JUDGMENT : 1. Heard Mr. Anup Kr. Mehta, learned counsel for the petitioner, Mr. Tapas Roy, learned counsel for the State and Mrs. Bakshi Vibha, learned counsel for the O.P. No. 2. 2. This petition has been filed for quashing of entire criminal proceeding in connection with CL (R & A) Prosecution Case No. 29/2013 including the order dated 15.01.2013 whereby the learned Magistrate has been pleased to take cognizance of an offence under section 23 and 24 of the Contract Labour (Regulation and Abolition) Act, 1970, pending in the Court of learned Chief Judicial Magistrate, Dhanbad. 3. The prosecution case arises out of a written complaint filed by the O.P. No.2 alleging interalia that the complainant is the Labour Enforcement Officer (Central) having jurisdiction over the establishment of the accused person. The O.P. No. 2 inspected the establishment of Rajapur Open Cast Project L-6 Patch at Bastacolla Area of BCCL on 18.10.2012 and observed that in contravention of section 10(1) of the Contract Labour (R&A) Act, 1970 the Principal employer has engaged 29 contract labours through M/s Calcutta Industrial Supply Corporation, the contractor for executing the contract work of earth cutting and removal of over burden for extraction of coal at L-6 Patch of Rajapur Open Cast Project under Bastocolla Area of M/s BCCL which is prohibited by a notification SO 2063 dated 21.06.1988. A show cause notice dated 21/26.11.2012 was served. In paragraph 7 of the complaint it has been stated that the petitioner as well as the accused contractor has jointly committed the offence. The said complaint was registered as CL (R&A) Prosecution Case No. 29/2013. 4. Mr. A. K. Mehta, learned counsel for the petitioner submits that the O.P. No. 2 has committed a gross error in implicating the petitioner as the Principal accused no. 1 although the company namely, M/s Bharat Coking Coal Limited has not been made an accused. He further submits that the expression “establishment” has been defined under section 2(e) of the CL (R & A) Act, 1970, to mean-(i) Any office or department of the Government or a local authority or: (ii). Any place where any industry, trade, business, manufacture or occupation is carried. He further submits that the expression “establishment” has been defined under section 2(e) of the CL (R & A) Act, 1970, to mean-(i) Any office or department of the Government or a local authority or: (ii). Any place where any industry, trade, business, manufacture or occupation is carried. He further submits that the expression “principal employer” has been defined in section 2(g) of the CL (R & A) Act and section 2(g) (iii) provides that the principal employer in relation to a mine would be the owner or agent of the mine and where a person has been named as the manager of the mine, the person so named. He submits that the petitioner is neither the owner of Rajapur Open Cast Project nor the agent. He is also not the manager of Kujama. He is also not the principal employer. He submits that the petitioner at the relevant time was the General Manager, Bastacolla Area of M/s BCCL. He submits that in the light of Section 7 of the CL (R & A) Act provides registration of certain establishment. He submits that the establishment of Rajapur Open Cast Project of BCCL has been registered as an establishment under sub section 2 of section 7 of the Act by the Registering Officer cum Assistant Labour Commissioner (C) Dhanbad-IV. He further submits that the petitioner was General Manager of Bastacolla Area of M/s BCCL and he is neither the owner of Rajapur Open Cast Project nor the agent and in that view of the matter the entire criminal proceeding may be quashed. 5. Learned counsel for the O.P. No. 2 submits that the prosecution complaint filed against the petitioner is just and proper and as per the provision of law for the violation of Section 10(1) of the Contract Labour (R&A) Act, 1970. She submits that the petitioner is General Manager, representing the Bastacolla Area of M/s BCCL and responsible for all affairs of the company related to work carried out a Rajapur Open Cast Project/Colliery of BCCL. She submits that the petitioner is General Manager, representing the Bastacolla Area of M/s BCCL and responsible for all affairs of the company related to work carried out a Rajapur Open Cast Project/Colliery of BCCL. She submits that the accused is Principal Employer within the meaning of Sub-Section 1(g) of Section 2 of Contract Labour (Regulation & Abolition) Act, 1970 and carrying out the work of company through contractor M/s Calcutta Industrial Supply Corporation and the contractor executing the contract work of “Earth cutting and removal of overburden, raising of coal, loading & transportation of coal at XIV, XII, XII, XII and IX/X seams of Rajapur Open Cast Project (ROCP L-6 patch at Bastacolla Area of BCCL by employing contract labour and are giving resultant return to the General Manager, Bastacolla Area of M/s BCCL. On these backgrounds the complaint has been filed and there is no illegality in order taking cognizance. 6. Learned counsel for the State submits that the learned court has rightly taken cognizance. 