CR CASE NO: 346/ 2012 U/S 23/24 Contract Labour Act STATE VERSUS SRI A.MUNI SEKHAR...ACCUSED

Transcription

1 DISTRICT: JORHAT IN THE COURT OF JUDICIAL MAGISTRATE (FIRST CLASS), JORHAT CR CASE NO: 346/ 2012 U/S 23/24 Contract Labour Act STATE VERSUS SRI A.MUNI SEKHAR...ACCUSED PRESENT : SMTI. B. GOGOI, JUDICIAL MAGISTRATE 1 ST CLASS, JORHAT ADVOCATES FOR THE COMPLAINANT: SMTI MAMANI BARUA, A.P.P., SMTI NANDITA GOHAIN, A.P.P. ADVOCATES FOR THE ACCUSED: SRI S.N. GOSWAMI OFFENCE EXPLAINED ON: 19/12/2013 EVIDENCE RECORDED ON: 29/03/2014, 27/02/2015 ARGUMENT HEARD ON: 0 3 /08 /2015 JUDGMENT DELIVERED ON: 17 / 08 /2015 JUDGEMENT 1. The prosecution initiated this case on receipt of a complaint by Mr. B.C.Kashap, Labour Enforcement Officer and Inspector under the Contract Labour (Regulation & Abolition) Act, 1970, alleging that there was a lapse on the part of the accused person, namely Sri A Muni Sekhar, General Manager, BSNL, Jorhat, in executing

2 -2- C.R.346/2012 contract work through contractor (i) M/S G.Nent Group, (ii) Sri Rupak Sarma and (iii) Sri Prafulla Bora at BSNL, Jorhat, viz., failure to obtain registration under Section 7(1) of the Act, failure to display notice as required under Rule 81(1)(i), failure to intimate about the commencement /completion of the contract work as required under Rule 81(3) and failure to ensure presence of authorised representative at the time of disbursement of wages ar required under Rule 72, failure to maintain register of contractors, failure to submit annual Return for the year as per Rule 82(20) of the Central Rules. 2. On receipt of the said complaint, a case was registered as C.R.case No. 346/2012 and summons was issued to the accused persons. During the course of the trial, accused person appeared before the Court and he was allowed to go on bail. The particulars of offence u/s 23/24 of Contract Labour Act, 1970, were explained to the accused person to which he pleaded not guilty and claimed to be tried. 3. The prosecution examined one witness i.e. the complainant, in support of its case. The defence plea of the accused was total denial. The accused person adduced evidence of one witness in defence. 4. I have also heard the arguments of both sides. Learned A.P.P. submitted that the ingredients of the offence have been well established against the accused. On the other hand, Learned Counsel for the accused argued that accused is not the principal employer of the establishment and he had not received any notice from the complainant. It was also argued that there is no mens rea on the part of the accused and Ld.counsel for the accused also cited the case of S.B.Deshmukh v- State of Maharastra, 1986 La 1C 2003(Bom) and Basanta Kumar Mohanty v- State of Orissa (1992) II LLJ 190(Ori) as part of his argument.

3 -3- C.R.346/ POINTS FOR DETERMINATION : (i) Whether the accused person contravened the provision of Section 7(1) the Contract Labour Act and failed to ensure presence of authorised representative at the time of disbursement of wages, and thereby committed the offence punishable u/s 23 of Contract Labour Act, 1970? (ii)whether the accused person failed to display notice as required under Rule 81(1)(i), to intimate about the commencement /completion of the contract work as required under Rule 81(3) failure to submit annual Return for the year as per Rule 82(20) of the Central Rules. and thereby committed the offence punishable u/s 24 of Contract Labour Act, 1970? 6. DISCUSSION, DECISION AND REASONS THEREOF : Now, let us discuss the evidence on record to decide the above points. P.W.1 Sri Bijan Chandra Kashyap, the complainant, deposed that on 22/08/12 while he was Labour Enforcement Officer, Dibrugarh, he inspected BSNL, Jorhat and found that the principal employer, i.e. accused had not obtained :- (i) registration certificate under Section 7(1) of the Act (ii) Had not maintained Register as per Form 12 under the Act (iii) failed to display notice board regarding date of payment, rate of wages, hours of work, name and address of inspector (iv) failed to submit annual Return for the year Ext.1 is Inspection note (proved in original) and Ext.1(1) is his signature on the note (proved in original). That he had sent a show cause notice to GM,SSA, BSNL for the same with Regd.A/D which was served on 03/09/12. Ext 2 is the showcause notice(proved in original) and Ext 2(1) is his signature. Ext.3 is the returned

