Prem Sagar Mishra @ P.S. Mishra vs The State Of Jharkhand And Another
2023 Latest Caselaw 4084 Jhar

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             IN THE HIGH COURT OF JHARKHAND, RANCHI
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Cr.M.P. No. 1636 of 2013

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      Prem Sagar Mishra @ P.S. Mishra                      .... 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. Manish Kumar, Advocate
       For the State              :-     Mr. Arup Kumar Dey, Advocate
       For O.P.No.2               :-     Mr. Ravi Prakash, C.G.C.
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9/31.10.2023          Heard Mr. Manish Kumar, the learned counsel appearing on

behalf of the petitioner, Mr. Arup Kumar Dey, the learned counsel

appearing on behalf of the respondent State and Mr. Ravi Prakash, the

learned C.G.C appearing on behalf of the respondent O.P.No.2.

2. This petition has been filed for quashing of the entire

criminal prosecution in connection with CLA Case No.69 of 2013 including

the order taking cognizance dated 05.02.2013, pending in the court of

learned Judicial Magistrate, 1st Class, Dhanbad.

3. The complaint was filed alleging therein that the

complainant is the Labour Enforcement Officer (Central), Baghmara,

Bokaro, having jurisdiction over the establishment of the accused person.

The O.P.No.2 inspected the establishment on 8.11.2012 and observed

that the contractor workers are engaged in hiring of HEMM including

surface miner for removal of O.B. (Over burden) extraction of coal etc in

Shatbdi Open Cast Project of Area No.1, BCCL in contravention of

notification No.SO 2063 dated 21.06.1988 which prevents engagement of

contract labours in the above mentioned work thereby violating

provisions of section 10 (1) of the Contract Labour Regulation and

Abolition Act, 1970. The O.P.No.2 prepared an inspection report dated

04.12.2012 and the same was sent to the petitioner but no reply was

submitted. The accused petitioner and another having contravened the

provisions of the Act and the Rules have therefore made them liable for

prosecution under section 23 and 24 of the Act.

4. The learned counsel for the petitioner submits that the

petitioner is not the principal employer in respect of the Shatbdi Open

Cast Project in Barora Area of M/s B.C.C.L. He submits that the petitioner

was the General Manager of Barora Area of M/s B.C.C.L. He further

submits that the company is not made an accused in the case and the

cognizance has also not been taken against the company and in absence

of the company, liability cannot be imposed upon the petitioner who is

the General Manager of the company and to buttress his this argument,

on the point of employer, he relied on the judgment rendered by this

Court in the case of Swapan Ganguly v. Union of India, reported in

2006 3 JLJR 1. Paragraph nos. 13 and 15 of the said judgment are

quoted hereinbelow:

"13. From bare reading of the above provision of the Act, it is clear that liability is fastened on a person was held to be in charge of the office when the offence was detected and for others the burden is caused upon the prosecution to show that it was with their consent, or connivance, or that the commission of the offence was attributable on account of their negligent and such negligent, connivance or consent must be shown in respect of any director, manager, managing agent or any other officer of the company, who were not in charge of the office alleged to the place of occurrence at the time when the offence was detected and was holding office at distant places from the place of occurrence.

15. There is substance in the argument advanced on behalf of the petitioners that in spite of direction made by the Ranchi Bench of Patna High Court in Cr.

Misc. No. 736 of 1991(R) on March 15, 1999 (sic) while setting aside the earlier cognizance order in the present case on July 9, 1990 to take cognizance of the offence afresh after perusal of the necessary documents and

upon being satisfied that a prima facie case existed under Section 24 of the Act against the petitioners. Learned Chief Judicial Magistrate has made reference to a letter in the order impugned -3- dated March 19, 2004, under challenge that his attention was drawn towards the letter dated August 8, 1986 issued by the District Manager for registration of Food Corporation of India as principal employer under the Act wherein District Manager had sought guidelines. Pursuant to that, the guidelines dated August 26, 1986 was sent to the District Manager, i.e. petitioner No. 2. He further relied upon the letter produced on behalf of the prosecution which was furnished in Form-I by the District Manager, i.e. petitioner No. 2 herein with reference to Column III that he presented himself as principal employer but certainly for the name and location of the establishment as Food Corporation of India, district office Ranchi with the mailing address of the. establishment at district office, 12, Purulia Road, Ranchi and no address of Tatisilwai Depot, Ranchi was mentioned therein claiming as the principal employer for the said establishment. On perusal of the letter dated August 8, 1986, reference of which has been made by the Chief Judicial Magistrate, Ranchi the order impugned, certainly is a communication from the District Manager, i.e. petitioner No. 2 herein to the Assistant Labour Commissioner (Central) under the subject "Registration of Food Corporation of India on principal employer under C.L. (R & A) Act regarding" in which the guidelines was sought for the registration of Chakradharpur Depot of the Food Corporation of India as to whether it comes within the jurisdiction of Assistant Labour Commissioner (Central) Chaibasa or the registration as was already made under the jurisdiction of Assistant Labour Commissioner (Central) Ranchi would serve the purpose for Chakradharpur also. It is nowhere mentioned that the District Manager, Ranchiopposite party No. 2 herein claimed as principal employer for the Chakradharpur Depot, rather guideline was sought with regard to jurisdiction of the registration of the said Depot under the Act. From perusal of both the documents upon which reliance was placed by the Chief Judicial Magistrate for taking cognizance of the offence against the petitioners does not indicate that either the petitioner No. 1 or the petitioner No. 2 was in any manner responsible for day to day work of the Tatisilwai Depot of the Food Corporation of India or that either of the two was the principal Mar 07 2022 Page 4 of 5 employer at the alleged time of the detection by the prosecution party.

