Patna High Court
P.R. Catering vs State Of Bihar And Anr. on 16 January, 2001
Equivalent citations: 2001CRILJ4163, (2002)ILLJ227PAT
Author: P.K. Deb
Bench: P.K. Deb, D.P.S. Choudhary
JUDGMENT P.K. Deb, J.
1. This application has been filed by the above named petitioner under Section 482, Cr.P.C. for quashing the order dated November 13, 1995 passed by the then Chief Judicial Magistrate, Patna, in complaint case No. 1275(H)/95 whereby cognizance has been taken of an alleged offence under Sections 23 and 24 of the Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter referred to as 'the Act') and also Issuance of summon to the petitioners to appear before the Court and face trial.
2. As this matter relates to single Bench,: it was heard by Hon'ble CHOUDHARY S.N. MISHRA, J. on March 6, 2000 who passed the following order.
"In this case the question for determination is as to whether the petitioner who was awarded a contract work of catering service in Brahmputra Mail is a contractor within the meaning of Section 2(c) of the Contract Labour (Regulation and Abolition) Act, 1970. Having regard to the question involved and having further regard to the fact that no authentic decision on the issue, in hand, is available, it is desirable that this case be heard by a larger Bench. Let second copy of the brief be filed within a week."
Thus, this matter has come up before the Division Bench.
3. The brieffacts of the case are that the petitioner is a partnership firm registered under the Indian Partnership Act having its registered office in Calcutta. According to the petitioner, the partnership firm was established in the year 1984 and it was engaged in business of catering which includes sale of food and drinks to Railway passengers of different trains. It is the further contention of the petitioner that except for the registered office at 20, Acharya Prafulla Chandra Road, Calcutta- 9, there is no other business establishment of the petitioner anywhere in India.
4. The present dispute arose in respect of the petitioner's catering business carried on in a running train namely, Brahmputra Mail (4015 UP). Such business of catering on running trains was on the basis of an agreement/ contract entered into between the petitioner-firm and the North East Frontier Railway on July 4, 1988 (copy of the agreement/contract has been annexed as Annexure-2). The contract/ agreement was signed and executed on behalf of the petitioner by one of its partners and on the other hand on behalf of the N.F. Railway by the Deputy Chief Commercial Superintendent having Headquarters at Guwahati in Assam. On September 13, 1995 the O.P. No. 2 Labour Enforcement Officer, Central, Patna, inspected the pantry car of the running Brahmputra Mail during stoppage at Patna Station. An inspection report was prepared by O.P. No. 2 and it was alleged that a copy of the said report was served on the petitioner. But, according to the petitioner, no such report was ever been served on the petitioner. As per the inspection report O.P. No. 2 had found that there were various violations of the provisions of the Act and the rules made thereunder the details of which were given in the complaint itself as Annexure- 1. As the defects as pointed out in the report had not been cured by the petitioner, the Complaint Petition (Annexure- 1) was filed before the Chief Judicial Magistrate, Patna, by O.P. No. 2 on November 10, 1995. On the basis of that complaint the learned Chief Judicial Magistrate had taken cognizance of the offence vide his order dated November 13, 1995 which has been impugned in the present petition.
5. On the face of the order impugned it could be found that on a typed paper such cognizance has been taken by just filling up the gap in the typed order and, according to the petitioner, there was practically no application of mind by the learned Chief Judicial Magistrate while taking cognizance. Cognizance has been challenged on the following grounds:
(I) that the petitioner does not come within the purview of the definition of 'contractor' as per Section 2(c) of the Act and as such the employees of the petitioner cannot be construed as contract labour.
(ii) the contract/agreement entered into between the Railways and the petitioner would alone reveal that the petitioner was only licencee of the Railways for the sale of prepared food and drinks to the travelling passengers in the running trains and as such the petitioner has got no establishment as defined under the Act carried in the running trains.
(iii) the Central Government is not the proper Government under the Act for the purpose of enforcement of the provisions of the Act and consequently the complaint filed by the O. P. No. 2 is without jurisdiction.
(iv) that the learned Chief Judicial Magistrate did not apply his mind in considering the complaint when it did not reveal any prima facie case and as such cognizance taken is without jurisdiction.
6. A counter-affidavit has been filed by O.P. No. 2 and in that counter-affidavit all the contentions made on behalf of the petitioner have been categorically denied and by way of explanation it has been stated that the agreement/contract would specifically reveal that the petitioner was a registered contractor of the Railways and the pantry car in the running train would definitely come within the purview of establishment as per the Act itself.
