IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 23RD MARCH 2009 / 2ND CHAITHRA 1931 Crl.MC.No. 3273 of 2006(D) -------------------------------------- ST.NO.976/2006 OF JUDL.MAGISTRATE OF FIRST CLASS COURT-I, KANNUR .................... PETITIONER/ 2ND ACCUSED: ------------------------------------------ MR.A.K. SINHA CHAIRMAN & MANAGING DIRECTOR, M/S. BHARAT SANCHAR NIGAM LTD., CORPORATE OFFICE B-148, STATESMAN HOUSE, BHARAKAMBA ROAD, NEW DELHI. BY MR.MATHEWS K.PHILIP,SC, BSNL. RESPONDENT/ COMPLAINANT/ STATE: --------------------------------------------------------- STATE, REPRESENTED BY THE LABOUR ENFOREMENT OFFICER (CENTRAL) O/O. REGIONAL LABOUR COMMISSIONER, KENDREYA SHRAM SADAN, OLIMUGHAL, KAKKANAD, KOCHI-30. REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY MR.P. PARAMESWARAN NAIR, ASST.S.G. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 23/03/2009, ALONG WITH CRL.M.C NOS. 3473/2006 & 3279/ 2006 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.C. NO. 3273/2006-D: ORDER ON CRL.M.A. NO. 5558/2006 IN CRL.M.C. NO. 3273/2006 DISMISSED 23/03/2009. SD/- C.T.RAVIKUMAR, JUDGE. //TRUE COPY// P.A. TO JUDGE. Prv. C.T.RAVIKUMAR, J. --------------------------- Crl.M.C.Nos.3273, 3279 & 3473 of 2006 - D -------------------------------------------------- Dated this the 23rd day of March, 2009 O R D E R Sri.A.K.Sinha, the former Chairman and Managing Director of Bharat Sanchar Nigam Limited, New Delhi which is a company fully owned by the Government of India and incorporated under the Indian Companies Act, 1956, is the petitioner in Crl.M.C.Nos.3273 and 3279 of 2006. He is the second petitioner in Crl.M.C.No.3473/2006 wherein the first petitioner is one Roy M. Jacob who was the former Deputy General Manager (Planning) of BSNL. They approached this Court with the aforesaid petitions with prayers to quash the respective complaints filed against them. Crl.M.C.3273/2006 is filed with the prayer to quash all further proceedings in S.T.No.976/06 on the file of the Judicial First Class Magistrate, Kannur based on Annexure I complaint alleging commission of offence under Section 24 of the Contract Labour (Regulation & Abolition) Act, 1970 (hereinafter called as 'the Act') and breach of Rules 18(4), 72 and 73 of the Contract Labour (Regulation & Abolition) Rules (hereinafter called as 'the Rules'). Crl.M.C.3279/2006 is filed with the prayer to quash all Crl.M.C.Nos.3273, 3279 & 3473 of 2006 - D 2 further proceedings in S.T.No.977/2006 of the file of the Judicial First Class Magistrate Court, Kannur based on Annexure I complaint alleging commission of offence under Section 24 of the Act and breach of Rules 74, 81 (1)(i) and 81(3) of the Rules. Crl.M.C.3473/2006 is filed praying to quash Annexure I complaint in S.T.No.293/2005 on the file of the Judicial First Class Magistrate Court-I, Kozhikode alleging commission of offence under Section 24 of the Act and breach of Rules 81(1), 81(2) and 73 of the Rules. 2. The Labour Enforcement Officer (Central) attached to the office of the Regional Labour Commissioner, Kochi inspected the establishment of BSNL, Kannur on 1.10.2005 while Sri.A.K.Sinha was working as the Chairman and Managing Director of 'BSNL' and according to him, he observed that about 400 contract labourers were employed by the petitioners/accused through 20 contractors on several dates. According to him, the provisions of the Act applies to the establishment of the accused, viz., BSNL. In view of sub Section 4 of Section 1 of the Act the petitioner/accused, being the principal employer is responsible for Crl.M.C.Nos.3273, 3279 & 3473 of 2006 - D 3 complying with the provisions of the Act and the Rules made thereunder. The allegation is that the said petitioners/accused being the responsible, competent officer failed to comply with the provisions of the Act and Rules on account of the engagement of contract labourers as aforesaid and thereby committed the alleged offences. Based on the inspection conducted as aforesaid, the defacto complainant filed complaints and pursuant