The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 1419 of 2015 1. A.K. Singh @ Arun Kumar Singh 2. Satendra Singh The Union of India Versus -------- ..... … Petitioners ..... … Opposite Party
Legal Reasoning
CORAM : HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI ------ : : ------ 03/ 21.11.2023 Heard Mr. A.K. Das, learned counsel appearing for the Mr. A.K. Das, Advocate. Mrs. Nitu Sinha, CGC For the Petitioners For the UOI petitioners and Mrs. Nitu Sinha, learned CGC for the Union of India. 2. This petition has been filed for quashing of the entire criminal proceeding including the order taking cognizance dated 10.11.2014, by which, cognizance for the offence under Sections 23 and 24 of the Contract Labour (Regulation and Abolition) Act, 1970 has been taken against the petitioners, in connection with CL (R&A) Case No. 470 of 2014, pending in the court of learned Judicial Magistrate, 1st Class, Dhanbad. 3. The complaint case was filed alleging therein that the petitioners are General Manager, Kusunda Area BCCL and Project Officer, East Basuriya Colliery of BCCL respectively and the Principal Employers within the meaning of Contract Labour (Regulation and Abolition) Act. It has been further stated that the contract work of earth cutting and removal of over burden and raising of coal, was being done by BCCL. It has further been stated that the said work is prohibited in nature and as such there is violation of Act and Rules. 4. Learned counsel appearing for the petitioners submits that the petitioner No. 1 is the General Manager, Kusunda Area BCCL and petitioner No. 2 is the Project Officer, East Basuriya Colliery of BCCL. He submits that in view of Form-1 of Rule 17(1) of the Contract Labour (Regulation and Abolition) Act clearly mentions that it is the Manager of the colliery, who is responsible for supervision and control of the establishment. He further submits that in view of the said Rule, the name of one Shambhu Saran Singh is disclosed as a Manager, who is responsible for the supervision and control of the establishment. He further submits that only on the vague allegation, the petitioners have been dragged in this case. 5. Learned CGC appearing for the Union of India submits that -2- the case is made out and the learned court has rightly taken the cognizance as the petitioners are the responsible officers of the said company. 6. It is an admitted position in view of Annexure-2, which is Form-1 of Rule 17(1) of the Contract Labour (Regulation and Abolition) Act that the name of Shambhu Saran Singh has been disclosed as a Manager and in view of that he is only responsible for day to day affairs of the company. Further only a vague allegation with regard to day to day affairs of the company to maintain a complaint case against the officers are not maintainable and further the work role is required to be disclosed in the affidavit, in view of the judgment of the Hon’ble Supreme court in the case of Siby Thomas Versus Somany Ceramics Ltd. reported in 2023 SCC OnLine SC 1299, where in para- 13 it has been held as follows:- “13. Bearing in mind the afore-extracted recitals from the decisions in Gunmala Sales Private Limited’s case (supra) and S.P. Mani’s case (supra), we have carefully gone through the complaint filed by the respondent. It is not averred anywhere in the complaint that the appellant was in charge of the conduct of the business of the company at the relevant time when the offence was committed. What is stated in the complaint is only that the accused Nos. 2 to 6 being the partners are responsible for the day-to-day conduct and business of the company. It is also relevant to note that an overall reading of the complaint would not disclose any clear and specific role of the appellant. In the statutory notice dated 10.09.2015 (Annexure-P6) at paragraph 3 it was averred thus:— “3. That for liquidation of the aforesaid legal liability/outstanding, you noticee No. 2 to 6 issued cheque number 005074 dated 21.08.2015, amounting to Rs. 27,46,737/- drawn on Punjab National Bank, Ernhipalam (Kozhikode) branch in favour of my client from the account of noticee No. 1.” 19. The upshot of the aforesaid discussion is that the averments in the complaint filed by -3- the respondent are not sufficient to satisfy the mandatory requirements under Section 141(1) of the NI Act. Since the averments in the complaint are insufficient to attract the provisions under Section 141(1) of the NI Act, to create vicarious liability upon the appellant, he is entitled to succeed in this appeal. We are satisfied that the appellant has made out a case for quashing the criminal complaint in relation to him, in exercise of the jurisdiction under Section 482 of Cr. P.C. In the result the impugned order is set aside and the subject Criminal Complaint filed by the respondent and pending before Ld. CJ JMIC, Bahadurgarh, in the matter titled as Somany Ceramics v. Tile Store etc. vide COMA-321- 2015 (CNRNO : HRJRA1004637-2015), stand quashed only in so far as the appellant, who is accused No. 4, is concerned. Appeal stands allowed as above. There will be no order as to costs.” (JD) 7. Further reference may be made to the case of Sunita Palita v. Panchami Stone Quarry, reported in (2022) 10 SCC 152, wherein the Hon’ble Supreme court in para-42 held as follows:- in S.M.S. “42. Liability depends on the role one plays in the affairs of a company and not on designation or status alone as held by this Court Pharmaceuticals [S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla, (2005) 8 SCC 89 : 2005 SCC (Cri) 1975] . The materials on record clearly show that these appellants were independent, non-executive Directors of the company. As held by this Court in Pooja of Ravinder Maharashtra [Pooja Ravinder Devidasani v. State of Maharashtra, (2014) 16 SCC 1 : (2015) 3 SCC (Civ) 384 : (2015) 3 SCC (Cri) 378] a non-executive Director is not involved in the day-to-day affairs of the company or in the running of its business. Such Director is in no way responsible for the day-to-day running of the accused Company. Moreover, when a complaint is filed against a Director of the company, who is not the signatory of the Devidasani v. State -4- dishonoured cheque, specific averments have to be made in the pleadings to substantiate the contention in the complaint, that such Director was in charge of and responsible for conduct of the business of the Company or the the Company, unless designated Managing Director or Joint Managing Director who would obviously be responsible its business and affairs.” In view of the above, it appears that the petitioners have for the company and/or such Director is 8. unnecessarily been dragged in this case. Accordingly, the entire criminal proceeding including the order taking cognizance dated 10.11.2014, by which, cognizance for the offence under Sections 23 and 24 of the Contract Labour (Regulation and Abolition) Act, 1970 has been taken against the petitioners, in connection with CL (R&A) Case No. 470 of 2014, pending in the court of learned Judicial Magistrate, 1st Class, Dhanbad, are hereby, quashed. 9.
Decision
This petition is allowed and disposed of. Amitesh/- (Sanjay Kumar Dwivedi, J.)