- (1.) HEARD learned counsel appearing for the petitioner and learned counsel appearing for the opposite party no.2. This application has been filed for quashing of the entire criminal proceeding of complaint case bearing C-2 case no.1135 of 2009 including the order dated 15.7.2009 whereby and whereunder cognizance of the offence punishable under Sections 47 and 48 of the Building and other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 has been taken against the petitioner.
(2.) IT does appear that the complainant, Labour Enforcement Officer (Central), Chaibas lodged a complaint case on the allegation that this petitioner was found getting a work of "Earth Cutting for laying of Telephone Cable in National Metallurgical Laboratory", Jamshedpur, Dist- Singhbhum (East) executed and was responsible for maintenance of Registers/Records and observance of various other provisions of the said Act. Further allegation is that establishment of the accused persons when was inspected by the then Labour Enforcement Officer (Central), Chaibasa on 27.8.2008 ten persons were found working in the establishment. However, during that course, following irregularities were found. (a) Notice for commencement of work in form IV was not submitted to the Inspector and thereby Rule 239(1) and 26(3) was breached. (b) Sufficient number of first aid boxes of specified type with articles specified in schedule III of the rules not maintained/provided and thereby the accused breached Rule 231(a). On such allegation, a complaint case was registered as C-2 case no.1135 of 2009 in which cognizance was taken against the petitioner, who at the relevant point of time happened to be the S.D.O, Bharat Sancher Nigam Limited under Sections 47 and 48 of the Building and other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996. That order has been challenged. Mr.P.A.S. Pati, learned counsel appearing for the petitioner submitted that in view of the provision as contained in Section 53 of the Act, one who was in charge of and responsible to the conduct of the Company cannot be prosecuted in absence of company being made accused. It was submitted that admittedly the company, i.e. Bharat Sanchar Nigam Limited has never been made accused and as such, the petitioner cannot be prosecuted in absence of the company.
(3.) IN support of his submission, learned counsel has referred to a decision rendered in a case of C.P.Jain and others vs. INspector, Building and another [Special Leave to Appeal (Crl.) No.853 of 2007] holding therein that in absence of company being made accused, its officers or employees cannot be prosecuted under the said Act. Mr.Prabhash Kumar, learned counsel appearing for the opposite party no.2 submitted that there has been specific averment in the complaint that the petitioner was the person responsible for maintenance of registers/records and for observance of various other provisions of the said Act and as such, he is being rightly prosecuted and therefore, the order taking cognizance never warrants to be quashed. It was further submitted that the notice has also been served upon the General Manager, who was called upon to rectify the defects found by the Labour Enforcement Officer during his inspection.;