Ndm 1 appln.2430.03.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 2430 OF 2003 M/s. Hindustan Coca Cola Beverages Pvt. Ltd. and ors. ... APPLICANTS Vs. D.S. Suryavanshi and anr. ... RESPONDENTS -------------- Mr. Suboth Desai, Advocate i/b RMG Law Associates for the Applicants. Mrs. A.A. Mane, APP for State. -------------- CORAM : V.R. KINGAONKAR, J. DATE : 23 rd September, 2009. ORAL JUDGMENT 1 This is an application filed under Section 482 of the Criminal Procedure Code for quashing of criminal case bearing C.C. No.52 / 2003 pending on file of learned Judicial Magistrate (FC), Wada, Bhivandi for offence under Section 29 (1), Section 21 (2), Section 29 (2), 29 (2), Ndm 2 appln.2430.03.sxw Section 35 (2)(n), Section 21 (4) of the Contract Labour Act, 1970 read with Rules 54 (2), 55, 62 (i), (ii), Rule, 62 (2), 18 (3), 62 (3), 53 (2) of the Maharashtra Contract Labour (Regulation and Abolition) Rules, 1971. 2 The applicants are a Company incorporated under the provisions of the Companies Act, 1956 and its Managing Director and Regional Operations Director, respectively. The applicant No.1 deals in production of beverages. The Government Labour Officer and Inspector authorized under provisions of Contract Labour (Regulation & Abolition) Act, 1970 visited premises of the applicant No.1’s – Industrial Unit on 05.12.2002. The inspection revealed that registers were not maintained as per the requirement of the Section 29 as well as Rule 54. He noticed various deficiencies during the course of the inspection. He prepared inspection notes. The Labour Officer-cum-Inspector subsequently instituted the complaint case in the court of learned Judicial Magistrate at Wada for the offences as indicated above. 3 The applicants challenged the maintainability of the complaint case on various grounds. The first and foremost ground Ndm 3 appln.2430.03.sxw resorted to by the applicants is that the applicant Nos. 2 and 3 cannot be regarded as “Principal Employer” within the meaning of the Section 2 (g) (ii) of the Contract Labour Act, 1970. It is further averred that when the authorized representative is appointed by the Principal Employer, then the applicants cannot be arrayed as accused persons. The applicants further asserted that unless it is shown that the applicant Nos. 2 and 3 were in-charge of the affairs of the company and were responsible for the conduct of its business, the process could not have been issued against them. 4 Heard learned counsel Mr. Suboth Desai and learned APP for the State. 5 The question involved in the application is, whether a prima facie case is made out against the applicants or that the allegations in the complaint case do not constitute any offence as such. It is well settled that unless the prosecution is found to be legally untenable on the face of it, the criminal case cannot be aborted at peremptory stage. The exercise of the extraordinary jurisdiction in this matter under Section 482 Ndm 4 appln.2430.03.sxw of the Criminal Procedure Code is not aimed at scuttling of the prosecution at the premature stage. It is only when the court is satisfied on the basis of averments in the complaint that the necessary ingredients of the offence do not appear then, only the exercise of jurisdiction under Section 482 of Criminal Procedure Code may be proper. 6 The expression “Principal Employer” as used under Section 2 (g) of the Contract Labour Act, 1970 would show that in a factory, the owner or occupier of the factory and where a person is named as manager of the factory under the Factories Act, 1948 the person so named can be regarded as “Principal Employer”. In the present case, the applicant No.2 is described in the application as Deputy Chief Executive Officer. In fact, the inspection report (Exhibit-A), would show that his designation was found to be that of a Managing Director. So also, the complaint (Exhibit-B) refers to him as “Managing Director”. Obviously, whether he is a Managing Director or only a Deputy Chief Executive Officer is a disputed question of fact. What prima facie transpires is that the applicant No.2 attempted to suppress his legal status as Managing Ndm 5 appln.2430.03.sxw Director, while filing the present application and described himself as Deputy Chief Executive Officer. This has certain significance in the context of the criminal liability, which may be incurred by virtue of Section 25 of the Contract Labour Act, 1970. 7 On plain reading of Section 25 of the said Act, it would be amply clear that 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. Obviously, the applicant Nos. 1 and 2 are prima facie liable to answer the criminal charge. For, the designation of the applicant No.2 as a Managing Director would show his prima facie authority as a person in-charge of the business of the company and responsible for conduct of its business. 8 At the same time, it may be gathered that the complaint does not show as to in what way the applicant No.3 – Mr. Jayesh Khosala is concerned with the day-to-day business of the applicant No.1 – company Ndm 6 appln.2430.03.sxw and is in-charge of the business thereof. He is described as Regional Operations Director. So, prima facie, he has been assigned a part of work attached to the office of the “Regional Operations”. In any case, the averments in the complaint (Exhibit - B) do not make out a clear case to infer complicity of the applicant No.3 as person in-charge and responsible to the company for the conduct of its business. Therefore, the criminal prosecution against him is unsustainable. 9 So far as the applicant Nos. 2 and 3 are concerned, it is argued that the prosecution should have been instituted against the authorized representative, who is named in the inspection report. It is pointed out that Mr. Kamal Pasaricha was named as the Manager of the Factory under the Factories Act, 1948. Mere reference to his name as Factory Manager would not be enough. He may be regarded as Principal Employer only when he has been named as the Manager of the Factory under the Factories Act, 1948. 10 Considering the tenor of Section 25 of the Contract Labour Act, 1970, I am of the firm view that the criminal complaint would not be Ndm 7 appln.2430.03.sxw legally sustainable only against the applicant No.3. However, there appears, prima facie material to proceed against the applicant Nos. 1 and 2. Hence their application is without much merits. 11 In the result, the application is partly allowed. The criminal case bearing C.C. No. 52 / 2003 pending before the learned Judicial Magistrate (FC), Wada, Bhivandi is quashed only to the extent of applicant No.2 i.e. Mr. Jayant Khosla. The application is dismissed to the extent of the applicant Nos. 1 and 2. Against them the criminal case may proceed. [ V.R. KINGAONKAR, J ]