Judgment:
Ghanshyam Prasad, J.
1. Heard.
2. This application under Section 482 Cr.P.C. has been filed to quash the order of cognizance dated 19.5.2004 passed by C.J.M., Katihar in C II Case No. 115 of 2004 thereby and thereunder cognizance under Sections 23 and 24 of the Contract Labour (Regulation and Abolition) Act has been taken against the petitioner.
3. The petitioner is the then Deputy General Manager(Pipe Line), Oil India Ltd. Udayan Vihar. During the relevant period, the works of the maintenance/cable laying on behalf of company was going on at Dumar in District Katihar. On 22.2.2004, the opposite party No. 2 Labour Enforcement Officer, Bhagalpur inspected the site of the work and found violation of several provisions of the Contract Labour Act and Rules. Accordingly, the opposite party No. 2 filed complaint case against the petitioner being Principal Employer for prosecution under Sections 23 and 24 of the Act, 1970.
4. The submission of the learned Counsel for the petitioner is that the petitioner was not directly responsible for the conduct of the business at the work site which was situated in Katihar district. The petitioner at the relevant time was posed at Gauhati. He was not at all responsible for day to day affairs of the work. The persons posted at site were actually responsible to look after the afairs and work at site. It is further submitted that in the complaint petition there is nothing to fasten responsibility upon the petitioner for any violation of the rules and the act. Under the circumstances, the petitioner cannot be prosecuted taking help of Section 25 of the Act. In support of his contention, he has relied upon a decision of this Court reported in 1996(1)PLJR 856(DB) Indian Oil and Steel Company v. State of Bihar.
5. I find substance in the above submission. The petitioner cannot be prosecuted only because he was a Principal Employer at the relevant time unless he played some role in employment of contractual labour. This question has been considered by this Court in above decision. In paragraph-16 of the judgment, it has been held as follows:
16. Section 25 of the Act provides that if the person committing an offence under the 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 commission of the offence shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. From the complaint lodged by the Labour Enforcement Officer it appears that petitioner No. 2 has been made an accused only because he happened to be the Chief Executive of the Colliery in-question, and is also the principle employer as per Section 2(g)(iii) of the Act. While we do not express any view on the question as to whether petitioner No. 2 should be prosecuted in the instant case, we do feel that before a prosecution is launched against an officer or a company, it must be preceded by some enquiry on the question as to whether the person sought to be prosecuted has some role to play in the employment of contractual labour in contravention of the notification. Mere mechanical reproduction of the words of the statute and the naming of an accused also in a mechanical manner without making some enquiry into the matter must not be encouraged because that may have the effect of harassing an innocent officer while exonerating one who ought to have been prosecuted. There is nothing in the complaint disclosing on what basis it is alleged that petitioner No. 2 had engaged the contract labour for removal of overburden. The Act seeks to punish those who are responsible for the commission of an office, and we cannot lose sight of the fact that the existence of mens rea is not excluded either by any express provision of the Act or by necessary implication. It was submitted on behalf of the petitioners that the Company in question had appointed a Manager as statutorily required under Section 17 of the Mines Act.
6. Thus, having regard to the facts and circumstances of the case as well the law laid down in the above decision of the Division Bench, it is quite clear that this petitioner cannot be fastened with any criminal liability for failure to maintain register etc. at the work site. It was for the officers who were posted at the site to maintain the register etc.
7. Accordingly, this application is allowed and the impugned order of cognizance is hereby quashed.