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IN THE HIGH COURT OF JUDICATURE AT MADRAS
Mr. Justice Ramaswami, J.
N. Sankaranarayana, In re. .....In Re.
Cr.R.C. Nos. 43 and 44 of 1952. (Cr.R.P. Nos. 43 and 44 of 1952).
Decided On : 04 September 1952
MADRAS SHOPS AND ESTABLISHMENTS ACT - Applicability to railway out-agency - Whether out-agency is part of railway establishment - Whether Commissioner of Labour's decision is a prerequisite for Magistrate to find offence - Section 2(6), 4(e), 51.
Fact of the Case:
The petitioner, who managed a railway out-agency in Kollegal, was convicted for failing to maintain registers and records as required by the Madras Shops and Establishments Act, 1947. He argued that the out-agency was part of the railway establishment and therefore not subject to the Act, and that the Commissioner of Labour should have decided whether the Act applied to the out-agency before the Magistrate could convict him.
Finding of the Court:
The court held that the out-agency was not part of the railway establishment and was therefore subject to the Act. It also held that the Commissioner of Labour's decision was not a prerequisite for the Magistrate to convict the petitioner, as the Commissioner's decision was only final in so far as appeals within the department were concerned.
Issues: 1. Whether the railway out-agency was part of the railway establishment and therefore not subject to the Madras Shops and Establishments Act, 1947. 2. Whether the Commissioner of Labour's decision was a prerequisite for the Magistrate to convict the petitioner.
Ratio Decidendi: 1. The definition of "establishment" in section 2(6) of the Act includes a commercial establishment, and a commercial out-agency is a commercial establishment. 2. The out-agency was not part of the railway establishment, as it was not performing any functions that were essential to the operation of the railway. 3. The Commissioner of Labour's decision was not a prerequisite for the Magistrate to convict the petitioner, as the Commissioner's decision was only final in so far as appeals within the department were concerned.
Final Decision: The court dismissed the petitioner's revision petition and upheld the convictions and sentences imposed by the Magistrate.
These are two connected revision cases which have been filed against the convictions and sentences of the learned Additional First Class Magistrate Kollegal, in C.C. Nos. 152 and 153 of 1951.
2. The facts are: The area occupied by Kollegal in Coimbatore district is served by the Mysore Railway. Kollegal itself has no railway station and Maddur is the nearest railway station. Therefore, an out-agency is working in Kollegal for the purpose of booking goods there for being sent to Maddur railway station. This out-agency at Kollegal has been taken by Royal Motor Service, Kollegal through one, Dr. Mahadevan. But it appears that it is managed by the petitioner before us who is stated to be a brother of that Dr. Mahadevan.
3. This establishment in Kollegal was visited by the Assistant Inspector of Labour, Gobichettipalayam and he found that this out-agency did not maintain a register of wages for the persons employed in it, a register of employment in the prescribed form E or F or a notice in the prescribed form G or a register in the prescribed form H or a register of holidays and leave in the prescribed form K for persons employed under this petitioner in this out-agency. It was further found that this petitioner failed to exhibit the notices containing the extracts of the Madras Shops and Establishment Act, 1947, and the rules, 1948, in English and Tamil and that he failed to maintain and produce them when demanded by the Assistant Inspector of Labour.
4. In addition the Labour Inspector also found that the timings of work were not in consonance with the provisions of the Madras Shops and Establishments Act and what is more one particular individual was being employed constantly exceeding the spread over periods.
5. This Inspector therefore recommended the prosecution of this petitioner under the Madras Shops and Establishments Act to the Commissioner of Labour setting out all these facts. The Commissioner of Labour on coming to the conclusion that this was a case falling within the Madras Shops and Establishments Act and that there tad been infractions thereof, sanctioned the prosecution of this petitioner excepting for the hours of work and the employment of that particular individual contrary to the provisions of the Madras Shops and Establishments Act.
6. The petitioner in the meanwhile has made a reference to the Traffic Manager of the Mysore Railway pointing out that he has been required by the Labour Inspector to observe the rules and regulations as required by the Madras Shops and Establishments Act and that if such regulations were to be observed in his out-agency he would not be able to discharge his functions. Therefore the Traffic Manager having only the hours of work and nothing else in his mind replied that the Madras Shops and Establishments Act did not apply in regard to the timings of work in this out-agency.
7. The plea of the accused in Court was that he thought that this out-agency formed part of the Mysore railway establishment and did not come within the ambit of the Madras Shops and Establishments Act and that therefore he did not keep the registers and perform the duties prescribed under that Act.
8. The learned Additional First Class Magistrate overruled these contentions and found the accused guilty as charged and sentenced him to a nominal fine of Rs. 10 in regard to each offence.
9. In this Court two additional points are also taken, viz., in terms of section 4(e) of the Act that this out-agency is part of the railway establishment working under the Central Government and therefore does not fall within the ambit of the Madras Shops and Establishments Act and secondly that the Commissioner of Labour under section 51 of the Act is alone the person who should have decided whether the Act applied or not to this out-agency and that the Magistrate should have made a reference to the Commissioner of Labour and therefore not having done so the Magistrate was not competent to dispose of the matter himself.
10. In
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