Patna High Court
Indian Iron And Steel Co. Ltd. And Ors. vs State Of Bihar And Ors. on 30 January, 1986
Equivalent citations: (1987)IILLJ333PAT
ORDER Anand Prasad Sinha, J.
1. Since both these applications arise out of the same order in the same case, they have been heard together and are being disposed of by this common judgment.
2. In Criminal Misc. No. 273 of 1981 (R) petitioner No. 1 is the Company and petitioner No. 2 has been described to be the Area Manager and in Criminal Misc. No. 323 of 1981 (R) the petitioner is a Contractor. These two applications have been directed against the impugned order dated 27th September 1980 passed by the learned Chief Judicial Magistrate, Dhanbad in C.L.A. (Cr.) Case No. 55 of 1980 by which the learned Magistrate has taken cognizance against the petitioners for an offence under Section 23 of the Contract Labour (Regulation & Abolition) Act, 1970 (hereinafter to be referred to as 'the Act').
3. The prosecution in question has been launched for violation of notification dated February 1, 1975 published in the Gazette of India Part II, Section 3(II) on 15th February 1975 (Annexure-1). It appears that the aforesaid notification has been issued under the powers conferred by Sub-section (1)of Section 10 of the Act. From a perusal of the notification in question, it appears that the employment of contract labour in the works specified in the Schedule has been prohibited. The Schedule mentioned is as follows:
1. Raising-cum-selling of coal.
2. Coal loading and un-loading.
3. Overburden removal and earth cutting.
4. Soft coke manufacturing.
5. Driving of stone drifts and miscellaneous stone cutting underground.
4. The criminal case has been initiated on the basis of a complaint filed by the Labour Enforcement Officer (Central) Dhanbad and the three petitioners, as aforesaid, have been indicated as the accused persons. The complaint has been filed under Section 23 of the Act and further there is a mention of Section 10(1) of the said Act. It appears that the main allegation has been attributed to be that the accused persons had permitted employment of 22 contract labour for overburden removal and earth cutting work at their Chasnalla Colliery through the engagement of Gutu Mehar Construction, Contractor, which had been prohibited to be done through contract labour-vide Govt. of India Ministry of Labour Notification dated 1st February 1975, which appears to be Annexure-1 stated above.
5. Mr. S.B. Sinha, learned Counsel appearing on behalf of the petitioners, has raised several points. He has challenged the prosecution on the basis of the notification aforesaid, on the ground that any violation of the notification cannot attract the penal provision of the Act unless the conduct attributed against the petitioners falls strictly under the penal provision for having violated the provisions of the Act or rules framed thereunder.
6. I find sufficient force in this contention. It appears that a definite provision has been made in the Act itself for making rules and that is Section 35 of the Act. It is an admitted fact that the prosecution sought is not for violation of any rule or Act whatsoever.
7. The prosecution cannot take aid of Section 10(1) of the Act for launching the prosecution as appearing in the facts and circumstances of the case on the strength of the alleged notification because if there be any contravention of any such notification issued as contemplated under Section 10(1) of the Act, I am afraid that will not attract the penal provision of the Act and the remedy for the prosecutor may be elsewhere in a different manner in an administrative way affecting the licence etc. But Section 10(1) of the Act cannot be substituted for Section 35 of the Act at all. In support of this contention, learned Counsel for the petitioner has relied upon a decision of the Supreme Court in the case of East India Commercial Co. Ltd., Calcutta v. Collector of Customs, Calcutta . Of course this decision relates to a case under Sea Customs Act but the principle laid down in para 34 of this decision is quite applicable in the facts and circumstances of the instant case. Para 34 of the said decision of the Supreme Court reads as follows:
It follows from the above that the infringement of a condition in the licence not to sell the goods imported to third parties is not an infringement of the order, and, therefore, the said infringement does not attract Section 167(8) of the Sea Customs Act.
