D.D. Misra & Others vs Union Of India & Another

Lok Pal Singh, J

The aforementioned criminal misc. applications have been filed under Section 482 of the Cr.P.C. seeking quashing of the summoning orders as well as the entire proceedings of criminal case no. 1798 of 2012 and criminal case no. 1800 of 2012, both under Sections 24 of the Contract Labour (Regulation and Abolition) Act, 1970 read with Central Rules; as also criminal case no. 1158 of 2013 and criminal case no. 1157 of 2013, both under Section 23 of the Contract Labour (Regulation and Abolition) Act, 1970 read with Central Rules, all pending in the court of Chief Judicial Magistrate, Dehradun.

2) Since the factual matrix of the above noted criminal misc. applications filed under Section 482 of Cr.P.C. and law governing the field is the same, therefore, they are being decided by this common judgment and order for the sake of brevity and convenience.

3) C-482 petition no. 542 of 2013 shall be the leading case.

4) Brief facts of the case are that the applicant is holding the post of General Manager, Head Corporate Administration, in Oil and Natural Gas Corporation Ltd., Dehradun. Said Corporation has engaged a large number of employees in executive as well as non-executive class. In the year 1980, regulations were framed for the purposes of appointment in the Corporation. These regulations provide detailed procedure as to how an employee whether he is executive or non-executive class will be appointed. Service rules have also been framed in the Corporation.

5) Complainant / respondent no. 2, Labour Enforcement Officer (Central) at Dehradun had lodged the complaint against the applicant under Section 24 of the Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter referred to as 'the Act') stating therein, that the contract labour employed through M/s BVG India Ltd. found engaged working as clerk, computer operators, Account clerk, store-keepers, peons and attendants, which are prohibited under Notification dated 8th September, 1994 issued under Section 10(1) of the Act. Along with the complaint, a list of documents, including inspection report cum show-cause notice dated 18.07.2012 / 19.07.2012 and an inspection note / the worker's statement dated 18.07.2012.

6) In a nutshell, the complaint was that despite prohibition contained in Section 10 of the Act, the applicant has engaged the employees as contract labourers.

7) Cognizance was taken by the learned Chief Judicial Magistrate, Dehradun on the said complaint, and the applicant was summoned to face the trial in respect of offence cognizable under Section 24 of the Contract Labour (Regulation and Abolition) Act, 1970 read with Central Rules. Hence, abovementioned criminal misc. applications under Section 482 of Cr.P.C.

8) Heard learned counsel for the parties and perused the entire material available on record.

9) Before further discussion it is pertinent to mention here Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970, which provides for prohibition of employment of contract labour and is the very basis for lodging the complaint against the applicant in respect of offence cognizable under Section 24 of the Act. Section 10 of the Act is excerpted hereunder:

"10. Prohibition of employment of contract labour. (1) Notwithstanding anything contained in this Act, the appropriate Government may, after consultation with the Central Board or, as the case may be, a State Board, prohibit, by notification in the Official Gazette, employment of contract labour in any process, operation or other work in any establishment.

(2) Before issuing any notification under sub-section (1) in relation to an establishment, the appropriate Government shall have regard to the conditions of work and benefits provided for the contract labour in that establishment and other relevant factors, such as-

(a) Whether the process, operation or other work is incidental to, or necessary for the industry, trade, business, manufacture or occupation that is carried on in the establishment;

(b) whether it is of perennial nature, that is to say, it is of sufficient duration having regard to the nature of industry, trade, business, manufacture or occupation that is carried on in that establishment;

(c) whether it is done ordinarily through regular workmen in that establishment or an establishment similar thereto;

(d) whether it is sufficient to employ considerable number of whole-time workmen.

Explanation. -If a question arises whether any process or operation or other work is of perennial nature, the decision of the appropriate Government thereon shall be final."

10) Learned counsel for the applicant would submit that the complaint lodged by respondent no. 2 in respect of offence cognizable under Sections 23 and 24 of the Act is based upon the Notification dated 8th September, 1994 passed in exercise of sub-section (1) of Section 10 of the Act. Learned counsel for the applicant would further submit that co-ordinate bench of this Court vide judgment and order dated 15.02.2018, passed in WPMS no. 1323 of 2013, O.N.G.C. Dehradun vs Union of India and another, had already quashed the Notification dated 08.09.1994, which is the very basis of lodging the complaint against the applicant.

