The High Court
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI. W.P.(Cr.) No. 123 of 2003 . ----- .. Petitioner. A.P.Arya .. .. .. .. .. .. Versus 1. The State of Jharkhand 2. The Dy.Commissioner,Jamshedpur 3. The Assistant Labour Commissioner,Jamshedpur 4. Sri Umesh Prasad Singh .. .. .. .. Respondents. Coram :
Legal Reasoning
The Hon'ble Mr. Justice Prashant Kumar. For the Petitioner : For the Respondents : ----- M/s V.P.Singh, Sr.Advocate & A.K.Sinha Sri.Vijayant Verma JC to G.P.II. ----- 05/12.04.2013. This is an application for quashing the entire criminal proceeding in connection with C/2 Case no. 3810 of 2002. Petitioner further prays for quashing of the order dated 03/12/2002, whereby learned C.J.M. Jamshedpur took cognizance against him under section 24 of the Contract Labour( Regulation and Abolition) Act, 1970. 2. It appears that complainant-O.P.no.4 filed a complaint petition before the C.J.M. Jamshedpur, alleging therein that on 23.05.2002 at about 4.30 P.M. he inspected the premises of M/s Telco Transport Company Association ( TTCA), and asked the Executive Officer namely:- Mahesh Saran to produce registration certificate/ registers maintained in Form-XII and XIII as required under Rule 74 and 75 of the rules framed under the Contract Labour( Regulation and Abolition) Act, 1970 ( hereinafter referred as aforesaid Act) But the same have not been produced, which is violative of Section 29(1) and 29(2) of the aforesaid Act. It is also alleged that a show cause notice given to the petitioner for explaining the same. It is stated that the explanation given by the petitioner is unsatisfactory, hence, complaint filed. 3. It appears that on the basis of said complaint, learned C.J.M.vide order dated 03.12.2002 took cognizance under section 24 of the aforesaid Act. Petitioner impugned the aforesaid order in present case. 4. Mr. V.P.Singh, learned senior counsel, appearing on behalf of the petitioner, submits that from perusal of the complaint petition it is clear that complainant inspected the premises of TTCA. But petitioner has been made accused in this case. It is submitted that petitioner is Vice-President of M/s TELCO Limited, which is a different organization. 2 Accordingly, he submits that the impugned order is without application of mind, hence cannot be sustained. Sri Singh further submits that as per Section 25 of the aforesaid Act, if there is any violation of the Act, then the Company and the officer, who is incharge of the business of the said company is liable to be prosecuted. In this case, company has not been made accused. He further submits that there is no averments in the complaint petition that at the relevant time petitioner was incharge and/ or responsible for the conduct of the business of TTCA. Sri Singh submitted that in that circumstances also impugned order and entire criminal proceeding is liable to be set aside. 5. Sri Vijayant Verma, learned JC to G..P.II appears and opposed the prayer of the petitioner. He submits that TTCA has been framed by a group of contractors, who were engaged by the Telco Company for sending the Chasis manufactured in its factory to different places in the country. He further submits that Telco has full control over the affairs of Telco Transport Company Association (TTCA), therefore, petitioner who is Vice President of Telco Limited, is responsible for its business, hence liable to be prosecuted. 6. Having heard the submissions, I have gone through the records of the case. 7. It is an admitted position that complainant inspected the premises of TTCA, which according to counter affidavit filed by the respondent no.4, is a separate body, constituted by contractors, who were engaged by TELCO for sending chasis to different places. Under the said circumstance, respondent no.4 admits that Telco Limited as well as TTCA are two different organizations. This fact was also noticed by this Court in the case of "Telco Convoy Drivers' Mazdoor Sangh..Vs. Presiding Officer, Industrial Tribunal, Ranchi and another reported in 2001(2) JLJR-169. It is relevant to mention that aforesaid case was filed against an award passed by the Labour Court , wherein the learned Labour Court held that drivers engaged by the members of the TTCA are not the employee of the TELCO Limited, Jamshedpur. This also shows that Telco Limited and TTCA are two different organizations . Under the said circumstance, I find that petitioner, who is Vice-President of TELCO Limited, Cannot be held responsible for misdeed of TTCA. 8. Moreover, even assuming that TTCA and TELCO Limited are same organization, then also, I find a glaring illegality in the impugned order. Section 25 of the Contract Labour ( Regulation and Abolition) Act, 1970, reads as under : 3 "25- Offences by companies- (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: 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. (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 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 this 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. 9. In the instant case, TELCO Limited and/or TTCA have not been made accused. Likewise there is no averments in the complaint petition that at the relevant time petitioner was incharge and responsible for the business of the TTCA. It was held by their Lordship of Supreme Court in the case of "National Small Industries Corporation Limited.Vs. Harmeet Singh Paintal and another " reported in 2010(3) SCC-330, in connection with a case under section 141 of the Negotiable Instruments Act,1881, provisions of which are pari meteria with those of section 25 of the Contract Labour (Regulation and Abolition) Act, that every person connected with the company shall not fall within the ambit of the provision. Only those persons who were incharge of and responsible for the conduct of the business of the company, at the commission of an 4 offence will be liable for criminal action. If a Director of a Company, who was not incharge of and was not responsible for the conduct of the business of the company at the relevant time, will not be liable for criminal offence under the provisions. The liability arises from being incharge of and responsible for the conduct of the business of the company at the relevant time when the offence was committed and not on the basis of merely holding a designation or office in a company. 10. As noticed, in the complaint petition, complainant has not made any averments that at the relevant time petitioner was incharge of TTCA and was responsible for its business. In that view of the matter also impugned order cannot be sustained, being violative of Section 25 of the aforesaid Act. Thus, I find material illegality and irregularity in the impugned order, therefore, same cannot be sustained. 11. Accordingly, I allow this application and quash the impugned order dated 03/12/2002 in connection with C/2 Case no. 3810 of 2002, consequently, the entire criminal proceeding relating to above case is also quashed. ( Prashant Kumar, J.) Raman/