Feroze Sons and Others vs B.C. Basu

P.C. Borooah, J.—The first petitioner Messrs. Feroze Sons is a Partnership firm having its registered office at 12 Harinbari Second Lane. Calcutta; the second and third petitioners are partners and the fourth and fifth petitioners are employees of the said firm. The firm carries on business as Iron and Steel merchants and also in handling and storage of diverse cargoes including steel, and owns and maintains a Steal Stockyard at 35, Jagat Banerji Ghat Road, Shibpur which had been taken on a sub-tenancy from Burn & Co. Ltd. The firm entered into an agreement with Hindusthan Steel Limited for handling and storage of diverse iron and steel materials despatched by the said Company to Calcutta from its plants at Rourkela, Bhilai and Durgapur. Under the agreement (a copy being annexure ''B'' to the petition) the firm has to unload and handle steel goods from the railway wagons placed on the Company''s private sidings and stack the materials in the aforesaid godown at Howrah and thereafter hand over the materials to the Company or its customers on receipt of requisite delivery orders. For the purpose of its business the firm has permanent labourers and also utilises the services of labourers employed through Sardars. On November 28, 1977 a Labour Inspector under the Contract Labour (Regulation & Abolition) Act 1970 (hereinafter the Act) filed a petition of complaint against the petitioners in the court of Sub-divisional Judicial Magistrate, Howrah u/s 23 of the Act for violation of section 12 of the Act read with paragraph 21 of the West Bengal Contract Labour (Regulation and Abolition) Rules, 1972 (hereinafter the Rules). It was alleged in the said petition of complaint that the first petitioner being a contractor as defined in section 2 (c) of the Act and having approximately 213 workmen employed by the said petitioner through six sardars for loading, unloading and stagging works at 35, Jagat Banerjee Ghat Road, Shibpur, Howrah had contravened the provisions, of section 12 of the Act read with Rule 21 of the Rules by executing its work through contract labour but without obtaining a licence from the Licensing Officer, Howrah as required under the aforesaid provisions of the Act and the Rules.

Mr. Subrata Rai Chaudhury, learned Senior Advocate appearing on behalf of the petitioners, has contended that as the first petitioner cannot be said to be a contractor as defined in section 2 (1) (c) of the Act, it is not required to take out a licence u/s 12 of the said Act and consequently the entire proceeding pending against the petitioners is misconceived and should be quashed.

Mr. Biren Mitra, learned Public Prosecutor appearing on behalf of the State, has argued that the first petitioner is a contractor of Hindusthan Steel Limited as would appear from the copy of the agreement which is annexure ''B'' to the petition, and being a contractor it has to take out a licence in accordance with the provisions of section 12 of the Act read with paragraph 21 of the Rules.

According to section 2 (1) (c) of the Act a contractor in relation to an establishment means a person who undertakes to produce a given result for the establishment, other than a mere supply of goods or articles of manufacture to such establishment, through contract labour or who supplies contract labour for any work of the establishment and includes a sub-contractor.

u/s 2(1) (g) (iv) of the Act principal employer means any person responsible for the supervision and control of the establishment. Section 2 (1) (e) (ii), which applies to the instant case, defines establishment to mean any place where any industry, trade, business, manufacture or occupation is carried on. Undoubtedly the first petitioner is an establishment within the meaning of the Act. Assuming that the other petitioners or any of them are the principal employers, they cannot be both contractors and principal employers in relation to the same establishment. If that be so there is no obligation cast on any of the petitioners to take out a licence u/s 12 of the Act read with paragraph 21 of the Rules.

Moreover, according to the petition of complaint the petitioners have allegedly employed 213 workmen through six sardars. Therefore even according to the complaint, the employment of the said workmen was not directly made by the petitioners but through the medium of the sardars. Therefore each of the sardars was a contractor within the meaning of the Act in relation to the first petitioner, viz. the establishment. The concerned workmen having been supplied through the medium of the sardars, none of the petitioners can be deemed to be a contractor in relation to the said workmen. Their liability to take out a licence cannot therefore arise.

In view of what has been stated above, we must hold that the petition of complaint, taken as a whole, does not disclose a prima facie case u/s 23 of the Act against any of the petitioners for violation of section 12 of the Act read with paragraph 21 of the Rules. As such continuance of further proceedings against the petitioners will unnecessarily cause them undue harassment and will tantamount to an abuse of the process of the Court. We, accordingly, allow this application make the Rule absolute and quash the proceedings against the petitioners pending in the court of the learned Subdivisional Judicial Magistrate, Howrah in Case No. 563-C of 1977.

A.N. Banerjee, J.

I agree.