J. P. Gupta v. Union Of India — 1980 DIGILAW 179 (PAT)

Judgment NAGENDRA PRASAD SINGH, J. 1. The petitioners in these applications have questioned the authority of the respondent- Labour Enforcement Officer to launch prosecution of the petitioners for an offence under Section 23 of the Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter to be referred to as the Act). They have also challenged the legality of the orders passed by the respondent Chief Judicial Magistrate/Subdivisional Judicial Magistrate summoning them to stand trial for the offence under the aforesaid section. The applications had been filed under Arts. 226 and 227 of the Constitution of India on the assumption that the petitioners were being prosecuted for having contravened a notification issued under sub-section (1) of S. 10 of the Act, which, according to them, is ultra vires. However, during the course of hearing S. 482 of the Cr. P. C, 1973 was also added. As common questions of law are involved in these applications, they were heard together. 2. The petitioners in these applications are Area General Manager, Superintendent of Mines and other officials of different collieries which belong to the Central Coal Fields Limited or Bharat Coking Coal Ltd. which are Government companies within the meaning of S. 617 of the Indian Companies Act, 1956. The mining rights in various coal fields were acquired under the provisions of the Coal Bearing Areas (Acquisition and Development) Act, 1973 and after acquisition the rights were transferred to the Government Companies mentioned above, who are carrying on the mining operations. 3. From time to time provisions have been made under the different enactments regulating the mining in different fields, in order to ensure safety and to eliminate malpractices. One of such enactments is the Act aforesaid. The preamble of the Act says that it is to regulate the employment of contract labour to certain establishments and "to provide for the abolition in certain circumstances". Sub-section (4) of Sec. 1 provides that the provision of the Act applies to every establishment in which twenty or more workmen are employed or were employed on any day of the preceding 12 months as contract labour. Sub-section (4) of Sec. 1 provides that the provision of the Act applies to every establishment in which twenty or more workmen are employed or were employed on any day of the preceding 12 months as contract labour. Section 2 (2) (b) defines contract labour as follows : "a workman shall be deemed to be employed as contract labour in or in connection with the work of an establishment when he is hired in or in connection with such work by or, through a contractor, with or without the knowledge of the principal employer." Section 2 (2) (e) defines establishment as follows : "establishment means (i) any office or department of the Government or a local authority, or (ii) any place where any industry, trade, business, manufacture or occupation is carried on." Section 2 (2) (g) defines "principal employer". The relevant portion thereof is as follows: "Principal employer means (iii) In a mine, the owner or agent of the mine and where a person has been named as the manager of the mine, the person so named." Under Section 3 the Central Government has to constitute a Board to be called the Central Advisory Contract Labour Board, known as Central Board, to advise the Central Government on such matters arising out of the administration of the Act. Section 7 requires every principal employer of an establishment to which the Act applies, to make an application to the registering officer for registration of the establishment. Section 8 contains the provision for revocation of the registration under certain circumstances. Section 9 provides the effect of non-registration and says that no principal employer of an establishment to which this Act applies shall employ contract labour in the establishment, in case of an establishment required to be registered under Section 7, but has not been registered or in case of an establishment in respect of which the registration has been revoked under Section 8. Section 10, is as follows: "(1) Notwithstanding anything contained in this Act, the appropriate Government may, after consultation with the Central Board, or as the case may be, a State Board prohibit, by notification in the Official Gazette, employment of contract labour in any process, operation or other work in any establishment. Section 10, is as follows: "(1) Notwithstanding anything contained in this Act, the appropriate Government may, after consultation with the Central Board, or as the case may be, a State Board prohibit, by notification in the Official Gazette, employment of contract labour in any process, operation or other work in any establishment. (2) Before issuing any notification under sub-section (1) in relation to an establishment the appropriate Government shall have regard to the conditions of work and benefits provided for the contract labour in that establishment and other relevant factors, such as (a) whether the process, operation or other work is incidental to, or necessary for the industry, trade, business, manufacture or occupation that is carried on in the establishment; (b) whether it is of perennial nature, that is to say, it is of sufficient duration having regard to the nature of industry, trade, business, manufacture or occupation carried on in that establishment; (c) whether it is done ordinarily through regular workmen in that establishment or an establishment similar thereto; (d) whether it is sufficient to employ considerable number of whole-time workmen. Explanation If a question arises whether any process or operation or other work is of perennial nature, the decision of the appropriate Government thereon shall be final." Section 23, which is the penal provision, is as follows : "Whoever contravenes any provision of this Act or of any rules made thereunder prohibiting, restricting or regulating the employment of contract labour, or contravenes any condition of a licence granted under this Act, shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to one thousand rupees, or with both, and in the case of a continuing contravention with an additional fine which may extend to one hundred rupees for every day during which such contravention continues after conviction for the first such contravention." Under Section 28 Inspectors have to be appointed who have right to enter at all reasonable hours in the premises of the mine and to examine records. 