Jharkhand High Court
Subir Chaki vs The State Of Jharkhand Through ... on 19 April, 2022
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 734 of 2015
1. Subir Chaki
2. Prabir Kumar Ghosh
3. Padam Kumar Khaitan
4. Subir Ranjan Das Gupta
...... Petitioners
Versus
...............
The State of Jharkhand through Labour Superintendent, Dhanbad namely, Pradeep
Robert Lakra ...... Opposite Parties
CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioners : Mr. Ajay Kumar Sah, Advocate
For the State : Mrs. Priya Shrestha, Spl. P.P.
06/Dated: 19/04/2022
1. Heard Mr. Ajay Kumar Sah, learned counsel for the petitioners and Mrs.
Priya Shrestha, learned counsel for the State.
2. This petition has been filed for quashing of entire criminal proceeding
in connection with C.L. Case No. 434 of 2013 including the order taking cognizance
dated 18.11.2013 passed by the learned Chief Judicial Magistrate, Dhanbad whereby
cognizance has been taken against the petitioners for the offence under sections 23,
24 and 25 of the Contract Labour (Regulation & Abolition) Act, 1970, pending in the
Court of learned Judicial Magistrate, Ist Class, Dhanbad.
3. Complainant has filed complaint petition alleging therein that on
05.06.2013 at 3.00 p.m., factory premises of Mc Nally Sayaji Engineering Limited,
Kumardhubi, Dhanbad was inspected under the provisions of Contract Labour
(Regulation & Abolition) Act, 1970 and during the course of inspection it was found
that the provisions of Act and Rules of Contract Labour (Regulation & Abolition) Act,
1970 mentioned in complaint petition, have been violated.
4. It is further alleged that on inspection, the Labour Superintendent and
Inspector vide Memo No. 632 dated 07.06.2013 directed the Managing Director of the
Company to make payment of the balance amount by 23.06.2013 after curing the
defect and further directed to ensure compliance of the same but it has not been
complied then this complaint has been filed.
5. Mr. Ajay Kumar Sah, learned counsel for the petitioners submits that in
the complaint petition, company has not been made accused. He further submits
that the learned court has taken cognizance against the company. He further submits
that the petitioners are directors of the company. He further submits that directors
are not responsible for the day to day affairs of the company. He refers to section 25
of the said Act and submits that the persons who are responsible for day to day
affairs of the company only can be prosecuted under the said Act.
6. Mrs. Priya Shrestha, learned counsel for the State submits that in
absence of licence, project was going on that is why petitioners haves been implicated
in this case.
7. The court has gone through the materials on record. In the complaint
petition company has not been made accused. Petitioners are directors of the
company which has been disclosed in the complaint petition. How the petitioners were
looking day to day affairs of the company, has not been disclosed in the complaint
petition. Moreover, even speaking that petitioners are responsible for day to day
affairs of the company in the complaint petition, how the petitioners are looking day
to day affairs of the company, are required to be disclosed in the complaint, which is
lacking in the complaint petition. Reference may be made to the judgement in the
case of S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla And Another 2005) 8 SCC
89. Para 4 and 9 of the said of the said judgment are quoted hereinbelow:
"4. In the present case, we are concerned with criminal liability on account
of dishonour of a cheque. It primarily falls on the drawer company and is
extended to officers of the company. The normal rule in the cases 20
involving criminal liability is against vicarious liability, that is, no one is to be
held criminally liable for an act of another. This normal rule is, however,
subject to exception on account of specific provision being made in the
statutes extending liability to others. Section 141 of the Act is an instance
of specific provision which in case an offence under Section 138 is
committed by a company, extends criminal liability for dishonour of a
cheque to officers of the company. Section 141 contains conditions which
have to be satisfied before the liability can be extended to officers of a
company. Since the provision creates criminal liability, the conditions have
to be strictly complied with. The conditions are intended to ensure that a
person who is sought to be made vicariously liable for an offence of which
the principal accused is the company, had a role to play in relation to the
incriminating act and further that such a person should know what is
attributed to him to make him liable. In other words, persons who had
nothing to do with the matter need not be roped in. A company being a
juristic person, all its deeds and functions are the result of acts of others.
Therefore, officers of a company who are responsible for acts done in the
name of the company are sought to be made personally liable for acts
which result in criminal action being taken against the company. It makes
every person who, at the time the offence was committed, was in charge
of, and was responsible to the company for the conduct of business of the
company, as well as the company, liable for the offence. The proviso to the
sub-section contains an escape route for persons who are able to prove
that the offence was committed without their knowledge or that they had
exercised all due diligence to prevent commission of the offence.
9. The position of a managing director or a joint managing director in a
company may be different. These persons, as the designation of their office
suggests, are in charge of a company and are responsible for the conduct
of the business of the company. In order to escape liability such persons
may have to bring their case within the proviso to Section 141(1), that is,
they will have to prove that when the offence was committed they had no
knowledge of the offence or that they exercised all due diligence to prevent
the commission of the offence."
8. The company has not been made accused. Reference may be made to
the judgment in the case of "Sushil Sethi & Another V. State of Arunachal
Pradesh & Others" reported in (2020) 3 SCC 240 wherein para 7.5 the Hon'ble
Supreme Court has held as under:-
"7.5. In Sharad Kumar Sanghi, this Court had an occasion to
consider the initiation of criminal proceedings against the Managing
Director or any officer of a company where company had not been
arrayed as a party to the complaint. In the aforesaid decision, it is
observed and held by this Court that in the absence of specific allegation
against the Managing Director of vicarious liability, in the absence of
company being arrayed as a party, no proceedings can be initiated
against such Managing Director or any officer of a company. It is further
observed and held that when a complainant intends to rope in a
allegation to constitute the vicarious liability."
9. Looking into the cognizance order, it transpires that the same is not a
speaking order. What are the prima facie materials against the petitioner are required
to be disclosed in the cognizance order which is lacking in the case in hand.
10. Mrs. Priya Shrestha, learned counsel for the State submits that there is
no illegality in the order taking cognizance. She submits that irregularity was found
under the provision of the Contract Labour (Regulation & Abolition) Act, 1970.
11. In view of the aforesaid facts, reasons and analysis, the entire criminal
proceeding in connection with C.L. Case No. 434 of 2013 including the order taking
cognizance dated 18.11.2013 passed by the learned Chief Judicial Magistrate,
Dhanbad whereby cognizance has been taken against the petitioners for the offence
under sections 23, 24 and 25 of the Contract Labour (Regulation & Abolition) Act,
1970, pending in the Court of learned Judicial Magistrate, Ist Class, Dhanbad, so far
as petitioners are concerned, are hereby quashed.
12. This petition stands allowed and disposed of. Pending I.A, if any, stands
disposed of.
(Sanjay Kumar Dwivedi, J.)
Satyarthi/
