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2014 DIGILAW 249 (JHR)

Nanda Dutta v. State of Jharkhand

2014-02-14

D.N.UPADHYAY

body2014
Order This writ petition (criminal) has been filed with a prayer to quash the order of cognizance dated 27.6.2011 passed by learned C.J.M., Bokaro in connection with C.L.A. Case No. 10 of 2011, whereby cognizance has been taken u/s 23 of the Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter referred as 'the Act' for short) and the entire criminal prosecution of the petitioner arising out of said complaint case. 2. The brief fact stated in the complaint is that on 3.2.2010, the premises of accused No. 1 was inspected where two contract labours supplied by accused No. 2 were found working. The contractor did not appear to answer the queries made by the inspecting authority. Thereafter the accused persons were served with a notice, but the contention made in the complaint indicates that it was not replied and therefore, the complaint was presented with averments therein that violation of section 10(1) of the Act has been done and the offence punishable u/s 23 of the Act is made out. On presentation of the said complaint C.L.A. Case No 10 of 2010 was registered and the learned C.J.M., Bokaro took cognizance vide order dated 27.6.2011 and directed to issue summons against the accused persons. 3. It is submitted that Notification No. S.O. 2063, dated June 1, 1988 published in 1989 CCL-III-12, Ministry of Labour (Annexure-8) is not applicable against the establishment of accused No. 1 i.e. O.N.G.C. The complaint has been filed referring said notification. It is further pointed out that Notification No. 446 dated September 8, 1994 published in Extra Ordinary Gazette, bringing establishment of O.N.G.C. within the purview of 2.said notification, has been kept suspended by the order of High Court of Judicature of Andhra Pradesh at Hyderabad vide W.P.M.P. No. 4460 of 2003 in W.P. No. 3397 of 2003. The working of O.N.G.C. is not limited to any State, rather the establishment is working in the whole country. Since the said notification has been kept under suspension by one of the High Courts of this country that has got persuasive value and therefore, the petitioner should not have been prosecuted for the offences as alleged in the complaint, taking advantage of this notification. Since the said notification has been kept under suspension by one of the High Courts of this country that has got persuasive value and therefore, the petitioner should not have been prosecuted for the offences as alleged in the complaint, taking advantage of this notification. Furthermore, the petitioner has been discharging her duties and responsibilities under a specific project which is going on within the District of Bokaro and it is not possible for the O.N.G.C. to give full time employment for minor official work such as cleaning, sweeping, etc. The petitioner has also obtained license for the nature of work to be performed by contract labour as per Annexure-4. The nature of work performed by contract labour was not perennial in nature and therefore, no violation of Section 10(2) has taken place and the petitioner is not liable for prosecution under the Act. The complaint has been filed giving reference of Notification No. S.O. 2063, dated June 1, 1988 published in 1989 CCL-III-12 which is not applicable in the case of establishment of petitioner. Representative of principal employer was present. 4. On the other hand learned counsel appearing for the respondents has vehemently opposed the arguments and submitted that the inspecting authority in course of inspection had found two persons working as contract labours supplied by accused No. 2 and they have been engaged for the work for which the accused persons have not been given license. The order passed by Hon'ble Andhra Pradesh High Court will have jurisdiction over the State only and the said order cannot be extended to whole of the country. Territorial jurisdiction in such situation is always relevant. The notification issued by Government of India cannot be suspended for rest part of country, if any particular High Court has suspended the same in a 3.particular case and that too suspension, which is appearing from the said order, is of temporary in nature. The order which has been appearing at Annexure-2/A is of the year 2003 and the petitioner has started her project in the State of Jharkhand at the relevant site from the year 2010. The contention made in the complaint prima facie constitute violation of Section 10(2) which is punishable u/s 23 of the Act. The petitioner did not reply to the show cause served to her and opportunity was given to explain the circumstances and thereafter this complaint has been filed. 5. The contention made in the complaint prima facie constitute violation of Section 10(2) which is punishable u/s 23 of the Act. The petitioner did not reply to the show cause served to her and opportunity was given to explain the circumstances and thereafter this complaint has been filed. 5. I have gone through the complaint petition, cognizance order and the documents as referred to above. The suspension of any notification by any High Court is not a ground to quash a criminal prosecution if the contention made in the complaint prima facie constitutes an offence under the Act. The averments made in the complaint indicate that two contract labours were employed for working at the establishment of petitioner and those labours were supplied by accused No. 2 of the complaint. 6. I do not find any merit in this writ petition which is accordingly, dismissed and the interim order dated 23.9.2011 passed in this case stands vacated. The petitioner is at liberty to raise all the points at the time when substance of accusation is to be explained. Petition dismissed.