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2015 DIGILAW 987 (JHR)

Bharat Coking Coal Limited v. State of Jharkhand

2015-08-18

H.C.MISHRA

body2015
Judgment H.C. Mishra, J. Heard learned counsel for the petitioners and learned counsel for the State. No one appears on behalf of the opposite party No.2, though it appears that counter affidavits have been filed on behalf of opposite party No.2. 2. The petitioners have prayed for quashing the order dated 29.4.2006 passed by learned Chief Judicial Magistrate I/c, Dhanbad, in I.D. Case No. 85 of 2006, whereby the cognizance has been taken against the petitioners and other officials of Bharat Coking Coal Limited, for the offence under Section 29 of the Industrial Disputes Act, 1947 (hereinafter referred to as the "Act”), for non-implementation of the Award in question. The petitioners have also prayed for quashing the entire criminal proceeding against them in the said case. 3. The petitioners are the Bharat Coking Coal Limited, through its Company Secretary, and the Director (Personnel) of the said Company, and they have challenged the impugned order, as also the entire criminal proceeding against them, taking a short point that they are not the persons responsible for implementation of the Award within the meaning of Section 29 of the said Act. 4. It is submitted by learned counsel for the petitioners that the Bharat Coking Coal Limited had already issued letter dated 4.11.1998 to the Regional Labour Commissioner (C), Dhanbad, followed by another letter dated 8/9.5.2001, whereby the Regional Labour Commissioner (C), Dhanbad, was informed that the Company had specified the officers mentioned in the annexure to the said letter, to be the authorities prescribed under Section 2(g) of the Industrial Disputes Act, in respect of establishment under their respective jurisdiction. In the said letters, it is mentioned that the concerned Executives would be competent inter alia, for implementation of Award, in respect of the industrial disputes in the capacity of Employers. Both these letters have been brought on record as Annexures-2 and 3. Learned counsel for the petitioners has submitted that the same question was involved before this Court in M/s Bharat Coking Coal Limited Vs. Union of India & Ors, reported in 2002(1) JLJR 811 . Both these letters have been brought on record as Annexures-2 and 3. Learned counsel for the petitioners has submitted that the same question was involved before this Court in M/s Bharat Coking Coal Limited Vs. Union of India & Ors, reported in 2002(1) JLJR 811 . In the said matter, notices were issued by the Assistant Labour Commissioner to the Chairman-cum-Managing Director as also to the Secretary of M/s Bharat Coking Coal Limited, to show cause as to why legal action for their prosecution under Section 29 of the Industrial Disputes Act be not taken for alleged violation of the settlement and the Award passed by the Labour Court and the Tribunal. In the said case, the learned Single Judge of this Court took the notice of the letter dated 4.11.1998 (Annexure-2) and held that since the Company had already prescribed the persons, who shall be responsible for non-implementation of the Award, the Assistant Labour Commissioner was not justified in issuing the show cause to the Chairman-cum-Managing Director and the Secretary of the Company. Learned counsel has submitted that the same view has been taken in the subsequent decision by this Court in Shri Kedar Nath Mukhopadhyay & Ors. Vs. State of Jharkhand & Anr, as reported in 2008 (2) JLJR 447 , wherein, relying upon the aforesaid decision in Bharat Coking Coal Limited case (supra), and also taking into consideration of the letter dated 4.11.1998, this Court has held that the prosecution launched for the offence under Section 29 of the Act against the Company Secretary and the Director (Personnel) of Bharat Coking Coal Limited, was bad in law and accordingly, the entire prosecution was quashed. It is submitted that in the present case also, the petitioners are the same Bharat Coking Coal Limited through its Company Secretary and Director (Personnel) of the said Company, and accordingly, the present case is fully covered by the aforesaid decisions. Learned counsel has again submitted that even thereafter, the same view has been taken by this Court in M/s Bharat Coking Coal Limited & Ors. Vs. State of Jharkhand and Anr., reported in 2013 (4) JCR 230 (Jhr). Placing reliance all these decisions, learned counsel submitted that the impugned order, as also the entire criminal proceeding against the petitioners cannot be sustained in the eye of law. 5. Vs. State of Jharkhand and Anr., reported in 2013 (4) JCR 230 (Jhr). Placing reliance all these decisions, learned counsel submitted that the impugned order, as also the entire criminal proceeding against the petitioners cannot be sustained in the eye of law. 