IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20/11/2003 CORAM THE HONOURABLE MR.JUSTICE V.KANAGARAJ CRL OP. No.1005 of 2002 CRL OP. NOS. 1006 to 1009 of 2002 and Crl.M.P.Nos.550 to 554 of 2002 G.Udayakumar ... Petitioner -Vs- State of Tamil Nadu, rep. by Dr.G.Aldurai, Assistant Medical Officer (Plantations), Udagamandalam, Nilgiris. ... Respondent
Criminal Original Petition filed under Section 482 of the Code of
Criminal Procedure for the relief as stated therein.
For petitioner : M/s. Ram and Ram.
For respondents : Mr.A.N.Thambidurai,
Govt.Advocate(Crl.side).
:COMMON ORDER
The petitioner who is the accused in S.T.R.Nos.5349, 5350,
5351, 53 52 sand 5353 of 2000, on the file of the Judicial Magistrate,
Coonoor, has filed the above Criminal Original Petitions, praying to quash the
said proceedings, on the ground that as per the provisions of the Tamil Nadu
Plantation Labour Act, 1951 and Tamil Nadu Plantation Labour Rules, 1955,
every employer of plantations which employ 1000 or more workers shall provide
the medical facilities with own garden hospital, plantations employing more
than 200 workers but less then 1000 workers shall provide the medical
facilities with combined garden hospital and own dispensary, plantations
employing 200 or less workers shall provide the medical facilities with
dispensary either individually or in groups with necessary equipments and
arrangements for visiting doctors and the employers shall ensure that the
doctor visits the dispensary at least thrice a week; that each garden hospital
shall be under a qualified medical practitioner assisted by at least one
trained nurse, one trained maternity assistant, a qualified pharmacist, one
man and one woman Nursing Orderly, one toti and one sweeper; that the services
of the staff shall be readily available during all hours, provided that in the
case of doctors, nurses, maternity assistants and pharmacists employed in
plantation at the commencement of these rules, the Chief Inspector of
Plantations may in consultation with the Director of Medical Services grant
exemption from possessing the qualifications prescribed for them; that as far
as the petitioner herein is concerned, he is named as an employer of
Billimalai Estates, ( five estates, in all) which have workers, all put
together, far less than 200, and hence, as per the rules it requires to have
only a dispensary, that too, either individually or in groups; that the only
obligation is that there should be a visiting doctor, who visits the
dispensary thrice a week; that in addition to rule, the Government of Tamil
Nadu had issued a notification, which requires that a qualified nurse or
pharmacist is also required to be appointed in the dispensary; that as noticed
in the Notification, the petitioners plantation has a Staff Nurse and a
visiting Medical Officer who visits the dispensary thrice a week; that on the
other hand the respondent/complainant without adverting to the facts that the
plantation of the petitioners are covered by the Classification of Rule
21(1), proceeded to presume that the employer has violated the provisions of
Rule 21(2) of Tamil Nadu Plantation Labour Rules; that the plantation in which
the petitioner is an employer has only 43 workers; that in the absence of
basic material to show the need to have a Garden Hospital or a combined Garden
Hospital, the allegation against the petitioner is without substance and hence
he would pray to quash the said proceedings.
2. One more ground raised on the part of the petitioner is that under
Section 39 of Chapter VII of the Tamil Nadu Plantation Labour Act, the
complaint should have been preferred by the Chief Inspector or with the
previous sanction, in writing, of the Chief Inspector of Plantations, but the
present prosecution has been instituted at the behest of the Chief Inspector,
before according sanction to prosecute the petitioner; that the Chief
Inspector of Plantations has not identified the basic requirements of the
Rules alleged to have been violated by the petitioner/employer; that without
adverting to the basic facts and not looking into the Government Order and
without considering the approved medical scheme applicable to the Billimalai
Estate, the sanction had been accorded; that the sanctioning authority had not
applied his mind before according his sanction and hence, the sanction
accorded and prosecution initiated have not only caused incurable prejudice to
the petitioner, but also against the provisions of the Act and hence the above
proceedings are liable to be quashed.
3. Heard the learned counsel for the petitioner and the learned
Government Advocate on the (Crl.side) appearing on behalf of the respondent.
