Padam Pd. Jain vs State of Bihar and Others

Shivanugrah Narain, J.—This is an application for quashing the criminal proceeding (suit No. 1 (c) of 1976) pending in the court of Shri B.L. Singh, Judicial Magistrate, 1st class, Sasaram. The proceeding was initiated upon a petition of complaint filed by Chandrika Mishra, Labour Inspector, Rohtas, Dalmianagar, who is the Inspector under the Contract Labour (Regulation and Abolition) Act, 1970 against the petitioner in the court of the Chief Judicial Magistrate, Sasaram on 3-1-1976. It was alleged in the petition of complaint that the petitioner Padam Pd. Jain was the employer in relation to the industrial concern Messrs Padam Pd. Jain and company and he had contravened the provisions of Section 12(1) of the Contract Labour (Regulation and Abolition) Act, 1970, hereinafter referred to as ''the Act'' and Rules 21, 24 and 26(2) of the Bihar Contract Labour (Regulation and Abolition) Rules, 1972 (hereinafter referred to as the Rules''). The date of the occurrence as given at the top of the petition of complaint is as follows : ''27-3-75 and on subsequent dates continuously. The petition of complaint recites that by a notification dated 5-3-1973 taking work from contract labour or undertaking contract work without a licence had been prohibited with effect from 15-4-73 and that the powers of an inspector u/s 28(1) had been conferred on the complainant (omitting the prayer portion etc.) and runs thus: ''By memo No. 3805 dated 26-6-1974 of the office of the undersigned and other letters in continuation M/s. Padam Pd. Jain and Co., quarter no. S/253, Dalmianagar was directed to file an application for licence under the aforesaid Act, but he did not comply with that order.

2 Along with other contractors, Sri Padam Pd Jain the contractor employer had also participated in the meeting of the State Labour and Welfare Centre. Dalmianagar held in the presence of the Assistant Commissioner of Labour, Patna Division, Bailey Road, Patna on 26-9-1974 and along with others he also was told to file the application for licence without any delay and that he gave verbal assurance that he would apply for the licence by 15-11-1974, but he did not take such action thereafter. On 11-1-1975, Sri Padam Pd. Jain the contractor employer had personally appeared before the Labour Superintendent, Rohtas Dalmianagar, the Licensing Officer, Rohtas and necessary information in this connection was given to him by the Labour Officer. In spite of that he filed an application in the office without licence fee and security money and did not deposit the licence fee and the security money. Thereafter by letter No. 2034 dated 18-3-1975 issued in exercise of the powers conferred on the Inspector, he was ordered to deposit the licence fee within three days and the security money within one week of the receipt of the order and to furnish information thereof. This order was served on Sri Padam Prasad Jain on 24-3-1975, but even after the expiry of the period fixed and even thereafter up to date he had not complied with that order. In reply to the notice asking him to show cause issued by this office memo No. 2969 dated 21-5-1975 he has stated that the Act was not applicable to him. This reply after proper consideration was found to be unsatisfactory and was rejected. On receipt of this petition of complaint, the Chief Judicial magistrate on 3-1-1976 holding that a prima facie case u/s 23 of the Act was made out by the complaint petition against the accused took cognizance of the case and transferred the case to Sri B.K. Sinha, Judicial Magistrate, 1st Class, Sasaram for disposal. After the can came up before him Magistrate by his order dated 22-1-1976 the transferee magistrate directed issue of summons against the petitioner.

Mr. B.C. Ghose appearing on behalf of the petitioner has urged two points in support of this petition. He first contended that the order taking cognizance of the case against ''the petitioner was, in view of the provisions of Section 27 of the Act, without jurisdiction because the complaint was made by the Inspector beyond the period of limitation for prosecution prescribed by Section 27 of the Act. He next contended that even if the averments made in the petition of complaint are accepted in its entirety and taken at their face value, no offence under the Act committed by the petitioner was disclosed and that at any rate the averments were so vague that no cognizance should have been taken or no order issuing summons to the petitioner should have been made.

