Shiv Ram vs State Of Jharkhand And Another

Sanjay Kumar Dwivedi, J

This petition has been filed for quashing the entire criminal prosecution launched in connection with CLA Case No.132 of 2013, including the Order dated 16.4.2013 whereby learned Chief Judicial Magistrate, Dhanbad has been pleased to take cognizance of offence under sections 23 and 24 of the Contract Labour (Regulation and Abolition) Act, 1970, pending in the court of learned Sub Divisional Judicial Magistrate, Dhanbad.

Status report is on the record which suggest that the case of accused Subodh Kumar Agarwal and Arun Kumar Agarwal was disposed of on 26.9.2015 and 28.11.2015 respectively in Lok Adalat. The case of the petitioner is pending before the learned court.

The prosecution case was registered on the written complaint of O.P.no.2 alleging that (a) the complainant is Labour Enforcement Officer (Central) Baghmara having jurisdiction over the establishment of the accused person, and (b) the O.P.No.2 inspected the establishment of Jamunia Open cast project of Area-II, BCCL on 18.01.2013 and observed that contract labours were engaged in excavation of coal and for removal of over burden, extraction etc in Jamunia Open Cast project of Area-II of M/s BCCL in contravention of notification issued under section 10(1) of the Contract Labour (Regulation and Abolition) Act, 1970.

Learned counsel for the petitioner submits that the O.P.no.2 has committed an error in implicating the petitioner as the principal accused number 1 although he is not the principal employer in respect to the Jamunia Open Case Project under Block II Area of M/s BCCL. He submits that M/s BCCL the company has not been made an accused and in absence of the company being made an accused, the petitioner cannot be prosecuted. He submits that the petitioner is neither the owner of Jamunia Open Case Project nor the agent and he is also not the manager of Jamunia O.C. Project and he is not the principal employer as well. He submits that the petitioner at the relevant time was Project Officer, Block II Area of M/s BCCL.

On the other hand, Mrs. Vandana Bharti, the learned State counsel submits that the learned court has taken cognizance in connection with considering the violation made under the said Act.

In view of the above submission of the learned counsels appearing on behalf of the parties, the Court has gone through the materials on record including the order taking cognizance. Section 25 of the said Act speaks about if the accused is company then the person can be prosecuted against whom the case has been lodged if during the offence he was In-charge of the company and there is no allegation in the complaint that the petitioner was the person who was looking after the day to day affairs of the company. A 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.”

In view of the a above considering that the company is not made the party in view of section 25 of the said Act and considering the judgment rendered in the case of “S.K. Alagh v. State of Uttar Pradesh & others”(supra) under which the case of the petitioner is fully covered, and accordingly, entire criminal prosecution in connection with CLA Case No.132 of 2013, pending in the court of learned Sub Divisional Judicial Magistrate, Dhanbad is quashed against the petitioner only.

Cr.M.P. No.84 of 2014 is allowed and disposed of.

Pending petition if any also stands disposed of.