7. The vital point to be decided in the case is whether the petitioner-firm comes within the purview of the definition of contractor or not. Section 2(c) of the Act defines the contractor in the following manner:
"Contractor in relation to an establishment, means a person who undertakes to produce a given result for the establishment, other than a mere supply of goods or articles of manufacture to such establishment, through contract labour or who supplies contract labour for any work of the establishment and includes a sub-contractor."
From the above it is clear that the definition of contractor is virtually dependent on the word "establishment" and as such establishment has again been defined under Section 2(e) of the Act which again runs as follows:
"establishment" means : (i) any office or department of the Government or local authority or,
(ii) any place where any industry, trade, business, manufacture or occupation is carried on.
Thus, establishment as per the above definition must be placed where any industry or manufacture or occupation is carried on and that place must relate particularly i. e. department of the Government or local authority. Keeping in mind the definitions of contractors and establishment as mentioned above, the present case is to be decided as to the relations between the Railways and the petitioner and the contract agreement arrived on between the two.
8. The petitioner's claim is that it has got no other establishment or business premises except its registered office situated in Calcutta and that by the contract or the agreement the petitioner had never occupied any establishment or premises of business belonging to the Railways.
9. According to O. P. No. 2 the pantry car which was being used by the petitioner in the running trains for supply of foods to the passengers come within the purview of the establishment and the business premises of the petitioner belong to the Railways. In this respect the terms of contract and agreement are to be scrutinised to find out whether the petitioner comes within the purview of the definition of Contractor and establishment thereof as per Section 2 of the Act.
10. It is the clear contention of the petitioner that the contract/agreement arrived at between the petitioner and the Railways as per Annexure-2, although, termed as contract/agreement, but it was only a licence. The agreement has been styled as agreement for Dining/Pantry Car Contract.
Clause 2 of or the agreement is in the following manner:
"The Railway Administration shall during the continuance of this agreement permit the contractor to use and occupy dining/Pantry cars as may, in the opinion of the Railway Administration be necessary to the contractor in connection with the supply of Refreshments under this Agreement and the contractor shall not use or suffer the same to be used for purpose other than those provided for by the Agreement."
On a plain reading of the clause it may appear that the use of Pantry car in the running trains comes within the purview of the establishment as per Section 2(e) of the Act. But the sub-sequent paragraphs in the agreement itself would show that such Pantry car was allowed to be used by the contractor on the basis of payment of licence fee and Clause 16 of the agreement which runs as follows would clear the same.
"The Contractor shall pay in advance in cash or cheque a license fee of Rs. 45/- (Rupees Fortyfive only) per month for each of the cars used as Dining/Pantry cars to the Station Superintendent/Guwahati, North East Frontier Railway. Such license fee shall be paid on the 5th day of every calendar month during the continuance of this agreement. The Contractor shall not be entitled to any refund of the licence fee in whole or in part under any circumstances."
Thus, the Pantry car allowed to be used by the petitioner was on the basis of licence fee and if all the clauses of the agreement are read as a whole the form of agreement would come in the form of Licensee only. In the running trains belonging to the Railway establishment the petitioner had been allowed to supply prepared foods and drinks to the passengers of the train and for safety of health of the passengers being taken into consideration some restrictions are put on supply of foods and drinks to its customers (Railway passengers). So, the petitioner was to supply foods to its customers and restrictions regarding the price and hygenic health conditions some clauses have been put to restrict the petitioner such as asking of exorbitant prices and not to supply stale foods etc. etc. From Clause 16 of the Agreement nowhere it shows that the Pantry cars in the running trains are being used by the petitioner permanently during the course of agreement. Such sort of establishment in the pantry cars are varying from train to train in the running condition. After the train is halted at the destined Stations the Contractor/petitioner vacates the same and as per the agreement he would occupy another Pantry car in another running train. Thus, there is no establishment under the Railways for carrying out the contract and hence use of Pantry cars, on payment of licence fees would definitely not come within the scope of establishment as per Clause 2 of the Agreement to cover the definition of the Contractor as per Section 2(c) of the Act.
