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Jharkhand High Court · body

2008 DIGILAW 749 (JHR)

Tisco (Tube Division) v. State of Jharkhand

2008-07-17

DILIP KUMAR SINHA

body2008
ORDER D.K. Sinha, J. 1. All the five Cr. Misc. Petitions under Section 482 of the Code of Criminal Procedure have been taken up together, arising out of common question of law and almost on similar facts. 2. The prosecution story in short was that the complainant/opposite party No. 2 Rajesh Prasad, Labour Superintendent-cum-Inspector under the Contract Labour (Regulation and Abolition) Act, 1970 had visited in the factory premises of Tube Division of M/s. TISCO Ltd. Jamshedpur on 24.12.2004 and observed that the different contractors were getting the work done by the contract labourers in spite of prohibition of employment of contract labourers in the concerned work vide Notification No. 10/F-1-4050/90 L & E 838 dated 20.12.1991 issued by the Government in the department of Labour Employment and Training under Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 and thereby the petitioners, who were common in all the five petitions aforesaid, violated the provision of Section 10 of the said Act. Cr.M.P. No. 1111 of 2005 3. In this petition arising out of Complaint Case No. C/2- 1700/05, it was alleged that in course of inspection made in the factory premises of M/s. TISCO Ltd. (Tube Division) Jamshedpur on 24.12.2004, the complainant observed that the contractor M/s. Singh Associates was getting the work of cutting of wastage materials executed by five contract labourers in 'Scrap yard' inside the factory premises in spite of prohibition of employment of contract labourers In the said work vide Notification No. 10/F-1-4050/90 L & E 838 dated 20.12.1991 and thereby the petitioners violated the provision of Section 10 of the said Act. Cr. M.P. No. 1112 of 2005 In complaint case No. C/2-1703/05, it was alleged that during course of inspection of M/s. TISCO Ltd. (Tube Division) Jamshedpur on 24.12.2004 the complainant observed that the contractor M/s. Vishwakarma Enterprises was getting the work of electrical maintenance executed by five contract labourers in spite of prohibition of employment under the notification dated 20.12.1991 referred to above, Issued by the Government in the department of Labour Employment and Training under Section 10 of the Contract Labour (Regulation and Abolition) Act 1970 and thereby the petitioners violated the provisions of Section 10 of the said Act. Cr. Cr. M.P. No. 1115 of 200S In this petition arising out of complaint case No. C/2-1702/05 the complainant alleged that on the same day i.e. 24.12.2004 at about 3.45 p.m. he observed that the contractor M/s. KBS Enterprises was getting the work of electrical maintenance done by five contract labourers in the Tube Division of M/s. TISCO. Jamshedpur in spite of prohibition of employment of contract labourers in the aforesaid work under Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 and thereby, the petitioners contravened the provision of Section 10 of the said Act. Cr. M.P. No. 1116 of 2005 Similarly in the complaint case No. C/2-1701/05 against the petitioners that on the same day i.e. 24.12.2004 at about 4 p.m. it was observed in the factory premises of said establishment that the contractor M/s. Arunodya Electricals was getting the work of electrical maintenance executed by eight contract labourers inspite of prohibition of employment of contract labourers in the said work, vide notification dated 20.12.1991 issued by the Government in the department of Labour Employment and Training referred to above, under Section 10 of the Contract Labour (Regulation and Abolition) Act 1970 and thereby the petitioners violated the provision of Section 10 of the Act. Cr. M.P. No. 1117 of 2005 The complainant alleged in the Complaint case No. C/2-1699/05 that on the same day i.e on 24.12.2004 at about 3.50 p.m. he visited the factory premises of M/s. TISCO (Tube Division) and observed that the contractor M/s. D.P. Bodhanwala was getting the work of loading/unloading of scrap materials done by eight contract labourers in spite of prohibition of employment contract labourers in the aforesaid work and thereby the petitioners violated the provision of Section 10 of the said Act. 4. 4. In all the above five complaint cases instituted at the Instance of the complainant/opposite party No. 2 herein, it was alleged that all the petitioners including the petitioner No. 4 S.M. Hussain, Executive Incharge and Principal employer had been getting the work done through various contractors in which the contract labourers were employed in contravention of the Notification No. 10/F-1-4050/90 L & E 838 dated 20.12.1991 issued by the Government under Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 which prohibited the employment of contract labourers relating to the work of storage, cutting, carrying, loading/unloading of the rejected materials declared by the company as also the work of electrical maintenance of Indian Tube Company Ltd. 5. Mr. Rajiv