- (1.) IN this application petitioner prayed for quashing the order dated 19.2.2004 passed by Chief Judicial Magistrate, Dhanbad whereby and whereunder he took cognizance of the offence against the petitioners under the Payment of Gratuity Act, 1972.
(2.) IT is submitted by learned counsel for the petitioners that the petitioners are not the employer as defined under section 2(f) of the Payment of Gratuity Act therefore, no offence made out against them. It is further submitted that the gratuity had already been paid to the employees, thus in that circumstances also, no offence is made out. It is submitted that the order by which the cognizance has been taken is an abuse of the process of court, thus the same cannot be sustained by this Court. On the other hand, learned counsel for the opposite party, Mr. M. Khan, submits that as per section 2(f)(iii) of Payment of Gratuity Act any person who is in the ultimate control over the affairs of the mines, whether called Manager, Managing Director or by any other name, is the employer. It is further submitted that petitioner no. 1 is the Director (Technical) B.C.C.L., and petitioner no. 2 is the Chief General Manager Kustore Area of B.C.C.L It is also submitted that the petitioners are in ultimate control over the affairs of East Bhagatdih Colliery of B.C.C.L, therefore they are employer as defined under section 2(f)(iii) of the Payment of Gratuity Act. It is further submitted that from the supplementary affidavit filed by the petitioners it is clear that the gratuity has not been paid to the ex -employees within 30 days from the date it becomes payable. Accordingly, it is submitted that the petitioners contravened the provisions of section 7(iii) of the Payment of Gratuity act, which is punishable under section 9 of the Act. Hence the court below rightly took cognizance against these accused persons.
(3.) HAVING heard the submission, I have gone through the record of the case. It is an admitted position that East Bhagatdih Colliery is owned by B.C.C.L, a Government Company. It is also admitted position that petitioner no. 1 is Director (Technical) B.C.C.L whereas petitioner no. 2 is Chief General Manager of Kustore area of B.C.C.L. It is also admitted that East Bhagatdih Colliery comes under the Kustore area of B.C.C.L .In the counter affidavit filed by O.P. No. 2 it has been stated at para 8 that petitioner no. 2 is the Disciplinary Authority, passing the bill and issuing cheques for payment etc. It is also stated that petitioner no. 1 has the ultimate control over all the affairs of mines of B.C.C.L, and is also allocating funds for the proper running of said mines and projects. No rejoinder to said counter affidavit has been filed. Thus the aforesaid statement made in the counter affidavit remain undisputed by the petitioners.;