Patna High Court - Orders
Reliance Webstore Ltd. Thru. Dusyant ... vs The Union Of India on 1 November, 2012
Author: Hemant Kumar Srivastava
Bench: Hemant Kumar Srivastava
Patna High Court Cr.Misc. No.17866 of 2010 1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.17866 of 2010
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Reliance Webstore Ltd. through Dusyant Kumar Dushkar & Anr
.... .... Petitioners
Versus
The Union of India & another
.... .... Opposite Party/s
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Appearance:
For the petitioners : Mr. Anil Jaypswal, Advocate
For the opposite party : None.
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CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR
SRIVASTAVA
ORAL ORDER
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7 01.11.2012This quashing petition has been filed under section 482 of the Cr.P.C for quashing the order dated 18.2.2010 passed by learned Chief Judicial Magistrate, Patna in Complaint case no.225 (C-2) 2010 of 2009 by which and whereunder the learned Chief Judicial Magistrate summoned the petitioners after taking cognizance for the offences punishable under sections 23 and 24 of the Contract Labour (Regulation and Abolition) Act, 1970.
The brief fact, which lies to file this quashing petition, is that Labour Enforcement Officer (Central) Patna inspected the establishment of the petitioners on l8.11.2009 and found certain irregularities pertaining to registration, wage register and record as well as return. The show cause was issued to the petitioners in respect of the aforesaid irregularities. The petitioners replied to the aforesaid show cause but the reply was not found satisfactory and accordingly, on 18.2.2010, the aforesaid Labour Enforcement Officer (Central) Patna filed complaint case bearing Complaint case no.225 (C-2) 2010 of 2009 against the petitioners. On receipt of the complaint petition, learned Patna High Court Cr.Misc. No.17866 of 2010 2 Chief Judicial Magistrate took cognizance in the manner as stated above.
The contention on behalf of the petitioners is that learned Chief Judicial Magistrate passed the impugned order dated 18.2.2010 without applying his judicial mind because the impugned order was typed from before and there were some relevant spaces left for filing up some informations. It is further contended by him that the manner in which the impugned order has been passed is not in accordance with law and perusal of the impugned order shows complete lack of application of judicial mind.
Learned counsel for the petitioners submitted that summoning an accused in criminal case is very serious matter and the criminal prosecution can not be set into motion in routine manner as held by the Apex Court of this country in M/s Pepsi Foods limited and another vs. Special Judicial Magistrate and others reported in 1998 SC page 128. Learned counsel for the petitioners also relied upon an unreported decision of this court passed on 19.7.2010 in Cr. Misc. no. 1020/2009 in which another bench of this court set aside cognizance order which had been passed on a printed form and gave liberty to the court below to apply its mind afresh.
Learned counsel for the petitioners further submitted that according to section 27 of the Contract Labour (Regulation and Abolition) Act, 1970, the period of limitation for taking cognizance of the offences punishable under the aforesaid Act is only three months but in the present case, cognizance has been taken beyond period of limitation. It is further contended by him that Labour Enforcement Patna High Court Cr.Misc. No.17866 of 2010 3 Officer (Central) Patna was not a competent authority to file the present complaint case because he was not inspector within the meaning of section 28 of the Contract Labour (Regulation and Abolition) Act, 1970. It is further contended by him that Labour Enforcement Officer (Central) Patna has not been appointed by the government of Bihar and, therefore, he has no jurisdiction to file complaint case. It is further contended by him that according to section 28 of the Contract Labour (Regulation and Abolition) Act, 1970, only competent notified person can file complaint case but in the present case, the petitioners carry their business in Bihar and they are registered with the Bihar Government since the year 2004 and no violation of the Contract Labour (Regulation and Abolition) Act, 1970 has been found by the Bihar Government. It is further contended by him that the petitioners' company sells mobile hand sets, recharge coupons and for the aforesaid company does not require any permission from the Central Government to carry out its business activity and, therefore, company of the petitioners does not carry any business under the authority of the Central Government and business establishment of the petitioners is just like as any other retail store and, therefore, inspector appointed by the Central Government does not have any power to launch prosecution against the petitioners. In support of the above stated contention, he referred a decision reported in 1998(2) PLJR page 681.