4. In purported exercise of the powers conferred by sub-section (1) of S. 10 of the Act, the Central Government issued a notification dated 1-2-1975 prohibiting employment of contract labour in five types of work specified in the schedule of the said notification, "in all the coal mines". The Schedule is as follows : "1. 4. In purported exercise of the powers conferred by sub-section (1) of S. 10 of the Act, the Central Government issued a notification dated 1-2-1975 prohibiting employment of contract labour in five types of work specified in the schedule of the said notification, "in all the coal mines". The Schedule is as follows : "1. Raising or raising-cum-selling of coal; 2. Coal loading and unloading; 3. Overburden removal and earth cutting; 4. Soft Coke manufacturing; 5. Driving of stone drifts and miscellaneous stone cutting underground." The charges which have been levelled against the petitioners are that they have contravened one or the other prohibition mentioned in the Schedule -of the aforesaid notification, and, as such, they have made themselves liable to be prosecuted for an offence under S. 23 of the Act. In other words, according to the complainant-respondents, the petitioners have employed contract labour either in coal loading and unloading or raising or raising-cum-selling of coal, or for any other purpose which has been prohibited by the aforesaid notification. 5. Learned counsel appearing for the petitioners in different cases submitted that although the petitioners do not admit to have contravened the prohibition contained in the notification in question, still, according to them, the notification itself is ultra vires having not been issued in accordance with the requirement of S. 10 of the Act According to Mr. K. K. Venugopal, who appeared on behalf of the petitioners its some of the cases, the Central Government could have issued the notification in question only after an effective consultation with the Central Board in respect of each individual establishment and after taking into consideration relevant factors mentioned in sub-section (2) of S. 10. According to him, the Central Government could not have issued a single notification prohibiting contract labour in all coal mines, rather the Central Government should have examined cases of each separate unit where mining operations are being carried on treating them to be separate establishments. This argument has been advanced as sub-sec. (1) of S. 10 of the Act speaks of prohibiting employment of contract labour "in any establishment". It is true that establishment has been defined in the Act as a place where any industry, trade, business, manufacture or occupation is carried on, and sub-section (1) of S. 10 lends support to the contention of the learned counsel. (1) of S. 10 of the Act speaks of prohibiting employment of contract labour "in any establishment". It is true that establishment has been defined in the Act as a place where any industry, trade, business, manufacture or occupation is carried on, and sub-section (1) of S. 10 lends support to the contention of the learned counsel. But, in my view, on examining the provisions of the Act in its proper context a single notifica tion can be issued in respect of different establishments if the operation and nature of work are similar in all the establishments, It was open to the Central Government to consider the question of prohibiting employment of contract labour in all coal mines in consultation with the Central Board if they were satisfied that all the coal mines suffer from the common problem, where such prohibition was called for. As such, the notification cannot be declared to be invalid merely because one notification for different coal mines has been issued. 6. It was then submitted that there has been no effective consultation between the Central Government and the Central Board because the Central Board was not properly constituted. This argument has been advanced on the basis that one Mr. Vohra, who was the representative of the employers of the coal industries, ceased to represent the said industry in view of the coal mines haveing been nationalised under the provisions of the different Acts. It is difficult to accept this contention. There is nothing in the Act or the Rules framed thereunder by which a member of the Central Board ceases to be a member no sooner he ceases to represent the interest which he purports to represent on the Board. On the other hand, R. 8 of the Central Labour (Regulation and Abolition) Control Rules, 1971, which have been framed under Section 35 of the Act; provides that Central Government may remove from office any member of the Board if in its opinion such a member has ceased to represent the interest which he purports to represent on the Board. The proviso of that rule requires reasonable opportunity to be given to such a member to represent before he is removed from the Board. The proviso of that rule requires reasonable opportunity to be given to such a member to represent before he is removed from the Board. Apart from that, the Board consists of several members, numbering between 13 to 19 persons, as such, even if it is assumed that because of nationalisation of the coal mines on the relevant date. Mr. Vohra cannot be said to have represented the employers, any consultation with Central Board shall not be vitiated only on that ground. 