1. As the issue involved in both the petitions is identical in nature, therefore, both have been clubbed, heard together and are being decided by a common judgment.

2. In the instant petition, petitionersseekquashment of Criminal Complaint No. 583 of 2019 dated 23.07.2019 filed by the respondent No. 3-Labour Enforcement Officer (Central)against them under the provisions of Section 24 of the Contract Labour (Regulation and Abolition) Act, 1970(hereinafter referred to as 'the Act of 1970')and proceedings initiated thereon by the Court of learned Special Mobile Magistrate/Passenger Tax Shops and Establishment Act, Jammu(hereinafter referred to as „trial Court).

3. The petitioner No.2-Naresh Chandra Dash is the AGM, HR Compliance and IR of M/s Tata Consultancy Service Ltd. (for brevity „Company‟). The Company claims to have been engaged by the Ministry of External Affairs at Passport Seva Kendra Project, Jammu, for the purposes of providing citizen services in processing passport related documentation and allied facilities under Regional Passport Officer, Jammu who is the principal employer and the Company is merely a contractor and obtained valid requisite licence under the Act of 1970 and Contract Labour (Regulation & Abolition) Central Rules, 1971 (for brevity “Rules of 1971”).

4. It is stated that on 25.04.2019, respondent No. 3- the Labour Enforcement Officer (Central) herein inspected the premises of the Company-Passport Seva Kendra and on the same day inspection report-cum-show cause notice bearing no. 34 (23) /2019-LEO/JMU was issued to the Companyhighlighting certain discrepancies more specifically with regard to violation under different provisions of the Rules of 1971 and Company was asked to rectify the same.On 10.05.2019 the Company responded to the show cause notice (supra) claiming that the Company has complied with the provisions as were mentioned in the show cause notice and requested the respondent No.3 to drop the further proceedings against the Company. After more than two months, on 23.07.2019 the Labour Enforcement Officer (Central) filed a criminal complaint before the trial Court under Section 24 of the Act of 1970.

5. On the date of presentation of the complaint, that is, 23.07.2019 the trial Court took cognizance of the offences and issued summons to the petitioners for appearance before the Court on 31.08.2019.

6. Learned counsel for the petitioners submits that despite filing reply to the show cause notice and compliance of all the defects which had been pointed out in the show cause notice, the respondent-authorities without considering the same have initiated criminal proceedings against the Company.

7. The petitioners have challenged the impugned criminal prosecution precisely, on the following grounds:-

1. That the impugned criminal complaintfiled by respondent no. 3 is notsustainable under law being illegal andarbitrary and as such liable to be quashed;

2. That a bare reading of the provisions of Section 24 of the Act would reveal that thecriminal prosecution in the form of criminalcomplaint initiated against the petitioners aswell as the summoning order for whichpetitioners have been summoned to standtrial and all subsequent proceedings arisingthereon have violated the quintessentialprinciple of audi alteram partem

3. That the respondent authorities moreparticularly respondent no. 3 had issued show cause notices cum inspection report tothe petitioner company, wherein they stated thatfailure to meet with the compliances wouldresult into initiation of prosecution, however, respondent no. 3 withoutconsidering the same, initiated prosecution;

4. That when the impugned complaints were filed,the necessary compliance had already beenmade and produced before the authorities.Thus, the impugned complaintsare abuse ofthe process of law;

8. The objections have been filed by the respondents, wherein it is stated that the violations of statutory provisions of the Act of 1970, and Rules framed thereunder were noticed during inspection on 25.04.2019 and the petitioner was called upon to remove the violations for future, however, the criminal complaint has been filed for the violations having been committed by the petitioner on the date of inspection which entails penal consequences, as such, if the violations have been removed by the petitioner subsequently, that does not absolve the company-petitioner from commission of violations entailing penal consequences. It is stated that thefacts disclosed in the complaint constitute the offence alleged against the petitioners, as such, the summoning order as well as the complaint cannot be quashed.

