Jharkhand High Court
Aditya Puri vs Union Of India (Uoi) And Anr. on 7 August, 2003
Equivalent citations: (2004)IILLJ189JHAR, 2004 LAB. I. C. 331, 2004 AIR - JHAR. H. C. R. 322, (2004) 2 LABLJ 189, (2004) 3 LAB LN 1105, 2004 LABLR 311
Author: Vikramaditya Prasad
Bench: Vikramaditya Prasad
ORDER Vikramaditya Prasad, J.
1. Heard both the sides.
2. This criminal miscellaneous petition filed under Section 482 of the Code of Criminal Procedure is directed against the order dated December 12, 2002 whereby and whereunder the learned Chief Judicial Magistrate, Ranchi has taken cognizance of the offence under Section 24 of the Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter called as 'the Act') and directed to issue summons to the accused persons named in the complaint petition (annexure-4). There were two accused persons namely, (1) Sudeep Kumar Ghosh, Branch Manager, H.D.F.C. Bank Ltd. at Main Road, Ranchi and (2) Sri Aditya Puri, Chairman-cum-Managing Director at Kamala Mills compound Senapati Bapat Marg, Lower Parel, Mumbai. It is alleged in the complaint petition that on September 13, 2002 the office of the company at Ranchi was inspected by the; officials of the Labour Enforcement Officer (Central), Ranchi and they detected (i) the accused persons executing work without obtaining certificate of registration from the Registering Officer cum Assistant Labour Commissioner (Central) in violation of Rule 7 of the Rules framed under the Act, (ii) that the accused persons failed to display notices showing rates of wages, hours of work, date of payment, place of payment. Name and address of the Inspectors having jurisdiction in English and Hindi at the place of work, in violation of Rule 91 (j)(i), (iii) that the accused person failed to submit copies of notices displayable under Rule 81 (1)(i) to the Inspector in violation of Rule 81(2), (iv) that the accused person failed to maintain the Register of contractors at the place of work, in violation of Rule 74 and (v) that the accused persons failed to submit notice of commencement/completion in form VI-B to the Inspector, in violation of Rule 81(3). In paragraph 5 of the complaint petition the following allegations have been made that the offences detected by the complainant at the time of his inspection were incorporated in inspection report - show cause Notice No. 35(8) 2002-RNC dated September 17/18, 2002 and was served to the accused persons by registered A.D. post. On the basis of this, the cognizance was taken by the impugned order which is sought to be quashed.
3. It is fairly conceded by the learned counsel for the petitioner that the accused No. 1, Branch Manager who was the in-charge of Ranchi Branch Office, has not challenged cognizance and he is facing the trial and has made his appearance whereas this petitioner Aditya Puri has challenged the impugned order on the ground that the premises of the company was inspected at Ranchi whereas this petitioner holds his office at Mumbai and, therefore, he has got no direct nexus with the alleged crime and consequently the cognizance could not have been taken against him. In support of his contention the learned counsel for the petitioner has relied on a decision of the Patna High Court in Indian Iron and Steel Co. v. State of Bihar reported in 1987-II-LLJ-333, where a learned single Judge held that the prosecution of the proprietor of a proprietary firm or the manager of a colliery, under Section 23 cannot be sustained in absence of a statement as required by Section 25 that he had been in charge of and responsible to the business at the time of commission of such offence. Section 25 would be a bar to the prosecution. Another decision referred to and relied on by the learned counsel for the petitioner is Municipal Corporation of Delhi v. Ram Kishan Rohatgi reported in AIR 1983 SC 67 : 1983 (1) SCC 1 wherein Apex Court held that power under Section 482 of the Code of Criminal Procedure can be exercised for quashing the criminal proceeding against an accused in the initial stages only if on the fact of the complaint or the papers accompanying the same, no offence is constituted. In other words, the test is that taking the allegation and the complaint as they are without adding or subtracting anything, if no offence is made put then the High Court will be justified in quashing the proceedings in exercise of its powers under Section 482. Another decision that was referred to by the learned counsel for the petitioner is S.K. Ahuja v. State of Bihar 1988 (36) BLJR 461, which was a direct decision on this point of the Patna High Court. In that case a , complaint was filed under Sections 23/24 of the Contract Labour (Regulation and Abolition), Act, 1970 and cognizance was taken. In the case there were 8 petitioners and except petitioner No. 1 S.K. Ahuja all were residents of Kanpur which is at distant place from the place or firm whereas petitioner No. 1 being the active partner, was managing the day to day affairs of the aforesaid firm and if any violation alleged to have been committed in the firm petitioner No. 1 was alone liable to be proceeded against for the alleged violation and in respect of petitioner Nos. 2 to 8 the proceeding was quashed.
4. The learned counsel representing the Central Government argued that as in this case the cognizance has been taken after proper application of mind, the Court cannot interfere with the cognizance and with the proceeding because it will be open to the petitioner to rebut the allegation at the time of trial. The cardinal principle of the criminal jurisprudence is that if it is a case of apparent harassment and humiliation, the continuation of any proceeding amounted to the abuse of the process of the Court then in that circumstance, the Court has to interfere with the same. In the aforesaid circumstance, I again revert back to Section 25(1) of the Act, which reads as follows:
"25(1) If the person committing an offence under this Act is a Company, the Company as well as every person in charge of, and responsible to, the company for the conduct of its business at the time of the commission of the offence shall be deemed' to be guilty of the offence and shall be liable to be proceeded against and punished accordingly."
5. A plain reading of Sub-clause (1) of Section 25 of the Act, it is clear that the person in charge of, and responsible to the company for the conduct of its business at the time (emphasis) of the commission of the offence shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
6. The learned counsel for the opposite party argued that as per Section 25(2) of the Act, the petitioner can be fastened with the liability. On a bare perusal of this provision it is apparent that the liability is on a person, who was in charge of the office when the offence was detected. To fasten the others who were not at that time in charge of the office, it should be shown that it was with their consent, or connivance, or that the commission of the offence is attributable to their neglect. This must be shown in respect of any director, manager, managing agent or any other officer of the company, who were not in charge of the office at the time when offence was detected and were holding office at distant places from the place of occurrence.
7. In the whole complaint petition (annexure-4) these elements are wanting altogether. There is no showing on the record that petitioner either consented to or connived at, or attributed to any negligence while commission of the offence is detected to have been done by accused No. 2. Therefore I disagree with the submission of the learned counsel for the opposite party No. 2 that even Sub-section (2) of Section 25 of the Act is attracted in the facts and circumstances of the case and consequently the petitioner should face the trial. Hence if these elements are wanting in this case then no offence, prima facie, is made out against the petitioner atleast for the present, for which the cognizance was taken. Therefore the first decision relied on by the learned counsel for the petitioner that in absence of these ingredients, the cognizance cannot be taken becomes applicable and second decision of the learned single Judge relied on by the learned counsel is that when proceeding against other partners, who were residents of different places then the place where offence is detected to have been committed also becomes applicable in the facts and circumstances of the case.
8. Considering the facts and circumstances of the case and relying on the decisions quoted above, the proceeding against the petitioner Aditya Puri is quashed at this stage as it will amount to abuse of the process of the Court. But if the evidence comes subsequently then the Court below will be at liberty to summon him for facing the trial.
9. This Cr.M.P. is allowed at the stage of admission itself.