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Judgment
R.R. Prasad
Heard Learned Counsel appearing for the petitioner and Learned Counsel appearing for the opposite party no. 2. This application has been filed for quashing of the entire criminal proceeding of complaint case bearing C-2 case no. 1135 of 2009 including the order dated 15.7.2009 whereby and whereunder cognizance of the offence punishable under Sections 47 and 48 of the Building and other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 has been taken against the petitioner.
It does appear that the complainant, Labour Enforcement Officer (Central), Chaibas lodged a complaint case on the allegation that this petitioner was found getting a work of "Earth Cutting for laying of Telephone Cable in National Metallurgical Laboratory", Jamshedpur, Dist- Singhbhum (East) executed and was responsible for maintenance of Registers/Records and observance of various other provisions of the said Act.
Further allegation is that establishment of the accused persons when was inspected by the then Labour Enforcement Officer (Central), Chaibasa on 27.8.2008 ten persons were found working in the establishment. However, during that course, following irregularities were found.
(a) Notice for commencement of work in form IV was not submitted to the Inspector and thereby Rule 239(1) and 26(3) was breached.
(b) Sufficient number of first aid boxes of specified type with articles specified in schedule III of the rules not maintained/provided and thereby the accused breached Rule 231(a).
On such allegation, a complaint case was registered as C-2 case no. 1135 of 2009 in which cognizance was taken against the petitioner, who at the relevant point of time happened to be the S.D.O. Bharat Sanchar Nigam Limited under Sections 47 and 48 of the Building and other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996. That order has been challenged.
Mr. P.A.S. Pati, Learned Counsel appearing for the petitioner submitted that in view of the provision as contained in Section 53 of the Act, one who was in charge of and responsible to the conduct of the Company cannot be prosecuted in absence of company being made accused. It was submitted that admittedly the company, i.e. Bharat Sanchar Nigam Limited has never been made accused and as such, the petitioner cannot be prosecuted in absence of the company.
In support of his submission, Learned Counsel has referred to a decision rendered in a case of C.P. Jain and others vs. Inspector, Building and another [Special Leave to Appeal (Crl.) No. 853 of 2007] holding therein that in absence of company being made accused, its officers or employees cannot be prosecuted under the said Act.
Mr. Prabhash Kumar, Learned Counsel appearing for the opposite party no. 2 submitted that there has been specific averment in the complaint that the petitioner was the person responsible for maintenance of registers/records and for observance of various other provisions of the said Act and as such, he is being rightly prosecuted and therefore, the order taking cognizance never warrants to be quashed.
It was further submitted that the notice has also been served upon the General Manager, who was called upon to rectify the defects found by the Labour Enforcement Officer during his inspection.
In the context of the submissions made on behalf of the parties, one needs to take notice of the provision as contained in Section 53 of the Act which reads as follows:
Offences by companies - (1) Where an offence under this Act has been committed by a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Provided that nothing contained in this subsection shall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to present the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1) where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the pat of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
From its perusal, it does appear that where an offence is committed under the Act, the company as well as person responsible to, the company for the conduct of business, would be deemed to have been committed offence. In other words, if the offence is committed under the Act, not only the person responsible for the conduct of the business of the company but also the company needs to be impleaded as party accused.
In this regard, I may refer to a decision rendered in a case of C.P. Jain and others vs. Inspector, Building and another (supra) wherein their Lordships after taking notice of the provision as contained in Section 53 of the Act did observe as follows:
The statute provides for vicarious liability on the part of the officers concerned, although in law they may not be otherwise liable, only in the event the statutory requirements are fulfilled. In such situation, it was obligatory on the part of the complainant respondent to comply with the statutory requirement by impleading the company as a party as an accused.
Since in that case the company had not been impleaded as a party, the order taking cognizance with respect to its employees was quashed.
Similar is the situation here wherein admittedly the company, i.e. Bharat Sanchar Nigam Limited has never been made accused whereas only this petitioner has been made accused.
Under the situation, the order taking cognizance cannot be sustained and hence, it is quashed. In the result, this application stands allowed.