Jharkhand High Court
Shiv Ram vs The State Of Jharkhand And Another on 19 April, 2023
1
IN THE HIGH COURT OF JHARKHAND, RANCHI
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Cr.M.P. No.84 of 2014
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Shiv Ram, S/o Sri Khoobi Ram, Project Officer, Jamunia Open Cast Project,
Block II Area, BCCL, resident of Nadkhurkee, P.O. Nawagarh, P.S.
Baghmara, District-Dhanbad
.... Petitioner
-- Versus --
The State of Jharkhand and Another .... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner :- Mr. Anoop Kumar Mehta, Advocate
For the State :- Mrs. Vandana Bharti, Advocate
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4/19.04.2023 This petition has been filed for quashing the entire criminal
prosecution launched in connection with CLA Case No.132 of 2013,
including the Order dated 16.4.2013 whereby learned Chief Judicial
Magistrate, Dhanbad has been pleased to take cognizance of offence
under sections 23 and 24 of the Contract Labour (Regulation and
Abolition) Act, 1970, pending in the court of learned Sub Divisional
Judicial Magistrate, Dhanbad.
2. Status report is on the record which suggest that the case
of accused Subodh Kumar Agarwal and Arun Kumar Agarwal was
disposed of on 26.9.2015 and 28.11.2015 respectively in Lok Adalat. The
case of the petitioner is pending before the learned court.
3. The prosecution case was registered on the written
complaint of O.P.no.2 alleging that (a) the complainant is Labour
Enforcement Officer (Central) Baghmara having jurisdiction over the
establishment of the accused person, and (b) the O.P.No.2 inspected the
establishment of Jamunia Open cast project of Area-II, BCCL on
18.01.2013 and observed that contract labours were engaged in
excavation of coal and for removal of over burden, extraction etc in
Jamunia Open Cast project of Area-II of M/s BCCL in contravention of
notification issued under section 10(1) of the Contract Labour
(Regulation and Abolition) Act, 1970.
4. Learned counsel for the petitioner submits that the O.P.no.2
has committed an error in implicating the petitioner as the principal
accused number 1 although he is not the principal employer in respect to
the Jamunia Open Case Project under Block II Area of M/s BCCL. He
submits that M/s BCCL the company has not been made an accused and
in absence of the company being made an accused, the petitioner cannot
be prosecuted. He submits that the petitioner is neither the owner of
Jamunia Open Case Project nor the agent and he is also not the manager
of Jamunia O.C. Project and he is not the principal employer as well. He
submits that the petitioner at the relevant time was Project Officer, Block
II Area of M/s BCCL.
5. On the other hand, Mrs. Vandana Bharti, the learned State
counsel submits that the learned court has taken cognizance in
connection with considering the violation made under the said Act.
6. In view of the above submission of the learned counsels
appearing on behalf of the parties, the Court has gone through the
materials on record including the order taking cognizance. Section 25 of
the said Act speaks about if the accused is company then the person can
be prosecuted against whom the case has been lodged if during the
offence he was In-charge of the company and there is no allegation in
the complaint that the petitioner was the person who was looking after
the day to day affairs of the company. A reference may be made to the
case of "S.K. Alagh v. State of Uttar Pradesh & others", reported in
(2008) 5 SCC 662. Paragraph 19 of the said judgment is quoted herein
below:-
"19. As, admittedly, drafts were drawn in the name of
the Company, even if the appellant was its Managing
Director, he cannot be said to have committed an
offence under Section 406 of the Indian Penal Code.
If and when a statute contemplates creation of such a
legal fiction, it provides specifically therefor. In
absence of any provision laid down under the statute,
a Director of a Company or an employee cannot be
held to be vicariously liable for any offense committed
by the Company itself."
7. In view of the a above considering that the company is not
made the party in view of section 25 of the said Act and considering the
judgment rendered in the case of "S.K. Alagh v. State of Uttar Pradesh &
others"(supra) under which the case of the petitioner is fully covered,
and accordingly, entire criminal prosecution in connection with CLA Case
No.132 of 2013, pending in the court of learned Sub Divisional Judicial
Magistrate, Dhanbad is quashed against the petitioner only.
8. Cr.M.P. No.84 of 2014 is allowed and disposed of.
9. Pending petition if any also stands disposed of.
( Sanjay Kumar Dwivedi, J.)
SI/;
