South Indian Bank Ltd. And Ors. vs State And Ors.
2004 Latest Caselaw 56 Del

JUDGMENT

B.N. Chaturvedi, J.

1. Respondent No. 2 filed a criminal complaint under Sections 23 and 24 of Contract Labour (Regulation and Abolition) Act, 1970 based on an inspection report dated 4th November, 1996 before the Court of learned MM concerned whereupon by an order dated 17th January, 1997 the learned Magistrate took cognizance of the offences and issued summons to the petitioners. On being summoned as accused, the petitioners approached this Court by way of present writ petition for quashing the impugned complaint and the summoning order as well as all consequential proceedings before the Court of learned MM concerned.

The allegations against the petitioners, as gathered from inspection report dated 4th November, 1996 are that contrary to prohibition by virtue of notification No. 779 (E) dated 9th December, 1997 issued by Government of India, Ministry of Labour, New Delhi they had employed one security guard on contract labour and thereby committed an offence punishable under Section 23 of the Contract Labour (Regulation and Abolition) Act, 1970.

2. Learned counsel for the petitioners assails the maintainability of the said complaint and legality of the summoning order on the ground that notification dated 9th December, 1976 prohibiting employment of contract labour for the purposes specified therein stands quashed by the Supreme Court in Steel Authority of India and Ors. etc. etc. Vs. National Union Water Front Workers and Ors. etc. etc.; and thus very basis of prosecution is lost and the complaint and proceedings based thereon in the circumstances cannot be allowed to continue.

3. In Steel Authority of India (Supra) the notification in question was quashed as the same had not been issued after satisfying certain requirements indicated in the judgment. Of course, the notification was quashed prospectively, i.e., from the date of judgment with a clarification that on the basis of that judgment no order passed or no action taken giving effect to the said notification on or before the date of the 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.

4. In the instant case, the proceedings before the Court of Learned MM concerned were stayed by an order dated 29th September, 2000 of this Court. Mere launching of prosecution based on the notification in question cannot be taken to amount to an act which has attained finality. Since the prosecution is based on notification dated 9th December, 1976, which stands quashed, the very basis of prosecution is gone and in the circumstances the respondent No. 2 cannot be allowed to continue to prosecute it complaint against the petitioners.

5. An alternative argument advanced by learned counsel for the petitioners is that the security guard employed by them as a contract labour could not be said to be covered in any of the categories of contract labour specified in the notification dated 9th December, 1976 and therefore, their prosecution there under is even otherwise bad in law. The job of a person standing as a guard to cash transactions being undertaken in the course of day to day banking business at the petitioners' establishment could not be equated with a person employed as one watching the building. To point out such a distinction the learned counsel for petitioners referred to a decision of this Court in Dev Sunder Jha and Ors Vs. Union of India and Ors; 2000 IV AD (Delhi) 194 and contended that the security guard in the present case was meant to provide security to the cash being handled in the course of banking business and he was not the one to watch the building. I agree with the view taken in Dev Sunder Jha and others (Suprl).

6. Learned counsel for the respondent No. 2 concedes that the present case is covered by the decision in Steel Authority of India (Supra) and with the quashing of the notification in question the prosecution of the petitioners based on the complaint filed by it cannot go on.

In the result, as the notification constituting basis of prosecution stands quashed and no longer exists to sustain prosecution against the petitioners, the complaint filed by respondent No. 2, the order dated 17th January, 1997 passed by the Court of learned MM summoning the petitioners as accused and further proceedings, if any, consequent thereupon, are quashed.

7. The petition is disposed of.