V.K.JHANJI, J. - (1.) IN this petition, petitioners are aggrieved of order dated 16.2.1994 passed by Additional Sessions Judge, Ludhiana, whereby criminal revision filed by Punjab State Board for Prevention and Control of Air Pollution (hereinafter referred to as the Board) was accepted and order of the trial Magistrate dated 12.5.1990 whereby the petitioners were ordered to be discharged, was set aside.
(2.) IN brief, the facts are that Board filed a complaint under Sections 37, 39 and 40 read with Sections 21 and 22 of the Air (Prevention and Control of Pollution) Act, 1981, (in short, the 1981 Act) against M/s Punjab Concast Steels Limited through its Managing Director, Kamal Oswal, and also against four other Directors, alleging violation of certain provisions of the Act. On the basis of the allegations made in the complaint, the trial Magistrate summoned all the accused to face trial. Petitioners moved an application in the court of Judicial Magistrate Ist Class, Ludhiana, praying for their discharge. The application was allowed vide order dated 12.5.1990. Having felt aggrieved against the order of Judicial Magistrate, the Board went in revision before the Additional Sessions Judge who vide the impugned order, allowed the revision. The order of the Additional Sessions Judge allowing the revision and setting aside the order of Judicial Magistrate, is being impugned in the present petition.
(3.) LEARNED counsel for the petitioners has contended that petitioners cannot be prosecuted in law under the provisions of the Act, inasmuch as they are neither the principal officers of M/s Punjab Concast Steels Limited, nor they are responsible in any manner for the day to day functioning of the said company. According to him, Board having passed the resolution and accorded sanction to prosecute the company and the Managing Director, no complaint was maintainable against the petitioners who at one point of time were Directors. Further, according to him, petitioners have ceased to be Directors of the company. In answer to the submissions made by counsel for the petitioners, counsel for the Board -respondent has contended that under Section 43 of the 1981 Act, no sanction was required and offence having been committed by the company, every person who at the time the offence was committed was incharge of, and was responsible to the company for the conduct of its business, as well as the company, is liable to be prosecuted. In support of his submission, he has referred to decision in Haryana State Board for Prevention and Control of Water Pollution v. M/s Jai Bharat Woollen Finishing Works, Panipat, 1992(1) RCR 128 and U.P. Pollution Control Board v. M/s Modi Distillery and others, AIR 1988 SC 1128. Having heard the learned counsel, for the parties and on going through the record. I am of the view that the petition deserves to be allowed. Counsel for the respondents is right in contending on the basis of Division Bench judgment in Haryana State Board for Prevention and Control of Water Pollution's case (supra), that under Section 43 of 1981 Act, no sanction is required if the complaint has been filed by the Board, but where the complaint has not been filed by the Board then in that case the previous sanction of the Board is required. Since in the present case, complaint was made by the Board the Board was not required to take sanction in writing. There is also no dispute with the proposition of law as laid in U.P. Pollution Control Board's case (supra), wherein while construing Section 47 of the Water (Prevention and Control of Pollution) Act, 1974, which is identical to Section 40 of the 1981 Act, it was held by the Supreme Court that "where an offence has been committed by a company, every person who at the time of commission of the offence was 'in charge of and responsible to' the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Proviso to sub -section (1) however engrafts an execption in the case of any such person if he went to prove that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. It would be noticed that sub -section (1) of Section 47 is much wider than sub -section (4) of Section 47 of the Prevention of Food Adulteration Act, 1954, which fell for consideration in I.K. Nangia's case. Furthermore, proviso to sub -section (1) shifts the burden on the delinquent officer or servant of the company responsible for the commission of the offence. The burden is on him to prove that he did not know of the offence or connived in it or that he had exercised all due diligence to prevent the commission of such offence. The non -obstante clause in sub -section (2) expressly provides that notwithstanding anything contained in sub -section (1) where an offence under the Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or, is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence, and shall be liable to be proceeded against and punished accordingly." In the present case, as alredy noticed, the complaint has been filed by the Board. It has not been disputed by the counsel that the Board acts only through its resolutions. The Board vide its resolution dated 2.6.1989 in the 68th meeting, passed the following resolution : "Whereas M/s Punjab Concast Steels Ltd., Focal Point, Ludhiana, has been discharging their omissions into atmosphere from premises of their industry. And whereas the said industry is legally bound to make an application to obtain the consent of the Board for discharging its omissions within the prescribed periof. And whereas M/s Punjab Concast Steels Ltd. Focal Point, Ludhiana, has failed to make an application for the consent of the Board as required under the relevant provisions of the Air (Prevention and Control of Pollution) Act, 1981, within the specified periof. And whereas after going through the file of M/s Punjab Concast Steels Ltd., Focal Point Ludhiana, maintained in the regular course of business by the office of the Board, the Board is of the opinion that M/s. Punjab Concast Steels Ltd., Focal Point, Ludhiana and Smt. Kamal Oswal, Managing Director of the said industry have contravened the provisions of Section 21 of the Air (Prevention and Control of Pollution) Act, 1981, and have thus committed an offence punishable under Section 37 read with Sections 39/40 of the Act. (Emphasis supplied). And whereas previous sanction in writing of the Board is required before the said industry and its Managing Director can be prosecuted for the aforesaid offence. Now, therefore, the Board after being fully satisfied through this resolution, hereby accord necessary sanction in writing for the prosecution of M/s. Punjab Concast Steels Ltd., Focal Point, Ludhiana and Sh. Kamal Oswal, Managing Director, in acccordance with law by filing a complaint under Section 37 read with Section 39 of the Act ibid in the Court of competent jurisdiction, after completing the legal formalities and to prosecute/follow/conduct the case in superior Courts by way of filing appeals, petitions etc. in connection with the same at appropriate stage(s) Resolution signed on this day, the 2nd June, 1989 in the 68th meeting of the Punjab State Board for the Prevention and control of Water Pollution, Patiala.";