11) Learned counsel for the applicant placed reliance upon the judgment rendered by Hon'ble Supreme Court in Steel Authority Of India Limited vs National Union Waterfront Workers And others (2001) 7 SCC 1, wherein in paragraph no. 53 it has been held as under:

"53. The impugned notification issued by the Central Government on December 9, 1976, reads as under:

"S.O. No. 779(E) 8/9.12.76 in exercise of the power conferred by sub-section (1) of Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 (37 of 1970) the Central Government after consultation with the Central Advisory Contract Labour Board hereby prohibits employment of contract labour on an from the 1st March, 1977, for sweeping, cleaning, dusting and watching of buildings owned or occupied by the establishments in respect of which the appropriate Government under the said Act is the Central Government.

Provided that this notification shall not only apply to the outside cleaning and other maintenance operations of multi-storeyed buildings were such cleaning of multi-storeyed buildings where such cleaning of maintenance operations cannot be carried out except with specialized experience.

A glance through the said notification, makes it manifest that with effect from March 1, 1977, it prohibits employment of contract labour for sweeping, cleaning, dusting and watching of buildings owned or occupied by establishment in respect of which the appropriate Government under the said Act is the Central Government. This clearly indicates that the Central Government had not adverted to any of the essentials, refereed to above except the requirement of consultation with the Central Advisory Board. Consideration of the factors mentioned above has to be in respect of each establishment, whether individually or collectively, in respect of which notification under sub-section (1) of Section 10 is proposed to be issued. The impugned notification apart from being an omnibus notification does not reveal compliance of sub-section (2) of Section 10. This is ex facie contrary to the postulates of Section 10 of the Act. Besides it also exhibits non-application of mind by the Central Government. We are, therefore, unable to sustain the said impugned notification dated December 9, 1976 issued by the Central Government."

12) On the strength of the judgment (supra), learned counsel for the applicant would submit that earlier also said Notification was challenged by the ONGC before the High Court of Judicature of Andhra Pradesh at Hyderabad in W.P. no. 3397 of 2003, and the said Court was pleased to granted interim order in favour of ONCG and stayed the operation of Notification S.O. no. 648 (E) dated 08.09.1994. Similarly, while granting interim stay in favour of ONGC, the High Court of Gujarat at Ahmedabad vide order dated 23.01.2012, passed in Special Criminal Application no. 2411 of 2011, stayed the further proceedings of criminal case no. 917 of 2011, pending in the court of J.M.F.C., 4th Court, Baroda.

13) I have gone through the said case law, as also the interim orders granted by High Court of Judicature of Andhra Pradesh at Hyderabad and High Court of Gujarat in favour of ONGC.

14) Since the Notification, which is the very basis of the complaint and the violation of which has been alleged as an offence against the applicant has been set aside by this Court vide judgment and order dated 15.02.2018, thus it is abundantly clear that when the Notification itself, which is the very basis of the complaint, has been set aside by this Court, as such, there is no law in existence, breach of which is alleged against the applicant. Furthermore, when the Notification itself is quashed, the proceedings initiated against the applicant on the basis of said Notification cannot be permitted to continue any further. Also, the Notification has now been set aside, which will have retrospective effect, but the fact remains that on the alleged date of violation of the Notification, the same was already stayed by the High Court of Judicature of Andhra Pradesh at Hyderabad, therefore, there is no question of alleged violation of the same at the hands of the applicant.

15) In view of the above discussion, the aforementioned criminal misc. applications under Section 482 of Cr.P.C. stand allowed. The summoning orders issued on various dates as well as the entire proceedings of the criminal cases (a mentioned of which has been made in the first paragraph of the judgment) initiated against the applicant in regard to the offences punishable under Sections 23 and 24 of the Contract Labour (Regulation and Abolition) Act, 1970 read with Central Rules, pending before the court the Chief Judicial Magistrate, Dehradun are hereby quashed.

16) Let a copy each of this judgment be kept in the files of connected C-482 petitions.