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1988 DIGILAW 111 (PAT)

Hari Charan Singh v. State Of Bihar

1988-03-25

L.P.N.SHAHDEO

body1988
Judgment L.P.N.Sahadeo, J. 1. This application under sec. 482 of the Cr.P.C. has been filed for quashing the entire criminal (proceeding in M.W. Case No. 73 of 1982 and the order taking cognizance dated 24.6.1982 passed by the learned Chief Judicial Magistrate, Dhanbad. 2. It appears that the Labour Inspector, had inspected the company of the petitioner, known as M/s. U.S. Dugal and Company and found that certain registers were not maintained in accordance with the requirements of Minimum Wages Act and the Rules, framed thereunder. He had given a list of registers, viz., Casual Labour Register, Destruction and Loss Register, Excess Payment Register Mustor Roll Register etc. Thereafter he sent reminders for those registers to the Project Manager several times and every time, he received letters for extension of time and ultimately, when those registers were not produced, he filed this case for the alleged violation of sections 19(3) and 19(4) of the Act, and thereafter a complaint was filed and cognizance of the offence was taken and the petitioners were summoned. 3. Mr. M.K. Laik, learned Counsel for the petitioners submitted that the petitioners are shown as the Directors of M/s. U.S. Dugal and Company and there is no specific allegation that they were responsible for the conduct of the business and as such the prosecution of the petitioners is a clear misuse of the powers of the Court. It was further pointed out that in substance, the Labour Inspector had entered into several correspondences with the Project Manager, which shows that the Project Manager was responsible for the affairs of the company and as such he should have been prosecuted, if any, violation was made and not the Directors, who were not even present, nor were responsible for the day to day affairs of the company. 4. Mr. Jhunjhunwala, learned Counsel for the opposite-party, relied on the Full Bench ruling, reported in Madan Mohan Upadhayay and others V/s. The State of Bihar1 and submitted that if the offence is committed by a firm or a company, all persons, whether director, manager, or partner etc. are liable for the offence committed and it is not necessary that the Director, Manager or partner should be specifically named that any offence was committed with their connivance or consent and in this view of the matter, the petitioners who are the directors of the company are also liable for prosecution. are liable for the offence committed and it is not necessary that the Director, Manager or partner should be specifically named that any offence was committed with their connivance or consent and in this view of the matter, the petitioners who are the directors of the company are also liable for prosecution. In the complaint petition the petitioners have been described as the Managing Directors and Director and the Company has also been made an accused along with the Managing Director and Directors. Admittedly, the complainant had entered into correspondences with the Supervisor and the Project Manager of the Company for production of the relevant registers but that was not done nor his directions were complied with. It also appears that he also informed the Directors about the violation of the relevant provisions but in spite of that, nothing was done by any of the petitioners. The allegation, therefore was that all the petitioners, one way or the other, were responsible and the violation so committed was brought to their notice, but still no action was taken. In the Full Banch ruling, it has been specifically held that if the offence is committed by the company or the firm its Director, Manager or the Partner become vicariously liable for the offence and continue to be so liable, unless and until, they prove to the contrary and naming of the Director, Manager or the Partner in the complaint specifically, is not necessary. 5. In another Full Bench ruling reported in Sri Badri Prasad Gupta V. The State of Bihar2, which was a case under the Shops and Establishment Act, sec. 35 of that Act was found to be pari materia to section 10 of the Essential Commodities Act. In this case also it was held that it is not required to plead in the complaint that Director, Partner, Manager or the Secretary, either exercise ultimate control over the affairs of the company or the partnership firm or was in immediate charge of the general management or control then of for the offences for contravention of that Act. In another ruling reported in Mahmud Ali V/s. State of Bihar3, which was a case under the Water (Prevention and Control of Pollution) Act, 1974, it was held that section 77 of that Act was similar to sec. In another ruling reported in Mahmud Ali V/s. State of Bihar3, which was a case under the Water (Prevention and Control of Pollution) Act, 1974, it was held that section 77 of that Act was similar to sec. 10 of the Essential Commodities Act and on that basis, it was held that every person by a fiction of law who is incharge or responsible to the company for the conduct of its business, in the eye of law, deemed as much guilty as the primal offending company. It was further held that no doubt, this Rule is stringent and rigorous except to the extent that a person on whom the vicarious liability has been fastened may avoid his prosecution, if he proves that the offence was committed without his knowledge or he exercised all due diligence to prevent the commission of the offence. 6. On the other hand, learned Counsel for the petitioners submitted that the petitioners being the Directors are not liable for prosecution, on the basis of the ruling reported in Municipal Corporation of Delhi V/s. Ram Kishore Rohtogi4. The State of Madras V/s. C. V. Parekh and another5. These rulings were also considered in the Full Bench cases reported in 1986 PLJR 346 (supra) and 1986 PLJR 537 (supra) and, thereafter it was held as indicated above. 7. 1n this connection, it should be noted that sec. 22(c) of the Minimum Wages Act, 1948 is pari materia to sec. 12 of the Essential Commodities Act and, therefore, all the aforesaid Full Bench rulings of this Court arc applicable to the instant case. The petitioners who are Directors can be prosecuted along with the company under the Minimum Wages Act and Rules if violation is committed. It is not necessary to point the specific part played by each of them or individual responsibility in the complaint. 8. It was also contended that cognizance has been taken under sec. 22-A of the Act and so section 22-C has no application. Cognizance is taken of the offence and the fact constituting the offence is to be considered and not the section at the time of the trial or framing of the charges. The learned Counsel may press this point at the time of trial at the proper stage. 22-A of the Act and so section 22-C has no application. Cognizance is taken of the offence and the fact constituting the offence is to be considered and not the section at the time of the trial or framing of the charges. The learned Counsel may press this point at the time of trial at the proper stage. It was further submitted by the learned Counsel for the petitioners that since, four years have elapsed after passing of the order of cognizance and the Directors who live far away from the placed occurrence cannot be informed immediately and they may not be knowing about this case and in these circumstances, the Court may be directed to issue a fresh summon to them and then if they appear they be granted bail. This appears to be a reasonable submission. The court below shall consider this matter and pass necessary orders in accordance with law. 9. In the result, for the reasons stated above, I do not find any merit in this application, it is accordingly dismissed.