8. Another decision of the Calcutta High Court in the case of Superintendent and Remembrancer of Legal Affairs, West Bengal v. Prohlad Agarwalla similarly adds strength to the opinion expressed in this case that on the basis of the notification alleged, without any violation of the provisions of the Act or the Rules, simply on the strength of the notification issued under the executive power, the penal provision of the Act cannot be attracted at all. In addition, it will be relevant to mention here that the penal provision of any Act has to be construed strictly because that involves a valuable right of a person proceeded against.
9. The prosecution sought, on the basis of the said notification, does not appear to be in accordance with the normal interpretation applied to whenever a prosecution has been sought for the contravention of any provision of any Act or any Regulation. In this connection Section 67 of the Mines Act, 1952 can well be illustrated which reads as follows:
Whoever, save as permitted by Section 38, contravenes any provision of this Act or of any regulation, rule or bye-law or of any order made thereunder prohibiting, restricting or regulating the employment or presence of persons in or about a mine shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to one thousand rupees, or with both.
10. It has been argued on behalf of the complainant-Central Government that the vires of the notification cannot be challenged in this application under Section 482 of the Code of Criminal Procedure, but the appropriate forum would be for challenging the same in a writ application.
11. I am afraid, this contention cannot be accepted. It will not be correct to say that the vires of the notification has been challenged by the petitioners, but the contention of the petitioners is that they cannot be prosecuted in the manner sought to be in this case on the basis of the notification aforesaid. The order of cognizance is under challenge and if it is found that the impugned order of cognizance has been passed without any legal basis whatsoever, it is within the competence of an application under Section 482 of the Code of Criminal Procedure to, consider this fact as the consideration of the validity of the notification warranting prosecution, if found to be without any justification whatsoever in law for launching the prosecution, it strikes at the very root of the order of. cognizance and that being so, the submission is not acceptable.
12. Mr. Sinha has further contended that one N.S. Atwal is being sought to be prosecuted who has been described to be the proprietor of M/s. Guru Mehar Constructions, but in the absence of any statement that he had been in charge of and responsible to the Company for the conduct of its business at the time of commission of the offence, he cannot be prosecuted as it is a bar under Section 25 of the Act. It is true that the firm appears to be a proprietory one, but in spite of this fact, in view of the submission as aforesaid, compliance indicated in Section 25 of the Act becomes necessary. It is suported by a Bench decision of this Court in the case of Amar Nath Prasad v. State of Bihar 1976 Pat LJR 324.
13. Mr. Sinha has further urged that it would appear that in the complaint petition the Company M/s. Indian Iron & Steel Company Limited, a Government Company, has been sought to be represented through Sri N. Sarkar which is contrary to Section 305 of the Code of Criminal Procedure (hereinafter to be referred to as 'the Code') and thus the prosecution against Shri N. Sarkar cannot be said to be valid in law and that being so, no process can be issued against him.
14. I find sufficient force in this contention. It appears that under Section 305 of the Code, the option is with the Company itself for nominating its representative and he will represent the Company and that being so, rightly it has been argued that no summons could be issued against Shri N. Sarkar. In addition, it has been argued that G.S. Garcha, petitioner No. 2 in Criminal Misc. No. 273 of 1981 (R) who has been described to be the Area Manager of the Colliery concerned, cannot be prosecuted in absence of any statement as contemplated under Section 25 of the Act which has been well discussed above and there being no statement as such, I am afraid, the impugned order of cognizance against G.S. Garcha also cannot be said to be sustainable in law.
15. It has been urged on behalf of the Central Government, complainant, that these are questions of facts and evidence and that being so, they cannot be looked at this stage and thus the case has to proceed and the matter will be adjudicated during the trial itself. I am afraid, the contention cannot be accepted. When it is found that there is non-compliance of certain provisions of the law, as stated the provisions of Section 25 of the Act in this case, the complaint sought against such persons without any such statement as required under Section 25 of the Act, strikes at the very root of the impugned order of cognizance and this matter is not to be left for adjudication for evidence at all.
16. Therefore, on consideration of the entire facts and circumstances of the case, the impugned order of cognizance is hereby set aside and both these applications are allowed.