CRM(M) 328/2020

9. In the instant petition, petitioner-Company M/s Tata Consultancy Services Ltd) seeks quashment of Criminal Complaint No. 591 of 2019 dated 24.09.2019 under Section 22-A of the Minimum Wages Act, 1948 (for brevity „Act of 1948‟) initiated by respondent no. 3- Labour Enforcement Officer (Central) and quashing of summoning order dated 24.09.2019.

10.The petitioner-company has challenged the impugned criminal prosecution precisely, on the following grounds:-

i) That the impugned criminal complaint initiatedby respondent no. 3 is not sustainable under lawbeing illegal and arbitrary and, as such, liable to be quashed and hence set aside;

ii) That a bare reading of the provisions ofSection 22-A of the act would reveal that thecriminal prosecution in the form of criminalcomplaint initiated against the petitioners as wellas the summoning order for which petitioners havebeen summoned to stand trial and all subsequentproceedings arising thereon have violated thequintessential principle of audialteram partem;

iii) That the respondent authorities moreparticularly respondent no. 3 had issued a showcause notice cum inspection report to thepetitioner company, wherein and where under,they specifically stated that failure to meet withthe compliances would result into initiation of prosecution. It is relevant to state-herein that thepetitioner company immediately compiled with thedirection issued under the show cause notice andinformed the authorities subsequently. However,respondent no. 3 without considering the same,initiated prosecution. This very act of respondent- is against the spirit of the show causenotice and is also a violation of principles of natural justice in so far as any quasi-judicialproceedings have to be closed by statutoryauthority through a speaking order and if thesame is not done, the whole proceeding getsvitiated and is gross violation of the Article 14 andArticle 21 of the Constitution of India;

iv) That when the impugned complaint was filed,the necessary compliances had already been madeand produced before the authorities. Thus, theimpugned complaint is an abuse of the process of law;

v) That it is most pertinent to mention here thatneither any specific role has been attributed to petitioner No 2 nor any allegation made against him in the entire complaint. Petitioner No. 2 hasbeen unnecessarily arrayed as an accused eventhough respondent authorities have nowherepleaded in their complaint that petitioner No. 2 hadknowledge of the commission of the alleged offenceor that he had not exercised all due diligence toprevent the commission of the alleged offence.Petitioner No 2 was not in charge of or responsiblefor the day-to-day affairs of petitioner No 1 atPassport Sewa Kendra, Jammu. In fact, petitionerNo. 2 is posted at New Delhi and no prima-faciecase has been made out against him in thecomplaint and thus the complaint is liable to bequashed to prevent the abuse of the process of the Court;

vi) That the Ld. Trial Court failed to appreciate thatthe ingredients of the offence under Section 22-Aof the Act were not made out in the present case;

vii) That the Ld. Trial Court misdirected Itself whileissuing summoning order to the petitioner no. 1company through petitioner no. 2 and ought not tohave issued process and dealt with the complaintand documents relied upon bytherespondentauthorities, therefore, on this ground too, theimpugned complaint deserves to be set aside;

11. The grievance of the petitioners is that that respondent no. 3 had initiated criminal prosecution against the petitioner-company and consequently, summoning order has been issued against the petitionercompany in a mechanical manner without considering the facts relevant for the proper adjudication of the complaint.

12. Heard learned counsel for the parties and perused the material on record.

13. Perusal of the complaint dated 23.07.2019 reveals that it is alleged therein that violation and breach of Rule 81(l) (i) on account of failure to display the notice showing the rates of wages, hours of work, wage period, date of payment, name, and address of the inspector having jurisdiction and date of payment of unpaid wages have not been displayed in English, Hindi and local language spoken by the workers.

14. Learned counsel for the petitioners submits that when the impugned complaint was filed, the necessary compliances had already been made and produced before the authorities and that the trial Court failed to appreciate that the ingredients of the offence under Section 24 of the Act of 1970, were not made out in the present case and hence on this ground also the impugned complaint deserves to be set aside.

