Jharkhand High Court
Swapan Ganguly And Anr. vs Union Of India (Uoi) on 1 May, 2006
Equivalent citations: (2006)IILLJ559JHAR, 2006 (3) AIR JHAR R 260, (2006) 3 JCR 125 (JHA) (2006) 2 LABLJ 559, (2006) 2 LABLJ 559
JUDGMENT D.K. Sinha, J.
1. The petitioners Swapan Ganguly and Ram Chandra Prasad have preferred the petition under Section 482 of the Code of Criminal Procedure jointly for quashing the entire criminal prosecution of Complaint Case No. C-III-306 of 1990 including the order impugned dated March 19, 2004 whereby cognizance of the offence was taken. The case is pending in the Court of Shri Santosh Kumar, Judicial Magistrate, 1st Class, Ranchi.
2. The petitioners had earlier moved before the Ranchi Bench of Patna High Court for quashing the order of cognizance taken earlier in the same case and this Court by order dated March 15, 1999 set aside the cognizance order dated July 9, 1990 in Cr. Misc. No. 736 of 1991(R) and remit the matter for passing fresh order in accordance with law as Annexure 1.
3. The brief fact, of the case, is that the Labour Enforcement Officer (Central) instituted a Complaint Case No. C- III-306 of 1990 before the Chief Judicial Magistrate, Ranchi against the petitioners under Section 24 of the Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter referred to as 'the Act') on the allegation regarding breach of several rules under the said Act. On the basis of such complaint, Chief Judicial Magistrate, Ranchi took cognizance of the offence under Section 24-A of the Act. Again after remand, learned Chief Judicial Magistrate, Ranchi, pursuant to the direction made in Cr.Misc. No. 736 of 1991(R) took cognizance afresh by the order impugned dated March 19, 2004 in the present case and it is submitted that such order suffers from material illegality and is unsustainable in law.
4. Learned Counsel for the petitioners submitted that it was well settled that the persons, who were posted in places other than the establishment in question where any offence was alleged could not be possibly to be in charge of or responsible for day-to-day affairs of that establishment. It has been admitted in the complaint petition itself that while petitioner No. 1 herein was stationed at Patna and the petitioner No. 2 herein was stationed at the district office at 12, Purulia Road, Ranchi the alleged violation of the Contract Labour (Regulation and Abolition) Rules had taken place at a Depot of the Food Corporation of India at Tatisilwai, Ranchi as is apparent from paragraph 4(I)(i)of the complaint petition.
5. The Food Corporation of India is a Central Government Undertaking and the duties and responsibilities have been specifically assigned to the persons holding different posts. As such, petitioner No. 1 herein, who was Regional Manager, stationed at Patna and even the petitioner No. 2 herein stationed during the relevant time at the District Office, 12, Purulia Road, Ranchi cannot be said to be in charge of or responsible for day to day affairs of a Depot of Food Corporation of India at Tatisilwai, Ranchi. The Depot Incharge alone can be said to be responsible. But in the present case the informant/Labour Enforcement Officer intentionally picked out these two petitioners for being prosecuted which is against the principles envisaged in the case law reported in 2004 LAB I.C. 331. A Bench of this Court in Aditya Puri v. Union of India observed as under:
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 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.
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.
6. The next point which has been raised is that the earlier cognizance taken on July 9, 1990 for the alleged offence dated April 11, 1990 was set aside way back on March 15, 1999 and fresh cognizance of the said offence has been taken on March 19, 2004 after about 5 years and, therefore, the subsequent cognizance is barred by limitation under Section 468 of the Code of Criminal Procedure and, therefore, it is vitiated in law. As a matter of fact the learned Counsel submitted that after the order of the Hon'ble Court whereby the earlier cognizance dated July 9, 1990 was set aside, the prosecution remained negligent in not pursuing the matter diligently after remittance of the case which caused the delay of 5 years and such delay cannot be justified, rather the same is ex-fade vexatious inasmuch as the petitioners herein have been kept on tenterhooks and have thus been harassed without any fault of theirs. Moreover, cognizance order impugned dated March 19, 2004 has been passed without application of judicial mind and none of the documents placed before the learned Court below could possibly lead to any valid allegation as against the petitioners herein. Learned Chief Judicial Magistrate further failed to take judicial notice while taking cognizance impugned that the Food Corporation of India (in short - FCI) is Central Government Undertaking constituted under the Food Corporation of India Act, 1964 and it has got hundreds of different offices and depots throughout the country and it was humanely not possible for any senior Regional Manager sitting at Patna or the District Manager sitting in the District Office at different place in Ranchi to be in day-to-day charge or responsible for what is going on in one of the depots at Tatisilwai, Ranchi.
