Patna High Court
Rusi Homi Mody vs Labour Enforcement Officer And Anr. on 9 February, 1983
Equivalent citations: 1983(31)BLJR332
JUDGMENT
Madan Mohan Prasad. J.
1. These two Criminal Miscellaneous applications have been heard together and are being disposed of by this common judgment as the points involved in both the applications are similar.
Criminal Misc. No. 1300 of 1981 (R)
2. This application has been filed for quashing the order taking cognizance on the complaint petition dated 18-6-1981 which is Annexure 1 to this application pending in the Court of Shri B.J. Ansari, Judicial Magistrate, Hazaribagh in G.R. Case No. 1663 of 1981. The order dated 20-6-1981 taking cognizance is Annexure 4 to this application.
3. The facts giving rise to the filing of the complaint petition are as follows: There is a coal mine at Ghatotand of Tata Iron and Steel Company Limited (hereinafter referred to as 'the Company') and the petitioner is the Vice-Chairman-cum-Managing Director of the Company. The Company owns the aforesaid colliery named as West Bokaro Colliery at Ghatotand. This Ghatotand is in the district of Hazaribagh and the coal raised from the mine is consumed in the factory at Ghatotand for manufacturing Steel Goods. The petitioner resides at Calcutta whereas the coal mine at Ghatotand is much away from the place of residence of this petitioner. The petitioner is not the principal employer within the meaning of Contract Labor (Regulation and Abolition) Act, 1970 (hereinafter to be referred as 'the Act'). The Limited company is the owner of the mine. The petitioner is also not the agent of the mine nor the manager of the mine.
4. The colliery was inspected by the authority on 28-3-1981 and certain violations of the provisions of the Act were found by the inspecting authorities and a case has been instituted against the petitioner and others under Sections 23 and 24 of the Act. It was also found that the return for the commencement and completion of work of the contractors in Form VI-B was not submitted within the prescribed period. Show-cause notice was issued and the same was complied with before the filing of this application. Now it has been contended that the petitioner, being not a person in whose immediate control the affairs of the mine in question are carried out, the duties are cast upon the principal employer, which position the petitioner does not hold. A manager has also been appointed for this purpose and he is responsible for the control and management and supervision and direction of the mine. The owner and agent of every mine are required to appoint a manager for carrying out the business. The manager of the mine has also been prosecuted and he is accused No. 3 in the complaint petition.
5. It has been contended that under the Act, provisions have been laid down for the prosecutions when the offence has been committed by the Company.
6. The provisions laid down are as follows:
(1) If the person committing an offence under this Act is a Company, the Company shall as well as every person in charge of and responsible to, the Company for the conduct of its business at the time of commission of the offence shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly, provided that nothing contained in the sub-section shall render any such person liable to any punishment if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in Sub-section (1) where an offence under this Act has been committed by a Company and it is proved that the offence has been committed with the consent or connivance of, or that the commission of the offence is attributable to neglect on the part of any Director, Manager, Managing Agent or any other Officer of the Company, such Director, Manager, Managing Agent or such other Officer shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation.--For the purpose of this Section (a) 'Company' means any body corporate and includes a firm or other association of individuals, and (b) Director in relation to a firm means a partner in the firm.
7. Now it has been contended that in view of the provisions of Section 25 of the Act, the petitioner is not liable for being prosecuted. There is no statement in the complaint petition that the petitioner was responsible to the Company for the conduct of the business or alleged offence was committed within his knowledge and that with his consent or is attributable to the neglect on his part. The petitioner is neither the owner, occupier or the principal employer of the coal mine at Ghatotand which would be apparent from the resolution passed by the Directors of the Company at their meeting held on 26-6-1980. Annexure 2 is the copy of that resolution. In these circumstances, it has been urged that the prosecution of the petitioner is an abuse of the process of the Court and the facts stated in the petition of complaint do not constitute any offence whatsoever against the petitioner and the continuation of the proceeding against the petitioner is an abuse of the process of the Court. The learned Magistrate, while taking cognizance has not applied this Judicial mind and sufficient ingredients of means rea were not kept in view so far the petitioner is concerned at the time of taking cognizance. In this circumstance, it has been urged that the order taking cognizance (Annexure 4) may be quashed.
8. Thus the point for consideration in this case is as to whether the petitioner is a principal employer within the meaning of the Act ? If the petitioner is not a principal employer within the meaning of the Act, the prosecution of the petitioner under Sections 23 and 24 of the Act is misconceived. It has been said that for non-submission of the return as required in the rules have nothing to do with the petitioner as these duties are cast upon the principal employer which position the petitioner does not hold; The Manager of the mine is responsible for the control and management, supervision and direction of the mine and the owner or agent of every mine either shall appoint himself or some other person having such qualification to be such manager. It is said that a manager has been appointed pursuant to Section 17 of the Mines Act and he has been shown as accused No. 3 in the complaint petition. Accused No. 5 has not, however, moved this Court.
9. Now in these circumstances, it has been urged that the prosecution of the petitioner is an abuse of the process of the Court. No where in the complaint petition, it has been said that this petitioner was In charge of the business and was in control of the business.
