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Superintendent And Remembrancer Of Legal Affairs v. Balai Chand Saha
Structured Summary of the Opinion (A.K. De, J.)
Factual and Procedural Background
On 27 July 1972 a complaint was filed by the Labour Officer of West Bengal (authorised by the Chief Inspector of Plantations with sanction under section 39 of the Plantations Labour Act, 1951) against eight persons including B. Majumdar, and seven other opposite parties, alleging contravention of Rules 48 and 49 of the West Bengal Plantations Labour Rules, 1956. The complaint sought prosecution under section 36 of the Act. The magistrate took cognizance and summoned all eight persons (the magistrate's first order mistakenly referred to section 39).
Process could not be served on accused No. 8 (B. Majumdar), described as the superintending manager of Sahabad Tea Estate; the other seven opposite parties appeared and petitioned for discharge on the ground that the prosecution against them was barred by limitation. By order dated 9 June 1973 the learned magistrate upheld the limitation objection, dismissed the complaint petition, and discharged the opposite parties from their bail bonds.
The State of West Bengal (through its Superintendent and the Remembrancer of Legal Affairs) challenged the magistrate's order by applying to the Court under section 439 of the Code of Criminal Procedure. The inspector had inspected the tea estate on 31 January 1972, noticed alleged violations of Rules 48 and 49, and served a written order under rule 3(vii) on the manager (B. Majumdar) to remove the violation within one month and report compliance; no compliance report was sent. The complaint was filed beyond three months from the inspection date but within six months; the State relied on the proviso to section 40 of the Act which extends the limitation to six months where the offence consists of disobeying a written order made by an inspector.
Legal Issues Presented
- Whether the prosecution against the seven opposite parties is barred by the period of limitation prescribed by section 40 of the Plantations Labour Act, 1951, or whether the proviso to section 40 (extending limitation to six months for offences consisting of disobeying a written order of an inspector) saves the prosecution.
- Whether non-compliance with a written order issued by an inspector under rule 3(vii) of the Rules constitutes an offence under the Act or the Rules (i.e., whether the Act or Rules create an offence consisting of disobedience of a written order by an inspector).
- Whether the seven opposite parties (directors of the company) are "employers" within the meaning of section 2(e) of the Act and thus liable to be prosecuted under section 36, or whether the manager (to whom the affairs of the plantation are entrusted) alone is the employer for purposes of the Act.
- Whether directors of a company (when the company is the employer) can be prosecuted personally under the Act in the absence of any specific provision allowing prosecution of directors.
Arguments of the Parties
State's (Appellant's) Arguments — Mr. Sanyal
- The inspector is empowered under rule 3(vii) of the Rules to give orders for removal of defects/irregularities; if such an order is not complied with by a person to whom it is given, that person shall be deemed to have contravened the relevant rule.
- The proviso to section 40 extends the limitation period to six months where the offence consists of disobeying a written order made by an inspector; the complaint in this case was filed within six months of detection and therefore limitation does not bar prosecution.
- Under the definition in section 2(e) of the Act, the word "employer" includes both persons who have ultimate control over the affairs of the plantation and the person to whom the affairs are entrusted (the word "and" joins the two parts); therefore the opposite parties (as directors with ultimate control) are employers and liable to prosecution along with the manager.
Opposite Parties' (Respondents') Arguments — Mr. Mukherji
- The prosecution is time-barred as to the seven opposite parties because the proviso to section 40 applies only to an offence consisting of disobedience of a written order by the person who was actually given that order; none of the seven opposite parties admittedly received any written order from the inspector, so the main three-month period applies to them and bars prosecution.
- The opposite parties are not "employers" within the meaning of section 2(e) of the Act because the affairs of the plantation are entrusted to the manager; the deeming portion of the definition makes the manager (where entrusted) the employer, excluding persons who merely have ultimate control.
- Even if the definition were read to include persons with ultimate control, the opposite parties are directors of the company, not the company itself, and the Act contains no special provision authorising prosecution of directors; by analogy to other statutes and case law, directors cannot be personally prosecuted in the absence of an express provision.
- Relied on decisions and statutory comparisons (including Karunaketan Dutta & Anr. v. The Coal Board) to show that where the company is the employer special provision is required to attach liability to directors personally.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Karunaketan Dutta & Anr. v. The Coal Board, reported in 76 C.W.N. 679 | Held that directors of a company could not be personally prosecuted under the relevant rules where the statute/rules made the company (a juristic person) punishable and there was no specific provision making directors personally punishable. | The court treated this decision as supportive of the argument that, in the absence of a specific provision making directors personally liable under the Plantations Labour Act, the opposite parties (directors) should not be prosecuted; this supported discharging the rule as to those parties. |
Court's Reasoning and Analysis
The court's analysis proceeded in several distinct steps, each grounded in the language of the Act and Rules as reproduced in the opinion:
- Limitation under section 40: The court observed that section 40 prescribes a three-month period from the date the inspector becomes aware of the alleged commission of the offence within which a complaint must be made. The complaint in this case was made beyond three months of the inspection (31 January 1972), so, absent an applicable exception, limitation would bar the prosecution.