7. In view of above submission of the learned counsel for the parties, the Court has gone through the materials on record. It is an admitted fact that the petitioner was the General Manger of Bastacolla Area of M/s BCCL and not principal employer. The company namely, M/s B.C.C.L has not been made accused in the present complaint and in absence of the company the petitioner has been made accused. Section 25 of the Act provides that a persons who are responsible for the day to day affairs of the company are liable to be prosecuted. In the case in hand nothing has been disclosed how the petitioner is so far M/s BCCL is concerned, looking after the day to day affairs of the company. Moreover, the company has not been made accused in absence of the company the petitioner is not responsible as has been held by Hon’ble Supreme Court in the case of “S.K. Alagh V. State of Uttar Pradesh & Others. (2008) 5 SCC 662 , wherein para 19 it has been observed s under:- “19. As, admittedly, drafts were drawn in the name of the Company, even if the appellant was its Managing Director, he cannot be said to have committed an offence under Section 406 of the Indian Penal Code. If and when a statute contemplates creation of such a legal fiction, it provides specifically therefor. As, admittedly, drafts were drawn in the name of the Company, even if the appellant was its Managing Director, he cannot be said to have committed an offence under Section 406 of the Indian Penal Code. If and when a statute contemplates creation of such a legal fiction, it provides specifically therefor. In absence of any provision laid down under the statute, a Director of a Company or an employee cannot be held to be vicariously liable for any offense committed by the Company itself.” 8. Section 2(1)(g)(iii) of the Act provides that the principal employer in relation to a mine would be the owner or agent of the mine and where a person has been named as the Manager of the mine, the person so named. For ready reference, Section 2(1)(g)(iii) of the Act is quoted herein below: “2(1)(g)(iii) in a mine, the owner or agent of the mine and where a person has been named as the manager of the mine, the person so named.” 9. There is no allegation in the complaint that the petitioner is the Manager of the mine, in view of Section 2(1)(g)(iii) of the Act. He is not the principal employer as under that Section only the Manager of the mine is responsible. 10. Section 2(1)(g)(iii) of the Act is very specific on the point of principal employer. So far as the mine is concerned, where only the Manager of the mine is said to be principal employer. The petitioner is officer of the company namely, M/s BCCL and the company namely Bharat Coking Coal Limited is not made accused in the complaint case. 11. The Court has perused the cognizance order dated 15.01.2013 in which it has not been disclosed what are the prima facie materials against the petitioner for taking cognizance under alleged sections of the Act. The offence by the Manager of the mine and its satisfaction is required to be disclosed in the cognizance order. A reference may be made to the case of Sunil Bharti Mittal v. C.B.I, reported in (2015) 4 SCC 609 . Paragraph no.48 of the said judgment is quoted as under: “48. Sine qua non for taking cognizance of the offence is the application of mind by the Magistrate and his satisfaction that the allegations, if proved, would constitute an offence. Paragraph no.48 of the said judgment is quoted as under: “48. Sine qua non for taking cognizance of the offence is the application of mind by the Magistrate and his satisfaction that the allegations, if proved, would constitute an offence. It is, therefore, imperative that on a complaint or on a police report, the Magistrate is bound to consider the question as to whether the same discloses commission of an offence and is required to form such an opinion in this respect. When he does so and decides to issue process, he shall be said to have taken cognizance. At the stage of taking cognizance, the only consideration before the court remains to consider judiciously whether the material on which the prosecution proposes to prosecute the accused brings out a prima facie case or not.” 12. Recently, the Hon'ble Supreme Court has considered the case arising out of Minimum Wages Act in the case of Dayle De'souza v. Government Of India, through Deputy Chief Labour Commissioner (c) And Another [CRIMINAL APPEAL NO. OF 2021 (ARISING OUT OF SPECIAL LEAVE PETITION (CRL.) NO. 3913 OF 2020). Paragraph nos.19, 22, 23, 24, 25 and 27 of the said judgment are quoted herein below: “19. There is yet another difficulty for the prosecution in the present case as the Company has not been made an accused or even summoned to be tried for the offence. The position of law as propounded in State of Madras v. C.V. Parekh and Another: (1970) 3 SCC 491 ., reads: “3. Learned Counsel for the appellant, however, sought conviction of the two respondents on the basis of Section 10 of the Essential Commodities Act under which, if the person contravening an order made under Section 3 (which covers an order under the Iron and Steel Control Order, 1956), is a company, every person who, at the time the contravention was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly. It was urged that the two respondents were in charge of, and were responsible to, the Company for the conduct of the business of the Company and, consequently, they must be held responsible for the sale and for thus contravening the provisions of clause (5) of the Iron and Steel Control Order. This argument cannot be accepted, because it ignores the first condition for the applicability of Section 10 to the effect that the person contravening the order must be a company itself. In the present case, there is no finding either by the Magistrate or by the High Court that the sale in contravention of clause (5) of the Iron and Steel 11 Control Order was made by the Company. In fact, the Company was not charged with the offence at all. The liability of the persons in charge of the Company only arises when the contravention is by the Company itself. Since, in this case, there is no evidence and no finding that the Company contravened clause (5) of the Iron and Steel Control Order, the two respondents could not be held responsible. The actual contravention was by Kamdar and Vallabhdas Thacker and any contravention by them would not fasten responsibility on the respondents. The acquittal of the respondents is, therefore, fully justified. The appeal fails and is dismissed.” 