15. Section 24 of the Contract Act, 1970 reads as under:

"24. Other offences.-If any person contravenes any of the provisions of this Act or any rules made thereunder for which no other penalty is elsewhere provided, he shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to one thousand rupees, or with both. -If any person contravenes any of the provisions of this Act or any rules made thereunder for which no other penalty is elsewhere provided, he shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to one thousand rupees, or with both."

16. Perusal of the complaint dated 24.07.2019 would show that the allegations against the petitioners are that they had not displayed the notices showing minimum rates of wages fixed, obstruct from the Act and Rules, name and address of the Inspector in contravention of Rule 22 of Minimum Wages (Central) Rules 1950, whichreads as under:-

“Publicity to the minimum wages fixed under the Act,

Notices in 1 {Form IX-A} containing the minimum rates of wages fixed together with 2 {abstracts of} the Act, the rules made thereunder and the name and address of the Inspector shall be displayed in English and in a language understood by the majority of the workers in the employment 2 {at the main entrances to the establishment and at its office} and shall be maintained in a clean and legible condition.

Such notices shall also be displayed on the notice boards of all subdivisional and district offices.”

17. Section 22C of the Minimum Wages Act, 1948 reads as under:-

“22C. Offences by companies.- (1) If the person committing any offence under this Act is a company, every person who at the time the offence was committed, was incharge of, and was responsible to, the company for the conduct of the business of the company as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.”

18. Subsection (1) to Section 22C provides that where an offence is committed by a company, every person who at the time the offence was committed was in-charge of and was responsible to the company for the conduct of the business, as well as the company itself shall be deemed to be guilty of the offence. By necessary implication, it follows that a person who do not bear out the requirements is not vicariously liable under Section 22C(1) of the Act. The proviso thereof makes it clear that a person shall not be liable to any punishment if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent commission of such offence.

19. Perusal of the complaints would also show that the Girish Mudgal, General Manager, HR, has been arrayed as accused in the impugned complainants, whereas in both the petitions it is stated that Girish Mudgal is not liable in any manner, as such, instant petitions have been filed through Naresh Chandra Dashm AGM, HR Compliance and IR, who is stated to be the competent and authorized person to file the same.

20. In case titledNational Small Industries Corporation Limited v. Harmeet Singh Paintal and another, reported in (2010) 3 SCC 330, [LQ/SC/2010/194] Apex Court has held as under:-

“(i)The primary responsibility is on the complainant to make specific averments as are required under the law in the complaint so as to make the accused vicariously liable. For fastening the criminal liability, there is no presumption that every Director knows about the transaction

(ii) Section 141 does not make all the Directors liable for the offence. The criminal liability can be fastened only on those who, at the time of the commission of the offence, were in charge of and were responsible for the conduct of the business of the company.

(iii) Vicarious liability can be inferred against a company registered or incorporated under the Companies Act, 1956 only if the requisite statements, which are required to be averred in the complaint/petition, are made so as to make the accused therein vicariously liable for offence committed by the company along with averments in the petition containing that the accused were in charge of and responsible for the business of the company and by virtue of their position they are liable to be proceeded with.

(iv) Vicarious liability on the part of a person must be pleaded and proved and not inferred. (v) If the accused is a Managing Director or a Joint Managing Director then it is not necessary to make specific averment in the complaint and by virtue of their position they are liable to be proceeded with.

(vi) If the accused is a Director or an officer of a company who signed the cheques on behalf of the company then also it is not necessary to make specific averment in the complaint.

(vii) The person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a Director in such cases.”

21. The show cause notices dated 25.04.2019 issued by the Labour Enforcement Officer refers to the violation as certain notices were not displayed and name and address of Inspector in English and Language understood by the majority of the workers wasalso not displayed at the main entrance of the establishment.

22. A response to the show-cause notices (supra) has been filed by the petitioner-company on 10.05.2019, indicating therein that the following notices have already been displayed at the prominent place:-

“(i) Notice containing rates of wages/hours of work in English and Hindi as understood by majority of the workers had been displayed.

(ii) Notice containing the date of payment of wages in English and Hindi as understood by majority of workers has been displayed.

