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2002 DIGILAW 270 (JHR)

Bharat Coking Coal Limited v. Union Of India

2002-03-04

M.Y.EQBAL

body2002
JUDGMENT M.Y. Eqbal, J. 1. Heard Mr. M. Rohtagi learned senior Counsel appearing for the petitioner and Mr. P.K. Prasad learned Counsel appearing for the respondents and in view of the question of law involved in this writ application the same is disposed of with the consent of the parties at the admission stage. 2. The petitioner M/s Bharat Coking Coal Limited has prayed for issuance of appropriate writ in the nature of certiorari for quashing notices issued by the respondent Assistant Labour Commissioner whereby he has called upon the Chairman-cum- Managing Director and Secretary of the Company besides other officers to show-cause as to why legal action for their prosecution under Section 29 of the Industrial Disputes Act be not taken against them for the alleged violation of the Settlement and the award passed by the Labour Court and the Tribunal. 3. The grievance of the petitioner Company is that the Assistant Labour Commissioner(C) Dhanbad has adopted a trend by lodging prosecution case Under Section 29 of the Industrial Disputes Act, 1947 (in short, the Act.) in which apart from naming other officers of the Company, they are deliberately impleading the Chairman-cum-Managing Director, Director (Personnel) and the Company Secretary for prosecution on the ground of non-implementation of the Award of which neither the Chairman-cum-Managing Director nor Director (Personnel) or the Company Secretary has any knowledge nor any breach of the award has been committed by them. 4. Mr. M. Rohtagi learned senior Counsel appearing for the petitioner argued that petitioner Bharat Coking Coal Ltd. is a vast organisation spread into hundreds of kilometres involved in mining/extraction of coal in various mines situated at for of places and its head office as situated at Dhanbad. There are about 1,16.000 men on its roll working and spread over 84 mines which is classified and under the fold of 15 area General Manager/Chief General Manager who are incharge and responsible for its day to day function. Learned Counsel submitted that petitioner company with the approval of the competent authority named and prescribed the authorities to act as employer under Section 2(g) of the said Act in respect of the establishment under their respective jurisdiction who were competent to sign settlements, written statements and other pleading required to be filed before the Conciliation Officer, Industrial Tribunals and the Labour Court. These Officers have been made responsible for compliance of all labour laws in respect of their respective jurisdiction. Accordingly the Area Chief General Manager/ General Manager of the mining area were named as employers, head of the department of the respective colliery. Mr. Rohtagi drawn my attention to the relevant provisions of the Act and submitted that in the event of non-Implementation of the settlements or the award prosecution ought to have been initiated against the officers responsible for the implementation of the Award. Learned Counsel relied upon two decisions of the Supreme Court in the case of Municipal Corporation of Delhi v. Ram Kishan Rohtagi, (1983) 1 SCC 1 and in the case of State of Haryana v. Brij Lal Mittal and Ors., (1998) 5 SCC 343 . 5. On the other hand. Mr. P.K. Prasad, learned Standing Counsel Central Government submitted that petitioner Company is a juristic person and the provisions of Section 32 makes it clear that offence is primarily committed by a Company for which not only the Company but every Directors, Managers or person concerned with the management of the Company are responsible for implementation of the Award. Learned Counsel put heavy reliance upon the decision of the Calcutta High Court in the case of State of West Bengal v. United Rubber Works Ltd., AIR 1959 Cal 759 and the decision of the Patna High Court in the case of G.C. Mrig v. State of Bihar, (1994) 1 PLJR 47, 6. Before appreciating the rival contention of Counsels appearing for both the parties. I would first like to refer some of the relevant provisions of the Act. The term "employer" has been defined under Section 2(g) of the said Act. which reads as under : "Employer means"--(i) in relation to an Industry carried on by or under the authority of any department (the Central Government or a State Government), the authority prescribed in this behalf or where no authority is prescribed, the head of the department; (ii) in relation to an industry carried on by or on behalf of a local authority, the chief executive officer of that authority; 7. The Industrial Disputes (Central) Rules. 1957. interpreted the word "employer" as under : "With reference to Clause (g) of Section 2. it is hereby prescribed that- (i) in relation to an industry not being an industry referred to in Sub- clause (ii). The Industrial Disputes (Central) Rules. 1957. interpreted the word "employer" as under : "With reference to Clause (g) of Section 2. it is hereby prescribed that- (i) in relation to an industry not being an industry referred to in Sub- clause (ii). carried on by or under the authority of a Department of the Central or a State Government, the officer incharge of the industrial establishment shall be the employer in respect of that establishment; and (ii) in relation to an industry concerning railways, carried on by or under the authority of a department of the Central Government- (a) in the case of establishment of a Zonal Railway, the General Manager of that railway shall be employer in respect of regular railway servants other than casual labour; (b) in the case of an establishment of a Zonal Railway, the Officer-in- charge of the establishment shall be the employer in respect of regular railway servants other than casual labour; and (c) the District Officer-in-charge or the Divisional Personnel Officer or the Personnel Officer shall be the employer in respect of casual labour employed on a Zonal Railway or any other railway establishment independent of a Zonal Railway. 