22. However, subsequent decisions of this Court have emphasised that the provision imposes vicarious liability by way of deeming fiction which presupposes and requires the commission of the offence by the company itself as it is a separate juristic entity. Therefore, unless the company as a principal accused has committed the offence, the persons mentioned in subsection (1) would not be liable and cannot be prosecuted. Section 141(1) of the Negotiable Instruments Act, extends vicarious criminal liability to the officers of a company by deeming fiction, which arises only when the offence is committed by the company itself and not otherwise. Overruling Sheoratan Agarwal and Anil Hada, in Aneeta Hada v. Godfather Travels and Tours Private Limited, (2012) 5 SCC 661 . A 3-judge bench of this court expounding on the vicarious liability under Section 141 of the Negotiable Instruments Act, has held: “51. We have already opined that the decision in Sheoratan Agarwal runs counter to the ratio laid down in C.V. Parekh which is by a larger Bench and hence, is a binding precedent. A 3-judge bench of this court expounding on the vicarious liability under Section 141 of the Negotiable Instruments Act, has held: “51. We have already opined that the decision in Sheoratan Agarwal runs counter to the ratio laid down in C.V. Parekh which is by a larger Bench and hence, is a binding precedent. On the aforesaid ratiocination, the decision in Anil Hada has to be treated as not laying down the correct law as far as it states that the Director or any other officer can be prosecuted without impleadment of the company. Needless to emphasise, the matter would stand on a different footing where there is some legal impediment and the doctrine of lex non cogit ad impossibilia gets attracted. 59. In view of our aforesaid analysis, we arrive at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the drag-net on the touchstone of vicarious liability as the same has been stipulated in the provision itself. We say so on the basis of the ratio laid down in C.V. Parekh which is a three-Judge Bench decision. Thus, the view expressed in Sheoratan Agarwal does not correctly lay down the law and, accordingly, is hereby overruled. The decision in Anil Hada is overruled with the qualifier as stated in para 51. The decision in Modi Distillery has to be treated to be restricted to its own facts as has been explained by us hereinabove.” 23. The proposition of law laid down in Aneeta Hada (supra) was relied upon by this Court in Anil Gupta v. Star India Private Limited and Another (2014) 10 SCC 373 . “13. In the present case, the High Court by the impugned judgment dated 13-8-2007 [Visionaries Media Network v. Star India (P) Ltd., Criminal Misc. Case No. 2380 of 2004, decided on 13-8-2007 (Del)] held that the complaint against Respondent 2 Company was not maintainable and quashed the summons issued by the trial court against Respondent 2 Company. “13. In the present case, the High Court by the impugned judgment dated 13-8-2007 [Visionaries Media Network v. Star India (P) Ltd., Criminal Misc. Case No. 2380 of 2004, decided on 13-8-2007 (Del)] held that the complaint against Respondent 2 Company was not maintainable and quashed the summons issued by the trial court against Respondent 2 Company. Thereby, the Company being not a party to the proceedings under Section 138 read with Section 141 of the Act and in view of the fact that part of the judgment referred to by the High Court in Anil Hada has been overruled by a three-Judge Bench of this Court in Aneeta Hada, we have no other option but to set aside the rest part of the impugned judgment [Visionaries Media Network v. Star India (P) Ltd., Criminal Misc. Case No. 2380 of 2004, decided on 13-8-2007 (Del)] whereby the High Court held that the proceedings against the appellant can be continued even in absence of the Company. We, accordingly, set aside that part of the impugned judgment dated 13-8-2007 [Visionaries Media Network v. Star India (P) Ltd., Criminal Misc. Case No. 2380 of 2004, decided on 13-8-2007 (Del)] passed by the High Court so far as it relates to the appellant and quash the summons and proceeding pursuant to Complaint Case No. 698 of 2001 qua the appellant.” 24. In Sharad Kumar Sanghi v. Sangita Rane (2015) 12 SCC 781 , this Court observed that: “11. In the case at hand as the complainant's initial statement would reflect, the allegations are against the Company, the Company has not been made a party and, therefore, the allegations are restricted to the Managing Director. As we have noted earlier, allegations are vague and in fact, principally the allegations are against the Company. There is no specific allegation against the Managing Director. When a company has not been arrayed as a party, no proceeding can be initiated against it even where vicarious liability is fastened under certain statutes. It has been so held by a three-Judge Bench in Aneeta Hada v. Godfather Travels and Tours (P) Ltd. in the context of the Negotiable Instruments Act, 1881. xx xx xx 13. When the company has not been arraigned as an accused, such an order could not have been passed. We have said so for the sake of completeness. It has been so held by a three-Judge Bench in Aneeta Hada v. Godfather Travels and Tours (P) Ltd. in the context of the Negotiable Instruments Act, 1881. xx xx xx 13. When the company has not been arraigned as an accused, such an order could not have been passed. We have said so for the sake of completeness. In the ultimate analysis, we are of the considered opinion that the High Court should have been well advised to quash the criminal proceedings initiated against the appellant and that having not been done, the order is sensitively vulnerable and accordingly we set aside the same and quash the criminal proceedings initiated by the 13 respondent against the appellant.” 