Uday Sinha, J.@mdashThese two Criminal Miscellaneous applications have been heard together and will be governed by this common judgment. The points in both the applications are common and will be dealt with hereinafter.
Criminal Miscellaneous No. 1517 of 1981 (R).
2. This is an application u/s 482 of the Code of Criminal Procedure, 1973. for quashing annexure 4 whereby the Chief Judicial Magistrate, Hazaribagh by order dated 2-5-1981 took cognizance of the offence u/s 24 of the Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter referred to as the Act") and process were issued against the petitioner.
3. The prosecution of the petitioner was initiated on a complaint filed by the Labour Enforcement Officer (Central) Hazaribagh. In the complaint, Rosi Homi Modi, Managing Director and Vice-Chairman of M/s. Tata Iron and Steel Company Limited. Jamshedpur, the petitioner and Lokeshwar Prasad, Manager of West Bokaro Colliery, P.O. Ghantotand, were mentioned as accused. Accused No. 3 Lokeshwar Prasad has not moved this Court. In this case we are not concerned with the case of the first accused. Rosi Homi Modi, the petitioner, at the relevant time, was the Assistant Divisional Manager and Agent of West Bokaro Colliery. S. B. Singh, the Assistant Labour Commissioner and Inspector appointed u/s 28 of the Act inspected West Bokaro Colliery of M/s. Tata Iron and Steel Company Limited. In course of inspection it was found that for the year ending 31-12-1981 annual return had not been submitted by the accused persons who were principal employers. The return had to be submitted in terms of Rule 82 (21 of the rules made under the Act, according to which return should have been filed by the 15th of February, 1981. It is not in controversy that the statutory return was not filed by the 15th of February 1981. It appears that by notice dated 29th March, 1981 the accused were asked to show cause why they be not proceeded against for not filing the return within time. The cause was shown by the petitioner alone on 20-4-1981 in which it was stated that although the return had not been filed by the 15th of February. 1981. It had been filed on 30-3-1981 and that the delay in filing the return may be condoned, On receipt of the show cause the present complaint was filed by the Labour Enforcement Officer (Central) Hazaribagh. On receipt of the complaint the learned Chief Judical Magistrate, Hazaribagh took cognizance of the offence by order dated 2-5-1981. The petitioner being aggrieved by the said order of the learned Magistrate has moved this Court for quashing his prosecution.
4. Learned Counsel for the petitioner with his usual vehemence has submitted the following points:
(i) That there being no averment in the complaint that the petitioner was in charge of. and responsible to, the company for the conduct of its business at the time of commission of offence, the petitioner''s prosecution was illegal and without jurisdiction.
(ii) Since u/s 17 of the Mines Act, 1952 it is the manager alone who is in charge of the business of the mine and the offence having been committed by a company, the manager alone and none else can be prosecuted.
(iii) u/s 2(g)(iii) of the Act, where a person has been named as manager, the manager alone can be prosecuted.
(iv) There was no mens rea involved in case on the part of the petitioner calling for his prosecution as the return was filed within two days of the service of the notice to show cause as to why he should not be prosecuted.
(v) On the facts and in the circumstances of the case, the offence has been committed by a company, the company not having been prosecuted, the prosecution of any other officers of the company was illegal and without jurisdiction.
5. To take the first submission for consideration, the complaint shows that the petitioner has been mentioned as Assistant Divisional Manager and Agent of West Bokaro Colliery. The offence has been committed in relation to West Bokaro Colliery. There is averment in the complaint that the accused persons, which includes the petitioners being the principal employer were required to submit annual return in Form XXV. Since the petitioner has been mentioned as the Assistant Divisional Manager and Agent, there is sufficient indication in the complaint that the petitioner was in charge of, and responsible for the conduct of the business of the company. In that view of the matter, the submission that there was no averment in the complaint that the petitioner was in charge of and responsible to the company for the conduct of the business does nor appear to be very sound. The fact that accused No. 3 has been mentioned as manager in the complaint does not derogate from effective ness of the petitioner being described as the Assistant Division Manager. In the view of the matter, I am unable to accept the submission that the petitioner cannot be prosecuted for want of adequate averment in the complaint.
6. In regard to the second submissions of the petitioner, this submission is equally valueless, Section 17 of the Mines Act, 1952 reads as follows:
Managers.--Save as may be otherwise prescribed every mine shall be under one manager who shall have the prescribed qualifications and shall be responsible for the control, managements, supervision and direction of the mine, and the owner or agent of every mine shall appoint himself, some or other person, having such qualification, to be such manager.