4 -4- C.R.346/2012 compliance report from BSNL(proved in original). Later on sanction was accorded from Regional Labour Commissioner, Guwahati vide Letter No.34(96)/2012 dated 26/10/12. Ext.4 is the sanction order( proved in original) and Ext.4(1) is the signature of S.Chakravarty which he can identify. Ext.5 is the complaint petition and Ext.5(1) and Ext.5(2) are his signatures. Ext.6 is the forwarding letter, Ext.6(1) is his signature. In his cross examination, PW1 stated that license is not required if the contractor employs less than 20 employees. That he mentioned names of 3 contractors in his complaint petition and they engaged 6 employees, 8 employees and 11 employees respectively. That he has not brought original documents of the list of employees engaged by them. That he has been posted in Dibrugarh since February, He denied that he has deposed falsely that notice board was not displayed. He stated that he does not know from which date A.Munisekhar was G.M., BSNL. That the annual return for 01/01/11-31/12/11 was to be submitted within 01/01/12 and 31/01/12. He denied that the accused was not the GM, BSNL in January, He denied that on the same Inspection report, he had filed another case against GM, BSNL.He denied that the accused did not receive the show cause notice and did not send any reply. He admitted that the authority of BSNL informed that instruction regarding obtaining registration will be obtained from Regional Office and furished. He stated that he did not know if Sri M.N.Pegu, AGM, BSNL sent him a letter informing the same on 01/01/12. He denied that he applied for prosecution sanction without serving show cause notice, that he filed the case vindictively. 7. DW1 Sri Muktinth Pegu stated in his examination in chief that he is Deputy General manager of BSNL, Jorhat and before that he was Assistant General Manager, (Admin & HR). That Ministry of labour and Employment issued Certificate of Registratin in favour of BSNL Jorhat as Principal Employer and gave them the power to engage labour. Ext.A is the certificate dated 28/12/12. That he had applied for registration before the Assistant Labour Commissioner, Dibrugarh. Ext.B is his application and

5 -5- C.R.346/2012 Ext.B(1) is his signature. For the same he had also sent demand draft dated 31/11/12. Ext.C is the Demand Draft. That for the said purpose they had approved a sanction letter. Ext.D is the sanction letter and Ext.D(1) is his signature. That Addl.GM wrote a letter to General Manager(Admn & HR), Office of CGMT, Assam Circle, BSNL, Panbazar to ask if aa registration certificate is obtained for Guwahati or Delhi, whether a separate registration is required for Sub-Office like Jorhat. Ext.E is the said letter.ext.e(1) is the signature of Addl.GM Ajay Pal Singh which is known to him. That no information was received from Guwahati. That on 16/10/12 he wrote a letter to Asst.Labour Commissioner to inform that no contractual labour was engaged in BSNL, SSA office. Ext.F os the letter and Ext.F(1) is his signature.that he wrote a letter to the complainant on 01/10/12. Ext.G is the letter and Ext.G(1) is his signature. That on 08/10/12 Addl. GM Ajay Pal Singh sent a letter to GM (Adm & HR). Ext.H is the letter and Ext.H(1) is his signature. That the exhibited documents are part of official file hence they are proved in original. That in September, 2013, Sri A.Muni Sekhar was transferred. In his cross examination DW1 stated that the complainant had come to their office for inspection but he does not remember the date. That at the time of inspection, they were not able to show Registration Certificate, Register Form12, Notice Board regarding date of payment etc., Annual Return for the year That at that time the above was not available and they said that they will fulfil the same later. That Exts.A,B,C,D were sent after the inspection. That he does not know if the Labour Act was violated by being able to show the documents. That if it is a violation to be unable to show the documents, then it was a violation on their part. 8. Section 7(1) of the Contract Labour Act provides- Every principal employer of an establishment to which this Act applies shall, within such period as the appropriate Government may, by notification in the Official Gazette, fix in this behalf with respect to establishments generally or with respect to any class of them, make an application to the registering officer in the prescribed manner for registration of the establishment:

6 -6- C.R.346/2012 Provided that the registering officer may entertain any such application for registration after expiry of the period fixed in this behalf, if the registering officer is satisfied that the applicant was prevented by sufficient cause from making the application in time. 9. Again Section 21(2) of the contract Labour Act provides.- (2) Every principal employer shall nominate a representative duly authorized by him to be present at the time of disbursement of wages by the contractor and it shall be the duty of such representative to certify the amounts paid as wages in such manner as may be prescribed. 10. Again Section 29 of the Contract Labour Act provides.- (1) Every principal employer and every contractor shall maintain such registers and records giving such particulars of contract labour employed, the nature of work performed by the contract labour, the rates of wages paid to the contract labour and such other particulars in such form as may be prescribed. (2) Every principal employer and every contractor shall keep exhibited in such manner as may be prescribed within the premises of the establishment where the contract labour is employed, notices in the prescribed form containing particulars about the hours of work, nature of duty and such other information as may be prescribed. 11. Rule 82 of the Contract Labour (Regulation and Abolition) Central Rules, 1971 makes it obligatory for Every principal employer of a registered establishment to send annually a return in Form XXV (in duplicate) so as to reach the Registering Officer concerned not later than the 15th February following the end of the year to which it relates. As per section 2(g) of the Act, "principal employer" means-- (i) in relation to any office or department of the Government or a local authority, the head of that office or department or such other officer as the Government or the local authority, as the case may be, may specify in this behalf.

