Shri K.S. Sethi And Ors. vs State And Anr.
2002 Latest Caselaw 1331 Del

JUDGMENT

Mahmood Ali Khan, J.

1. The petitioners are invoking the inherent and supervisory powers of the High Court under Section 482 Cr. P.C for quashing the order of a Metropolitan Magistrate whereby he on a criminal complaint filed by respondent No. 2 Labour Enforcement (Central.) has taken cognizance' of the offence under Section 23 of the Contract Labour (Regulation & Abolition) Act, 1970 (the Act) and has summoned the petitioners to stand trial.

2. Succinctly stated respondent No. 2 Labour Enforcement (Central), Ministry of Labour Govt. of India filed a criminal complaint under Section 23 of the Act complaining violation of notification dated 9th December 1976 issued under Section 10(1) of the said Act, by the petitioner No. 3 company M/s IRCON International Limited and thus rendering itself liable to be prosecuted for offence under Section 23 of the Act. The Metropolitan Magistrate took cognizance and ordered summoning of the petitioners for standing trial . The petitioners are aggrieved and have challenged the order of taking cognizance and summoning in this petition.

3. The contention of the counsel for the petitioner is that the notification dated 9th December 1976 which is similar to notification dated 7th December 1976 violation of which was in fact the cause of action for filing the criminal complaint by respondent No. 2 has been quashed by t he Supreme Court in Steel Authority of India and Ors. v. National Union Waterfront Workers and Ors., . Therefore, nothing survives in the complaint and the cognizance taken and trial of the petitioners by the Metropolitan Magistrate will be an abuse of the process of the court and interference in it by this Court in exercise of the power under Section 482 Cr.P.C. will be necessary to secure the ends of justice.

4. Ms. Richa Kapur, counsel for respondent No. 1 referring to paragraph 125 of the aforecited Judgment has argued that the notification is quashed prospectively, therefore, no advantage of the judgment would be available to the petitioners.

The short but critical question which arises in this petition is whether after the quashing of the notification dated 9th December 1976 issued by the Central Government, violation of which was the cause of action for filing the complaint, the petitioners can still be tried for offence under Section 23 of the Act in the pending criminal complaint. Sub para (2) (b) of paragraph 125 of the judgment in Steel Authority of India Ltd. (supra), relevant for deciding the controversy, is extracted below:

(b) Inasmuch as the impugned notification issued by the Central Government on 9-12-1976 does not satisfy the aforesaid requirements of Section 10, it is quashed but we do so prospectively i.e. from the date of this judgment and subject to the clarification that on the basis of this judgment no order passed or no action taken giving effect to the said notification on or before the date of this judgment, shall be called in question in any tribunal or court including a High Court if it has otherwise attained finality and/or it has been implemented."

5. The Supreme Court has held that without contravening the provisions of the Act or the Rules framed there under the employer/accused cannot be fastened with criminal liability merely on the basis of the violation of the notification issued under the executive power purportedly under Section 10(1) of the Act. The notification dated 7-12-1976 which is Annexure A to the petition is similar to the notification dated 9-12-1976 which was impugned before the supreme court in Steel Authority of India Limited (supra). It had prohibited employment of contract labour for sweeping, cleaning., dusting and watching of the building. As per report of the Labour Enforcement Officer who checked the establishment of petitioner No. 3 company the petitioners contravened the notification No. 779(E) dated 9-12-1976 of Govt. of India by employing contract labour for watching the building which was a prohibited category of employment under Section 10 of the Act inviting punishment under Section 23 of the Act.

6. The notification No. 779(E) dated 9-12-1976 was challenged before the Supreme Court in Steel Authority of India Limited (supra). The Supreme Court quashed the notification prospectively i.e. from the date of the judgment. In terms of the judgment, order passed or the action taken pursuant to the notification dated 9-12-1976 on or before the date of the judgment could not be called in question before any court or tribunal provided It has become final or had been implemented, In the Instant case neither the action taken by respondent No. 2 has attained finality nor has It been Implemented. Therefore, it would not fall in the excepted category of cases where order passed or action, taken for violation of the said notification before the date of the aforesaid judgment could not be called in question before the courts. For this reason, the continuation of the criminal complaint solely based on violation of the notification dated 9.12.1976 or 7.12.1976 after the judgment in Steel Authority of India Limited (supra) would be gross abuse of the process pf the court and is liable to be quashed by this Court in exercise of its inherent and supervisory powers.

7. A similar view has been taken by a Bench of this Court in State Bank of India v. State, 2002 (III) AD Crime DHC 166. In that case also the prosecution of the employer was sought for violation of the same notification dated 9-12-1976 which is Annexure A to the petition and the Bench after considering the law laid down in the judgment of the Supreme Court in Steel Authority of India Limited (supra) held that the prosecution for contravention of the notification does not fall in any of the two exceptions specified in the judgment of the Supreme Court after the quashing of the notification dated 9-12-1976. Therefore, the continuation of the complaint would be an abuse of the process of the court so it was quashed under Section 482 Cr.P.C.

8. For the aforementioned reasons the petition is allowed and criminal complaint case No. 62/3 of 1999 titled State v. Ircon International Limited for prosecution of the petitioners pending before the court of Metropolitan Magistrate, New Delhi and the cognizance taken by the Metropolitan Magistrate followed by summoning of the petitioners is quashed.