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1994-(LB4)-GJX -0780 -CAL Lift Engineering Services Pvt. Ltd. & Anr. V. P. K. Bhattacharyay & Anr.

DATE : 24-08-1994 EQUIVALENT 1995-(002)-LLJ -0246 -CAL CATCHNOTE : contract labour commission of offence liability of director HEADNOTE : JUDGE(S) Arun Kumar Dutta TEXT LIFT ENGINEERING SERVICES BHATTACHARYAY & ANR. : PVT. LTD. & ANR. v. P. K. : CITATION(S) :

C.R. No. 1768/1990, dated August 24, 1994. IN THE HIGH COURT OF CALCUTTA S. S. Roy, Anupam Chatterjee & Anr., for Petitioners. Manas Ranjan Chakraborty, for the State. JUDGMENT By this Application under S. 482 of the Code of Criminal Procedure (hereinafter referred to as Code), the petitioners-accused (hereinafter referred to as accused) have prayed the Court for quashing of the relevant proceedings, being Case No. C-395/87/T-193/90, pending before the Sub-Divisional Judicial Magistrate, Barrackpore, 24-Parganas (North), on the grounds made out therein. 2. The accused have been prosecuted before the Court below for having allegedly committed offences punishable under Ss. 23, 24 read with S.

26 of the Contract Labour (Regulation and Abolition) Act, 1970 hereinafter referred to as Act)/The West Bengal Contract Labour (Regulation and Abolition) Rules, 1972 (hereinafter referred to as Rules) on the allegations made in the Petition of Complaint. It is alleged therein that the petitioner-accused No. 1 is a Contractor as defined in S. 2(e) of the aforesaid Act and the petitioner-accused No. 2 is the Director of the accused No. 1 - Company. The complainant had visited the Establishment/worksite of the accused No. 1 - Company at C.E.S.C. Ltd., Titagarh Generating Station, Titagarh, on January 20, 1987 and had detected the violation of Rule 80(4) of the aforesaid Rules by nonproduction of records and registers as prescribed under Rules 75, 76, 77, 78(2)(a), 78(2)(b), 78(2)(c) 78(2)(d) on demand for which they were called upon to show-cause by a Memo dated February 7, 1987, which was duly served upon them; but they had failed to show any cause therefor. 3. It had been urged by the Learned Advocate for the petitioners during the hearing that even though the accused No. 1 is stated in the petition of Complaint to be a Contractor, as defined in S. 2(e) of the Act, it had never employed more than ten workmen on any day of the preceding twelve months. The provisions of the aforesaid Act would not, therefore, be applicable to it in view of the provisions of S. 1(4)(b) of the Act, as it now stands after amendment. But the question as to whether the accused No. 1 employs or employed on any day of the preceding twelve months, ten or more workmen is indeed a question of fact to be decided by the court below during the hearing which could not clearly be agitated before this court in this Application under S. 482 of the Code. It is certainly not for this Court to embark upon an enquiry on the aforesaid point in this proceedings requiring appreciation of evidence or material to support or dislodge the accusation against the accused. It would further be pertinent to note that the petitioner-accused No. 1 has been stated in the Petition of Complaint to be a Contractor within the meaning of S. 2(e) of the Act, obviously implying that the provisions of the relevant Act would be applicable to it. And, having regard to the allegations made in paragraph 7 of the Petition of Complaint, read with the relevant Rules mentioned therein, more particularly, Rule 80 of the Rules, a prima facie case for an offence punishable under S. 24 of the Act appears to be made out against the petitioner-accused No. 1. The submissions made on behalf of the petitioners that the Petition of Complaint, as it is, does not make out any offence against the petitioneraccused No. 1 cannot clearly be sustained as such. I cannot, therefore, persuade myself to accept the petitioners' contention on the aforesaid point. 4. As regards the petitioner-accused No. 2, A. K. Dasgupta, all that is alleged in paragraph 6 of the Petition of Complaint is that he is the

Director of the petitioner-accused No. 1, Lift engineering Services Pvt. Ltd., 35, Chittaranjan Avenue, Calcutta - 700012. Section 25 of the Act makes provision for offences by companies, which reads as follows :(1) "If the person committing an offence under this Act is a company, the company as well as every person in charge of, and responsible to, the company for the conduct of its business at the time of the commission of the offence 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 sub-section shall render any such person liable to any punishment if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence." 5. Unhappily for the prosecution, there is not the merest and faintest whisper in the Petition of complaint that the said petitioner-accused No. 2 had been in charge of, and responsible to, the company for the conduct of its business at the time of commission of the alleged offence. And, on the application of the principles of law laid down by me in K. L. Jalan & Ors. v. State of West Bengal & Anr., (1994-I-LLJ-224) the mere allegation in the Petition of Complaint that the accused is a Director of the Company without more, without any specific averment that the petitioner-accused No. 2 was "in charge of, and responsible to, the company for the conduct of its business" at the time of commission of the alleged offence no case could be said to be made out against him for the offence alleged. That being so, the petitioner-accused No. 2 could not clearly be proceeded against in the relevant proceedings. The relevant proceedings before the court below against the petitioneraccused No. 2, A. K. Dasgupta, is accordingly liable to be quashed. 6. In view of the discussions above, the Revisional Application succeeds in part. The relevant proceedings before the court below against the petitioner-accused No. 2, A. K. Dasgupta, be hereby quashed. He be discharged from Bail Bond, if on bail. The relevant proceedings against the petitioner-accused No. 1 shall, however, proceed according to law. 7. Since the relevant proceeding is pending for a pretty long time having been stayed by this Court by order dated October 31, 1990, the learned Magistrate is hereby directed to expedite the trial against the accused No. 1 before him; and he shall seek to dispose of the relevant case, as early as possible, preferably within a period of eight months from the date of receipt of the lower court records.

8. Let a copy of this order, as also the lower court records, called for, be forthwith sent down to the court below. The Rule is accordingly partly made absolute and partly discharged in the manner indicated above. 9. Revisional application allowed in part. Proceedings against accused No. 2 quashed. Proceedings against accused No. 1 to proceed according to law. Direction given. *-*-*-*-* BACKWARD REFERENCE : FORWARD REFERENCE : REFERENCES : ACTS & SECTIONS REFERENCE : NOTIFICATIONS REFERENCE :