Section 63 of the Code on Wages, 2019: Exemption of Employer from Liability in Certain Cases
Section 63 provides a specific defence procedure where an employer charged with an offence under the Code alleges that another person was the actual offender. The provision does not create an automatic exemption: the statutory conditions must be proved to the satisfaction of the court.
What Section 63 means
When an employer is prosecuted for an offence under the Code, the employer may, upon a duly made complaint, require the person alleged to be the actual offender to be brought before the court at the time fixed for hearing. After commission of the offence is proved, the employer must establish both statutory conditions before being discharged from liability for that offence.
Conditions for discharge of the employer
The employer must prove that due diligence was used to enforce compliance with the Code and that the actual offender committed the offence without the employer's knowledge, consent or connivance. If these requirements are established to the court's satisfaction, the actual offender is liable to the same punishment as if that person were the employer, while the employer is discharged in respect of that offence.
Meaning of the key expressions
Due diligence in Section 63 refers to the employer's obligation to show active and reasonable steps to secure compliance with the Code. Knowledge, consent or connivance addresses the employer's involvement in, awareness of, approval of, or participation in the offending conduct. Whether the statutory test is met depends on the evidence and circumstances before the court.
Text of Section 63
63. Exemption of employer from liability in certain cases.
Where an employer is charged with an offence under this Code, he shall be entitled upon complaint duly made by him, to have any other person whom he charges as the actual offender, brought before the court at the time appointed for hearing the charge; and if, after the commission of the offence has been proved, the employer proves to the satisfaction of the court-
(a) that he has used due diligence to enforce the execution of this Code; and
(b) that the said other person committed the offence in question without his knowledge, consent or connivance, that other person shall be convicted of the offence and shall be liable to the like punishment as if he were the employer and the employer shall be discharged from any liability under this Code in respect of such offence:
Provided that in seeking to prove, as aforesaid, the employer may be examined on oath, and the evidence of the employer or his witness, if any, shall be subject to cross-examination by or on behalf of the person whom the employer charges as the actual offender and by the prosecution.
Procedure and evidence under Section 63
The proviso permits the employer to be examined on oath. The employer's evidence, and the evidence of any witness produced by the employer, remains subject to cross-examination both by or on behalf of the person accused by the employer as the actual offender and by the prosecution. The provision therefore preserves an adversarial examination of the employer's defence.
Practical significance
Section 63 is relevant to allocation of criminal liability under the Code. An employer relying on it should be able to place before the court evidence of compliance systems, instructions, supervision and other due-diligence measures, together with evidence supporting the assertion that the identified person acted without the employer's knowledge, consent or connivance.
Official legal resources
For the current statutory text, see India Code - Code on Wages, 2019. For labour-code notifications and materials, see the Ministry of Labour and Employment and the Chief Labour Commissioner (Central).
This page is a general legal information resource. For a specific prosecution or compliance issue, the facts, applicable rules, notifications and court orders should be examined separately.