Section 27 runs thus:

No court shall take cognizance of an offence punishable under this Act unless the complaint thereof is made within three months from the date on which the alleged commission of the offence came to the knowledge of an inspector:

Provided that where the offence consists of disobeying a written order made by an inspector, complaint thereof may be made within six months of the date on which the offence is alleged to have been committed.

Under Section 27 of the Act, the period of Limitation for filing a complaint regarding commission of an offence punishable under the Act is six months of the date on which the offence is alleged to have been committed if the offence consists of disobedience of a written order made by an Inspector and in other cases three months from the date on which the alleged commission of the offence came to the knowledge of an Inspector. Sri Ghose contended that whether the six months period or the three months period of limitation, is taken the petition of complaint filed on 3-1-1976 was barred because the offence of failure take out a licence came to the knowledge of the Inspector prior to 26-6-1974 when the inspector asked the inspector to take out a licence and the disobedience of the written order of the Inspector was committed at the latest on 21-5-75 when the petitioner wrote a letter refusing to comply with the order of the Inspector. On the other hand, it is argued on behalf of the State that no question of limitation arose because the offence alleged was a continuing offence and was committed day by day, even on the date the petition of complaint was filed. It was pointed out that in the petition of complaint the date of offence was stated as ''27-3-75 and on subsequent dates continuously.'' The answer to the question of limitation depends on whether the offence alleged is or is not a continuing offence for it is a continuing offence it continues day by day and no question of limitation arises, if it continues.

One of the offences and indeed the principal offence, alleged in the petition of complaint is failure to take out a licence under the Act by the petitioner who according to the averments, was a contractor employer which in the context means a contractor within the meaning of expression as defined in Section 2(c) of the Act. Section 12 of the Act provides : "with effect from such date as the appropriate Government may, by notification in the official Gazette, appoint, no contractor to whom this Act applies, shall undertake or execute any work through contract labour except under and in accordance with, a licence issued in that behalf by the licensing officer. According to Section 4 of the Act, the Act applies to every contractor who employs or who employed on any date of the proceeding 12 months 20 or more workmen though its power is given to appropriate Government to apply the Act to a contractor employing less than 20 workmen. Rules 20, 21, 24 and 26(2) of the Rules provided for certain act or acts to be done by the contractor to whom the Act applies. Section 23 provides punishment for contravention of any provision of the Act or rules made thereunder prohibiting, restricting or regulating the employment of contract labour or for contravention of any condition of the licence granted under the Act. The main contravention alleged against the petitioner was the contravention of the provisions of Section 12 which prohibited any contractor to whom the Act applies from undertaking or executing any work through contract labour except under and in accordance with the licence. Now u/s 12 what is prohibited is undertaking or executing any labour through contract labour without a licence and by virtue of Section 23 contravention of Section 12 is an offence. The offence of undertaking or executing any work through contract labour without a licence it continuing offence. What is a continuing offence was explained by the Supreme Court in State of Bihar Vs. Deokaran Nenshi and Another, as follows:

Continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It is one of those offences which arises out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirements is obeyed or complied with. On every occasion that such disobedience or non-compliance occurs and recurs, there is the offence committed. The distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues and therefore constitutes a fresh offence every time or occasion on which it continues. In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all.

Thus, the continuing offence is one of those offences which arises out of a failure to obey or comply with a rule or its requirement and the liability for which continues until the rule or its requirement is obeyed or complied with. By providing that no person shall undertake or execute any work through a contract labour except without a licence, Section 12 imposed a liability not to undertake or execute any work through contract labour without licence, a liability which continued until the licence was obtained and its requirement was complied with. It was an act which continued. Undertaking or executing any work through contract labour, without a licence, therefore, continued a fresh offence every day on which it continued.