8. Section 29 of the Industrial Disputes Act, 1947 lays down the provisions in relation to penalty for breach of settlement or award. Section 29 reads as under : "Penalty for breach of settlement or award.--Any person who commits a breach of any term of any settlement or award which is binding on him under this Act shall be punishable with imprisonment for a term which may extend to six months, or with fine, or with both (and where the breach is a continuing one, with a further fine which may extended to two hundred rupees for every day during which the breach continues after the conviction for the first and the Court trying the offence, if it fines the offender, may direct that the whole or any part of the fine realised from him shall be paid by way of compensation to any person who in its opinion, has been injured by such breach). 9. Another relevant provision. Section 32 of the said Act, which deals with the offence committed by the Company. 9. Another relevant provision. Section 32 of the said Act, which deals with the offence committed by the Company. Section 32 reads as under : "Offence by Companies etc.--Where a person committing an offence under this Act is a company, or other body corporate, or an association of persons (where incorporated or not) every director, manager, Secretary, agent or other officer or person concerned with the management thereof shall unless he proves that the offence was committed without his knowledge or consent, be deemed to be guilty of such offence." 10. From bare perusal of Section 32 of the Act. it is manifest that if the Company commits a breach of any terms of any settlement or award then every Director. Manager. Secretary, Agent or other officer of person concerned with the Management shall be deemed to be guilty of such offence unless it is proved that the offence was committed without his knowledge or consent. 11. The petitioner M/s. Bharat Coking Coal Limited by letter dated 4.11.98 informed the Regional Labour Commissioner (C). Govt. of India. Ministry of Labour. Dhanbad that the Company has specified the officers and prescribed the authorities who shall be competent to sign settlements written statements, rejoinders and shall be responsible for implementation of the Award in respect of Indus trial Disputes in the capacity of Employers. The Labour Commissioner was further in formed by the Company that the officers so specified will be responsible for compliance of all labour laws in their respective jurisdiction. The authorities prescribed for the aforesaid purposes are quoted herein below : __________________________________________________________________ Unit Head of Deptt. __________________________________________________________________ 1. Colliery, Project, Area Establishment Area CGM/GM of the concerned Area. 2. Power Plant, Training Centre, Dispensaries, Workshop, B.H. Ovens, Coke plant, DG Stn, falling within the administrative jurisdiction of the Area. Area GM/CGM of the concerned area. 3. All Washeries Chief of Washeries. 4. Washeries under Construction CGM (WCP) 5. Central Township CGM (Admn.) 6. Central Hospital, Inde-pendent Dispensaries CMO 7. Ropeways GM Ropeways 8. Regional Stores /Central Stores CGM (MM) 9. Desk Office/Liaison Office, Calcutta. CGM ( M), Calcutta. 10. Hqrs. Deptt.. not covered by above. GM (P & IR) __________________________________________________________________ 12. 3. All Washeries Chief of Washeries. 4. Washeries under Construction CGM (WCP) 5. Central Township CGM (Admn.) 6. Central Hospital, Inde-pendent Dispensaries CMO 7. Ropeways GM Ropeways 8. Regional Stores /Central Stores CGM (MM) 9. Desk Office/Liaison Office, Calcutta. CGM ( M), Calcutta. 10. Hqrs. Deptt.. not covered by above. GM (P & IR) __________________________________________________________________ 12. The Regional Labour Commissioner took notice of aforementioned letter of the petitioner which is evident from the fact that in the impugned notices issued by the Assistant Labour Commissioner (C) Dhanbad it is mentioned that the Regional Labour Commissioner (C) Dhanbad had advised the Chief General Manager of the concerned colliery of the petitioner to implement the said Award within 15 days. The relevant portion of impugned notice dated 29.5.2001 is quoted herein below : "And whereas the Regional Labour Commissioner (C). Dhanbad vide his letter No. 1/67/88 had advised the General Manager. Kusunda Area of M/s BCCL to implement the said award within 15 days. Since no implementation report has been received in this regard, it is construed that the award mentioned above is yet to be implemented. You are, therefore, requested to implement the said award within 10 days from the date of receipt of this letter and also Show-cause as to why legal action should not be initiated against you as well as your management as provided under Section 29 of the Industrial Disputes Act, 1947 for the violation mentioned above. Although the award in question was set aside by the Honble High Court in CWJC No. 899/89 vide its order dated 21.9.88 the Honble High Court...above-mentioned award vide its order dated 21.3.2001." 