JUDGMENT
S.N. Jha, J.
1. This application has been filed for quashing an order dated 17-1-1983 whereby cognizance has been taken against the petitioners under Section 23/24 of the Contract Labour (Regulation and Abolition) Act, 1970, (hereinafter referred to as the Act).
2. Petitioners No. 1 to 8 except petitioner No. 4, S.K. Ahuja are partners of the firm known as Messrs. L. K. Ahuja and Company which undertakes contract works in different Government and private companies. As stated in the petition, petitioner No. 4 has no concern with the aforesaid firm.
3. From the statements made in the petition, it appears that opposite party No. 2 filed a complaint petition before the Chief Judicial Magistrate, Dhanbad alleging inter alia that the said firm has violated Rules 79 and 81(2) of the Contract Labour (Regulation and Abolition) Rules, (hereinafter referred to as the Rules), therefore, the petitioners being partners of the said firm have rendered themselves liable for prosecution under Section 23/24 of the Act.
4. Rule 79 of the said Rules says that every Contractor shall display an abstract of the Act and Rules in English and Hindi and in the language spoken by the majority of workers, in such form as may be approved by the Chief Labour Commissioner (Central). Rule 81 (Clause 2) says that a copy of the notice shall be sent to the Inspector and whenever any, changes occur the same shall be communicated to him forthwith.
5. According to the Complainant (O.P. No. 2), the copies of notice, showing the rates of wages, hours of work, wage period, dates of payment of wages, were not sent to the Labour Enforcement Officer (C) Dhanbad, who is Inspector under the Act, as required under Rule 81(2) and not displayed, as required under Rule 79 of the said Rules. And, as such, they have contravened the provisions of the said Act and the rules framed under the Act. Hence this complaint, as stated above.
6. The learned Counsel appearing on behalf of petitioners submitted that so far as the other petitioners except petitioner No. 1 L. K. Ahuja, are concerned no prima fade case has been made out against them, because petitioners have no concern with the day to day affairs of the said partnership firm. According to the learned Counsel of course, these petitioners are partners of the said firm but they have nothing to do with the daily affairs of the firm and they are also residents of Kanpur. Therefore, they should not be prosecuted for the aforesaid breach, if at all, made by the firm. It was further contended that there is a partnership deed where a clause has been inserted whereby and whereunder the management of the said firm has been entrusted to petitioner No. 1, and he being the active partner, is managing the day to day affairs of the aforesaid firm. It was submitted that even a complaint petition shows that petition No. 1 is the active partner and if that is the case of the complainant, then so far as other accused persons are concerned, they cannot be held responsible for any violation of the provisions of the said Act and Rules,
7. In support of his contention, the learned Counsel has relied upon a decision of Municipal Corporation of Delhi v. Ram Kishan Rohtagi and Ors. , wherein it has been laid down that a proceeding against an accused in the initial stage can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted. In other words, the test is that taking the allegation and the complaint as they are, without adding or subtracting anything, if no offence is made out then this Court would be justified in quashing the proceedings in exercise of its powers under Section 482 of the Code of Criminal Procedure. In the instant case, the complaint clearly contains the allegation and the allegation is that the copies of notice as required in Rule 81 was not sent to the Authority concerned that is the Inspector under the Act, and another allegation is that notice was not displayed in Hindi as required under Rule 79 of the aforesaid Rules. The complaint was filed against the partners of the said firm as stated above. So far as the petitioners No. 2 to 8, (C. K, Ahuja, D. K. Ahuja, S. K. Ahuja, P. K. Ahuja, Kavita Ahuja, Sundari Ahuja and Kumari Saroj Ahuja) are concerned there is not even a whisper nor a shred of evidence nor anything to show that there was any offence committed by them, apart from the presumption drawn by the complaint that they would also be liable for such breach.
8. I may point out here that so far as the case of the petitioner No. 1 is concerned, it stands upon different footing, He is an active partner and it has been stated also in the petition that he looks after day to day affairs of the firm. Therefore, if, at all, any violation of the said Act or Rules has been made out, a proceeding may be taken against him, but so far as other partners are concerned apart from the presumption there is not even a whisper or any evidence to show that they have also committed any offence. On the facts of this case, in my view, no case against petitioners No. 2 to 8 has been made out ex facie on the allegation made in the complaint and proceedings against them (petitioner No. 2 to 8) can be quashed.
9. On behalf of the State it was contended that once an offence is committed by the firm or company, its director, manager or partner become vicariously liable for the offence, and in support of his contention, he had relied upon a Full Bench decision of this Court, in the case of Madan Mohan Upadhyaya and Ors. v. State of Bihar 1987 (35) B.L.J.R. 305 (F.B.). It is no doubt true that once an offence is committed by any firm or any company, its director, manager or partner become vicariously liable for the offence and continue to be so liable unless and until they prove to the contrary. In the aforesaid Full Bench, case it was also held that the director, manager or partner of the firm become vicariously liable and continue to be so liable unless and until they prove to the contrary. According to the Full Bench decision, the burden is on them to establish and prove a total absence and knowledge about the commission of the crime. In the instant case, it has been stated on oath that under the terms and conditions of the partnership deed, petitioner No. 1, has been entrusted with the day to day management of the Firm. Moreover, it was stated that petitioners No. 2 to 8 are residing at Kanpur but the work of the firm is going on at Dhanbad, Therefore, it is expected that the directors who are living elsewhere have no knowledge of the day to day affairs of the firm.
10. From a perusal of the complaint petition, it also appears that the petitioners have been proceeded against for not sending the copy of the notice to the Labour Enforcement Officer as required under Section 81(2) of the said Rules and the notice has not been displayed in Hindi as required under Section 79 of the aforesaid Rules. So far as, these two Acts are concerned, the partner who is looking after the day to day affairs of the Company is expected to do these acts. And if any violation is made petitioner No. 1 may be liable to be proceeded against for the alleged violation. The petitioners No. 2 to 8 have established the fact that they had no knowledge about the violation of any provision of the Acts and Rules and even the complaint it has not made out any prima facie case against them.
11. It is well settled, that if no prima facie case has been made out against the accused, proceeding against them may be quashed to prevent the abuse of possesses of the Court.
12. Taking into consideration all the facts and circumstances of the case, in my opinion, no case has been made out against petitioners No. 2 to 8, (C. K. Abuja, D. K. Ahuja, S. K. Ahuja, P. K. Ahuja, Kayita Ahuja, Sundari Ahuja, Kumari Saroj Ahuja) and the proceeding against them is hereby quashed, to prevent the abuse of processes of the Court and secure the ends of justice.
13. So far as the application of the petitioner No. 1 K.L. Ahuja is concerned, it is dismissed.
14. In the result the application is allowed, so far as the petitioners No. 2 to 8 are concerned, and application is dismissed so far as petitioner No. 1 is concerned However, it is made clear that so far as the merit of the case is concerned, this court has not applied its mind, to the case the petitioner No. 1.