Arvind N Parikh v. The State of Maharashtra

1. The present application challenges the summons issued against the applicants under Section 35(1)(b) of the Maharashtra Shops and Establishments Act, 1948 (for short “the said Act”), whereby respondent No.2 has filed a complaint before the learned Metropolitan Magistrate, 39th Court, Vile Parle, Mumbai (for short “the learned Magistrate”).

2. It is contention of learned counsel for the applicants that respondent No.2 has alleged that the applicants, by permitting accumulation of earned leave beyond 42 days have violated the provisions of Section 35(1)(b) of the said Act. Learned counsel further submitted that any service conditions, which are more favorable than those provided by any statute cannot, by any stretch of imagination, be construed as an act of violation of any law. The proceedings initiated by respondent No.2 are a gross abuse of the provisions of law. Learned counsel further submitted that respondent No.2 has filed a complaint without even making the company a party to the proceedings and the complaint is not maintainable on this ground alone and requested to allow the application.

3. It is contention of learned counsel for respondent No.2- Corporation that the notice issued and complaint filed against the applicants is under the appropriate section. Learned counsel further submitted that the order of issue process has been passed against the applicants, consequently summons was issued. The applicants have violated the provisions of the said Act. Hence, requested to dismiss the application.

4. I have heard both learned counsels. The complaint is filed against the applicants for violation of Section 35(1)(b) of the said Act. Section 35(1)(b) of the Act reads as under:

35. Leave. [(1)(a). (b) Every employee who has worked for not less than two hundred and forty days during a year, irrespective of the date of commencement of his service, shall be allowed leave, consecutive or otherwise, for a period of not less than twenty-one days, provided that such leave may be accumulated up to a maximum period of forty-two days.

5. It is the case of the applicants that they permitted accumulation of leave in excess of 42 days to their employees. A perusal of Section 35(1) (b) of the said Act indicates that it prescribes the minimum standard regarding accumulation of leave. Section 69, which corresponds to Section 35, expressly provides that the rights and privileges of employees under any other law are not affected. Section 69 reads as:

69. Rights and privileges under other law, etc. not affected. - Nothing in this Act shall affect any rights or privileges which an employee in any establishment is entitled to at the date this Act comes into force in a local area, under any other law, contract, custom or usage applicable to such establishment or any award, settlement or agreement binding on the employer and the employee in such establishment, if such rights or privileges are more favorable to him than those to which he would be entitled under this Act.

6. The object of the provision is to ensure that employees are not deprived of statutory benefits and does not prohibit an employer from granting more benefits more beneficial than those prescribed under the Act.

7. In the present case, admittedly, the applicants permitted accumulation of leave more than 42 days to their employees. Such accumulation by itself, does not constitute a violation of Section 35(1)(b) of the said Act. Grant of a benefit more favorable than the statutory minimum cannot be construed as a contravention of Section 35(1)(b) of the Act. The complaint, therefore, does not disclose the commission of any offence and has been filed without any reasonable grounds. The learned Magistrate has passed the issue process order against the applicants without due application of mind and in a mechanical manner. Consequently, the order issuing process and the summons issued pursuant thereto is perverse in nature and not sustainable in law.

8. In view of the above, I pass following order: O R D E R (1) The application is allowed. (2) The complaint No.11802/SS of 2015 filed by respondent No.2 and pending before the Metropolitan Magistrate, 39th Court, Vile Parle, Mumbai, under Section 35(1)(b) of the Maharashtra Shops and Establishments Act, 1948, is quashed and set-aside. The application is disposed of in above terms. (SHIVKUMAR DIGE, J.)