7 -7- C.R.346/ After careful appreciation of the evidence on record, it is found that P.W.1 / the complainant, he inspected BSNL, Jorhat on 22/08/12 and found that the principal employer, i.e. accused had not obtained registration certificate under Section 7(1) of the Act nor maintained Register as per Form 12 under the Ac and failed to display notice board regarding date of payment, rate of wages, hours of work, name and address of inspector and also failed to submit annual Return for the year Ext.2 shows that show cause notice was issued to accused. Cross examination was mainly regarding service of the show cause notice. However Ext.3 being the letter of the Asst.G.M., BSNL was sent to the complainant in reference to the show cause notice dated 03/09/12, therefore it cannot be said that the notice was never served. It was also admitted that the authority of BSNL informed that instruction regarding obtaining registration will be obtained from Regional Office and furnished. On the other hand if we look at the evidence adduced by the defence side, DW1 exhibited certain documents, Ext.A being Certificate of Registration in favour of BSNL Jorhat issued by Ministry of labour and Employment; Ext.B being the application ; Ext.C being the Demand Draft; Ext.D being the sanction letter and Ext.D,E,F and G being letters sent from their end. It is seen and also admitted that Exts.A,B,C,D were sent after the inspection. It was also admitted in cross examination that at the time of inspection, they were not able to show Registration Certificate, Register Form12, Notice Board regarding date of payment etc., Annual Return for the year Thus, apart from the prosecution witness, the evidence of D.W.1also proves that the accused failed to comply with the provisions of Section 7(1), Section 21(2) and Section 29 of the Contract Labour( Abolition and Regulation) Act, 1970 as well as Rule 82 of the Contract Labour (Regulation and Abolition) Central Rules, In view of the above position, there is no reasonable ground before this Court to disbelieve the oral and documentary evidence for the prosecution side as discussed above and, therefore, this Court has come to the conclusion that that the prosecution has been able to prove the offence against the accused person

8 -8- C.R.346/2012 punishable u/s 23 and 24 of the Contract Labour (Abolition and Regulation) Act, 1970 and as such, I am of the view that the accused person is liable to be convicted and sentenced for the said offence. Accordingly, the accused Sri A. Muni Sekhar is convicted for the offence punishable u/s 23 and 24 of the Contract Labour (Abolition and Regulation) Act, Considering that the offence is an economic offence, I am not inclined to extend the benefit of any provisions of Probation of Offenders Act to the accused. 15. Accused is heard on the quantum of sentence. After hearing the accused and considering the facts and circumstances of the case as well as nature of the offence, the accused person is sentenced to pay a fine of Rs. 1000/-, in default simple imprisonment for 5(five) days for the offence punishable u/s 23 of the said Act and also to pay a fine of Rs. 1000/-, in default simple imprisonment for 5(five) days for the offence punishable u/s 24 of the said Act. 16. The bail-bond of the accused person is extended for a further period of 6 months from today as per provisions of Section 437A, CrPC as amended upto date. Given under my hand and the seal of this court on this the 17th day of August, Sd/- BOBIDITA GOGOI Judicial Magistrate 1 st Class, Jorhat.

9 -9- C.R.346/2012 APPENDIX WITNESSES FOR THE PROSECUTION : P.W.1 Mr. B.C.Kashyap WITNESSES FOR THE DEFENCE : D.W.1- Mr.M.Pegu DOCUMENTS EXHIBITTED FOR PROSECUTION :- Ext.1 - Inspection note (proved in original) Ext.1(1)- signature on the note (proved in original). Ext 2 - showcause notice(proved in original) Ext 2(1)- signature. Ext.3 - compliance report from BSNL(proved in original) Ext.4- sanction order( proved in original) Ext.4(1)- signature Ext.5 - complaint petition Ext.5(1)-Ext.5(2)- signatures. Ext.6 - forwarding letter Ext.6(1) - signature. DOCUMENTS EXHIBITTED FOR DEFENCE Ext.A - certificate dated 28/12/12. Ext.B - application Ext.B(1)- signature. Ext.C- Demand Draft. Ext.D- sanction letter Ext.D(1) - signature. Ext.E- letter.

10 -10- C.R.346/2012 Ext.E(1) - signature Ext.F- letter Ext.F(1) - signature. Ext.G - letter Ext.G(1)- signature. Ext.H letter Ext.H(1) - signature.