10. Learned Counsel appearing on behalf of the State has, however, contended that against the name of this petitioner the designation which he holds in the company, has been mentioned. Where the offence has been committed by the Company, then the company as well as every person in charge of, responsible to, for the conduct of the business at the time of commission of the offence, shall be deemed to be guilty of the offence. The petitioner has been designated as Vice-Chairman and Managing Director of the Company and the West Bokaro Colliery of the Tata Iron and Steel Company Ltd. at Ghatotand, belongs to the said Company. This being so, all persons responsible for the conduct of the business of the company are responsible and the petitioner, being the managing director of the company, cannot escape the liability. In the complaint petition, Annexure 1, it has been clearly described that the accused persons are principal employers under the meaning of the Act in respect of the said colliery. The definition of the employer as given in the Mines Act reads as follows:
(1) "Owner," when used in relation to a mine, means any person who is the immediate proprietor or lessee or occupier of the mine or of any part thereof and in the case of a mine the business whereof is being carried on a Liquidator or receiver such liquidator or receiver (and in the case of a mine owned by a company, the business whereof is being carried on by a managing agent, such managing agent), but doss not include a person who merely receive a royalty, rent or fine from the mine, or is merely the proprietor of the mine, subject to any lease, grant or license for the working thereof, or is merely the owner of the soil and not interested in the minerals of the mine, but any contractor for the working of a mine or any part thereof shall be subject to this Act in like manner as if he were an owner, but not so as to exempt the owner from any liability.
The definition of the managing agent as given in the Indian Companies Act, 1956 reads as follows:
(25) "managing agent" means any individual, firm or body corporate entitled, subject to the provisions of this Act, to the management of the whole, or substantially the whole, of the affairs of a company by virtue of an agreement with the company, or by virtue of its memorandum or articles of association, and includes any individual, firm or body corporate occupying the position of a managing agent, by whatever name called.
11. It is clear that the definition of the manager also covers the definition of the managing director and he is connected with the affairs of the mine. The petitioner holds the office of the managing director and as such he is responsible for the conduct of the business and control of the mine. This being so, the contention of the petitioner that he is not liable to be prosecuted for the offence alleged under Sections 24 and 25 of the Act does not appear to be sound.
Criminal Misc. No. 1123 of 1981 (R).
12. In this application the petitioner has been proceeded against under Section 24 of the Contract Labor (Regulation and Abolition) Act, 1970 for the late filing of the 1980 annual return of principal employer to the Registering Officer in Form No. XXV as required under the Central Labor (Regulation and Abolition) Central Rules, 1971. The delay in filing the return is about a month a few days. The petitioner is the Vice-Chairman and Managing Director of the Company (aforesaid) who resides at Jamshedpur whereas the mine in question is situated at Ghatotand in the district of Hazaribagh under Section 17 of the Mines Act, the Manager, who is responsible for the control, management and direction of the mine, can be responsible for the non-filing of such return. A manager has been appointed pursuant to Section 17 of the Mines Act for the mine in question and he is also accused No. 3 in this case. Sub-section 25 (1) laid down that every person in charge of. and responsible to the company for the conduct of the 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. There is no allegation in the complaint petition that the offence has been committed with the consent or connivance of or due to any neglect on the part of this petitioner. No where in the petition of complaint, there is any statement that the petitioner was responsible for the conduct of the business of the Company or the alleged offence was committed in his knowledge and with his consent, In these circumstances it was urged on behalf of the petitioner being neither the owner nor the occupier of the coal mine, is not liable to be prosecuted for non-filing of the return in question, and the prosecution of the petitioner is an abuse of the process of the Court. The facts stated in the petition of complaint do not constitute any offence against the petitioner and hence the order taking cognizance and the criminal proceeding against the petitioner are fit to be quashed. The order taking cognizance is dated 2-5-1981 and it is Annexure 4 to the petition. The petitioner has been described as Vice-chairman and Managing Director of the Company. By virtue of the position that occupies in the company, he is an officer responsible for the conduct of the business of the company. This being so, under Section 25 (a) of the Contract Labor (Regulation and Abolition) Act, 1970 Sub-clause (1) every person in charge of and responsible to the company for the conduct of the business at the time of the commission of the offence shall be liable to be proceeded against and punished. In the complaint petition it has been clearly stated that all the accused persons are liable to be proceeded against.
13. Learned Counsel appearing on behalf of the State has urged that the petitioner also comes within the definition of principal employer. In paragraph 5 of the complaint petition it has been described that the accused persons are the principal employer and were required to submit the annual return for the year ending 31st December, 1980 to the Registering Officer so as to reach by 15th December, 1981. By non-submission of the return within a prescribed time, the accused persons have contravened the Rules 82(2) of the Contract Labor (Regulation and Abolition) Central Rules. 1971 and for that they are liable to legal action under Section 24 of the Act. Thus in the complaint petition, there are averments to show that the petitioner was also a person responsible to the Company for the conduct of its business and as such liable to be proceeded against.
14. The offence alleged is of technical type and as the position stands, the allegations made in the complaint petition make out a case against the petitioner also. Now it is for the petitioner to show that he was not responsible for non-submission of the return nor the delay in submitting the return was on account of his connivance or neglect. But at this stage the prosecution of the petitioner and order taking cognizance cannot be quashed.
15. Accordingly, I do not find any merit in both the cases and they are dismissed.