IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.29447 of 1999 1. M/S RELIANCE TELECOM PVT. LTD. HAVING CIRCLE & OPERATIONAL OFFICE/UNIT AT 7TH/8TH FLOOR, KASHI PLACE, DAKBUNGLOW ROAD, P.S.KOTWALI, PATNA-800001. 2. SHRI RAJENDRA KUMAR SINGH, CIRCLE HEAD, M/S RELIANCE TELECOM PVT. LTD. 7TH/8TH FLOOR, KASHI PLACE, DAKBUNGLOW ROAD, P.S.KOTWALI, PATNA-800001. 3. Versus 1. STATE OF BIHAR 2. LABOUR SUPERINTENDENT AND INSPECTOR IN THE OFFICE OF DEPUTY LABOUT COMMISSIONER, BAILY ROAD, PATNA. 800001. ----------- For petitioners:- Mr. Y.V. Giri, Sr. Advocate Mr. Manoj Kumar Ambastha, Adv. For the O.P. No-2:- Mr. Alok Kumar Sinha, Adv. For the State:- Mr. Lala Kailash Bihari Prasad, Sr. Adv. -------------- 5. 26-Apr-2010 Heard learned counsel for the petitioners, learned counsel for the State and learned counsel for O.P. No.2, Labour Superintendent and Inspector under the Bihar Shops and Establishments Act. 2. Petitioner no.1 is a Company under the Company Act, 1956. Petitioner no.2 is head of Bihar Circle of the said Company which is carrying on business of providing cellular telephone service in the State of Bihar pursuant to a license granted by Department of Telecommunications, Government of India, New Delhi under the provisions of the Indian Telegraph Act, 1885. 2 3. The petitioners have prayed for quashing the proceeding in Complaint Case No. 1085(M) of 1999 filed by O.P. No.2 in the court of Chief Judicial Magistrate, Patna and also for quashing the order of cognizance dated 5th of August, 1999 for offence under Section 34 of the Bihar Shops and Establishments Act, 1953 (hereinafter referred to as the ‘Act’). 4. On behalf of the petitioners a frontal attack has been made on the applicability of the Bihar Shops and Establishments Act in relation to their business establishment in Bihar on the basis of Section-4 (2) of the Act and Schedule-1 provided thereunder. Section-4 reads thus:- “Exceptions-(1) The provisions of this Act shall not apply to any precinct or premises of a mine as defined in clause(j) of Section 2 of the Mines Act, 1952(XXV of 1952). (2) Notwithstanding anything contained in this Act, the provisions thereof specified in the third column of the Schedule shall not apply to the establishment, employees and other persons referred to in the corresponding entry in the second column: Provided that the State Government may, by notification, add to, omit or alter any of the entries in the Schedule in respect of one or more areas of the State and on the publication of such notification, the entries in either column of the Schedule shall be deemed to be amended accordingly”. The relevant Schedule is Schedule-1 and the 3 relevant entry is entry no.4 which reads thus:- “ Sl. No. Establishments, employees or other persons Provisions of the Act. 4. Any Railway service, Postal Telegraph or Telephone service, any system of public conservancy or sanitation, and any such establishment as the State Government may by notification exempt.” All provisions 5. On behalf of the petitioners, Mr. Giri, Sr. Advocate has submitted that the legislature has used the expressions in entry-4 of the Schedule-1 with care and it does not warrant reading down or any addition so as to restrict the entry in Column-2 only with respect to Railway services, postal telegraph or telephone services run by the Government Departments to the exclusion of such services provided by private companies under valid license or permission. 6. On the other hand, the Stand of the State and O.P. No. 2 is otherwise. Their stand is that in 1953 when the Act was enacted along with Schedule and particularly entry no.4 to the Schedule, such services were not being rendered by private operators and the legislature could not 4 have comprehended that in view of cellular telephone services as being provided by the petitioners a private Company would also claim exemption from the provisions of the Act. According to them, the true spirit of the Act can be preserved only be interpreting entry no.4 so as to restrict it to prescribed services being rendered only by public authorities and departments. 7. On a careful consideration of the rival submissions, it is found that entry no.4 in schedule-1 of the Act does not suffer from any vagueness or does not create any difficulty of implementation so as to warrant any interpretation. On a plain reading of the provisions it has to be held that any of the services mentioned therein whether run by public or private enterprise are entitled to exemption from all provisions of the Act. 8. In view of the aforesaid discussion and finding it has to be held that the petitioner-company, in view of nature of its business and operations in Bihar, is entitled to the benefit of entry no.4 of Schedule-1 of the Act and is exempted from the provisions of the Act by virtue of Section 4(2) of the Act which provides for exceptions. Hence, the 5 case of the petitioners is found to have merit. The prayer made in this application is allowed, the entire criminal proceeding against the petitioners as well as impugned order of cognizance passed by learned Chief Judicial Magistrate are hereby quashed. 9. Learned counsel for the petitioners has rightly placed reliance upon a judgment of the Apex Court in the case of Ashok Chaturvedi Vs. Shitul H.Chanchani (1998) 7 SCC 698 to submit that in view of nature of controversy decided above, it would be futile to allow continuance of the criminal proceedings in respect of the other accused persons. Hence, following the principle laid in that judgment, the entire criminal proceeding and order of cognizance are quashed against all the accused persons named in the petition of complaint. perwez (Shiva Kirti Singh, J.)