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2015 DIGILAW 934 (JHR)

Debashish Chatterjee v. State of Jharkhand

2015-08-07

D.N.UPADHYAY

body2015
ORDER : This Cr.M.P. has been preferred by the petitioner for quashing the order dated 9th February, 2004 passed by learned Chief judicial Magistrate, Hazaribagh in connection with Complaint Case No.G26 of 2004 (T.R. No.975 of 2004), whereby cognizance has been taken under Sections 23 and 24 of the Contract Labour (Regulation and Abolition) Act, 1970 and also for quashing the entire criminal prosecution, arising out of Complaint Case No.G26 of 2004, corresponding to T.R. No.975 of 2004, pending in the court of learned Judicial Magistrate 1st Class, Hazaribagh. 2. The facts of the case, in brief, is that the complainant, who was appointed as Inspector under the provisions of Section 28 of the Contract Labour (Regulation and Abolition) Act, 1970, had inspected the establishment of the accused-situated at Sarubera Colliery, loading point, on 11.11.2003 at 12:00 p.m. According to the complaint, the Inspector had found that the accused had engaged contract labourers in loading of coal contrary to Notification No. SO 2063 dated 21st June, 1988 issued by the Ministry of Labour, Government of India, in exercise of power conferred under Section 10(1) of Contract Labour (Regulation and Abolition) Act, 1970. Accordingly, inspection report was submitted. Pursuant to inspection report, a show cause notice was issued to the accused vide Ref. No.35(6)/2003-ALC(H) dated 9th/12th December, 2003 and on receipt of show cause notice, reply was filed which was not found satisfactory and it was held that the accused persons are responsible for violation of Section 10(1) of the Contract Labour (Regulation and Abolition) Act, 1970. 3. After filing of the complaint and perusing the record, learned Chief Judicial Magistrate, Hazaribagh took cognizance of the offences under Sections 23 and 24 of the Contract Labour (Regulation and Abolition) Act, 1970 and issued summon against the petitioner. 4. Being aggrieved with that order, the petitioner has filed this case. 5. Learned counsel for the petitioner submits that a show cause notice dated 9th/12th December, 2003 was issued to all accused persons, enclosing a copy of the inspection report. On perusal of the notice, it is apparent that the said notice was addressed to Principal employer i.e. Project Officer, Sarubera Colliery of M/s. Central Coalfields Limited and not the petitioner. Pursuant to the aforesaid show cause notice, the Principal employer i.e. Project Officer, Sarubera Colliery submitted its reply vide letter dated 30th December, 2003. On perusal of the notice, it is apparent that the said notice was addressed to Principal employer i.e. Project Officer, Sarubera Colliery of M/s. Central Coalfields Limited and not the petitioner. Pursuant to the aforesaid show cause notice, the Principal employer i.e. Project Officer, Sarubera Colliery submitted its reply vide letter dated 30th December, 2003. Learned counsel submits that the petitioner was General Manager of Kuju Area of Central Coalfields Limited and the establishment of Kuju Area is registered under the provisions of Section 7 of the Contract Labour (Regulation and Abolition) Act, 1970. In this view of the matter, the name of the petitioner shown as Principal employer is not sustainable. So far as loading of coal manually is concerned, learned counsel for the petitioner submits that proviso of Notification No. SO 2063 dated 21st June, 1988 provides loading of coal manually when there is mechanical failure or failure of power or irregular supply of wagons by Railways. Learned counsel further submits that the order taking cognizance is illegal and not sustainable in view of the fact that the contractor-M/s. Rajiv Transport Coal Agency had been awarded contract for hiring of Heavy Earth Moving Machine and the said machine consists excavators, pay-loaders, tippers, dumpers etc. He further submits that after excavation of coal, the same is loaded through pay-loaders and transported by tippers and dumpers and, similarly, unloading of coal is done mechanically by dumpers and tippers, which operate mechanically. Thus, no element of manual in loading or unloading of coal was carried out. 6. Learned counsel for the petitioner submits that the aforesaid fact is itself sufficient to show that cognizance of the offences taken against the petitioner is quite bad, as the petitioner never employed the contract labour for doing the job aforesaid, as alleged in the complaint. However, in addition to that learned counsel submits that violation of the notification dated 21st June, 1988 does not constitute any offence either under Section 23 or Section 24 of the Contract Labour (Regulation and Abolition) Act, 1970. In this regard, it is submitted that for prosecution criminally under the aforesaid Act, there must be contravention of the provisions of the Act or the Rules framed thereunder and that the power is there under Section 35 of the Act to make rules. Admittedly, no Rules have been framed calling for prosecution for contravention of the provisions under the Act. Admittedly, no Rules have been framed calling for prosecution for contravention of the provisions under the Act. It is further submitted that no doubt a notification has been issued, but that has been issued in terms of Section 10(1) of the Contract Labour (Regulation and Abolition) Act, 1970 and this Section cannot be substituted for Section 35 of the said Act. Thus, it is submitted that violation of the notification would not constitute offence for contravention of the Act/Rule under section 23 and this point has been settled way back in the year 1986 in the case of Indian Iron & Steel Company Ltd. & Ors. Vs. State of Bihar & Ors., reported in 1986 Lab. I.C.2003 : 1986 PLJR 270 . Learned counsel has categorically stated that law laid down by the then Patna High Court still holds field and there has not been any amendment in the Act nor any Rule in terms of Section 35 of the Act has been framed calling for the prosecution for contravention of the provision of the Act. Thus, the cognizance taken against the petitioner is liable to be set aside. 7. So far factual aspect of the matter is concerned, that need not to be gone into, as the other law points on which order of cognizance has been sought to be quashed, has already been dealt with by this Court and the facts of the case is squarely covered by the decision of the Patna High Court, rendered in the case of Indian Iron & Steel Company Ltd. (Supra). 8. Learned counsel for the State has opposed the petitioner’s prayer, but has not disputed the said factual contentions. 9. The arguments advanced by learned counsel for the petitioner and the facts and circumstances of the present case are squarely covered by the decision of the Patna High Court rendered in the case of Indian Iron & Steel Company Ltd. (Supra) and also by the decision of this Court rendered in the case of M/s. Bharat Coking Coal Limited & Anr. Vs. The State of Jharkhand & Anr., reported in 2006 (4) JLJR 23 . In view of decisions rendered, nothing remains to be dealth with. 10. In the result, I feel inclined to allow this petition. Vs. The State of Jharkhand & Anr., reported in 2006 (4) JLJR 23 . In view of decisions rendered, nothing remains to be dealth with. 10. In the result, I feel inclined to allow this petition. Accordingly, order dated 9th February, 2004 passed by learned Chief judicial Magistrate, Hazaribagh in connection with Complaint Case No.G26 of 2004 (T.R. No.975 of 2004), including entire criminal prosecution, arising out of Complaint Case No.G26 of 2004 (T.R. No.975 of 2004), are quashed. 11. Consequently, this petition stands allowed. Petition allowed.