Ranjan, the learned Counsel made the following common submissions on behalf of the petitioners in all the five petitions: (i) The petitioner No. 1 M/s. TISCO (Tube Division) Ltd. being an unit of M/s. TISCO, a limited Company, duly registered under the Companies Act whereas the petitioners No. 2, 3 and 4 were its Executives, wholly innocent, but implicated in this case without reason and rhyme as no offence as alleged was made out against any of them. (ii) The complainant did not disclose the materials to connect the petitioners having been figured as accused in the complaint case merely by their designation as Chairman, Deputy Managing Director and Executive in charge respectively. (iii) In all the five petitions it was alleged that 5/8 workers were found engaged in different work by the different contractors as such, as per Section 1(4)(a) of the Contract Labour (R & A) Act, 1970, the provisions of the Act could not be attracted against the contractors who engaged less than 20 workers in an establishment. Section 1(4) of the said Act speaks: 1. Short title, extent, commencement and application.--(1) This Act may be called the Contract Labour (Regulation and Abolition) Act, 1970. Section 1(4) of the said Act speaks: 1. Short title, extent, commencement and application.--(1) This Act may be called the Contract Labour (Regulation and Abolition) Act, 1970. (4) It applies-- (a) to every establishment in which twenty or more workmen are employed or were employed on any day of the preceding twelve months as contract labour; (b) to every contractor who employs or who employed on any day of the proceeding twelve months twenty or more workmen: Provided that the appropriate Government may, after giving not less than two months' notice of its intention so to do, by notification in the Official Gazette, apply the provisions of this Act to any establishment or contractor employing such number of workmen less than twenty as may be specified in the notification. 6. In all the five complaint cases inspection was made on 24.12.2004 by the complainant in the premises of Tubes Division of M/s. TISCO, Jamshedpur when the purported violation of the Act under Section 23 of the Act came to the knowledge of the Inspector (complainant) but cognizance of the offence under Section 23 was taken on the same day on 16.5.2005 when the written complaint was filed beyond the limitation period of three months of the knowledge of the alleged offence as per mandatory provisions under Section 27 of the Act. Mr. Counsel further pointed out that according to the prosecution case, petitioner No. 1 is admittedly a company under Companies Act but represented by none whereas the other petitioners are not the Principal employers. 7. On the other hand, a counter affidavit was filed on behalf of the opposite parties stating therein that Tubes Division of M/s. TISCO Ltd. was an establishment as defined under Section 2(1)(e)(ii) of the Act whereas the petitioners No. 2 to 4 were the principal employers as defined under Section 2(1)(g)(ii) of the Act and the complainant having been found the violation of prohibitory order, issued show cause notices to the petitioners but since they did not show their causes within the stipulated period, complaints were filed in the Court of CJM Jamshedpur after obtaining sanction from the competent authority. It was stated therein that all the five complaints vide complaint Case No. C/2-1699/05, C/2-1700/05, C/2-1701/05, C/2-1702/05, C/2-1703/05 were filed for continued violation of provisions of Contract Labour (Regulation and Abolition) Act 1970 with reference to C/2-1956 of 1997 against the petitioners, therefore, the issue of limitation raised by the petitioners was of no consequence and, the impugned order did not call for any interference by this Court, in the public interest and in the interest of observance of the provisions of the Act. Finally it was stated in the counter affidavit that the applicability of the Act in respect of complicity of the petitioners could be substantiated by the provisions of Section 2(1)(e)(iii) and 2(1)(g)(ii) of the Act and the parameters relating to number of persons as contract labourers could be taken into consideration relating to an establishment and not in relation to a contractor engaging contract labourers, though the petitioners have tried to misleading the Court by connecting the number of labourers with the contractors and not with the establishment of Tube Division of M/s. TISCO, Jamshedpur. Clarifying the point of limitation it was stated that the complaint was filed after securing sanction from the competent authority within a period of limitation, and the delay if any, caused it was only due to administrative procedure which deserved to be condoned. 