Hindusthan Construction Company Ltd. vs Labour Enforcement Officer (Central)

N.C. Mukherji, J.—These five Rules were obtained on five applications for quashing five proceedings pending before the Sub-Divisional Judicial Magistrate, Tamluk.

The case of the Petitioners is that Sri A.C. Nag, Labour Enforcement Officer (Central) and an Inspector under the Contract Labour (Regulation and Abolition) Act, 1970, filed complaints in the Court of the Sub-Divisional Judicial Magistrate, Tamluk, against the Petitioners and two others on the allegation that on July 6, 1974, the complainant inspected the establishment for the construction of Impounded Dock at Haldia and allied work of construction and noticed that the accused persons violated the provisions of the Contract Labour (Regulation and Abolition) Act, 1970 and the Contract Labour (Regulation and Abolition) Central Rules, 1971. It was specifically stated that the accused violated the provisions of Rules 25(2)(ii) and 24. It is the case of the Petitioners that the complaints were filed on October 11, 1974 and on that date the learned Magistrate took cognizance and passed an order for issuing summons against the Petitioners. On March 5, 1976 and on April 20, 1976, the Petitioners filed applications for dismissal of the complaints contending that the complaints were barred by limitation inasmuch as the period of limitation u/s 27 of the Contract Labour (Regulation and Abolition) Act, 1970, is three months from the date on which the alleged commission of offence came to the knowledge of the Inspector. It has been stated in the complaints that the knowledge was on July 6, 1974 and as the complaints were filed on October 11, 1974, the Court could not take cognizance. It is also contended that the State of West Bengal is the appropriate Government and as such the complainant is not competent to file the complaints. In this connection it is contended that the Haldia port is not a ''major port'' as defined in Section 2(m) of the Major Port Act or as per definition given in Section 3(8) of the Indian Ports Act. The learned Magistrate negatived both the contentions raised on behalf of the Petitioners. Being aggrieved, the Petitioners have come up before this Court.

Mr. Sankardas Banerjee, learned Advocate appearing with Mr. Priti Bhusan Barman and Mr. Ramendra Nath Chakraborty, learned Advocates, on behalf of the Petitioners, in the first place contends that the learned Magistrate was wrong to hold that the petitions of complaints were filed within three months from the date of knowledge of the offence. Admittedly, the date of knowledge is July 6, 1974. A case was sought to be made out on behalf of the complainant that in fact the petitions of complaints were filed not on October 11, 1974, but on October 7, 1974. October 6, 1974, was a holiday and that being so, the complaints were filed within time. It may be mentioned that curiously enough the petitions of complaints in all five cases along with the copies bear seal of the Court and the seal shows the date September 11, 1974. It is, however, not the complainant''s case that the petitions were filed on September 11, 1974. The complainant came forward before the learned Court with a story that the petitions were filed on October 7, 1974 and the Bench clerk of the Court concerned granted a receipt. The complainant also used an affidavit in that respect. The learned Magistrate asked for an explanation from the Bench clerk and on consideration of the affidavit and in explanation of the Bench clerk the learned Magistrate found that in fact the petitions were filed on October 7, 1974 and that being so, those were filed within time. I have gone through the lengthy order passed by the learned Magistrate. The learned Magistrate more than once had stated that there was some irregularity in the Court machinery, but even then for reasons best known to him he accepted the explanation of the Bench clerk. It is unknown that a Bench clerk would grant receipt to a complainant for filing complaint. It is not known how such a receipt could be obtained. It was most irregular on the part of the Bench clerk to grant such a receipt. The Court seals on the original petitions of complaints and their copies are dated September 11, 1974. It is not unreasonable to think that the petitions were filed on October 11, 1974 and on the seals the month of September was wrongly stamped in place of October. Moreover, the first order being Order No. 1 dated October 11, 1974, shows that the complaints were received by the learned Magistrate on that date and not earlier. There is nothing on record to snow besides the unacceptable explanation of the Bench clerk that the complaints were filed earlier. I, therefore, hold that the petitions of complaints were filed on October 11, 1974 and that being so, those were filed beyond three months from the date of knowledge.

Mr. D.N. Das, learned Advocate appearing on behalf of the complainant, contends that according to the proviso of Section 27 a com, plaint may be made within six months of the date on which the offence is alleged to have been committed if the offence consists of disobeying a written order made by an Inspector. In order to get the benefit of the proviso, Mr. Das refers to a show-cause notice which was served on the Petitioners. But it is the admitted position that cause was shown. Simply because a show-cause notice was served on the Petitioners, it cannot be said that the Petitioners disobeyed the written order made by the Inspector. It was not alleged in the petitions of complaints that there was any disobedience of the written order made by the Inspector. Nothing was also shown at the time of argument that there was any disobedience of such an order. That being so, I am of opinion that the complainant cannot take the benefit of proviso of Section 27 of the Act and the petitions of complaints having been filed beyond three months from the date on which the alleged commission of the offence came to the knowledge of the Inspector, the Court was not entitled to take cognizance of the offence.

In the next place, Mr. Banerjee contends that the complainant was not competent in law to lodge the complaints as the Central Government is not appropriate Government u/s 2(1)(a) of the Contract Labour (Regulation and Abolition) Act, 1970, inasmuch as the job undertaken by the Hindusthan Construction Company Ltd. at Haldia works site in respect of the matters incidental thereto are under the jurisdiction of the State of West Bengal. In this connection it is submitted that from various letters, agreement and correspondence between the Hindusthan Construction Company Ltd. and the authorities under Haldia Dock Project it is established that the State of West Bengal is the appropriate Government in terms of the said Act and u/s 2(a) of the Insustrial Disputes Act. It is further contended that the Haldia port is not a ''major port'' as defined in Section 2(m) of the Major Port Act or as per definition given in. Section 3(8) of the Indian Port Trusts Act or under the definition given in Section 2(1)(a) of the Industrial Disputes Act. Unless the Central Government by notification notifies that Haldia is a major port the Central Government is not the appropriate Government and therefore, the complainant had no jurisdiction to file the said complaint.

Mr. Das submits that Haldia has not yet been declared as a port. Haldia is a project for construction of port and other indus tries. The work connected with construction of docks, yards and connected matters is under the control and supervision of Calcutta Port Trust. Undoubtedly, Calcutta is a major port. The work towards construction of a port at Haldia must be considered as an extension of Calcutta Port.

Mr. Sumit Kumar Moitra, learned Advocate appearing on behalf of the State, submits that the Petitioners and their firm obtained licence and sanction from the Central Government carrying the construction work at Haldia. In such circumstances, for all practical purposes Haldia dock and yards which are meant for a port should not be considered as an extension of Calcutta Port and as such, the Central Government is competent to lodge a complaint for the contravention alleged. Mr. Das shows to me a notification published in the Gazette of India on February 26, 1977, which declares the limits of the Port of Calcutta and the navigable river and channels leading to the Port of Calcutta. This shows that part of river Haldi from the entrance to river Hooghly to the line drawn north and south through Haldi South Mark and the shores, thereof are included within the Port of Calcutta. It is also contended by Mr. Das that Haldia has not yet been declared as a port. The management is under the Calcutta Port Trust and that being so, it cannot be said that Haldia is not a major port and the Central Government is not the appropriate authority I accept the contention of Mr. Das and am of opinion that it cannot be said that the petitions of complaints have not been filed by the competent person. This contention of Mr. Banerjee is, therefore, negatived. But, in view of my finding that the Court could not take cognizance as the petitions were filed beyond time, the proceedings must be quashed.

In the result, the applications succeed and the Rules arc made absolute. The proceedings pending in the Court below are hereby quashed.