7. Attention of this Court has been drawn on behalf of the petitioners that the impugned order of cognizance passed by the Chief Judicial Magistrate, Ranchi on March 19, 2004 is vitiated in law because it was not in conformity with the directions made by this, Court in Cr. Misc. No. 736 of 1991 (R) on March 15, 1999 inasmuch as learned Court below was bound to peruse necessary documents and was bound to be satisfied that a prima facie case under Section 24 was made, out. The direction for perusal meant not a mechanical or a routine perusal but a judicious perusal and the satisfaction envisaged by this Court was also a judicial satisfaction but on the basis of the documents furnished by the prosecution and that too after four years, the same went only to show that such documents had not at all bearing with the complicity of the petitioners obviously because the petitioners could not be possibly said to be in charge of the Depot at Tatisilwai, Ranchi. This basic and simple factum, the Chief Judicial Magistrate, Ranchi lost sight of in the impugned order which is, therefore, vitiated in law and liable to be set aside. It is further contended that from perusal of the documents produced before the Chief Judicial Magistrate, Ranchi at the belated stage and a copy of which have been annexed with this application as Annexure 3 series, it would be evident that in all correspondence the prosecution has mentioned the address of the petitioner No. 2 being 12, Purulia Road, Ranchi as contained at page 32-33 and 35 and it is nowhere mentioned as Food Corporation of India Depot at Tatisilwai, Ranchi. In this manner the prosecution failed to establish that the petitioners herein were in charge of Tatisilwai Depot of Food Corporation of India, Ranchi, and, therefore, the cognizance against them is abuse of the process of Court. More so, learned Chief Judicial Magistrate is silent in the order impugned on the point of limitation of taking cognizance of the offence in view of the limitation provision under Section 468 of the Code of Criminal Procedure beyond the limitation period and on this score alone cognizance order is fit to be set aside. No plausible explanation has been given in the said impugned order for the delay of more than four years between the direction made by this Court in Cr.Misc.No.736 of 1991(R ) on March 15, 1999 and the impugned order of taking cognizance on March 19, 2004.
8. Advancing his argument learned Counsel for the petitioners submitted that there was no mention whatsoever in the complaint petition as to whether petitioners herein were the persons nominated under the provisions of Section 305 of the Code of Criminal Procedure in regard to the functioning and affairs of the establishment in question. He emphatically stated that petitioners herein were not, in fact, nominated under Section 305(5) of the code of Criminal Procedure with regard to responsibility of the functioning and affairs of the depot situated at Tatisilwai and, therefore, depot which was an establishment at Tatisilwai, Ranchi could not be said to be under the control of the petitioners and, therefore, the petitioners could not and should not have been prosecuted for any alleged breaches under the said Act or Rules.
9. In this manner the impugned, cognizance and the entire prosecution pursuant thereto are illegal, unjustified and liable to be quashed in the interest of justice and the petitioners be protected from being subjected to abuse of the process of law, learned Counsel -for the petitioners submitted. The Complaint Case No. C-III-306 of 1990 i.e. Annexure 2 indicates the alleged violation of the Contract Labour (Regulation and Abolition) Central Rules, 1971 by the petitioners herein rendering them liable for prosecution under Section 23/24 of the said Contract Labour (Regulation and Abolition) Act, 1970, though cognizance of the offence has been taken for the offence under Section 24 of the Act. The Rules alleged to have been violated by the petitioners have been mentioned herein.
In contravention of Rule 76 read with Rule-8(I) of the Central Labour (Regulation and Abolition) Central Rules, 1971 the: accused persons being the principal employer have failed to maintain the Register of contractors in Form XII properly and complete with up-to-date entries in as much as the register maintained.
i. Does not show any entry against Tatisilwai Depot where Sri Ram Kumar Agrawal, Executing contract work of transporting goods since February, 1990.
ii. The name of particulars of two persons working and functioning like contractor for handling of goods in Tatisilwai Depot has not been entered in the Register.
iii. Up-to-date information not entered in the Register against Ranchi and Hatia Depot.
iv. Entries made in the Register has not at all been authenticated the principal employer or any other authority duly authorised for the purpose.
Violation of Rule 74 read with Rule 80(I)
2. That in contravention of Rule 18(4) the accused person being principal employer have failed to intimate the Registering Officer of the area when changes occurred in the specified particulars of their certificate of Registration time to time between April 30, 1988 to April 10, 1990 due to completion of work of old contractors and appointment of new contractor.
3. That in contravention of Rule 81(1)(i) the accused person being principal employer have failed to display notices at the place(s) of work showing rates of wages, hours of work, wage period(s), date(s) of payment of wages. Name and address of the Inspector and the date of unpaid wages in English and Hindi.
Violation of Rule 81(1)(i)
4. In contravention of Rule 81(2) the accused persons principal employers have failed to send a copy each of the notices displayable under Rule 81(1)(i) to the Inspector of the Area.
Violation of Rule 81(2)
5. That in contravention of Rule 81(3) the accused persons being the principal employer have failed at all to send re-intimating the actual date of commencement and the date of completion of each contract work of his establishment to the Inspector inform VI-B. Violation of Rule 81(3)
6. That, in contravention of Rule 82(2) the accused persons being the principal employer of Registered establishment has so far been failed to submit Annual Return for the year ending December 31, 1989 to the Registering Officer concerned.