Upon the definition of manager, quoted above, it has been submitted that it is the manager who must be held in charge. of business of the West Bokaro Colliery and offence having been committed by a company, the manager alone, that is, accused No. 3 can be prosecuted. Section 17 of the Mines Act only lays down that every mine shall be under the supervision of a manager. It does not limit the responsibility of others who may also be concerned directly with the functioning of a mine. In the instant case, the complaint shows that Lokeshwar Prasad was the manager and the petitioner was the Assistant Divisional Manager, In that hierarchy the responsibility of the petitioner for carrying out the provisions of the Act does not get whittle down. Section 25 of the Act lays down that every person in charge of, and responsible to, the company for the conduct of its business shall be deemed to be guilty of the offence and shall be liable to be proceeded against. The nature and extent of the responsibility of the petitioner is not known at the moment. The prosecutor has not alleged specifically his part in non-compliance of the provisions of the Act. The manager can certainly be prosecuted. But I am unable to read the provisions of the Act as implying that the manager alone can be prosecuted. Every person who is in charge of the business of West Bokaro Colliery is liable for carrying out the provisions of the Act. In my view the submission that Lokeshwar Prasad, manager of the colliery alone was liable to be prosecuted and not the petitioner, the Assistant Divisional Manager of West Bokaro Colliery lacks of substance and must be rejected.
7. The third submission of the petitioner is that Rule 82(2) of the rules made under the Act having laid down a responsibility upon the principal employer is to file annual return in Form XXV, the manager of the mine alone must be held to be the principal employer and, therefore, he alone is liable to be prosecuted. The specific submission of Mr. Sanyal is that the prosecutor has to make a choice as to the person to be prosecuted and that the prosecutor can prosecute only one person and not more. I regret, I am unable to see any force in this submission. It is true that Rule 82(2) of the rules made under the Act does not cast responsibility upon the principal employer for filing of return. Apart from the fact whether the petitioner can be held to be a principal employer or not. Section 25 of the Act make all persons in charge of. and responsible, to the company for the conduct of its business is liable for prosecution. Even if the responsibility in terms of Section 82(2) of the rules made under the act was of the manager to file return, yet the petitioner being responsible for the conduct of the business of the company he also cannot escape the penal consequences of Section 25 of the Act.
Learned standing counsel, Central Government submitted that in relation to a mine whether there is an agent as well as a manager, both may be deemed to be a principal employer. The submission is founded upon the fact that Section 2(g)(111) of the Act defines principal employer of any mine as owner or agent of the mine and where the person has been named as manager of the mine the person so named. On the other hand submission on behalf of the petitioner is that the expression ''and'' must be read as ''or''. The position does not appeal to be very clear and Mr. Sanyal may have a point. It is possible to read as laying down that the principal employer means "the owner or agent of the mine or where a person has been named as the manager of the mine. The person so named". Even if this interpretation is to be accepted the petitioner being the Assistant Divisional Manager cannot escape the rigour of Section 25 of the Act.
8. Next submission is that there was no mens rea in not filing the return within time and therefore, the prosecution of the petitioner was misconceived. The question of mens rea is irrelevant at this state. The command of the law is clear and specific. In that view of the matter, there is no substance in this submission as well. The fact that the return was filed only two days after the service of the notice may be relevant factor in the matter of the imposition of sentence and only a sentence of fine may meet ends of justice, but it is hardly relevant so far as the validity of the prosecution is concerned.
9. The last submission of the petitioner was that the company not having been prosecuted the petitioner not being the persons in charge of and responsible to, the conduct of the business was not liable to be prosecuted. I regret I can not accept that the provision of Section 25 of the Act, as the learned Counsel for the petitioner has submitted, is that Section 25 the Act only lays down the criminal liability by various categories of persons who may be prosecuted where the offender is a company. In my view, even if the company has not been prosecuted, every person in charge of, and responsible to the company for the conduct of its business is liable to be prosecuted, further, even if, the company has not been arrayed as accused in the complaint and even if, no process has been issued against the company, it will be open to the learned Magistrate to issue processes for prosecution of the company as well. In that view of the matter, this submission as well has no substance and must be rejected.
10. For the reasons stated above, I find no merit in this application and it is dismissed accordingly.
Criminal Miscellaneous No. 1315 of 1981 (R)
11. The facts of this case are almost similar to that of Criminal Miscellaneous No. 1517 of 1981 (R) except that the complaint in this case was filed on 18-6-1981 and cognizance was taken on 20-6-1821 under Sections 23 and 24 of the Act. The points urged in this case were similar to those urged in Criminal Miscellaneous No. 1517 of 1981 (R), except in this case the complaint was filed on 18-6-1981 on the alleged contravention of the provisions of the Act and the violation of the Act has been rectified two days after the service of the notice to show cause. Those submissions urged in this application were also similar as those of Criminal Miscellaneous No. 1517 of 1981 (R) which I have disposed of in the earlier paragraphs of this judgment.
12. For the reasons stated above, this application is also devoid of any merit and is dismissed accordingly.
