Federation. Moreover, the officers of the Kerala State Co-operative Consumer Federation will not come within Section 21 of IPC as a public servant and sanction under Section 197 of Cr.P.C., is not necessary. 5. Now the question that arises for consideration is whether Annexure A3 is to be quashed invoking Section 482 Cr.P.C. at this stage. It is admitted fact that the petitioner is working on deputation as the Managing Director of the Consumer Federation. Annexure-A2 is the Crl.M.C.No.3197/12 5 Government order issued by the Additional Secretary to Government, Co-operation Department on 12.10.2006, appointing the petitioner as the Managing Director of the Kerala State Co-operative Consumer Federation Limited. Annxure-A1 is the Audit Certificate issued from the Kerala State Co-operative Department with regard to the affairs of the Kerala State Co-operative Consumer Federation Limited. It is alleged that the petitioner failed to apply Registration Certificate, maintain and produce service records and to keep visit books according to the Act. Based upon that the 1[st] respondent filed Anneuxre-A3 complaint. Besides this, he sent a registered letter No.713/11/dated 16.1.2012 for which there was no reply from the petitioner. 6. I have perused Annexure-A3. In Annexure-A3, the petitioner's address is shown as 'Riji. G. Nair, Thriveni Supermarket, Kerala State Co-op. Consumer Federation, Chingavanam. According to the petitioner, there is a shop Manager at Chingavanam and he is looking after the dayto-day affairs of the shop. The petitioner is the Managing Crl.M.C.No.3197/12 6 Director of the Consumer Federation with jurisdiction all over Kerala. It is the responsibility of the concerned manager, Chingavanam to maintain the record and furnish all details with regard to the shop to the concerned Labour Officer, when he inspected the shop. But, the Labour Officer directly sent the show cause notice and arrayed the petitioner as an accused and filed Annexure-A3 complaint. The petitioner contended that he has not received any notice from the 1[st] respondent and the notice was not served in the correct address. I am also convinced with the argument advanced by the learned counsel for the petitioner that the notice was not issued in the correct address. Therefore, there is some relevancy in the argument advanced by the learned counsel for the petitioner. 7. The next contention advanced by the learned counsel for the petitioner was that he was appointed as Managing Director by the Government. He further contends that before filing Annexure-A3 complaint, the defacto complainant has not obtained any sanction from Crl.M.C.No.3197/12 7 the Government. He contended that the petitioner is entitled to get protection of 9[th] clause of Section 21 of IPC. To that extent, he is holding Government office and his duty is to prevent infraction of any law for the protection of the pecuniary interests of the Government, the 1[st] respondent has to look into that aspect. 8. While invoking jurisdiction under Section 482 Cr.P.C. the Court has to look into three aspects. The inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. This is followed in the decision reported in _**R.P. Kapur**_ v. _**State of Punjab**_ [1960 SC 866]. Here, no sanction was obtained before proceeding against the petitioner. 9. Another aspect is that there is no proper service of notice in the correct address, which is a major procedural lapse from the side of the Assistant Labour Officer. The learned Magistrate took cognizance of the offence, after getting Annexure-A3. Before proceeding Crl.M.C.No.3197/12 8 against the petitioner, the learned Magistrate failed to consider whether the petitioner is a public servant under Government of Kerala as defined under Section 21 of IPC. Proper sanction as per Section 197 Cr.P.C. has to be obtained by the Assistant Labour Officer before filing Annexure-A3, if petitioner is found to be a public servant. Moreover, the correct address of the petitioner was not shown in Annexure-A3. If proper sanction was not obtained, it is purely an abuse of process of Court. 10. Moreover, it is evident that the same address is shown in Annexure-A5, enclosed with Criminal M.A. No.892/2014. It is significant to note that the address in the registered letter in the show cause notice and the complaint are not in the correct address of the petitioner. The question of legal sanction from the Government and correct notice are relevant, when prosecuting the petitioner as per Annexure-A3. Since all these are not properly verified by the 1[st] respondent and initiated against the petitioner, I think that it is a pure abuse of process of Court and the inherent jurisdiction under Crl.M.C.No.3197/12 9 Section 482 Cr.P.C is to be invoked. 11. The 1[st] respondent is at liberty to proceed as per Kerala Shops and Commercial Establishments Act, after verifying the relevant legal aspects and file a fresh complaint against the employer, after verifying the relevant documents. In the above circumstances, Annexures-A3 and A4 complaints are quashed. Accordingly, Crl.M.C. is allowed. **P.D. RAJAN, JUDGE.** acd Crl.M.C.No.3197/12 10 Crl.M.C.No.3197/12 11