(iv) Notice containing the wages period in English and Hindi as understood by majority of workers has been displayed;

(v) Notices containing the name and address of the Inspector having jurisdiction in English and Hindi as understood by the majority of workers has been updated and displayed.

(vi) Notice containing date of payment of unpaid wages in English and Hindi as understood by majority of workers has been displayed.

(vii) Notice containing minimum rates of wages in English and Hindi as understood by majority of workers has been displayed.”

23. The violations as alleged by the complainant- Labour Enforcement Officer had been dealt with by the petitioner and a reply to the show cause notice submitted before the complainant-Labour Enforcement Officer with a request to drop further proceedings against them.

24. The Apex Court in a case titled Dayle De’Souza vs. Government of India through Deputy Chief Labour Commissioner (C) and another, AIR 2021 SC 5626 : 2021 SCC Online SC 1012, in para 30 has laid down as follows:-

“At the same time, initiation of prosecution has adverse and harsh consequences for the persons named as accused. In Directorate of Revenue and Another v. Mohammed Nisar Holia, 17 this Court explicitly recognises the right to not to be disturbed without sufficient grounds as one of the underlying mandates of Article 21 of the Constitution. Thus, the requirement and need to balance the law enforcement power and protection of citizens from injustice and harassment must be maintained. Earlier in M/s. Hindustan Steel Ltd. v. State of Orrisa, 18 this Court threw light on the aspect of invocation of penalty provisions in a mechanical manner by authorities to observe:

“8. Under the Act penalty may be imposed for failure to register as a dealer Section 9(1) read with Section 25(1) (a) of the Act. But the liability to pay penalty does not arise merely upon proof of default in registering as a dealer. An order imposing penalty for failure to carry out a statutory obligation is the result of a quasi-criminal proceeding, and penalty will not ordinarily be imposed unless the party obliged either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest, or acted in conscious disregard of its obligation. Penalty will not also be imposed merely because it is lawful to do so. Whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circumstances. Even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose penalty, when there is a technical or venial breach of the provisions of the Act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statute. Those in charge of the affairs of the Company in failing to register the Company as a dealer acted in the honest and genuine belief that the Company was not a dealer. Granting that they erred, no case for imposing penalty was made out”

25. In the instant case, the respondent No. 3 after conducting inspection of the premises of the petitioner-company issued inspection report-cum show cause notice dated 25.04.2019 to the petitioner-company to rectify the irregularities. On 10.05.2019, response to the show cause notice (supra) was filed by the petitioner company categorically stating therein that all the violations mentioned in the show-causenotice (supra) had been duly removed and requested the respondent No. 3-Labour Enforcement Officer to drop the further proceedings against the petitioner company.

26. A perusal of the impugned complaints discloses that the petitionercompany has been implicated in both the cases for the alleged contravention and breach of provisions of the Act and Rules. It is needless to state that the respondent No.3-LabourEnforcement Officer, before filing the complaints, ought to have considered the reply dated 10.05.2019 filed by the petitioner-company to the show cause notice dated 25.04.2019. But notwithstanding the reply, and ignoring, overlooking and brushing aside the explanations submitted by petitioners, respondent no.3 filed impugned complaints on 23.07.2019 and 24.09.2019, which is but a clear case of abuse of process of Court.The complaints are bereft and silent on this aspect as the said fact has not been adverted to in the complaints, as such, the proceedings against the petitioner-companyare liable to be quashed.

27. Authority of the court exists for advancing justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers the Court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto. Reference in this regard is made to State of Andhra Pradesh v. Golconda Ling Swamy reported in (2004) 6 SCC 522 [LQ/SC/2004/780] .

28. In view of the above discussions, the complaints lodged by the respondent No.3-Labour Enforcement Officer, are not maintainable as against the petitioner-company. Accordingly, both the petitions are allowed and both the complaints filed on 23.07.2019 and 24.09.2019 titled as State through Labour Enforcement Officer (Central)v. M/s Tata Consultancy Services Limited, respectively are quashed. Consequently, connected miscellaneous petitions are closed.