7. Then, it was urged that sub-section (2) of S. 10 of the Act required the Central Government before issuing notification prohibiting contract labour, to take into consideration the condition of the work, benefits provided for the contract labour in a particular establishment and other relevant factors mentioned in Cls. (a) to (d) of sub- section (2) of S. 10. According to the learned counsel, the decision to issue notification under Section 10 (1) was based on irrelevant considerations or has been taken without taking into account the factors mentioned in sub-section (2) of S. 10. In view of the decisions in the cases of Barium Chemicals Ltd. v. Company Law Board ( AIR 1967 SC 295 ); State of Assam v. Bharat Kala Bhandar Ltd. ( AIR 1967 SC 1766 ); R. D. & Chemical v. The Company Law Board ( AIR 1970 SC 1789 ); Purtapur Company Ltd. v. Cane Commr. of Bihar ( AIR 1970 SC 1896 ) and M. A. Rasheed v. State of Kerala ( AIR 1974 SC 2249 ), it is well established that where Parliament purports to restrict judical review by conferring powers in subjective terms, inasmuch as such authority is entitled to act when it is satisfied or when it appears to it, or when in its opinion it thinks proper to act, still the power of the courts to examine as to whether such satisfaction or opinion is based on relevant considerations and has been made in good faith, is not ousted. Courts can examine whether the condition precedent to the formation of the opinion has factual basis. From the record of the case it appears that the Central Government had consultation with the Central Board which was a representative body, and after such consultation the impugned notification was issued. Courts can examine whether the condition precedent to the formation of the opinion has factual basis. From the record of the case it appears that the Central Government had consultation with the Central Board which was a representative body, and after such consultation the impugned notification was issued. Nothing has been brought on the record of the case on the basis of which it can be held that the notification in question had been issued on some extraneous consideration or without taking into account the relevant factors mentioned in sub-section (2) of S. 10. The Central Government or the Genital Board was not required to put on record that they have examined the question of prohibition of contract labour in coal mines after taking into account each fact separately. 8. Learned counsel then submitted that even if it is assumed that the notification dated 1-2-1975 issued under sub-section (1) of S. 10 of the Act, (a copy whereof is Annexure 3 to most of the applications) does not suffer from any infirmity, still the learned Chief judicial Magistrate/Subdivisional Judicial Magistrate should not have summoned the petitioners without applying his judicial mind to the allegations made in the complaint. According to the learned counsel, even if the allegations made in the petition of complaint are accepted on their face value, no case has been made out so far as the petitioners are concerned, who are either the Area General Manager, or Mines Superintendent or other officials. The main grievance on this account appears to be that neither the petitioners are statutorily liable for the contravention of prohibition nor there is any factual allegation against them that they had contravened the said prohibition. If may be mentioned that the contractors who employed the labour are also accused in different cases, but they are not petitioners in these applications. 9. It cannot be disputed that a person cannot be prosecuted for an offence under Section 23 of the Act unless either he is made liable for the contravention statutorily or he is alleged to have factually contravened any provision of the Act or the Rules prohibiting employment of contract labour. 9. It cannot be disputed that a person cannot be prosecuted for an offence under Section 23 of the Act unless either he is made liable for the contravention statutorily or he is alleged to have factually contravened any provision of the Act or the Rules prohibiting employment of contract labour. I may state at the outset that there is no provision in the Act parallel to Section 18 of the Mines Act, 1952, which fixes vicarious liability on the owner, agent or manager of every mine making them responsible that all operations carried on in the mine are conducted in accordance with the provisions of the Act, the Regulations and of "any order made thereunder. Sub-section (2) of S. 18 of the Mines Act, 1952 clearly envisages that in event of any contravention of any such provision the owner, agent and manager of a mine shall be deemed also to be guilty of such contravention. So far as the provisions of the Act are concerned, only under S. 9 thereof it has been provided that no principal employer of an establishment shall employ contract labour where the establishment has not been registered in accordance with Section 7 or where the registration of an establishment has been revoked under S. 8. But, under Section 10 the liability for contravention of the prohibition contained in the notification has not been statutorily fixed on the principal employer or on any person by his office. The result will be that whosoever will employ contract labour in contravention of the notification issued under S. 10 shall be liable for conviction under S. 23. Section 23 itself begins with the words "whoever contravenes any provision of this Act or of any rules made thereunder prohibiting, restricting or regulating the employment of contract labour". As such, the complainant has to allege as to who are those persons who have contravened the said prohibition or restriction. Merely by alleging contravention, in my view, the principal employer, much less every official, of the mine shall not become liable for prosecution. 10. On behalf of the petitioners in most of the cases, it has been asserted that they will not be deemed to be principal employer within the meaning of C1. (g) of sub-sec. Merely by alleging contravention, in my view, the principal employer, much less every official, of the mine shall not become liable for prosecution. 