which S.T.Nos.976/2006 and 977/2006 were registered against the accused before the Judicial First Class Magistrate Court, Kannur. A similar inspection conducted on 4.11.2004 in its establishment at Calicut and the consequential finding of engagement of 280 contract labourers through 28 contractors on several dates, led to the filing of complaint and registration of S.T.No.293/2005 before the Judicial First Class Magistrate, Kozhikode against the petitioners in Crl.M.C.No.3473/2006. In fact, in all the three cases, the allegations levelled against the petitioners are that they have committed offences charged under Section 24 of the Act and certain provisions under the Rules made thereunder. Common question arise for consideration in all Crl.M.C.Nos.3273, 3279 & 3473 of 2006 - D 4 these three cases such as whether the petitioners who were the then responsible officers of BSNL and who are charged under Section 24 of the Act and for breach of various rules made thereunder fall under the definition of 'public servants' within the meaning of Section 21(12) of IPC and whether in respect of their aforementioned action they would get protection under the provision of Section 197(1)(a) of the Code of Criminal Procedure and whether on the ground of want of sanction required under Section 197 of the Code of Criminal Procedure for prosecuting them the complaints in the said three cases are liable to be quashed. Since common questions arise in all the three cases they are being disposed of by this common order. 3. Petitioners seek to quash the respective complaints on the ground that they are public servants entitled for protection under Section 197 of the Code of Criminal Procedure and therefore they cannot be prosecuted without getting proper, prior sanction for such prosecution. According to them, the company comes under the Department of Telecommunications, Government of India and therefore they come within the meaning Crl.M.C.Nos.3273, 3279 & 3473 of 2006 - D 5 of public servant under Section 21(12) of IPC. Since they were appointed by the President of India, any prosecution against them could be initiated only with the prior approval of the Government of India in terms of the provisions contained in Section 197(1) of the Code of Criminal Procedure. This contention was resisted by the respondents citing the decision reported in Mohd. Hadi Raja v. State of Bihar and another (AIR 1998 SC 1945) wherein the Honourable Apex Court held that for the purpose of enforcing the fundamental rights the public undertakings, which on account of deep and pervasive control, can be held to be a State within the meaning of Article 12 of the Constitution of India and could be treated at par with Government Departments. However, the officers of such company or public undertakings cannot be held as public servants within the meaning of Article 12(12) of IPC and therefore, they are not eligible for protection under Section 197 of the Code of Criminal Procedure. When confronted with this situation, the learned counsel for the petitioners made a fair submission that he may be granted liberty to raise all questions pertaining to Crl.M.C.Nos.3273, 3279 & 3473 of 2006 - D 6 sanction and other related aspects after adducing sufficient materials therefore, before the trial court at the appropriate stage. In these circumstances, the above Crl.M.Cs are disposed of as follows: The petitioners in all three Crl.M.Cs are at liberty to raise the question of want of prior sanction for their prosecution under Section 197 of the Code of Criminal Procedure before the trial court at the appropriate stage. If such a question is raised, the concerned trial court shall look into the question whether the petitioners come within the definition of public servants within the meaning of Section 21(12) of IPC and thereby entitled for protection under Section 197 of the Code of Criminal Procedure and pass appropriate orders thereon in accordance with law, before proceeding further with the concerned cases. C.T.RAVIKUMAR, JUDGE. bkn/-