IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.3464 of 1999 KALYANPUR CEMENTS LTD. A PUBLIC LIMITED COMPAY, HAVING ITS REGISTERED OFFICE AT 2 AND 3 CLIVE ROW, CALCUTTA AND CENTRAL OFFICE AT MAURYA CENTRE, FRASER ROAD, PATNA-800001 THRU ITS CONSTITUTED ATTORNEY, SHRI SWAMINATH VERMA, MANAGER (ADMN)…………………….ACCUSED…………..….PETITIONER Versus 1. STATE OF BIHAR ……...OPPOSITE PARTY NO.1 2. SHRI RAJESH KUMAR, ASSISTANT COMMISSIONER AND INSPECTOR (UNDER PAYMENT OF THE BONUS ACT, 1965) AT AND P.O. DALMIA NAGAR, DIST- ROHTAS AT SASARAM……..COMPLAINAT……………….OPPOSITE PARTY NO.2. with Cr.Misc. No.4634 of 1999 1. SATYADEO PRAKASH SINHA S/O LATE C.P. SINHA,1-ARA GARDEN SHEIKHPURA, P.S. SHASTRI NAGAR, TOWN AND DIST-PATNA. 2. SHAILENDRA PRAKASH SINHA S/O LATE C.P. SINHA,1-ARA GARDEN SHEIKHPURA, P.S. SHASTRI NAGAR, TOWN AND DIST-PATNA 3. MOEZUL HASSAN, SON OF LATE MD.ISHAQUE, AT PRESENT RESIDING AT BANJARI, DIST- ROHTAS…………………....ACCUSED……………..……..PETITIONERS Versus 1. STATE OF BIHAR 2. RAJESH KUMAR, ASSITANT COMMISSIONER & INSPECTOR (UNDER PAYMENT OF THE BONUS ACT, 1965) AT AND P.O. DALMIA NAGAR, DISTT- ROHTAS AT SASARAM………..COMPLAINANT…………..OPPOSITE PARTY NO.2 ----------- For the petitioners:-Mr. Umesh Prasad Singh, Sr. Advocate Mr. Rajeev Ranjan Pd. Advocate Mr. Prakash Chandra Jha, Advocate For the State:- Mr Lala Kailash Bihari ,Sr. Advocate. ----------- 12. 22-Apr-2010 Heard learned counsel for the petitioners in both of these cases which have been heard together because of common issues of law and facts and also learned counsel for the State. 2. In the first case, the company is the petitioner and in the second case its three of the officers are petitioners. They have challenged their prosecution under the provisions of the Payment of Bonus Act, 1965 (hereinafter referred to as the ‘Act’) and also the order of the learned Sessions Judge, Rohtas in Cr. Revision No.126 of 2 1998 whereby he has interfered with dismissal of Complaint Case no. 44 © of 1996 by the Chief Judicial Magistrate, Rohtas and has ordered for further enquiry. 3. The learned Chief Judicial Magistrate by his order dated 18th March, 1998 dismissed the complaint petition on the ground that the complaint petition had not been filed by competent officer authorized under Section 30 of the Act. Learned Sessions Judge, on the other hand, held that the complaint had been filed by Assistant Labour Commissioner, Dalmianagar who had been duly authorized under Section 10 of the Act for filing complaint for offences punishable under Section 28 of the Act. The revisional court further noticed that the Labour Commissioner, Bihar had the necessary authority to sanction prosecution under Section 30 (1) of the Act and, in fact, he had sanctioned the prosecution. On such findings the revisional court set aside the order of learned Magistrate and remanded the case for further enquiry. 4. Learned counsel for the petitioners in both the case has raised another issue of law for seeking quashing of the entire criminal prosecution. According to leaned counsel Cement Industry such as the petitioner-company has been included in the first schedule of the Industries (Development and Regulation) Act, 1951 and as a result it has become a controlled industry by virtue of provisions in that Act. As a result under the definition of term ‘appropriate Government’ in the Industrial Dispute Act, 1947 in respect of industry carried on by the petitioner-company, the Central Government is the appropriate 3 Government. 5. Section 2 (a) of the Industrial Dispute Act defines appropriate Government in the following words:- (only the relevant part) “(i) in relation to any industrial dispute concerning any industry carried on by or under the authority of the Central Government,………or concerning any such controlled industry as may be specified in this behalf by the Central Government………, the central Government and (ii) in relation to any other industrial dispute, the State Government;” 6. Under the provisions of the Act under which the petitioners are being prosecuted, appropriate Government has been defined under Section 2 (5) to mean - in relation to an establishment in respect of which the appropriate Government under the Industrial Dispute Act, 1947, is the Central Government, the Central Government. 7. It has been rightly submitted on behalf of the petitioners that a Division Bench of this Court in the case of M/S Sintra Limited vs. The State of Bihar reported in 1998 (2) PLJR 681 has held in the context of another Act in which the definition of appropriate Government was identical, that for a controlled industry the appropriate Government would be the Central Government in view of the definition of the term in the Industrial Dispute Act. 8. Learned counsel for the petitioners has also rightly placed reliance upon a judgment and order of this Court dated 22.11.1999 passed in Cr. Misc. No. 4648 of 1994 (Satyendra Prakash Sinha & Ors Vs. State of Bihar & Anr) whereby a similar prosecution under the Act against officials of the same very company but in 4 relation to another year was quashed on the same premises that appropriate Government in relation to petitioner-company is not the State Government but the Central Government. 9. On behalf of the State, it has been submitted that the issued raised before the revisional court was different and in the facts noticed by the revisional court it was rightly held that the Assistant Labour Commissioner, Dalmianagar had the authority to file the complaint which had been given sanction by the competent authority, the Labour Commissioner Bihar. 10. The issue raised on behalf of the petitioners is an issue of law and as appears from the discussions made above the issue has to be decided in favour of the petitioners, particularly in view of the Division Bench judgment noticed above. Hence, the contention advanced on behalf of the petitioners in both the cases is found to have merits. It is found that the prosecution of the petitioners under the Act is not under the authority of the appropriate Government i.e., the Central Government and hence the entire criminal prosecution of the petitioners is hereby quashed. 11. Both the applications stand allowed. perwez (Shiva Kirti Singh, J.)