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2006 DIGILAW 1066 (PAT)

Aditya Puri v. State Of Bihar

2006-11-14

GHANSHYAM PRASAD

body2006
Judgment 1. Through this application under Sec. 482 of the Code of Criminal Procedure the petitioner has sought to quash the entire proceeding as well as the order dated 8.9.2003 passed by the Chief Judicial Magistrate, Patna in Complaint Case No. 2069(M) of 2003 thereby and thereunder cognizance has been taken against the petitioner under Sections 23 and 24 of Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter referred to as the Act). 2. The petitioner is the Chief Managing Director of Housing Development Finance Corporation Bank (H.D.F.C. Bank) Mumbai. The Bank has its branch in Exhibition Road, Patna-1. It appears from Annexure-1 a complaint filed by the Labour Enforcement Officer (Central), Patna that on 10.6.2003 he being appointed as Inspector under the Act, inspected the Branch Office of H.D.F.C. Bank situated at Exhibition Road, Patna and found the employment of workers by the Branch Office in violation of provisions of the Act and its rules. Accordingly, he lodged the complaint case against the petitioner as Principal Employer of the. Branch of the Bank. 3. Learned counsel for the petitioner seeks quashing the criminal proceedings against the petitioner on two grounds. It is submitted that in view of the averment made in paragraph 3 of the complaint petition, the Act does not apply against the establishment in question i.e. the Branch Office of the Bank. In this connection he refers to Sec. 4(a) of the Act. It is submitted that according to the above provision, the Act is not applicable to the establishment which is found employing the workman less than twenty in number. In this case, according to paragraph 3 of the complaint petition the Branch was found employing only nine workmen. The second submission of the learned counsel for the petitioner is that this petitioner was not directly responsible for the conduct of business of the Branch in question and, therefore, he cannot deem to be guilty of the alleged offence only because he is the Chief Managing Director of the Bank situated at Mumbai. In this connection he refers to Sec.25 of the Act. 4. In this connection he refers to Sec.25 of the Act. 4. On the other hand, learned counsel for Opposite Party contends that the inspection report (annexure-3) would go to show that apart from employment of nine workmen the Branch of the Bank was also found employing sixty more workmen through contractors during the preceding twelve months and, therefore, this Act is fully applicable to the Branch Office in question. The other submission is that the petitioner being Chief Managing Director is deemed to be the Principal Employer as defined under Sec.2(g) of the Act and hence he is liable to be prosecuted in view of the provisions of Sec.25 of the Act. 5. So far the first submission of learned counsel for the petitioner is concerned, it has got no merit. It is true that in paragraph 3 of the complaint petition the number of workmen employed on 10.6.2003 has been mentioned as nine only. However, the inspection report (annexure-3) which is considered to be part of the complaint petition goes to show that the establishment was found employing sixty workmen during the preceding twelve months through the contractors. Sections 2(b) and 2(c) of the Act make it clear which are quoted hereinbelow:- 2(b). 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; 2(c). "contractor" in relation to an establishment means a person who undertakes to produce a given result of the establishment, other than a mere supply of goods or articles of manufacture to such establishment, through contract labour or who supplies contract labour for any work of the establishment and includes a sub-contractor. 6. Therefore, it is quite clear that the Act is fully applicable to the establishment in question and he is liable to be prosecuted for contravention and violation of the Act or Rules concerning the contract labour. 7. However, the second submission of the learned counsel for the petitioner appears to have got merit. Admitted position is that the petitioner is posted at Mumbai in Headquarter of the Bank. He is not at all responsible for day to day affairs of the Branch Office of the Bank. It is the Branch Manager who looks after the Bank. 7. However, the second submission of the learned counsel for the petitioner appears to have got merit. Admitted position is that the petitioner is posted at Mumbai in Headquarter of the Bank. He is not at all responsible for day to day affairs of the Branch Office of the Bank. It is the Branch Manager who looks after the Bank. The inspection report also goes to show that on the date of inspection only Branch Manager was found present. Therefore, it is submitted on behalf of the petitioner that Sec.25 of the Act does not come to fasten liability with the petitioner. Learned counsel for the petitioner in support of his above submission has relied upon three decisions reported in 1996(1) PLJR 856 (D.B) (Indian Iron and Steel Company Limited and Others vs. The State of Bihar and Another), 1988 BLJR 461 (L.K. Ahuja and Others vs. State of Bihar and Others), and a decision of Jharkhand High Court passed in Cr. Misc. No. 854 of 2000 (Aditya Puri vs. The Union of India and Others). 