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Jharkhand High Court · body

2007 DIGILAW 762 (JHR)

Nirmal Bhogilal v. State of Jharkhand

2007-09-20

M.Y.EQBAL

body2007
ORDER :- By this application under Section 482 Cr. P.C. the petitioner has prayed for quashing the order dated 27-4-98 passed by SDJM Hazaribagh in Complaint Case No. G59 of 1997, whereby he has taken cognizance for the offences under Section 24 of the Contract Labour (Regulation and Abolition) Act, 1970. 2. Complainant's case in brief was that the accused-petitioner is Contractor engaged for design and construction work of "Intek well-cum-Pump House for Tenughat Reservior under the Integrated Water Supply Scheme. He had employed 20 contract labours. The allegation against the accused is that he did not submit half-yearly return of Form XXTV for the year ending 31st December 1997 to the Licensing Officer, Hazaribagh even after issuance of show cause notice to him. 3. On the basis of the said complaint submitted by Labour Enforcement Officer (Central) Hazaribagh. Complaint Case No. G59 of 1997 was registered by the C. J. M., Hazaribagh under the provisions of Contract Labour (Regulation and Abolition) Act 1970 (the Act). The accused-petitioner who is a contractor is named and styled as Batliboi Limited through Mr. Nirmal Bhogilal, Managing Director. The Additional Chief Judicial Magistrate, Hazaribagh, vide order dated 27-4-1998 took cognizance of the offence under Section 24 of the Act and transferred the case for disposal. 4. The main contention of the petitioner is that he being the Managing Director of a Company is not supposed to file half yearly return of the Company to the Licensing Authority (ALC Central) Hazaribagh. It is alleged that the petitioner had no control or supervision over the contract work of the company. He being the resident of Calcutta was to act as a care of address of the contractor Batliboi Limited. It is contended by the petitioner that Batliboi Limited being a Company registered under the Companies Act is itself liable for any offence or negligence committed by it. It is therefore, contended that no case is made against the petitioner on the basis of the complaint petition and the Court below has issued process etc. against the contractor and not the petitioner namely, Nirmal Bhogilal. 5. No one person from the side of opposite party No. 2-complainant inspite of service of notice nor any counter affidavit has been filed. Admittedly, the petitioner is a Managing Director of the Company, namely, Batliboi Limited. against the contractor and not the petitioner namely, Nirmal Bhogilal. 5. No one person from the side of opposite party No. 2-complainant inspite of service of notice nor any counter affidavit has been filed. Admittedly, the petitioner is a Managing Director of the Company, namely, Batliboi Limited. It has stated in the complaint petition that he has violated the provisions of the Contract Labour (Regulation and Abolition) Act. 6. Similar question was considered by a Bench of the Patna High Court in the case of "G. S. Garcha v. State of Bihar and others" (1986) PLJR-463 : (1986 Lab IC 1840). In that case also the order of cognizance under the aforesaid Act was challenged. The Court after noticing the various decisions in determining the liability under the said Act, held as under : "10. For the purpose of invoking the provisions of Section 25 of the Act, the allegation has to be made in the complaint petition that a company is the offender. From the definition of "Principal employer, it would appear that the company need not be principal employer as even an accused of a mine may come within the purview of the definition of the owner, although actually ownership may vest in the company. 15. The position of Managing Agent of the company, however, stand completely on different footing as Section 25 of the Act imposes vicarious liability upon certain persons sons named therein. Section 25 of the Act is in two parts. Whereas sub-section (1) deals with vicarious liability of a every person in charge of or responsible to the company for the conduct of its business, sub-section (2) fastens vicarious liability only on those persons where an offence has been committed by the Committee and it is proved that the offence has been committed with the consent or connivance of or is attributable to any act of neglect on the part of the Director, Manager, Managing Agent or any other officer of the company." 16. So far as conduct of the company is concerned, only the person in-charge of the company are responsible in terms of subsection (1) of Section 25 of the Act, provided the company is itself is an accused." 7. Besides the above, from perusal of the order taking cognizance it appears that the Magistrate has not at all applied his mind before taking cognizance. Besides the above, from perusal of the order taking cognizance it appears that the Magistrate has not at all applied his mind before taking cognizance. For better appreciation the order dated 27-4-1998 is quoted herein below : Order-Sheet "27-4-98. Received prosecution report from the L. E. O. Hazaribagh. Seen. Register. Cognizance of the offence u/S. 24 of the C. L. (RandA) Act, 1970 is taken against accused Batliboi Limited through Mr. Nirmal Bhogilal, Managing Director and the case is transferred to the file of Shri M. M. E., J. M. Ist Hazaribagh for disposal. Fixing 16-6-98 issue summons to the accused for appearance. Dictated Sd-A. C. J. M. 8. Prima facie, therefore, I am of the opinion that the order of cognizance is vitiated in law on the ground of non-application of mind. Moreover, the entire proceeding amount to abuse of process of law. 9. For the aforesaid reasons this application is allowed and the order of cognizance as also the entire proceeding is hereby quashed. Application allowed.