5. Learned counsel for the State, on the other hand, has submitted that Section 32 of the Act clearly provides that where a person committing the offence under this Act is a company, every director and the secretary of the company shall be deemed to be guilty for such offence and accordingly, it cannot be said that the petitioners are not responsible for implementation of the Award. It is submitted that in the case of Rabindra Chamria & Ors, Vs. Registrar of Companies, W.B. & Ors., reported in AIR 1992 SC 398 , the Apex Court has taken the view that Section 32 of the Industrial Disputes Act is a sweeping provision, wherein the burden is upon the person concerned to prove his innocence. Learned counsel accordingly, submitted that since both these petitioners are covered under Section 32 of the Act, there is no illegality in either the order taking cognizance against these petitioners or the continuance of criminal proceeding against them. 6. Having heard learned counsels for both the sides and upon going through the record, with all due respect, I beg to differ with the law laid down by this Court in all the aforesaid three decisions relied upon by learned counsel for the petitioners, for the reasons discussed herein after. 7. Section 29 of the Industrial Disputes Act reads as follows:- “29. 7. Section 29 of the Industrial Disputes Act reads as follows:- “29. Penalty for breach of settlement or award.-Any person who commits a breach of any term of any settlement or award, which is binding on him under this Act, shall be punishable with imprisonment for a term which may extend to six months, or with fine, or with both, and where the breach is a continuing one, with a further fine which may extend to two hundred rupees for every day during which the breach continues after the conviction for the first and the Court trying the offence, if it fines the offender, may direct that the whole or any part of the fine realised from him shall be paid, by way of compensation, to any person who, in its opinion, has been injured by such breach." This section clearly shows that any person, who commits a breach of any term of any settlement or award, binding on him, shall be liable for punishment. This section nowhere makes any difference between a person responsible for implementation of award and an Employer. 8. Section 2(g) of the said Act defines the word 'employer', which reads as follows:- “2(g) "employer" means- (i) in relation to an industry carried on by or under the authority of any department of the Central Government or a State Government, the authority prescribed in this behalf, or where no authority is prescribed, the head of the department; (ii) in relation to an industry carried on by or on behalf of a local authority, the chief executive officer of that authority.” The letter dated 4.11.1998 and the subsequent letter dated 8/9.5.2001, as contained in Annexures-2 and 3 to this application, clearly shows that these letters have been issued under Section 2(g) of the said Act. Though, Section 2(g) of the Act empowers for prescribing the authority who shall be the 'employer', but the letters contained in Annexures 2 & 3 have been issued, also prescribing the authorities who shall be the competent for implementation of an Award, with respect to different establishments under the Bharat Coking Coal Limited, for which there appears to be no provision in the Act. 9. Section 32 of the Industrial Disputes Act reads as follows:- “32. 9. Section 32 of the Industrial Disputes Act reads as follows:- “32. Offence by companies, etc.-Where a person committing an offence under this Act is a company, or other body corporate, or an association of persons (whether incorporated or not), every director, manager, secretary, agent or other officer or person concerned with the management thereof shall, unless he proves that the offence was committed without his knowledge or consent, be deemed to be guilty of such offence.” This provision clearly shows that where an offence is committed by a company, every director, manager, secretary, etc., unless he proves that the offence was committed without his knowledge or consent, be deemed to be guilty of such offence. This indeed is a stringent provision and there is a deeming provision of their guilt, unless they prove that the offence was committed without their knowledge or consent. The burden is upon the person concerned to prove his innocence and the same has also been opined like that in Rabindra Chamaria's case (supra), relied upon by learned counsel for the State. 