13. Similarly, in the notice dated 9.5.2001 the Assistant Labour Commissioner stated as under : "And whereas the Regional Labour Commissioner (C). Dhanbad had advised the Chief General Manager. Lodna Area No. 10 of M/S BCCL to implement the said award within 15 days. Since no implementation report has been received in this regard, it is construed that the award mentioned above is yet to be implemented. The said failure on the part of the management to implement the award given by the CG1T attracts legal action under Section 29 read with Section 29 of the Industrial Dispute Act. 1947. Since no implementation report has been received in this regard, it is construed that the award mentioned above is yet to be implemented. The said failure on the part of the management to implement the award given by the CG1T attracts legal action under Section 29 read with Section 29 of the Industrial Dispute Act. 1947. You are therefore, requested to implement the said award within 10 days from the date of receipt of this letter and also Show-cause as to why legal action should not be initiated against you as well as your management as provided under Section 29 of the Industrial Dispute Act. 1947 for the violation mentioned above. In case there is any stay granted by Honble Court, please submit a copy of the same." 14. In all other impugned notices the Chief General Manager of the concerned area of the colliery was advised to implement the award, failing which steps would be taken under Section 29 and 32 of the said Act. All these notices have been annexed as Annexures-A series. Similarly, for non-implementation of the settlement, the impugned notices were issued mentioning that the General Manager/Secretary of the Company entered into a settlement with the Union but the said settlement was not implemented. All these notices have been rightly issued by the Assistant Labour Commissioner. Dhanbad asking the General Manager and the Manager to show-cause as to why they should not be prosecuted under Section 29 read with Section 32 of the Act for their failure to implement the Award, But there was no occasion for the Assistant Labour Commissioner to issue show-cause notice to the Chairman-cum-Managing Director and the Secretary of the Company for the alleged non-implementation of the award, particularly when as noticed above, the authorities responsible for the implementation of the settlement of the award has been prescribed by the petitioner Company. It would have been different if the copies of the show-case notice issued to the officers responsible for implementation of the settlement of award be given to the Chairman-cum-Managing Director and the Secretary of the Company for their information and follow up action. 15. There can not be any doubt that the provisions of the Industrial Disputes Act including Section 29 of the Act have been enacted to safeguard the interest of the persons engaged in the industry and also for the purpose of maintaining industrial peace. 15. There can not be any doubt that the provisions of the Industrial Disputes Act including Section 29 of the Act have been enacted to safeguard the interest of the persons engaged in the industry and also for the purpose of maintaining industrial peace. For achieving these purposes Labour Court and Industrial Tribunals have been constituted and vested power to adjudicate disputes and to make awards. These awards or settlements if not implemented by the Management, the officers of the Management responsible for implementation of the settlement and award are liable to be prosecuted. However, it is well settled that a criminal offence is only committed when an Act which is forbidden by la is done voluntarily. Metis rea is motive force behind the criminal Act. If there is no mens rea no offence is committed, although the act may prove detrimental to an individual or individuals. It is only a voluntary act which amounts to an offence. It is equally well settled that metis rea is a necessary ingredient to be proved for prosecuting a person under Section 29 of the Act. 16. As noticed above, reading Section 29 and Section 32 together, it is clear that persons who are responsible for the implementation of settlement and Award are liable to be prosecuted. Strict liability has been imposed by the aforesaid provisions of the Act on the persons who are responsible for implementation of the settlement and the award. In my opinion therefore. Assistant Labour Commissioner ought to have issued show-cause notices against the Chief General Manager. General Manager and other officers prescribed and authorised by the Company for implementation of the settlement And the award with a copy to the Chairman-cm-Managing Director and the Secretary of the Company for information and for follow up action. Besides the above, before issuing show-cause notices, the Assistant Labour Commissioner has not mentioned in the notice that despite knowledge and information the Chairman and the Secretary of the Company ignored and disregarded the settlement and the award and they are responsible for non- implementation of the award. In my considered opinion therefore, show-cause notices issued by the Assistant Labour Commissioner against the Chairman and the Secretary of the petitioner Company is not justified at this stage. In my considered opinion therefore, show-cause notices issued by the Assistant Labour Commissioner against the Chairman and the Secretary of the petitioner Company is not justified at this stage. So far the impugned show-cause notices issued against the General Manager, Manager and other officers of the petitioner Company, who are responsible for the Implementation of settlement and award is concerned, 1 do not find any reason to interfere with the same. 17. Having regard to the facts of the case and the law discussed herein above this writ application is allowed in part and it is held that the Assistant Labour Commissioner was not Justified in issuing show-cause notices against the Chairman and the Secretary of the petitioner Company.