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2024 DIGILAW 659 (JHR)

Larsen and Tubro Ltd. v. State of Jharkhand

2024-07-02

SANJAY KUMAR DWIVEDI

body2024
JUDGMENT : Sanjay Kumar Dwivedi, J. Mr. Ravi Prakash, the learned counsel appearing on behalf of the O.P.No.2/ Labour Enforcement Officer (Central) seeks time to file counter affidavit. 2. By order dated 10.11.2017, the O.P.No.2 was called upon to file counter affidavit, but till date, the counter affidavit has not been filed and the matter is of the year 2017 which suggest that O.P.No.2 has got no interest in the matter and that is why he has not instructed his earlier counsel as well as the present counsel Mr. Ravi Prakash, and further the matter is an old one and stay was earlier granted and further in a petition under section 482 Cr.P.C, the only requirement is to look into the averments as well as the order taking cognizance and to consider the law points and no additional documents are required to be considered. As such, the prayer made by Mr. Ravi Prakash, the learned counsel appearing on behalf of the O.P.No.2/ Labour Enforcement Officer (Central) is rejected. 3. Heard Mr. Vikas Pandey, the learned counsel appearing on behalf of the petitioners, Mr. Sanjay Kumar Srivastava, the learned counsel for the respondent State and Mr. Ravi Prakash, the learned counsel appearing on behalf of the O.P.No.2/ Labour Enforcement Officer (Central), HarinDanga Bazar, Pakur. 4. The prayer in this petition is made for quashing of the entire criminal proceeding including the order taking cognizance dated 12.08.2013 arising out of OCR Case No.90 of 2013, corresponding to T.R. No.1101 of 2013, for non-compliance of sections 23 and 24 of Contract Labour (Regulation and Abolition) Act, 1970, pending in the court of learned Sub-Divisional Judicial Magistrate, Pakur. 5. The complaint case has been filed alleging therein that the petitioners carried the contract work of maintenance work FMC work of equipments/ Kamatsu Dump Truck for Panem Coal Mines, Pakur, through employee numbering of 68 on 08.05.2013 and thus, he is a contractor defined under section 2(c) of the said Act which is applicable on their establishment under section 211(4)(b). The accused is responsible for the execution of the above work. When the above said establishment was in progress Sri Sushil Kumar, Assistant Labour Commissioner (C), Patna visited the establishment on 08.05.2013 at Panem Coal Mines Amrapara, Pakur, and inspected the establishment under the provisions of the said Act and Central Rules and has observed such irregularities allegedly found therein. 6. Mr. When the above said establishment was in progress Sri Sushil Kumar, Assistant Labour Commissioner (C), Patna visited the establishment on 08.05.2013 at Panem Coal Mines Amrapara, Pakur, and inspected the establishment under the provisions of the said Act and Central Rules and has observed such irregularities allegedly found therein. 6. Mr. Vikas Pandey, the learned counsel appearing on behalf of the petitioners submits that the petitioner no.1 is a company and the petitioner no.2 was an officer of the company and he has already retired from the said company on 07.04.2013 and thereafter the present case has been lodged. He submits that in the complaint case, the petitioner no.2 is shown in representative capacity of the company and as such, a separate person is not made an accused in the complaint case. He draws the attention of the Court to the letter dated 06.05.2013 which is brought on record and submits that knowledge of not having license was there to the Inspector on that day itself, however, complaint case has been lodged on 07.08.2013, i.e., after one day of the limitation prescribed under section 27 of the said Act. He submits that in the said Act, three months limitation is there and he further submits that even if the case is lodged after one day, the entire criminal proceeding is bad in law as again no prayer was made before the learned court to condone the delay and in absence of any condonation, the learned court has taken cognizance, and to buttress his argument, he relied in the case of State of Himachal Pradesh and Another v. Himachal Techno Engineers and Another reported in (2010) 2 SCC 210 and relied on the paragraph nos.6, 14, 15 and 18 of the said judgment, which are quoted hereunder : “6. This leads us to the question whether the petition was filed beyond three months plus thirty days. There is no dispute that if the petition had been filed within a period of three months plus thirty days, the delay has to be condoned as sufficient cause was shown by the appellant for condonation of the delay. But the High Court has accepted the contention of the respondent that the period of three months plus thirty days expired on 10-3-2008 and, therefore, the petition filed on 11-3-2008 was barred. But the High Court has accepted the contention of the respondent that the period of three months plus thirty days expired on 10-3-2008 and, therefore, the petition filed on 11-3-2008 was barred. Therefore, the following questions arise for our consideration: (i) What is the date of commencement of limitation? (ii) Whether the period of three months can be counted as 90 days? (iii) Whether only three months plus twenty-eight days had expired when the petition was filed as contended by the appellant, or whether petition was filed beyond three months plus thirty days, as contended by the respondent? 