This Court further finds that no prima facie case is made out against the petitioners -4- for the offence alleged under Section 24 of the Contract Labour (Regulation and Abolition) Act, 1970 being the principal employer in any manner in the background that there was no material before the Chief Judicial Magistrate to connect the petitioners as the principal employer of the Tatisilwai Depot of the Food Corporation of India and hence there was no prima facie case against them for taking cognizance of the offence under Section 24 of the Contract Labour (Regulation and Abolition) Act, 1970. 16. Under the circumstances, the order impugned dated March 19, 2004 passed by the Chief Judicial Magistrate, Ranchi taking cognizance of the offence in Complaint Case No. C-III-306 of 1990 under Section 24 of the Contract Labour (Regulation and Abolition) Act, 1970 against the petitioners is illegal and hence it is set aside. This petition is allowed."

5. The learned counsel for the petitioner further relied in the

case rendered by this Court in the case of A.K. Sahay v. The State of

Jharkhand and Another, reported in 2011 2 JCR 588. Paragraph

nos.12 and 13 of the said judgment are quoted hereinbelow:

"12. Penal provision has to be strictly construed. A person cannot be criminally prosecuted on vague and unspecific allegations. The Managing Director of the B.C.C.L cannot be held directly responsible for the alleged contravention of Act/Rule etc of a particular colliery if there is no clear allegation of the role of Managing Director of the B.C.C.L constituting penal offence. Even if certain words bring some persons within the fold of the person responsible for the overall superintendence and control, they cannot be prosecuted as the "Principle Employer", if there is no direct allegation making out a case of contravention of any provision of the Act, Rule or condition of license in the capacity of owner, agent or Manager named for the particular mine.

13. Learned Magistrate without taking into consideration the said legal aspect and the canon of the criminal jurisprudence has taken cognizance of the said offences against the petitioner against whom

contravention of any of the provisions of the said Act and the rules framed thereunder in the capacity of owner, agent or Manager of the mine. I, therefore, find no cogent material constituting the offences under

Sections 23 and 24 of the said Act and sufficient ground for prosecuting the petitioner and supporting the impugned order."

6. Mr. Manish Kumar, the learned counsel appearing on behalf

of the petitioner further submits that in the entire complaint, there is no

specific allegation against the petitioner that what has been done by the

petitioner. He also submits that in absence of any specific allegation in

the complaint, it amounts to abuse of the process of the court. He further

submits that in light of section 25 of the Act, the person who are

responsible for the day to day affairs of the company can only be

prosecuted, that too, if the company is made accused. These are the

lacuna in the entire criminal proceeding. On the point of not making the

company as accused, he relied upon the judgment rendered by the

Hon'ble Supreme Court in the case of S.K. Alagh v. State of Uttar

Pradesh and 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. He further relied upon the judgment rendered by the

Hon'ble Supreme Court in the case of Ravindranatha Bajpe v.

Mangalore Special Economic Zone Ltd. and Others, reported in

2021 SCC OnLine SC 806. Paragraph 27 of the said judgment is

quoted herein below:-

"27. As held by this Court in the case of India Infoline Limited (supra), in the order issuing summons, the learned Magistrate has to record his satisfaction about a prima facie case against the accused who are Managing Director, the Company Secretary and the

Directors of the Company and the role played by them in their respective capacities which is sine qua non for initiating criminal proceedings against them. Looking to the averments and the allegations in the complaint, there are no specific allegations and/or averments with respect to role played by them in their capacity as Chairman, Managing Director, Executive Director, Deputy General Manager and Planner & Executor. Merely because they are Chairman, Managing Director/Executive Director and/or Deputy General Manager and/or Planner/Supervisor of A1 & A6, without any specific role attributed and the role played by them in their capacity, they cannot be arrayed as an accused, more particularly they cannot -6- be held vicariously liable for the offences committed by A1 & A6."

8. Per contra, Mr. Ravi Prakash, the learned C.G.C. appearing

on behalf of the O.P.No.2 submits that the petitioner is responsible and

that is why the case has been lodged. He also submits that the

arguments are the subject matter of the trial that cannot be appreciated

under section 482 Cr.P.C.

9. The learned counsel appearing on behalf of the respondent

State submits that pursuant to the complaint of the O.P.No.2, the learned

court has taken cognizance.

10. In view of the above submission of the learned counsel for

the parties, the Court has gone through the materials on record. It is an

admitted fact that the petitioner is General Manager of Barora Area of

M/s B.C.C.L and the company is not made an accused and how the

petitioner is responsible is not disclosed in the complaint. Section 25 of

the Act stipulates that persons who are responsible for the day to day

affairs of the company are liable to be prosecuted. In the case in hand,

nothing specific is disclosed as to how this petitioner is responsible for

the day to day affairs of the company. There is no allegation in the

complain that this petitioner was Manager of Mines in view of section

2(1)(g)(iii) of the Act. He is not the principal employer under that section

and only the Manager of the Mines is responsible. section 2(1)(g)(iii) of

the Act is very specific on the point of principal employer so far as the

mine is concerned, where only the manager of the mines is said to be

principal employer. The petitioner is General Manager of Barora Area of

M/s B.C.C.L.

11. The Court has perused the cognizance order dated

05.02.2013 and finds that the word 'cognizance' has been inserted in a

blank space and in the order taking cognizance there is no discussion of

prima facie materials against the petitioner.

12. In view of the above facts and reasons, this petition

succeeds. The entire criminal prosecution in connection with CLA Case

No.69 of 2013 including the order taking cognizance dated 05.02.2013,

pending in the court of learned Judicial Magistrate, 1st Class, Dhanbad

are quashed.

13. Cr.M.P. No.1636 of 2013 is allowed and disposed of.

14. Pending petition, if any, also stands disposed of accordingly.

( Sanjay Kumar Dwivedi, J.)

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