11. In this connection a Judgment of Kerala High Court reported in 1984-II-LLJ-314 may be referred. It was a case of Kerala Civil Aviation General Workers' Co-operative Society v. Union of India, The employees of the Airport had formed a Co-operative Society consisting of the members doing porterage work. The question was whether the porters doing porterage work in Airport forming themselves into Co-operative Society would come under the definition of contract labour and whether the Civil Aviation Department would be construed as principal employer or not. It was held that the Civil Aviation Department which sells the privilege to do porterage in its premises cannot be considered to be the principal employer within the meaning of the Act, for the work done by the contract labour is not part of the work of the establishment. The members of the Union were the employees of the Society and the Society was the contractor on whom the licence or the privilege to enter the premises of the Airport and do porterage service for the travelling passengers, cannot be construed to be the rights of the contract labour against their employer and the Society is construed as consisting of its members as the members of the Society and cannot fall within the definition of contract labour. If this analogy is brought in the present case, it is found that the Railways had no liability to provide foods and drinks to its passengers. But to facilitate proper privilege to the passengers the petitioner was engaged for providing foods and drinks to the passengers putting some restrictions regarding hygiene and health condition and not to ask for any abrupt or exorbitant charges from the passengers. In that way, the premises of the running train if provided under licence fee, it cannot be said that the principal employer is the Railways. The contract of sale of foods and drinks is in between the petitioner and the Railway passengers. Only a premise of the Railways in the running train had been provided on payment of licence fee to facilitate supply of such foods and drinks. It does not come within the definition of contract and establishment as per the Act.
12. Now, is to be considered the second point-whether the O.P. No. 2 can have authority to inspect or to file any complaint. In Section 2 of the Act the appropriate Government has been defined in relation to the establishment as per Industrial Disputes Act, 1947. But in relation to any other industrial dispute, the State Government in which other establishments are situated lies on the authority. Even if it is considered that the Pantry car within the running train is an establishment then also it does not come within the purview of appropriate Government as per definition of Industrial Disputes Act because the Pantry cars are not static ones. But it varies from State to State through which the train passes. In that way, OP. No. 2 who is a Labour Inspector centrally, cannot be said to be the appropriate Government as submitted from the side of the petitioner.
13. On the other hand, it is the contention of the O.P. No. 2 that even if the Pantry car runs through different States, but the Pantry car belongs to the Railways and as such it comes within the purview of appropriate Government as defined under the Industrial Disputes Act. This point has been considered by Calcutta High Court as reported in AIR 1952 Cal 6 (Carlsbad Mineral Water Mfg. Co. Ltd. v. P.K. Sarkar). In that case a company manufacturing mineral water had entered into a contract with the Central Government for selling certain articles to Railway passengers. It was held by Calcutta High Court in the following manner:
"what is referred to in Section 2(a)(i) and Section 2(g)(i) is any industry owned by Government which is being carried on by Government itself either through a department or some authority created by Government to carry on that industry. An industry carried on by or under the authority of Government is a Government industry. No business owned and carried on by a private person or a limited company can be business carried on by or under the authority of Government."
In that case aerated water was manufactured by the company and then entered into contract with the Central Government by which it acquired a right to sell its aerated waters on the Stations of certain Railways and on the running trains of that Railway and under the contract the Government had a right to fix maximum prices and to control to some extent the work of the company. It was held that, though, the contract required considerable control by the Government, it would not make the business carried on by the Company a business of Government carried on by authority of the Government. The present case totally fits in with the reported case of Calcutta High Court. Here also, the Central Government had imposed some restrictions for carrying on some business of foods and drinks by the petitioner on doing supply to those at different Stations (sic) or in the running trains to its passengers and such business is never done by the Central Government or carried on by an authority of the Government. It was only a licence given to the petitioner on payment of licence fees and when detections had been made at Patna Railway Station, then the State Government had the authority even if the contract comes within the purview of the Act as per definition of appropriate Government in Clause 2 in Section 2(a)(i) of the Act. Thus, on a close consideration of the whole aspects of the case, I come to the conclusion that the petitioner does not come within the purview of the Act as a contractor and the O.P. No. 2 had no authority to lodge any complaint against the petitioner.
14. The last point was with regard to non-application of mind by the learned Chief Judicial Magistrate in taking cognizance. It has already been mentioned that on a typed paper of taking cognizance the gaps have been filled up by the office and then the Chief Judicial Magistrate had put his signature and such sort of taking cognizance has been depricated long back by a Division Bench of this Court as reported in 1980 BBCJ (HC) 603 (Jaiswal Bus Service, Ranchi v. State of Bihar) and, thus, on consideration of all points as raised in this petition, I come to a definite finding that the complaint itself is taken thereof is also illegal and without jurisdiction.
15. Hence, this application is hereby allowed and the impugned order on cognizance together with the criminal proceedings in Complaint Case No. 1275(H)/95 are hereby quashed.