4. During arguments, learned counsel appearing on behalf of the
petitioner would pose a question to the effect that whether the Section 10(2)
of the Tamil Nadu Plantation Labour Act and Rules would apply to the facts of
the case, is the point for determination; that if there are more than 1000
workers, they should have Garden Hospital; that if the workers are less than
1000 but more than 200 they must have a dispensary and if the workers are less
than 200, a dispensary either individually or in group with accessories a nd
equipments must be maintained; that so far as the petitioner estate is
concerned, there are only one or two workers that is below the minimum
required strength for having the above facilities; that the sanctioning
authority should have looked into the show cause notice issued by the
Assistant Medical Officer, Garden Division says that no Pharmacist has been
appointed in the estate and therefore, it violated the provisions of the Act;
that the requirement of Pharmacist for the petitioner estate does not arise
regarding the facts of the case; that Section 39 of the Act contemplates
sanctioning by the Chief Inspector, but even though sanction has been obtained
in the instant case, it says that they have to concede the notifications
whereas the sanction has been accorded without application of mind and it is a
fit case that the prosecution cannot be maintained. On such arguments the
learned counsel would seek to quash the above proceedings initiated by the
prosecution.
5. In reply, the learned counsel appearing on behalf of the
respondent would submit that the case in hand comes under category No.III;
that the nurses are unqualified hands; that the Pharmacist is a must and
necessary as per Rule 21(b) column (2); that a doctor has to visit the clinic
weekly twice, but if they want to be exempted from affording such facility, in
such event they must get permission from the Chief Inspector of Plantations.
On such grounds the learned counsel would seek dismissal of the above Criminal
Original Petitions.
6. In consideration of the facts pleaded, having regard to the
materials placed on record and upon hearing the learned counsel for the
petitioner and the respondent as well, what could be assessed by this Court is
that the above Criminal Original Petitions have been filed by the petitioner
who is the accused in the case registered in S.T.R. Nos.5349 to 5353 of 2000
respectively seeking to quash the proceedings initiated by the
respondent/complainant for the commission of offences punishable under Section
10(1) r/w Rule 21(2) of the Tamil Nadu Plantation Labour Act and Rules pending
on the file of the Court of Judicial Magistrate, Coonoor.
7. The case of the prosecution is that the petitioner is an employer
as defined under Section 2(e) of the Plantation Labour Act for plantation in
Billimalai Estates; that the plantation was inspected by the complainant on
26.3.2000 at about 1.45 p.m.; that a Pharmacist as well as the assistants as
required under Section 10 r/w 21(2) of the Plantation Labour Act and Tamil
Nadu Plantation Labour Rules were not available; that hence, on 28.6.2000 a
show cause notice was issued to the employer, the petitioner herein enclosing
with Annexure A; that thereafter on 13.12.2000 the prosecution obtained
previous sanction from the Chief Inspector of Plantations in Annexure C and
the complaint was filed against the petitioner for the offence punishable
under Section 10(1) r/w 21(2) of the Tamil Nadu Plantation Act and Rules for
the lapses noted during inspection.
8. On the part of the petitioner/accused, he would come forward to
plead that the Billimalai Estate group had only one or two workers and
therefore, it could not be brought under the purview of the Act and Rules and
therefore, it requested the Government to approve the scheme for its
dispensary to comply with the requirement of the Rule and law; that obliging
the request, the Government passes G.O.Ms.No.2718 dated 24.12.1986; that in
all the five managements/estates put together have employed one or two workers
only and therefore, they maintained a group coverable dispensary with a staff
nurse and a visiting Medical Officer to visit the dispensary thrice a week;
that while so, entire proceedings initiated by the prosecution is under
misconception of law and abuse of the process of the Court and hence the
proceedings become liable to be quashed.
9. A close study had with the materials placed on record as above,
would only reveal that the case of the petitioner entirely rests on facts and
it is up to the trial Court to go into all these factual position of the case
by examining the witnesses and verifying documents marked and no legality has
been questioned so as to afford jurisdiction for this Court to interfere with
and therefore, in cases of such nature, it is always desirable for a thorough
trial to be held into the facts and circumstances of the case with due
opportunity for the parties to be heard and therefore, it is not up to this
Court to cause its interference, particularly when no legal infirmity or
inconsistency has occurred nor any violation of natural justice has taken
place which have been complained on the part of the petitioner and therefore,
in these circumstances the only conclusion that this Court could arrive at is
to dismiss all the above Criminal Original Petitions and hence the following
order:
In result,
(i) all the above Criminal Original Petitions 1005 to 1009 of 2002 do
not merit acceptance and they become only liable to be dismissed and are
dismissed accordingly;
(ii) consequently, Crl.M.P.Nos. 550 to 554 of 2002 are also
dismissed;
(iii) however, the trial Court is directed to expedite the trial
procedure so as to deliver the judgment on merits and in accordance with law
in a time bound manner.
Index: Yes
Internet: Yes
gr.
To
The Judicial Magistrate, Coonoor.