10. In Bharat Coking Coal Limited Vs. Union of India & Ors., reported in 2002 (1) JLJR 811 , the learned Single Judge of this Court has held as follows:- “10. From bare perusal of Section 32 of the Act, it is manifest that if the company commits a breach of any terms of any settlement or award then every Director, Manager, Secretary, Agent or other officer or person concerned with the Management shall not be guilty of such offence unless it is proved that the offence was committed without (sic-with?) his knowledge or consent”. (Emphasis supplied). In my considered view, this finding of learned Single Judge is wholly against the law, inasmuch as, Section 32 of the Industrial Disputes Act imposes the burden on the person concerned to prove his innocence, whereas the aforesaid finding given by the learned Single Judge shows that it is for the prosecution to prove that the offence was committed without his knowledge. In this decision, learned Single Judge has again proceeded as if the letter dated 4.11.1998 issued by the Bharat Coking Coal Limited, prescribing the persons competent for implementation of an Award, is having a binding nature, in the following words:- “14. -----------------. In this decision, learned Single Judge has again proceeded as if the letter dated 4.11.1998 issued by the Bharat Coking Coal Limited, prescribing the persons competent for implementation of an Award, is having a binding nature, in the following words:- “14. -----------------. But there was no occasion for the Assistant Labour Commissioner to issue show-cause notice to the Chairman-cum-Managing Director and the Secretary of the Company for the alleged non implementation of the award, particularly when, as noticed above, the authorities responsible for the implementation of the settlement of the award has been prescribed by the petitioner Company. --------------.” The same reasonings have been followed in the subsequent two decisions relied upon by learned counsel for the petitioners. 11. The question that now arises for determination is whether in garb of Section 2(g) of the Act, which gives the liberty to prescribe the authority, who shall be the 'employer' within the meaning of Section 2(g) of the Act, could the Company prescribe the persons competent for implementation of an Award ? The letter dated 4.11.1998 and the subsequent letter dated 8/9.5.2011, which appear to have been issued under Section 2(g) of the Act, prescribe the authorities, who shall be competent for implementation of an Award, for which, there appears to be no provision in the Act. In my considered view, the letter relied upon in the earlier decisions of this Court, could be issued by way of internal management of the Company, but it cannot have any binding effect on the Labour Court and the Tribunal, or for that matter, the officers of the Central and the State Governments. If this is allowed to be so, a piquant position of anomaly may arise, inasmuch as, the person prescribed by the Company for implementation of an Award, may take a plea that he is unable to implement the award because of the instructions of his higher officials, who may not, according to the said letters, be the persons responsible for implementation of the Award. In that case, no action can be taken against such higher officials, or any authority for the offence under Section 29 of the said Act, because due to the instructions of the higher officers, even the person prescribed in the letter, can take the plea that he is no more responsible for implementation of the Award. 12. In that case, no action can be taken against such higher officials, or any authority for the offence under Section 29 of the said Act, because due to the instructions of the higher officers, even the person prescribed in the letter, can take the plea that he is no more responsible for implementation of the Award. 12. This apart, Section 32 of the Act clearly provides that the every director, manager, secretary, etc., of a company shall be deemed to be guilty for any offence committed by the Company, and the burden is upon them to prove their innocence. A different view, in my considered view, cannot be taken by the Courts, so far as Section 32 of the Act remains in the statute book, without declaring the same to be ultra vires. 13. For the foregoing reasons, I beg to differ with the views taken by the learned Single Judges of this Court in all the aforesaid three decisions, reported in 2002 (1) JLJR 811 , 2008 (2) JLJR 447 and 2013 (4) JCR 230 (Jhr). I am of the considered view that an approach, contrary to the provision of law, has been taken in the aforesaid three decisions and they are operating as binding precedents, which shall also affect the decisions in many pending and future cases. This needs to be rectified without any further delay. 14. In that view of the matter, it would be appropriate that this question be decided by a Larger Bench of this Court for settling the law on the point. 15. Let this matter be placed before the Hon'ble the Chief Justice for referring the same to a Larger Bench. As there may be several pending old cases, that may be affected by these decisions, it is requested that the matter be placed for a decision by the larger Bench, at an early date.