Counter affidavit has been filed on behalf of opposite party no.1 denying the averments made in petition of the petitioners. It has specifically been pleaded in the counter affidavit that nature of work of company of petitioners is covered under the definition of "telegraph"
Patna High Court Cr.Misc. No.17866 of 2010 4 and "telegraph service" is declared as controlled industry. It is further pleaded by him in the counter affidavit that Reliance Web World limited is engaged in the work of providing service pertaining to telecom operation and nature of work is fully covered under the definition of telegraph under section 3 of the Indian Telegraph Act, 1885. It is further pleaded by him in para 9(III) of the counter affidavit that Schedule VII of the Indian Constitution enlist the subject telecom, post telegraph at item no. 31 of the Union List with the objective that the Union Government shall have exclusive right to make laws on the subject to ensure telecommunication service in India. This objective is manifested through the Indian Telegraph Act, 1885. and telegraph service has been declared as controlled industry vide Gazette Notification S.O. 1233(E) dated 4.11.2004 as per the provision of the Industrial Disputes Act, 1947 and according to section 2(a) (i) of the Contract Labour (Regulation and Abolition) Act, 1970, the Central Government is appropriate Government in relation to an establishment in respect of which the appropriate Government under the Industrial Disputes Act, 1947 is the Central Government.
It has further been pleaded in counter affidavit that since the Central Government is appropriate government for the petitioners' establishment and, therefore, inspector appointed by the Central Government under section 28 of the Contract Labour (Regulation and Abolition) Act, 1970 is well within his jurisdiction to inspect the premises and file complaint for the offences punishable under sections 23 and 24 of the Contract Labour (Regulation and Abolition) Act, 1970 and therefore, Labour Enforcement Officer (Central) Patna rightly filed Patna High Court Cr.Misc. No.17866 of 2010 5 the present complaint case. It is also pleaded in the counter affidavit that cognizance has been taken within the period of limitation.
No body appeared on behalf of opposite party at the time of hearing of this petition.
The main contention of learned counsel for the petitioners is that Labour Enforcement Officer (Central) Patna has got no jurisdiction to file complaint case because nature of the work of establishment of the petitioners does not come under the definition of controlled industry and the petitioners have already obtained registration certificate from the State of Bihar but it appears that company of the petitioners is engaged in work of providing service pertaining to telecom operation and nature of work of the company of the petitioner has been incorporated in its memorandum of the association.
Admittedly, telecom industry is a controlled industry and therefore, it has been rightly pleaded on behalf of opposite party that the Central Government is appropriate Government in respect of controlled industry and, therefore, the Central Government has got authority to issue certificate of registration in respect of controlled industry.
Admittedly, company of the petitioners does not have any registration certificate issued by the Central Government. Furthermore, in the aforesaid circumstance, inspector appointed by the Central Government has got jurisdiction to lodge complaint case, if any violation of section 28 of the Contract Labour (Regulation and Abolition) Act, 1970 is found.
So far as passing of the impugned order on printed form is concerned, I do agree with the submission of learned counsel for the Patna High Court Cr.Misc. No.17866 of 2010 6 petitioners that learned Chief Judicial Magistrate did not apply his judicial mind at the time of passing the impugned order and he only filled spaces left in the printed form on which the impugned order has been passed. Therefore, in my view, matter should be sent back to learned Chief Judicial Magistrate, Patna for passing afresh order.
Accordingly, this quashing petition is allowed and the impugned order dated 18.2.2010 passed in Complaint case no.225 (C-2) 2010 of 2009 by learned Chief Judicial Magistrate, Patna is, hereby, quashed with direction to learned Chief Judicial Magistrate to pass afresh order in the aforesaid case and at the time of passing order in the matter, learned Chief Judicial Magistrate, Patna shall consider the point of limitation as raised by the petitioners before this court.
In the aforesaid manner, this petition stands disposed off on admission stage itself.
Shahid ( Hemant Kumar Srivastava,J)