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2007 DIGILAW 457 (JHR)

J. P. Sharma v. State Of Jharkhand

2007-06-15

DABBIRU GANESHRAO PATNAIK

body2007
ORDER D.G.R. Patnaik, J. 1. These three applications relating to the same parties and involving common points for decision are taken up together for disposal by this common order. 2. Three separate cases were instituted by the Opposite-Party No. 2 in his capacity of being the Labour Enforcement Officer (Central), who on his inspection of the Establishment of the accused persons, on different dates, had found that the accused persons were getting the work of loading coal at the loading point of the various collieries and of transportation of the coal from the loading point to the local sale point, through workers engaged in the contract through private transport agencies, though the engagement of contract labour for such work is prohibited by the Notification No. S.O. 2063 dated 2.7.1998 issued by the Ministry of Labour of the Government of India and is in violation of Section 10 of the Contract Labour (Regular and Abolition) Act, 1970, and, as such, the accused persons are liable to be prosecuted and punished for the offence under Section 24 of the said Act. On receipt of the individual petitions of complaint as filed by the Opposite-Party No. 2 against the present petitioner, the learned Court below took cognizance of the offence under Section 24 of the Contract Labour (Regulation and Abolition) Act, 1970 directing the petitioner to appear and face trial in each of the cases. It is against the orders of cognizance passed by the learned Magistrate that the present applications have been filed by the petitioner. 3. The common grounds of attack against the impugned order of cognizance and against the continuance of the proceedings, as advanced by the petitioners in all the three present applications, are: (i) That the learned Court below has acted mechanically and has merely adopted the complaint and proceeded to take cognizance of the offence without application of judicial mind. 3. The common grounds of attack against the impugned order of cognizance and against the continuance of the proceedings, as advanced by the petitioners in all the three present applications, are: (i) That the learned Court below has acted mechanically and has merely adopted the complaint and proceeded to take cognizance of the offence without application of judicial mind. (ii) That even according to the allegations in the complaint, no offence punishable under Section 24 of the Contract Labour (Regulation and Abolition) Act, 1970 can be made out as because the alleged violation of the Central Government Notification does not constitute the violation of any enforceable law under the Labour Contract (Regulation and Abolition) Act, 1970 and the allegation, therefore, that the petitioner had violated the provisions of Section 10 of the Act and hence liable for punishment under Section 24 of the Act is, totally misconceived. (iii) That the order of cognizance is also bad on account of the fact that the complaint petition does not specify as to whether the petitioner was authorized by the Company or the Colliery, to manage the affairs of the Colliery and to represent the concerned Colliery or the Establishment, which was inspected by the Opposite-Party No. 2. 4. To butteress his argument on this point learned Counsel for the petitioner refers to the judgment of the Single Bench of the Patna High Court, passed in Cr. M.P. No. 274 of 2004 and to another judgment in the case of Indian Iron and Steel Co. Ltd. and Ors. v. State of Bihar and Ors. reported in (1986) LABI. C. 2003, wherein, it was held that the contravention of any prohibition contained in any Notification, issued by the Central Government contemplated under Section 10(1) of the Contract Labour (Regulation and Abolition) Act, 1970, would not attract the penal provisions of the Act and the remedy for the Prosecution may be elsewhere in a different manner in an administrative way affecting the licence etc. It was further observed that the provisions of Section 10(1) of the Act cannot be substituted for Section 35 of the Act at all. Another recent judgment of this Court passed in Cr. M.P. No. 486 of 2004, has also been cited by the learned Counsel for the petitioner, who argues that the facts of the instant case are identical to the facts of the above referred case. 5. Another recent judgment of this Court passed in Cr. M.P. No. 486 of 2004, has also been cited by the learned Counsel for the petitioner, who argues that the facts of the instant case are identical to the facts of the above referred case. 5. The argument of the learned Counsel for the petitioner invokes the question as to whether the Notification issued by the appropriate Government under Section 10(1) of the Act has the force of law and whether violation of the prohibitions contained in such Notifications can invite penal consequences for punishment under Section 24 of the Act. 6. Before taking up this issue, it would be appropriate to discuss the other two grounds, advanced by the petitioner, namely, that the learned Court below has not applied its judicial mind to the allegations in the complaint petition in order to assess as to whether in absence of specific statement that the petitioner in his capacity of being the Chairman-cum-Managing Director of the Central Coalfields Ltd. was actually involved in the alleged execution of the work through Contract Labour at the establishment at the time of inspection made by the Opposite-Party No. 2 and whether there was any specific allegation against the petitioner, which could be considered sufficient for his prosecution. 