10. On behalf of the petitioners in most of the cases, it has been asserted that they will not be deemed to be principal employer within the meaning of C1. (g) of sub-sec. (2) of S. 2 of the Act which in relation to mines means owner or agent of the mine or where a person has been named as the Manager of the mine, the person so named. In support of this contention that no specific allegation has been mentioned in the petitions of complaint, our attention was drawn to the statements in different complaint petitions. In the petition of complaint of Cr. W. J. C. No. 2 of 1980 (R) it has been stated first that the complainant had been appointed Inspector under Section 28 of the Act. Then if has been stated in para 3 that accused Nos. 1 and 2, meaning thereby the two petitioners, are "Principal employer". Then, in para 4 it has been stated that contract labourers numbering 42 were employed in the work of loading of coal in trucks for transportation of coal through contractor which amounted to contravention of aforesaid notification dated 1-2-1975. Now accused No. 1 is the Area General Manager and accused No. 2 is the Superintendent of Mines. It was asserted that neither of them are owner, agent or manager of the mine so as to be the principal employer within the meaning of the Act. More or less same is the position in other cases. In the- petition of complaint there is no allegation that the petitioners had employed contract labour in any process or operation which was prohibited by the notification. It was also pointed out that what was prohibited by the notification was coal loading and unloading in the mine, but the allegations in some of the complaints are regarding loading of the coal in trucks for transportation or in respect of operations which have not been prohibited. It was urged that on such vague allegations and in absence of necessary statements showing the complicity of these petitioners in the offence alleged, they have been summoned to stand trial for an offence under Sec. 23 of the Act. It was urged that on such vague allegations and in absence of necessary statements showing the complicity of these petitioners in the offence alleged, they have been summoned to stand trial for an offence under Sec. 23 of the Act. In my opinion, there is substance in the contention of the learned counsel appearing in support of different applications on this aspect of the matter. Section 23 makes it penal the contravention regarding employment of contract labour; as such, prima facie, statements are required to be made in the petition of complaint fixing the liability for such contravention on persons who are sought to be prosecuted. I am quite conscious that in many cases it may not be possible for the complainant exactly to know as to how contract labour has been employed and at whose instance. But, he has to make an endeavour to find out as far as possible the person who, in collusion with the contractor, has employed contract labour for operations which are prohibited by the notification, otherwise, the persons concerned can make legitimate grievance that they have been made accused merely because they are connected in one capacity or the other with the mine. I have already pointed out that whereas Section 9 fixes responsibility on the principal employer where contract labour are employed in an establishment which is not registered or where registration has been revoked, but Section 10 does not fix any such liability on the principal employer. Learned Chief Judicial Magistrate/Subdivisional Judicial Magistrate before issuing summons should have applied his mind to the question as to whether a prima facie case is made out on fee allegations made in the petition of complaint against accused persons or against any one of them. 11. In the case of Amar Nath v. State of Haryana ( AIR 1977 SC 2185 ) the Supreme Court observed as follows : "We are, therefore, satisfied that the order impugned was one which was a matter of moment and which did involve a decision regarding the rights of the appellants. 11. In the case of Amar Nath v. State of Haryana ( AIR 1977 SC 2185 ) the Supreme Court observed as follows : "We are, therefore, satisfied that the order impugned was one which was a matter of moment and which did involve a decision regarding the rights of the appellants. If the appellants were not summoned, then they could not have faced the trial at all, buf by compelling the appellants to face a trial without proper application of mind cannot be held to be an interlocutory matter but one which decided a serious question as to the rights of the appellants to be put on trial." Similarly, in the case of Dr. S. P. Kohli v. High Court of Punjab & Haryana ( AIR 1978 SC 1753 ) it was observed by the Supreme Court as follows : "It is true that what the courts have to see before issuing the process against the accused is whether there is evidence in support of the allegations made by the complainant to justify the initiation of proceedings against the accused and not whether the evidence is sufficient to warrant his conviction, but this does not mean that the courts should not prima facie be of the opinion that there are sufficient and reasonable grounds for setting the machinery of criminal law in motion against the accused. The moment this guiding principle is overlooked, the prosecution degenerates itself into persecution which often is fraught with civil consequences." Section 204 of the Cr. P. C. requires the court before issuance of process to form an opinion on the materials on record that there are sufficient grounds for proceeding against the accused persons. As such, learned Chief Judicial Magistrate/Subdivisional Judicial Magistrate should have perused the statements made in different petitions of complaint against different accused persons and should have examined as to whether prima facie case was made out for directing them or any one of them to stand trial. For this purpose, if necessary, an inquiry under Section 202 of the Code of Criminal Procedure could be held. 12 In the result, all these applications are allowed and the orders summoning so far as the petitioners in different cases are concerned, who are other than contractors, are quashed. For this purpose, if necessary, an inquiry under Section 202 of the Code of Criminal Procedure could be held. 12 In the result, all these applications are allowed and the orders summoning so far as the petitioners in different cases are concerned, who are other than contractors, are quashed. Learned Chief Judicial Magistrate/Subdivisional Judicial Magistrate shall examine the allegations made in the petitions of complaint against different petitioners and, thereafter, pass a fresh order in accordance with law in the light of the observations made above. GOBIND MOHAN MISRA, J. 13 I agree. Applications allowed.