8. Having regard to the facts and circumstances of the case, arguments advanced on behalf of the parties I find from the materials on record that the complainant/opposite party No. 2 made inspection of the factory premises of M/s. TISCO (Tube Division) limited on 24.12.2004 and found violation of the provisions of Section 23 being committed in the factory premises by the contractors under the petitioners and lodged different complaints aforesaid on 16.5.2005 having been dissatisfied with the causes shown by them but beyond the period of three months and on the same day Le. 16.5.2005 cognizance of the offence was taken against the petitioners by the Chief Judicial Magistrate, Jamshedpur. 9. Section 27 of the Contract Labour (Regulation and Abolition) Act 1970 speaks about the limitation of prosecutions: No Court shall take cognizance of an offence punishable under this Act unless complaint thereof is made within three months from the date on which the alleged commission of the offence came to the knowledge of an Inspector. 9. Section 27 of the Contract Labour (Regulation and Abolition) Act 1970 speaks about the limitation of prosecutions: No Court shall take cognizance of an offence punishable under this Act unless complaint thereof is made within three months from the date on which the alleged commission of the offence came to the knowledge of an Inspector. Provided that where the offence consists of disobeying a written order made by an Inspector, complaint, thereof may be made within six months of the date on which the offence is alleged to have been committed. 10. In the instant case the complainant/ opposite party No. 2, who claimed to be the Inspector under the Act, failed to satisfy by showing that the written order made by him was disobeyed by the petitioners and therefore, it cannot be presumed that the complaints made by him were within the limitation period of six months under the Said proviso. 11. I am in agreement with the contentions made in the counter affidavit filed on behalf of the complainant/opposite party No. 2 that the parameters relating to number of persons as contract labourers can be taken into consideration relating to an establishment as well as in relation to a contractor engaging contract labourers in an establishment. 12. The Contract Labour (Regulation and Abolition) Act 1970 is a piece of social legislation for welfare of labourers to ensure the good service conditions to them and to prevent their exploitation. According to Section 1(4) of the said Act, it applies: (a) to every establishment in which twenty or more workmen are employed or were employed on any day of the preceding twelve months as contract labour: (b) to every contractor who employs or who employed on any day of the preceding twelve months twenty or more workmen. The specific case of the complainant was that 5/8 labourers were found engaged In different contract works by different contractors within the premises of the Tube Division of M/s. TISCO Jamshedpur but the prosecution failed to incorporate the requirement of Sub-section (4)(b) of Section 1 of Contract Labour (Regulation and Abolition) Act 1970 which is relevant in so far as engagement of labourers in an establishment by a contractor is concerned. 13. 13. I further find from the prosecution report/complainant that prohibition was imposed upon M/s. TISCO (Tube Division) Limited vide notification No. 10/F-14050/90 L&E 838 on 20.12.1991 issued by the Government in the Department of Labour Employment and Training under the Contract Labour (Regulation and Abolition) Act 1970 in the matter of employment of contract labourers relating to "work of storage, cutting, carrying, loading/unloading" of the rejected materials declared by the company as also work of electrical maintenance in Indian Tubes Company Limited but I find that the prosecution was launched against M/s. TISCO (Tube Division) Limited Jamshedpur and other petitioners who are not the Principal Employers and that not against Indian Tube Company Limited in respect of whom prohibition of the engagement of contract labourers was made under the notification aforesaid and the prosecution failed to show that M/s. TISCO (Tube Division) and Indian Tube Company are same and similar. 14. In the aforesaid situation, besides other materials as pointed out on behalf of the petitioners in all the five petitions. I find that the complaints were filed and accordingly cognizance of the offence were taken separately in all the five complaints beyond the period of limitation of 90 days, and that the prosecution failed to satisfy that the proviso of Section 27 of the Contract Labour (Regulation and Abolition) Act, 1970 was attracted under given situation for extension of limitation period beyond three months and within six months, for want of any specific prohibition order issued by the complainant who is an Inspector under the Act, the cognizance of the offence therefore, taken beyond the period of limitation of three months when all the 5 complaints were filed, the prosecution of the petitioners on this score alone cannot sustain accordingly, their criminal prosecution In C2 1699 of 2005, C2 1700 of 2005, C2 1701 of 2005, C2 1702 of 2005 and C2 1703 pending before the. Judicial Magistrate, Jamshedpur is quashed and aforesaid 5 (five) Criminal Miscellaneous petitions are allowed. Petition allowed.