7. In each of the complaint petitions, filed by the Opposite-Party No. 2, the petitioner J.P. Sharma has been described as the Chairman-cum-Managing Director of the Central Coalfields Ltd. (CCI). The other persons, named as accused in the complaint petition are project Manager of the concerned collieries, besides, the General Manager (Transports) of the CCL and the Private Contractor. The collieries under reference in each of the complaint petitions belong to and come within the management and control of the Central Coalfields Ltd. Of which the petitioner is admittedly the Chairman-cum-Managing Director. The liability of the alleged violation of the provisions of the Act being the liability of the Company has, therefore, to be owned by the petitioner in his capacity of being the representative of the Company. 8. Coming now to the controversy relating to the consequences of violation of the prohibitory orders contained in the Central Government Notification issued under Section 10(1) of the Act. Section 10(1) of the Contract Labour (Regulation and Abolition) Act, 1970 reads as follows: 10. Prohibition of employment of contract labour.--(1) Notwithstanding anything contained in this Act, the appropriate Government may. 8. Coming now to the controversy relating to the consequences of violation of the prohibitory orders contained in the Central Government Notification issued under Section 10(1) of the Act. Section 10(1) of the Contract Labour (Regulation and Abolition) Act, 1970 reads as follows: 10. Prohibition of employment of contract labour.--(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. 9. It is not disputed that the Notification of the Central Government referred to in the complaint petition, applies to the establishment under the C.C.L. of which the present petitioner was the Chairman-cum-Managing Director. 10. Section 35 of the aforesaid Act, empowers the appropriate Government to make Rules for carrying out the purpose of the Act. On proper appreciation of" the scope of Section 10 and that of Section 35 of the Act, it would appear that the provisions of Section 10 of the Act is in addition to the powers given to the appropriate Government under Section 35 of the Act. Under Section 10 of the Act though the power to prohibit employment to the Contract Labour is a legislative function, the same has been delegated to the appropriate Government and the appropriate Government, in exercise of such powers is empowered to issue Notifications prohibiting the employment Contract Labour in any process, operation or other work in any establishment. The Notification issued by the Central Government, referred to in the present case, has therefore the force of law and violation of the prohibitions contained in the Notification would not only constitute the violations of the provisions under Section 10 of the Act, but would also attract penal consequences under Section 23 and under Section 24 of the Act. While dealing with this issue in the case of Indian Iron and Steel Co. Ltd. and Anr. v. The State of Bihar and Anr. reported in 1996 (1) PLJR 856 , a Division Bench of the Patna High Court had occasion to consider the earlier Single Bench judgment of the same High Court in the case of Indian Iron and Steel Co. Ltd. and Anr. v. The State of Bihar and Anr. reported in 1996 (1) PLJR 856 , a Division Bench of the Patna High Court had occasion to consider the earlier Single Bench judgment of the same High Court in the case of Indian Iron and Steel Co. Ltd. v. State of Bihar reported in 1986 LIC 2003 corresponding to 1986 PLJR 270 and by overruling the aforesaid earlier judgment of the Single Bench, the Court had observed as follows: It, therefore, appears to us patent that the issuance of a notification under Section 10 of the Act is an exercise of power legislative in character; it is neither administrative nor quasi judicial. Once a notification is issued, the consequences under the Act must follow as if the Legislature itself had prohibited the employment of contract labour in any process, operation etc. in any establishment. The submission urged on behalf of the petitioner that the contravention of a notification issued by the appropriate Government under Section 10 of the Act does not amount to the contravention of any provision of the Act or the rules made thereunder ignores this vital distinction between the exercise of Legislature power and exercise of power administrative or quasi judicial in nature...." "Though the exercise of power may be by the executive the nature of the power may be such that the exercise of such power pursuant to a law authorising such exercise, is also of legislative character. It may be characterized as delegated legislation or conditional legislation but the action is legislative in character and becomes a part of the Act itself. 11. There can be no dispute, therefore, that the violation of the Notification issued by the Central Government in exercise of the powers under Section 10(1) of the Act would constitute not only violation of the provisions of Section 10 of the Act, but it also invites penal consequences under the Act. In this view of the matter, the allegations in the individual complaint petitions as filed by the complainant/opposite party No. 2, prima facie makes out the (sic) of which the learned Court below had taken cognizance. There is noth-(sic) suggest that the learned Court below had failed to apply its judicial mind to the facts alleged in the complaint petition, before proceeding to take cognizance of the offences. 12. There is noth-(sic) suggest that the learned Court below had failed to apply its judicial mind to the facts alleged in the complaint petition, before proceeding to take cognizance of the offences. 12. In the light of the above discussions, I do not find any merit in these applications. Accordingly, all these three applications are dismissed. Let the lower Court records be transmitted forthwith to the Court below.