8. I am inclined to refer the decision of the Division Bench reported in 1996(1) PUR 856 (supra) which is sufficient to settle the issue involved in this case, in that very judgment scope of Sec.25 of the Act to fasten the liability upon the Principal Employer has been considered and ultimately it has been held as follows in paragraph 16 of the judgment; "Sec.25 of the Act provides that if the person committing an offence under the Act is a company, the company as well as every person in charge of, and responsible to the company for the conduct of its business at the time of commission of the offence shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. From the complaint lodged by the Labour Enforcement Officer it appears that petitioner no. 2 has been made an accused only because he happened to be the Chief Executive of the Colliery in question, and is also the principal employer as per Sec.2(g)(iii) of the Act. While we do not express any view on the question as to whether petitioner no. 2 has been made an accused only because he happened to be the Chief Executive of the Colliery in question, and is also the principal employer as per Sec.2(g)(iii) of the Act. While we do not express any view on the question as to whether petitioner no. 2 should be prosecuted in the instant case, we do feel that before a prosecution is launched against an officer or a company it must be preceded by some enquiry on the question as to whether the person sought to be prosecuted has some role to play in the employment of contractual labour in contravention of the notification. Mere mechanical production of the words of the statute and the naming of an accused also in a mechanical manner without making some enquiry into the matter must not be encouraged because that may have the effect of harassing an innocent officer while exonerating one who ought to have been prosecuted. There is nothing in the complaint disclosing on what basis it is alleged that petitioner no. 2 had engaged the contract labour for removal of overburden. The Act seeks to punish those who are responsible for the commission of an office and we cannot lose sight of the fact that the existence of mens rea is not excluded either by any express provision of the Act or by necessary implication. It was submitted on behalf of the petitioners that the Company in question had appointed a Manager as statutorily required under Sec.17 of the Mines Act." 9. In other two above cited decisions almost similar view has been taken. In case of L.K. Ahuja and Others (supra) it has been held as follows; "From a perusal of the complaint petition, it also appears that the petitioners have been proceeded against for not sending the copy of the notice to the Labour Enforcement Officer as required under Section 81(2) of the said Rules and the notice has not been displayed in Hindi as required under Section 79 of the aforesaid Rules. So far as, these two Acts are concerned, the partner who is looking after the day to day affairs of the Company is expected to do these acts. And if any violation is made petitioner No.1 may be liable to be proceeded against for the alleged violation. So far as, these two Acts are concerned, the partner who is looking after the day to day affairs of the Company is expected to do these acts. And if any violation is made petitioner No.1 may be liable to be proceeded against for the alleged violation. The petitioners No. 2 to 8 have established the fact that they had no knowledge about the violation of any provision of the Acts and Rules and even the complaint it has not made out any prima facie case against them." 10. In the instant case also, there is nothing in the complaint petition to show as to whether this petitioner as being the Chief Managing Director has played any role directly or indirectly in employment of contractual labour in contravention of the Act or Rules framed thereunder. The petitioner has been prosecuted alongwith Branch Manager in mechanical manner and hence not sustainable in the eye of law as held in the above decision. 11. Thus, having regard to the facts and circumstances of the case coupled with the above principle laid down I have no hesitation to allow this application and quash the entire proceeding alongwith the impugned order, so far this petitioner is concerned. 12. In the result, this application is allowed. The entire criminal proceeding alongwith the impugned order is hereby quashed in respect of the petitioner.