Jharkhand High Court
Subir Das vs The State Of Jharkhand & Anr on 16 September, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 1938 of 2013
Subir Das ..... ... Petitioner
Versus
The State of Jharkhand & Anr. ..... ... 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. P.D. Agrawal, Spl.P.P.
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06/ 16.09.2023 Heard Mr. Manish Kumar, learned counsel appearing for
the petitioner and Mr. P.D. Agrawal, learned Spl.P.P. for the State.
2. This petition has been filed for quashing of the entire
criminal proceeding including the order taking cognizance dated
03.03.2011, by which, the cognizance has been taken for the offence
under Section 23 of the Contract Labour (Regulation and Abolition)
Act, 1970 [hereinafter referred to as the 'Act'] against the petitioner, in
connection with CLA Case No. 44 of 2011, pending in the Court of
learned Judicial Magistrate, 1st Class, Dhanbad.
3. The complaint case was lodged by the O.P. No. 2 alleging
therein that the complainant is the Labour Enforcement Officer
(Central) having jurisdiction over the establishment of the accused
person.
The O.P. No. 2 inspected the establishment of Shatabdi
Project of BCCL on 01.12.2010 and observed that 27 contract
labourers engaged by M/s DRA-Degcon (JV) for executing the
contract work of removal of overburden and transportation of coal
with fire fighting although the same is prohibited by a notification
issued under Section 10(1) of the CLRA Act, 1970.
In para-7 of the complaint, it has been stated that the
petitioner as well as the accused contractor has jointly committed
the offence.
The said complaint was received on 03.03.2011 and was
registered as CLA Case No. 44 of 2011.
4. Mr. Manish Kumar, learned counsel appearing for the
petitioner submits that the expression 'principal employer' has been
defined in Section 2(g) of the CLRA Act and Section 2(g)(iii) provides
that the principal employer in relation to a mine would be the owner or
agent of the mine and where a person has been named as the Manager
of the mine, the same so named. He submits that the petitioner is
neither the owner nor the agent of the Shatabdi OCP and at that time,
the petitioner was posted as General Manager of Barora Area of M/s
BCCL. He further submits that the company is not made accused and
there is no allegation against the petitioner, as of looking the day to day
affairs of the company. On these grounds, he submits that the entire
criminal proceeding may kindly be quashed.
5. On the other hand Mr. Agarwal, learned Spl.P.P. appearing
for the State submits that the complaint case has been filed and the
allegations are there, in view of that, this court may not interfere in the
matter at this stage.
6. In view of the above submissions of learned counsel for the
parties, the court finds that admittedly the case has been registered
under the Contract Labour (Regulation and Abolition) Act, 1970 and at
that time, the petitioner was posted as General Manager of the
concerned area of the BCCL and there is no allegation against this
petition of looking into the day to day affairs of the company. Under
Section 25 of the said Act, a person will be liable for prosecution, who
is looking to day to day affairs of the Company, however, the same is
absent in the case in hand. 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 above facts, reasons and analysis, the entire
criminal proceeding including the order taking cognizance dated
03.03.2011, by which, the cognizance for the offence under Section 23
of the Contract Labour (Regulation and Abolition) Act, 1970 has been
taken against the petitioner, in connection with CLA Case No. 44 of
2011, pending in the Court of learned Judicial Magistrate, 1st Class,
Dhanbad, are hereby, quashed.
8. This petition is allowed and disposed of.
9. Interim order, granted earlier, stands vacated.
(Sanjay Kumar Dwivedi, J.)
Amitesh/-
