Jharkhand High Court
Arun Kumar Singh vs The State Of Jharkhand & Anr. ..... ... ... on 16 September, 2023
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 1948 of 2013
Arun Kumar Singh ..... ... Petitioner
Versus
The State of Jharkhand & Anr. ..... ... Opposite Parties
with
Cr.M.P. No. 1942 of 2013
Tarasis Mondal @ Tarashish Mondal ..... ... Petitioner
Versus
The State of Jharkhand & Anr. ..... ... Opposite Parties
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioners : Mr. Manish Kumar, Advocate
For the State : Mrs. Priya Shrestha, Spl.P.P.
: Mr. V.S. Sahay, A.P.P.
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08/ 16.09.2023 Heard Mr. Manish Kumar, learned counsel appearing for the petitioner in both cases and Mrs. Priya Shrestha, learned Spl.P.P. and Mr. V.S. Sahay, learned A.P.P. for the State in respective cases.
2. In Cr.M.P. No. 1948 of 2013, the prayer is made for quashing of the entire criminal proceeding including the order taking cognizance dated 22.02.2011, by which, the cognizance for the offence under Section 10(1) of the Contract Labour (Regulation and Abolition) Act, 1970 [hereinafter referred to as the 'Act'] has been taken against the petitioner, in connection with CLA Case No. 34 of 2011, pending in the Court of learned Judicial Magistrate, 1st Class, Dhanbad.
3. The complaint case was lodged by the O.P. No. 2 alleging therein that the complainant is the Assistant Labour Commissioner (Central) having jurisdiction over the establishment of the accused person.
The O.P. No. 2 inspected the establishment of Amalgamated Keshalpur West Mudidih Colliery of BCCL on 30.11.2010 and observed that contract labourers were engaged in mining operation for removal of over burden and extraction and transportation of coal at Kanta-Pahari Patch.
The said complaint was received on 22.02.2011 and was registered as CLA Case No. 34 of 2011
4. In Cr.M.P. No. 1942 of 2013, the prayer is made for quashing of the entire criminal proceeding including the order taking cognizance dated 21.03.2012, by which, the cognizance for the offence -2- under Section 23 of the Contract Labour (Regulation and Abolition) Act, 1970 [hereinafter referred to as the 'Act'] has been taken against the petitioner, in connection with CLA Case No. 58 of 2012, pending in the Court of learned Judicial Magistrate, Dhanbad.
5. The complaint case was lodged by the O.P. No. 2 alleging therein that the complainant is the Labour Enforcement Officer (Central) having jurisdiction over the establishment of the accused person.
The O.P. No. 2 inspected the establishment of Dahibari OCP of BCCL on 22.12.2011 and observed that 24 contract labourers were engaged by M/s RKTPL-BTC (JV) for executing the contract work of removal of over burden and transportation of coal although the same is prohibited by a notification issued under Section 10(1) of the CLRA Act, 1970.
In para-7 of the complaint, it has been stated that the petitioner as well as the accused contractor has jointly committed the offence.
The said complaint was received on 21.03.2021 and was registered as CLA Case No. 58 of 2012.
6. Mr. Manish Kumar, learned counsel appearing for the petitioners submits that the expression 'principal employer' has been defined in Section 2(g) of the CLRA Act and Section 2(g)(iii) provides that the principal employer in relation to a mine would be the owner or agent of the mine and where a person has been named as the Manager of the mine, the same so named. He submits that the petitioner in Cr.M.P. No. 1948 of 2013 is neither the owner nor the agent of Amalgamated Keshalpur West Mudidih Colliery of BCCL. He further submits that the petitioner in Cr.M.P. No. 1942 of 2013 is also neither the owner nor the agent of Dahibari OCP of BCCL and he is also not the Manager of the said colliery. He further submits that the petitioner Arun Kumar Singh was the General Manager of Katras Area of M/s BCCL and the petitioner Tarasis Mondal @ Tarashish Mondal was also the General manager, Chanch Victoria Area of M/s BCCL. He further submits that in view of Section 25 of the CLRA Act, only the person, responsible for day to day affairs of the company can be prosecuted. He -3- further submits that the company is not made accused and there is no allegation against the petitioners, as of looking the day to day affairs of the company. On these grounds, he submits that the entire criminal proceedings may kindly be quashed.
