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2014 DIGILAW 489 (JHR)

David Hudson v. State of Bihar now Jharkhand

2014-04-10

R.R.PRASAD

body2014
JUDGMENT By Court - Heard the parties. 2. This application has been filed for quashing of the order dated 10.7.1997 passed in C.L.A. Case No. 299 of 1997 whereby and whereunder, cognizance of the offence under Section 24 of the Contract Labour (Regulation and Abolition) Act has been taken against the petitioner. 3. It is the case of the complainant that when the complainant-Labour Enforcement Officer (Central) Jharia, Dhanbad made inspection of the establishment of the petitioner-company, which has been engaged by TISCO for rendering security services, following irregularities were found:- “i) Registrar (sic Register) of persons employed was not kept at an office of the nearest convenient building within the precincts of the work place or at a place within a radious of 3 KMs by the contractor. Breach of Rule-75 read with Rule-80(1) of the said Rules. ii) Muster Roll and register of wages were not kept at an office of the nearest convenient building within the precincts of work place or at a place within a radious of 3 KMs. by the contractor. Breach of Rule-78 (1)(a)(i). iii) Register of Advance, Register of Fine and Register of deduction for damage or loss were not kept at an office by the contractor. Rule-78 (1)(a)(ii). iv) Register of overtime was not kept at an office or the nearest convenient building within the precincts of the work place or at a place within a radious of 3 KMs. by the contractor. Breach of Rule-78 (1)(a)(iii) read with Rule-80(1). v) The following notices were not displayed at the work-spot in English & Hindi by the contractor as required under Rule-81(1)(i). vi) (i) Rates of wages (ii) Hours of work. (iii) Date of payment (iv) Wage period. (v) Date of payment of unpaid wages (vi) Name & address of the Inspector having jurisdiction over the establishment i.e. Asstt. Labour Commissioner (Central), Dhanbad and the Labour Enforcement Officer (Central), Jharia at Dhanbad. vii) A notice showing wage period, place and time of disbursement of wages were not displayed by the contractor at the place of work and a copy of its had not been sent to the Principal Employer i.e. Manager, Jamadoba washery, TISCO, Dhanbad under acknowledgment as required under Rule-71. viii) An abstract from the Act and Rules framed there under in the form approved by the CLC(C), New Delhi contractor in English & Hindi. Rule-75. viii) An abstract from the Act and Rules framed there under in the form approved by the CLC(C), New Delhi contractor in English & Hindi. Rule-75. ix) Copies of the notices were not sent by the contractor to the Inspector having jurisdiction over the establishment i.e. Labour Enforcement Officer (C), Jharia at Dhanbad in English & Hindi in contravention of Rule 81(2) of the said Rules. x) Employment Card were not issued at all within 3 days from the date of employment of the workers by the contractor as required under Rule-76(i) of the said Rules. x) Non-issue of wages slips by the contractor to the workers concerned at least a day prior to disbursement of wages. Breach of Rule-78 (1)(b). xii) First-aid facilities have not been provided as per Section 1 read with Rule 58 to 62 of the said Act & Rules. xiii) The contractor has failed to provide Rest Room to the workers as required under Rule-41 of the said Rules.” 4. Thus, it has been alleged that the accused person having contravened the said provision has made himself liable to be prosecuted under the Contract Labour (Regulation and Abolition) Act. On filing complaint when cognizance of the offence was taken vide order dated 10.7.1997, that order was challenged to be bad. 5. Mr. Rajiv Ranjan, learned counsel appearing for the petitioner, submits that the petitioner happens to be the Managing Director of the company known as Group-4, Securitas India (P) Ltd., still he has been made accused in absence of any accusation that the petitioner was in charge of, or responsible to for day to day business of the company and in absence of such allegation if the petitioner is being prosecuted, he can be said to have been prosecuted on account of vicarious liability which is not permissible and thereby the order taking cognizance is fit to be quashed. 6. As against this, Mr. Prabhash Kumar, learned counsel appearing for the opposite party no. 2, submits that in fact the company has been made accused through this petitioner as the company has been found to have contravened several provisions of the Act and Rules and, therefore, there has been no illegality in the order taking cognizance. 7. Upon it, Mr. As against this, Mr. Prabhash Kumar, learned counsel appearing for the opposite party no. 2, submits that in fact the company has been made accused through this petitioner as the company has been found to have contravened several provisions of the Act and Rules and, therefore, there has been no illegality in the order taking cognizance. 7. Upon it, Mr. Rajiv Ranjan submits that in view of the provision as contained in Section 305 of Cr.P.C. the company cannot be made accused through any officer rather it is for the company to choose its representative to represent the company. 8. Having heard learned counsel for the parties and on perusal of the record, it does appear that when inspection of the company was made, certain irregularities contravening to several provisions of the Contract Labour (Regulation and Abolition) Act as well as Rules were found. On such allegation, complaint was filed. There has been absolutely no allegation in the complaint to the effect that the petitioner was responsible to, or in charge of day to day affairs of the company and in absence of that, the petitioner being the Managing Director cannot be prosecuted. 9. Here at this stage, one may notice of the provision, as contained in Section 25 of the Contract Labour (Regulation and Abolition) Act, which reads as follows:- “25. Offences by companies.--(1) If the person committing an offence under this 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 the commission of the offence shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or that the commission of the offence is attributable to any neglect on the part of, any director, manager, managing agent or any other officer of the company, such director, manager, managing agent or any other officer of the company, such director, manager, managing agent or such other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.” 10. From its perusal, it does appear that if certain provisions of the Act are contravened by the company, the company as well as the person, who is in charge of conduct of the business of the company, can be prosecuted but if an officer of the company is made accused then there should be specific allegation to the effect that he was responsible to, or in charge of day to day affairs of the company. In the instant case as I have stated above, there has been absolutely no allegation to the effect that the petitioner was responsible to, or in charge of day to day affairs of the company. In that event, the prosecution against the petitioner cannot be maintained. 11. Accordingly, the order dated 10.7.1997, passed by the then Chief Judicial Magistrate, Dhanbad in C.L.A. Case No. 299 of 1997, taking cognizance of the offence under Section 24 of the Contract Labour (Regulation and Abolition) Act against the petitioner, is hereby quashed. 12. In the result, this application is allowed. Application allowed.