The competence of the court to take cognizance under the Payment of Wages Act, 1936 without an adjudication under Section 15 and the determination of an individual's role as an employer or Manager are crucial legal points established in this judgment.

ORDER :

Vivek Rusia, J.

1. The applicant has filed the present petition u/s. 482 of the Cr.P.C. seeking quashment of the proceedings of Case No. 25632/2011 initiated by the respondent under the provisions of Payment of Wages Act, 1936 (hereinafter referred to as "the Act of 1936" for short).

2. Brief facts of the case are as under:

The applicant is a Director of the company viz. M/s. Metalman Industries Ltd. has an Industrial unit at 17-19, Sector-B, Sanwer Road, Industrial Area, Indore under the provisions of Section 2(m)(i) of the Factories Act, 1948. The company is engaged in the manufacturing of steel pipes tubes and sheet.

The Inspector under the Act of 1936 carried out a surprise inspection 15.10.2011 and directed the applicant to produce the register for salary & wages for the month of August and September, 2011. After inspection and taking the statement of the workmen/employees, it was found that the wages for the July, 2011 to October, 2011 were not paid. Despite directions u/s. 14(4)(d) of the Act of 1936, balance-sheet and Accounts were not produced before the Inspector up to 28.10.2011, therefore, such an act is punishable u/s. 20 of the Act of 1936. Accordingly, Mukesh Jain, Inspector under the Act of 1936 submitted a complaint u/s. 21 of the Act of 1936 before the Judicial Magistrate, First Class, Indore on 28.11.2011. Along with the complaint, Inspector has filed as many as 31 documents and list of three witnesses. After receipt of the complaint summon was issued to the present applicant In presence of the applicant ld. authority has framed the following charges against the applicant:

1- vkids }kjk dkj[kkus esa fu;ksftr Jfedksa dk ekg tqykbZ 2011 ls ekg vDVwcj 2011 rd ds osru ds Hkqxrku esa foyEc fd;k vkSj ekg vDVwcj 2011 ds osru dk Jfedksa dks Hkqxrku ugha fd;kA

2- vkids dkj[kkuk fujh{k.k }kjk fnukad 15@10@2011 dks fd, x, fujh{k.k ds nkSjku osru Hkqxrku vf/kfu;e 1936 dh /kkjk&14¼4½ ¼Mh½ ds vUrxZr okafNr jsdkMZ@tkudkfj;ka@Ái= ÁLrqr djus ds fn, x, funsZ'kksa ds ikyu esa okafNr Ái= daiuh dh o"kZ&2009 ls 2011 rd dh csysUl 'khV ,oa vU; Ái= fofgr le; esa ÁLrqr ugha fd;kA**

3. The applicant has filed the present petition challenging the aforesaid prosecution on the ground that u/s. 21(1) no court is competent to take cognizance for an offence under sub-section (1) of Section 21 of the Act of 1936 unless there is an adjudication by the competent authority about non payment of wages or deduction from wages u/s. 15 of the Act of 1936. There has to be a finding about the deduction from wages or delay in payment of wages and in the event of recording such finding, the employer is liable to be tried as per procedure prescribed u/s. 21 of the Act of 1936. In support of his contention, learned counsel for the applicant has relied on the judgment passed by this Court in the case of Mukul Kasliwal V/s. State of M.P. (M.Cr.C. No. 4622/2016 decided on 13.10.2016). He further submits that the applicant was a Director of the company and he cannot be prosecuted because he is not responsible for payment of wages. A person so named as Manager of a Factory under the provisions of the Factories Act were responsible for payment of wages and he alone can not be prosecuted. In support of his contention, he has placed reliance over the judgment of the apex Court in the case of P.C. Agarwala V/s. Payment of Wages Inspector: (2005) 8 SCC 104.

4. On the other hand, learned Govt. Advocate appearing for respondent/State, opposes the prayer by submitting that the trial is pending since 2011 and now after ten years, the trial has reached to the evidence stage, the applicant may appear before the trial Court and take defence available to him in accordance with law. No case for quashment of the proceedings is made out and this petition u/s. 482 of the Cr.P.C. is liable to be dismissed.

I have heard the learned counsel for the parties at length and perused the record.

5. The Payment of Wages Act, 1936 is a complete code in it. Inspector of Factories appointed u