- (1.) BY this application filed under Section 482 of the Code of Criminal Procedure, applicants seek to challenge communication dated 18th April 2007 issued by 2nd respondent intimating the applicants that prosecution complaint will be lodged against them before the Judicial Magistrate, First Class, 2nd Court, Nagpur pursuant to inspection report dated 16.4.2007.
(2.) FACTS can best be summarised thus : Applicant AFCONS Infrastructure Limited which undertakes work of bridge construction, is a Company registered under the Indian Companies Act, 1956. Applicants carried out work of design construction of six lane cable stayed bridge along with approaches including dismantling of existing Bridge in Nagpur Railway Station Yard near Santra Market, Nagpur for respondent No.3 MSRDC. For the purpose of carrying out the work, the applicants were required to engage the employees through Contractors. Applicants applied for Licence for engaging petty contractors to complete the work and the Licencing Officer under the Contract Labour (Regulation and Abolition) Act, 1970, Nagpur Zone, Nagpur (respondent no.4) issued Licence dated 6.2.2006. Applicants contend that their principal employer is the Maharashtra State Road Development Corporation which is a State Government company and therefore, the provisions contained in the Minimum Wages Act and the Maharashtra Contract Labour (Regulation and Abolition) Rules, 1971 are applicable to them and the "Appropriate Government" in their case is the State Government and not the Central Government. It is, therefore, averred that respondent No.2 had no authority in law to conduct inspection and point out irregularities and launch prosecution against the applicants for their failure to remove the same as it would be an action without jurisdiction. Respondents No.1 and 2 filed their reply opposing the application. It is stated that the applicants were executing contract work of design construction of six lane cable based bridge in Nagpur Railway Station Yard in the premises of the Railway Establishment and, therefore, the principal employer would be the Central Railway and consequently, the "Appropriate Government" in their case is Central Government and therefore, action of the respondents is wholly within their powers. They prayed for dismissal of the application. Respondent No.3 has filed affidavit in reply. It is admitted that the Work Order was issued by it to the applicants and accordingly, they have executed the work. In its reply, respondent No.3 MSRDC states that it is not necessary party and should be deleted from the array of parties.
(3.) RESPONDENT No.4 admits in its reply that respondent no.3 MSRDC through its Superintending Engineer has registered itself as principal employer with the State Authority under the Contract Labour (Regulation and Abolition) Act, 1970 as the State Government has jurisdiction under the said Act. Learned counsel for the applicants has relied upon National Building Construction Corporation Limited v. Shri Ram Pal Singh & anr. reported in 1997 II CLR 1025 wherein this Court has laid down test whether the appropriate Government in relation to employer-industry is the Central Government or not. In the said case, this Court found that the employer industry was a company registered under the Companies Act; its entire share capital was subscribed by the Government of India; the Chairman, Managing Director and other Directors of the employer industry were appointed by the President of India and the Directors who were appointed by the President of India were the Secretaries to the Government of India. It was further noticed that the President of India determines the number of Directors and so also the salary and allowances of the Chairman and the Directors and the President of India issued directions in regard to the conduct of business and affairs of the employer industry from time to time. It is in this backdrop that this Court held that the appropriate Government in relation to employer-industry in that case was the Central Government even though there was no notification issued in that behalf. Learned counsel for the applicants contends that there is nothing on record to hold No.3 MSRDC (respondent No.3) is wholly or partially owned by the Central Government. On the contrary, it is admitted position on record that respondent No.3 MSRDC is a State owned Company.;