25. This position was again clarified and reiterated by this Court in Himanshu v. B. Shivamurthy and Another. (2019) 3 SCC 797 . The relevant portion of the judgment reads thus: “6. The judgment of the High Court has been questioned on two grounds. The learned counsel appearing on behalf of the appellant submits that firstly, the appellant could not be prosecuted without the company being named as an accused. The cheque was issued by the company and was signed by the appellant as its Director. Secondly, it was urged that the observation of the High Court that the company can now be proceeded against in the complaint is misconceived. The learned counsel submitted that the offence under Section 138 is complete only upon the issuance of a notice of demand and the failure of payment within the prescribed period. In absence of compliance with the requirements of Section 138, it is asserted, the direction of the High Court that the company could be impleaded/arraigned at this stage is erroneous. 7. The first submission on behalf of the appellant is no longer res integra. A decision of a three-Judge Bench of this Court in Aneeta Hada v. Godfather Travels & Tours (P) Ltd. governs the area of dispute. The issue which fell for consideration was whether an authorised signatory of a company would be liable for prosecution under Section 138 of the Negotiable Instruments Act, 1881 without the company being arraigned as an accused. The three-Judge Bench held thus: (SCC p. 688, para 58) “58. The issue which fell for consideration was whether an authorised signatory of a company would be liable for prosecution under Section 138 of the Negotiable Instruments Act, 1881 without the company being arraigned as an accused. The three-Judge Bench held thus: (SCC p. 688, para 58) “58. Applying the doctrine of strict construction, we are of the considered opinion that commission of offence by the company is an express condition precedent to attract the vicarious liability of others. Thus, the words “as well as the company” appearing in the section make it absolutely unmistakably clear that when the company can be prosecuted, then only the persons mentioned in the other categories could be vicariously liable for the offence subject to the averments in the petition and proof thereof. One cannot be oblivious of the fact that the company is a juristic person and it has its own respectability. If a finding is recorded against it, it would create a concavity in its reputation. There can be situations when the corporate reputation is affected when a Director is indicted.” In similar terms, the Court further held: (SCC p. 688, para 59) “59. In view of our aforesaid analysis, we arrive at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is 14 imperative. The other categories of offenders can only be brought in the drag-net on the touchstone of vicarious liability as the same has been stipulated in the provision itself.” xx xx xx 12. The provisions of Section 141 postulate that if the person committing an offence under Section 138 is a company, every person, who at the time when the offence was committed was in charge of or was responsible to the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished. 13. In the absence of the company being arraigned as an accused, a complaint against the appellant was therefore not maintainable. The appellant had signed the cheque as a Director of the company and for and on its behalf. 13. In the absence of the company being arraigned as an accused, a complaint against the appellant was therefore not maintainable. The appellant had signed the cheque as a Director of the company and for and on its behalf. Moreover, in the absence of a notice of demand being served on the company and without compliance with the proviso to Section 138, the High Court was in error in holding that the company could now be arraigned as an accused.” 27. In terms of the ratio above, a company being a juristic person cannot be imprisoned, but it can be subjected to a fine, which in itself is a punishment. Every punishment has adverse consequences, and therefore, prosecution of the company is mandatory. The exception would possibly be when the company itself has ceased to exist or cannot be prosecuted due to a statutory bar. However, such exceptions are of no relevance in the present case. Thus, the present prosecution must fail for this reason as well.” 13. In view of the above facts and reasons, this petition succeeds. The entire criminal prosecution arising out of CL (R & A) Prosecution Case No. 29/2013 including the order dated 15.01.2013 whereby the learned Magistrate has been pleased to take cognizance of an offence under section 23 and 24 of the Contract Labour (Regulation and Abolition) Act, 1970, pending in the Court of learned Chief Judicial Magistrate, Dhanbad is hereby, quashed. 14. Accordingly, this stands allowed and disposed of. 15. Pending I.A., if any, also stands disposed of.