Violation of Rule 82(2)
10. Section 25(1) of the Contract Labour (Regulation and Abolition) Act, 1970 speaks as hereunder:
Offence by companies- "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:
Provided that nothing contained in this 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.
11. From perusal of its provision it is obvious that the 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 for the punishment on the charges there being proved by the prosecution.
12. Sub-section (2) of Section 25 of the Act speaks as under:
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 any 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 also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
13. From bare reading of the above provision of the Act, it is clear that liability is fastened on a person was held to be in charge of the office when the offence was detected and for others the burden is caused upon the prosecution to show that it was with their consent, or connivance, or that the commission of the offence was attributable on account of their negligent and such negligent, connivance or consent 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 alleged to the place of occurrence at the time when the offence was detected and was holding office at distant places from the place of occurrence.
14. In the present case consistent argument has been made on behalf of the petitioners that Food Corporation of India is a Central Government Undertaking and the duties as well as responsibilities have been specially assigned to the different persons holding different posts. As such, petitioner No. 1 herein, was Regional Manager, stationed at Patna and even the petitioner No. 2 herein, was stationed at the district office at 12, Purulia Road, Ranchi, who cannot be said to be in charge of or responsible for day to day affairs of Depot of Food Corporation of India at Tatisilwai, Ranchi. It was stated that Depot In-charge at Tatisilwai only can be said to be in charge of the Depot for day to day affairs. A Bench of this Court in the decision reported in 2004 LAB I.C. 331 is very much clear on the issue and it holds good.
15. There is substance in the argument advanced on behalf of the petitioners that in spite of direction made by the Ranchi Bench of Patna High Court in Cr. Misc. No. 736 of 1991(R) on March 15, 1999 (sic) while setting aside the earlier cognizance order in the present case on July 9, 1990 to take cognizance of the offence afresh after perusal of the necessary documents and upon being satisfied that a prima facie case existed under Section 24 of the Act against the petitioners. Learned Chief Judicial Magistrate has made reference to a letter in the order impugned dated March 19, 2004, under challenge that his attention was drawn towards the letter dated August 8, 1986 issued by the District Manager for registration of Food Corporation of India as principal employer under the Act wherein District Manager had sought guidelines. Pursuant to that, the guidelines dated August 26, 1986 was sent to the District Manager, i.e. petitioner No. 2. He further relied upon the letter produced on behalf of the prosecution which was furnished in Form-I by the District Manager, i.e. petitioner No. 2 herein with reference to Column III that he presented himself as principal employer but certainly for the name and location of the establishment as Food Corporation of India, district office Ranchi with the mailing address of the. establishment at district office, 12, Purulia Road, Ranchi and no address of Tatisilwai Depot, Ranchi was mentioned therein claiming as the principal employer for the said establishment. On perusal of the letter dated August 8, 1986, reference of which has been made by the Chief Judicial Magistrate, Ranchi the order impugned, certainly is a communication from the District Manager, i.e. petitioner No. 2 herein to the Assistant Labour Commissioner (Central) under the subject "Registration of Food Corporation of India on principal employer under C.L. (R & A) Act regarding" in which the guidelines was sought for the registration of Chakradharpur Depot of the Food Corporation of India as to whether it comes within the jurisdiction of Assistant Labour Commissioner (Central) Chaibasa or the registration as was already made under the jurisdiction of Assistant Labour Commissioner (Central) Ranchi would serve the purpose for Chakradharpur also. It is nowhere mentioned that the District Manager, Ranchi- opposite party No. 2 herein claimed as principal employer for the Chakradharpur Depot, rather guideline was sought with regard to jurisdiction of the registration of the said Depot under the Act. From perusal of both the documents upon which reliance was placed by the Chief Judicial Magistrate for taking cognizance of the offence against the petitioners does not indicate that either the petitioner No. 1 or the petitioner No. 2 was in any manner responsible for day to day work of the Tatisilwai Depot of the Food Corporation of India or that either of the two was the principal employer at the alleged time of the detection by the prosecution party. This Court further finds that no prima facie case is made out against the petitioners for the offence alleged under Section 24 of the Contract Labour (Regulation and Abolition) Act, 1970 being the principal employer in any manner in the background that there was no material before the Chief Judicial Magistrate to connect the petitioners as the principal employer of the Tatisilwai Depot of the Food Corporation of India and hence there was no prima facie case against them for taking cognizance of the offence under Section 24 of the Contract Labour (Regulation and Abolition) Act, 1970.
16. Under the circumstances, the order impugned dated March 19, 2004 passed by the Chief Judicial Magistrate, Ranchi taking cognizance of the offence in Complaint Case No. C-III-306 of 1990 under Section 24 of the Contract Labour (Regulation and Abolition) Act, 1970 against the petitioners is illegal and hence it is set aside. This petition is allowed.