The view that such an offence is a continuing offence is supported by the decision of the Bombay High Court in State Vs. A.H. Bhiwandiwalla, , in which the offence of using the premises as a factory without a licence was held to be a continuing offence and prosecution for the same was held not time barred by Section 106 of the Factories Act. The decision of this court in State of Bihar v. J. P. Singh 1963 B.LJ.R. 782 that concluding a restaurant without having it registered and without maintaining registers was a continuing offence and, therefore, the period of limitation u/s 36 of the Bihar Shops and establishment Act, 1954 would begin to run from the date of the occurrence of each of the defaults also lends support to the conclusion. The argument of Shri Ghose that the offenee having come to the knowledge of the inspector at least on 26-6-1974 when he was asked to take out a licence and the petition of complaint having been filed more than 3 months or 6 months thereafter and was barred by limitation ignores that the offence alleged was a continuing offence which occurred on each date the petitioner was alleged to have undertaken or executed any work through contract labour. As I have pointed out earlier, the petitioner of complaint specifically stated the date of occurrence as "27-3-1975 and all later dates continuously.'' It is true that there is no express averment in the petition of complaint that the petitioner was undertaking or executing any work through contract labour, but that averment may be implied from the fact that according to the complaint the petitioner was required to take out a licence under the Act. Cognizance of one of the offences alleged being not barred by limitation, the prosecution of the petitioner is not barred by limitation even if cognizance of the other offences alleged, about which it is not necessary to express any opinion, may be barred by limitation. This contention of Shri Ghose must, therefore, fail.

Nor in my opinion the second argument of Shri Ghose is correct in its entirety. In my opinion, on a proper interpretation of the averments in the petition of complaint, it cannot be said that even if the averments in the petition are taken at their face value and accepted in their entirety no offence by the petitioner is disclosed. There is a clear averment in the petition that the petitioner was a contractor employer. Though there is no specific averment that he employed 20 or more workmen and, therefore, was a contractor to whom the Act applied, the insistence of the licence of the labour Department that he was bound to take out a licence under the Act justifies an interference that according to the complaint, he employed more than 20 workmen and was contractor to whom the Act applies. It should be remembered that the petition of complaint opens with a reference to the notification prohibiting of undertaking or executing work through contract labourers without taking out a licence under the Act. There is an express allegation that the petitioner had not taken out a licence under the Act. In my opinion, if the allegations in the petition of complaint are taken at their face value, they disclose that the petitioner was a contractor to whom the Act applies and had failed to take out a licence under the Act.

In my opinion, however, on the allegations in the petition, the learned Magistrate was not justified in holding that a prima fade case was made out against the petitioner issuing process against the petitioner. - As I have pointed out the petition of complaint does not contain any particulars or of the work done by the petitioner. It does not state in relation to which establishment etc. the petitioner was working as a contractor. It does not state the number of workmen employed by the petitioner. It does not state clearly the nature of the work it had contracted to do. In these circumstances, it could not be held without further enquiry that it was a fit case in which process should be issued against the petitioner. Process could be issued only if there were materials before the magistrate on which he could be prima facie satisfied that the petitioner was a contractor within the meaning of expression as used in the Act and that he was a contractor to whom the Act applied would ordinarily require prima facie proof of the fact that he employs or employed on any date of the proceeding six months 20 or more workman. The finding of the Chief Judicial Magistrate that there was a prima fade case and the order of the trying magistrate issuing summons to the petitioner must, therefore, be set aside. The learned magistrate if so advised, could hold or direct enquiry into the complaint and after considering the results of the enquiry if he was of the opinion that sufficient grounds for believing that the petitioner was a contractor to whom the Act applied, he could issue process otherwise he must dismiss the complaint.

I would, accordingly, allow the application to this event that the order dated 22-1-1976 of the magistrate issuing summons against the petitioner is set aside and the case is remanded to the magistrate for fresh decision in accordance with law and in the light of the observations made above.