IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO. 791 OF 2001. WRIT PETITION NO. 791 OF 2001. WRIT PETITION NO. 791 OF 2001. 1. Mr. D.P.Singh. 2. Mr. Pramod Charegaonkar. ..Petitioners. versus 1. Mr.P.S. Karmase. 2. The State of Maharashtra. ..Respondents. .... Mr. Vishal Kanade with M.S.Dehlvi, i/b. Negandhi Shah and Himayatullah, for the Petitioners. Mr. H.V.Mehta, for the Respondent No.1. Mr.J.P.Yagnik, APP, for the Respondent-State. .... CORAM CORAM CORAM : A.S. OKA, J. : A.S. OKA, J. : A.S. OKA, J. DATE DATE DATE : 28TH JULY,2008. : 28TH JULY,2008. : 28TH JULY,2008. ORAL ORAL ORAL JUDGMENT : JUDGMENT : JUDGMENT : 1. Heard the learned Counsel appearing for the parties. By this Petition under section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the said Code" ), the Petitioners have prayed for quashing and setting aside the order issuing process. 2. In the normal course, in view of the decision of this Court in the case of V.K. Jain and Others v/s Pratap V. Padode & Anr [2005 (1) Mh.L.J. 778), this Court would have relegated the Petitioners to the remedy of fling a Revision Application under - 2 - section 397 of the said Code. However, I find that this Court has issued rule in this petition on 13th February 2002 and therefore, it will be unjust to the parties now to relegate them to another remedy after lapse of 6 years and more. Moreover availability of a remedy under section 397 of the said Code does not affect the power of this Court under section 482 of the said Code. 3. It must be noted here that in order dated 9th April 2008 it is recorded that the first Petitioner has since expired and therefore, this Petition survives in so far as second Petitioner is concerned. The first Respondent filed a private complaint against the Petitioners herein alleging the commission of offences under sections 23 and 24 of the Contract Labour (Regulation and Abolition) Act, 1970 read with the Contract Labour (Regulation and Abolition) Central Rules, 1971. The allegations in the complaint were relating to breach of various clauses of Rule 81 of the said Rules of 1971. Violation of Rule 73 and 74 of the said Rules of 1971 has also been alleged. Lastly, violation of section 7 of the said Act of 1970 has been alleged as the principal employer failed to get his establishment - 3 - registered. 4. On the private complaint, process was issued by the learned Metropolitan Magistrate calling upon the petitioners to answer charge under sections 23 and 24 of the said Act of 1970. The first Petitioner was at the relevant time a Zonal Manager of the Punjab National Bank at Mumbai and the second Petitioner was the Manager of the said Bank at mumbai. The allegations were made in the complaint as regards the establishment of the Punjab National Bank at Mumbai. 5. The submission of the learned counsel appearing for the Petitioners is that in this case, the allegation is against the establishment of Punjab National Bank. His submission is that essentially the offence has been committed by the Punjab National Bank and unless it is alleged that the Petitioners were in charge of and responsible to the Company for the conduct of its business at the time of the commission of offence, the Petitioners cannot be prosecuted. 6. The submission of the learned Counsel - 4 - appearing for the first Respondent is that the Principal Employer as defined under the said Act of 1970 is responsible for compliance with the requirement of the said Act of 1970 and the said Rules of 1971 and the petitioners being personally responsible for supervision and control of the establishment were the Principal Employers. He, therefore, submitted that no interference can be made with the order issuing process as the question of proof of violations is a matter of evidence. 7. I have carefully considered the submissions. In the complaint following offences have been alleged against the petitioners. "1. Notice showing the rates of wages, hours of work, wage period and date of payment of wages, names and address of the Inspectors having jurisdiction date of unpaid wages not displayed at all at the main entrances : Violation of Branch of Rule 81(1)(1). 2. Intimation of Commencement/Completion of contract work has not been sent to the Inspector in Form-VI-B. Violation of Branch - 5 - of Rule 81(3). 3. Registers of Contractor has not been maintained in Form-XII.: Violation of Branch of Rule, 74. 4. Copies of notices displayed under Rule 81(1) (1) have not sent to the Inspector, Violation of Branch of Rule 81(2). 5. The Principal Employer failed to get his establishment registered : Violation of Branch of Section 7. 6. The Authorised representative of the Principal Employer has not certified the payment made to the contract labours under his signature : Violation of Branch of Rule 73." 8. It is true that the Petitioners are not being prosecuted under section 25 of the said Act of 1970, as process has been issued under sections 23 and 24 of the said Act of 1970. - 6 - 9. The allegations in the complaint are as regards non-compliance by the principal employer of requirements of Rule 73, Rule 74 and Rule 81 of the Rules of 1971 as well as non-compliance with the requirement of section 7 of the said Act of 1970. 10. Clause (e) of sub-section (1) of section 2 of the said Act of 1970, defines "Establishment" to mean any place where any industry, trade, business manufacture or occupation is carried out. The allegation in the complaint is as regards establishment of the Punjab National Bank at Mumbai. The said Bank had issued a tender for renovation of its conference room and executive toilet. The work was allotted to M/s. Vishwakarma Furnitures by the said Bank. The allegations in the complaint relate to the execution of the said contract work. 11. Clause (g) of sub-section (1) of Section 2 of the said Act of 1970 defines the "Principal Employer". "Principal Employer" means any person responsible for the supervision and control of the establishment. Perusal of the complaint filed by the first Respondent shows that it is not even a case made out that the Petitioners were responsible for - 7 - the supervision and control of the relevant establishment. An offence for which the complaint has been filed can be alleged only against the Principal Employer. In absence of averments made in the complaint to the effect that the Petitioners were responsible for the supervision and the control of the establishment, the learned Judge could not have issued process against the Petitioners by assuming that the Petitioners were the principal employers. Therefore, even taking the complaint for its face value, there was no case of a commission of offence made out under section 23 or section 24 of the said Act of 1970 against the Petitioners. 12. Hence, the Petition must succeed. Accordingly, rule is made absolute in terms of prayer clause (a). No order as to costs. [ A.S.OKA, J.] A.S.OKA, J.] A.S.OKA, J.]