14. The High Court has held that “three months” mentioned in Section 34(3) of the Act refers to a period of 90 days. This is erroneous. A “month” does not refer to a period of thirty days, but refers to the actual period of a calendar month. If the month is April, June, September or November, the period of the month will be thirty days. If the month is January, March, May, July, August, October or December, the period of the month will be thirty-one days. If the month is February, the period will be twenty-nine days or twenty-eight days depending upon whether it is a leap year or not. 15. Sub-section (3) of Section 34 of the Act and the proviso thereto significantly, do not express the periods of time mentioned therein in the same units. Sub-section (3) uses the words “three months” while prescribing the period of limitation and the proviso uses the words “thirty days” while referring to the outside limit of condonable delay. The legislature had the choice of describing the periods of time in the same units, that is, to describe the periods as “three months” and “one month” respectively or by describing the periods as “ninety days” and “thirty days” respectively. It did not do so. Therefore, the legislature did not intend that the period of three months used in sub-section (3) to be equated to 90 days, nor intended that the period of thirty days to be taken as one month. 18. Therefore when the period prescribed is three months (as contrasted from 90 days) from a specified date, the said period would expire in the third month on the date corresponding to the date upon which the period starts. 18. Therefore when the period prescribed is three months (as contrasted from 90 days) from a specified date, the said period would expire in the third month on the date corresponding to the date upon which the period starts. As a result, depending upon the months, it may mean 90 days or 91 days or 92 days or 89 days.” 7. Relying on above judgment, Mr. Pandey, the learned counsel appearing on behalf of the petitioners submits that how the limitation is required to be counted that has been disclosed therein and in the present case, the months are coming as, May, June and July and in view of said judgment, the total period comes to 92 days. He further submits that the petitioner no.2 is not in the roll of the company and inspite of that, he has been made accused in the representative capacity of the company. He further submits that in light of section 25 of the said Act, if the offender is the company, then the person looking to the day-to-day affairs of the company can only be prosecuted. He further submits that the learned court has taken cognizance only against the company and not against any person. He further submits that the order taking cognizance dated 12.08.2013 is further bad in law as there is non-application of judicial mind, and on these grounds, he submits that the entire criminal proceeding may kindly be quashed. 8. Mr. Sanjay Kumar Srivastava, the learned counsel appearing on behalf of the respondent State submits that the Labour Enforcement Officer (Central) has lodged the case and in view of that, the learned court has taken cognizance. 9. Mr. Ravi Prakash, the learned counsel appearing on behalf of the O.P.No.2/ Labour Enforcement Officer (Central) submits that there are so many irregularities which have been parted in the complaint case and as such, the case is made out. He submits that grounds taken by the petitioners can be appreciated by the learned court in trial and this Court may not quash the entire criminal proceeding at this stage. 10. In view of above submission of the learned counsels appearing on behalf of the parties, the Court has gone through the materials on record. He submits that grounds taken by the petitioners can be appreciated by the learned court in trial and this Court may not quash the entire criminal proceeding at this stage. 10. In view of above submission of the learned counsels appearing on behalf of the parties, the Court has gone through the materials on record. The document brought on record i.e. the letter dated 06.05.2013 issued under the signature of Assistant Labour Commissioner, Patna addressed to the petitioner no.1 clearly suggest that the Labour Enforcement Officer was having the knowledge about not having the license on that day. In view of that months are coming to the effect, May, June and July and in view of the judgment of the Hon’ble Supreme Court in the case of State of Himachal Pradesh and Another v. Himachal Techno Engineers and Another(supra), it comes to 92 days. Thus, it is crystal clear that there was delay of one day in filing of the said complaint case and in view of that, the case of the petitioners is covered by the judgment of the Hon’ble Supreme Court in the case of State of Himachal Pradesh and Another v. Himachal Techno Engineers and Another(supra). Further, the petitioner no.2, who is made accused in the representative capacity of the said company and he was already retired from the said company on 07.04.2013, whereas the case was lodged later on. The learned court has taken cognizance only against the company and not against any person who is looking after the day-to-day affairs of the company. There is no averment in the complaint petition that the petitioner no.2 was looking after the day-to-day affairs of the company which is one of the ingredients to make out the case under the said Act in light of section 25 thereof. A reference may be made to the case of S.K. Alagh v. State of Uttar Pradesh and Others reported in (2008) 5 SCC 662 . Paragraph no.19 of the said judgment is quoted below: “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. 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.” 11. In view of above, there is no averment about looking after the day-to-day affairs of the company by the petitioner no.2 who is said to be already retired prior to filing of the complaint case and further upon looking to the order taking cognizance dated 12.08.2013, the Court finds that the word ‘cognizance’ has been filled up in the blank space which further suggest that in absence of application of judicial mind the said order has been passed. 12. In view of above facts, reasons and analysis, this is a fit case to exercise power under section 482 Cr.P.C. 13. As such, entire criminal proceeding including the order taking cognizance dated 12.08.2013 arising out of OCR Case No.90 of 2013, corresponding to T.R. No.1101 of 2013, pending in the court of learned Sub-Divisional Judicial Magistrate, Pakur are quashed. 14. This petition stands allowed and disposed of. 15. Pending petition, if any, also stands disposed of accordingly.