7. On the other hand Mrs. Priya Shrestha, learned Spl.P.P. appearing for the State and Mr. Sahay, learned A.P.P. jointly submit that the case is made out, in view of that, cognizance has been taken against the petitioners and at this stage, this court may not interfere in these matters. Mr. Sahay, learned A.P.P. further adds that the mandatory provision of Section 10(1) of the CLRA Act has been violated.
8. In view of the above submissions of learned counsel for the parties, the court finds that admittedly the case has been registered under the Contract Labour (Regulation and Abolition) Act, 1970 and at that time, the petitioners were posted as General Managers of different areas of BCCL and there is no allegation against these petitioners of looking into the day to day affairs of the company. Under Section 25 of the said Act, a person will be liable for prosecution, who is looking to day to day affairs of the Company, however, the same is absent in the case in hand. Reference may be made to the case of S.K. Alagh v. State of Uttar Pradesh & others, reported in (2008) 5 SCC 662. Paragraph 19 of the said judgment is quoted herein below:-
"19. As, admittedly, drafts were drawn in the name of the Company, even if the appellant was its Managing Director, he cannot be said to have committed an offence under Section 406 of the Indian Penal Code. If and when a statute contemplates creation of such a legal fiction, it provides specifically therefor. In absence of any provision laid down under the statute, a Director of a Company or an employee cannot be held to be vicariously liable for any offense committed by the Company itself."
9. The court has perused the cognizance orders dated 22.02.2011 and 21.03.2012 in the respective cases and finds that the satisfaction of the learned court is not there, as the word 'cognizance' has been filled up in the blank space in both the cognizance orders, which suggests that there is non-application of judicial mind. Reference -4- may be made to the case of Sunil Bharti Mittal Versus C.B.I, reported in (2015) 4 SCC 609. Paragraph No. 48 of the said judgment is quoted as under:-
"48. Sine qua non for taking cognizance of the offence is the application of mind by the Magistrate and his satisfaction that the allegations, if proved, would constitute an offence. It is, therefore, imperative that on a complaint or on a police report, the Magistrate is bound to consider the question as to whether the same discloses commission of an offence and is required to form such an opinion in this respect. When he does so and decides to issue process, he shall be said to have taken cognizance. At the stage of taking cognizance, the only consideration before the court remains to consider judiciously whether the material on which the prosecution proposes to prosecute the accused brings out a prima facie case or not."
10. In view of the above facts, reasons and analysis, both the petitions succeed. Accordingly, the entire criminal proceeding including the order taking cognizance dated 22.02.2011, by which, the cognizance for the offence under Section 10(1) of the Contract Labour (Regulation and Abolition) Act, 1970 [hereinafter referred to as the 'Act'] has been taken against the petitioner, in connection with CLA Case No. 34 of 2011, pending in the Court of learned Judicial Magistrate, 1st Class, Dhanbad, in Cr.M.P. No. 1948 of 2013 and also the entire criminal proceeding including the order taking cognizance dated 21.03.2012, by which, the cognizance for the offence under Section 23 of the Contract Labour (Regulation and Abolition) Act, 1970 [hereinafter referred to as the 'Act'] has been taken against the petitioner, in connection with CLA Case No. 58 of 2012, pending in the Court of learned Judicial Magistrate, Dhanbad, in Cr.M.P. No. 1942 of 2013, are hereby, quashed.
11. These petitions are allowed and disposed of.
12. Interim order, granted earlier, in respective cases stand vacated.
(Sanjay Kumar Dwivedi, J.) Amitesh/-