- Proviso to section 40 and "disobeying a written order": The State relied on the proviso to section 40, which extends the limitation to six months "where the offence consists of disobeying a written order made by an inspector." The Court analysed whether either the Act or the Rules actually create an offence that "consists in disobeying a written order made by the inspector." The court concluded that neither the Act nor the Rules explicitly make disobedience of an inspector's written order an offence. The court rejected the State's contention that the inspector's power under rule 3(vii) (to order removal of defects/irregularities) meant that failure to comply automatically amounted to contravention of the rules. The court held that, without a specific rule creating such an offence, the proviso could not be invoked merely because an order was given and not complied with.
- Limited scope of the proviso: The court further reasoned that even if the proviso extended limitation for offences consisting of disobedience of written orders, that extended period could be availed of only against the person who was actually given such a written order by the inspector. In the present case none of the seven petitioners (opposite parties nos. 1–7) had been given any written order; the written order had been served on the manager (accused no. 8). Therefore, as to the seven opposite parties, only the main three-month period applied, and the prosecution was time-barred.
- Definition of "employer" (section 2(e)): The court examined the definition of "employer" in section 2(e), which states that "employer" means a person who has ultimate control over the affairs of the plantation, and where the affairs are entrusted to any other person (manager, superintendent, etc.), such other person shall be deemed to be the employer. The Court compared drafting in various other statutes and noted that where a deeming provision makes the person entrusted with affairs the employer, that deeming provision tends to exclude others who merely have ultimate control, for the purposes of duties and liabilities imposed on the employer.
- Liability of directors: Applying that interpretation, the Court held that where the affairs of the plantation are entrusted to a manager, the manager alone is treated as the employer for purposes of the Act; persons who merely have ultimate control (such as directors) are thus not "employers" under the definition for the relevant duties and liabilities. The Court further observed that other statutes explicitly provide for prosecution of directors where the company is the employer, and that such express provisions are absent in the Plantations Labour Act. The Court relied on the Karunaketan Dutta decision to support the conclusion that, absent specific statutory provision making directors personally liable, proceedings against directors should be quashed.
- Conclusion on both grounds: For these combined reasons (the non-existence of an offence consisting in disobedience of an inspector's written order within the Act/Rules; the limited applicability of the proviso to the person actually given the order; and the interpretation of "employer" excluding the directors), the learned magistrate's order dismissing the complaint and discharging the opposite parties on limitation grounds was upheld. The Court therefore discharged the rule filed by the State.
Holding and Implications
DISCHARGED — The Court discharged the rule filed by the State (criminal revision cases nos. 822 to 824 of 1973) and upheld the learned magistrate's order dismissing the complaint and discharging the opposite parties on the ground of limitation.
Direct consequences:
- The prosecution as to the seven opposite parties (directors) is barred by limitation and they were discharged from the proceedings; the magistrate's order in their favour is sustained.
- The proviso to section 40 was held inapplicable to the seven opposite parties because (a) the Act/Rules do not create an offence that "consists in disobeying a written order" given by an inspector and (b) none of those seven had been given the inspector's written order (the order was served on the manager only).
- The court applied the statutory interpretation of "employer" in section 2(e) to conclude that where the affairs are entrusted to a manager, the manager is treated as the employer and directors (absent an express provision) are not personally prosecutable under the Act.
Broader implications: The opinion confines itself to statutory interpretation and application to the facts; it does not purport to create a new legal precedent beyond its application to these matters. The court explicitly relied on existing statutory language and precedent (Karunaketan Dutta) to reach its decision and discharged the contested rules accordingly.
A.K.De, J.:-
(1) Labour officer, govt. Of west bengal, siliguri authorised by the chief inspector of plantations of the govt. Filed a complaint on 27. 7. 72 against the opposite parties and one k. B. Majumdar, with the sanction of the chief inspector plantations under section 39 of the plantations labour act of 1951, to be hereafter called 'the act', for their prosecution under 'section 36 of the act for contravention of '. Rules 48 and 49 of the! west bengal plantations labour1 rules, 1956 to be hereafter called 'the rules'. The learraed magistrate took cognisance of the offence on his complaint and summoned all the eight persons under section 36 of the act, wrongly written section 39 in the first order of the magistrate. As process could not be served or executed against accused no. 8, namely, b. Majumdar, said to be and described as the superintendent manager of sahabad tea estate, the case was filed against him. These 7 opposite parties, who appeared before the magistrate, filed a petition praying for their discharge stating that tie prosecution was barred as against them by law of limitation. The learned magistrate by his order dated 9. 6. 73 has upheld that objection and has dismissed the petition of complaint and discharged the opposite parties from bail bond. The state of west bengal through its superintendent and remembran of legal affairs, has taken out this rule under section 439 of the code of criminal procedure. Whoever contravenes any of the provisions of tike act or of any rules made thereunder, for which no other penalty is elsewhere provided by or under the act, is punishable with imprisonment for a term which may extend to three months or with fine which may extend to rs. 500/ - or with both. The complaint in this case is that these opposite parties have contravened rules 48 and 49 of the rules and that they are liable to be punished under section 36 as 110 other penalty for such contravention of these rules is provided by or under the act. The inspector visited the tea estate, of which the opposite parties are the directors, on 31. 1. 72, noticed violation of rules 48 and 49, served a written order made under rule 3 (vii) of the rules upon the manager, accused no. 8, b. Majumdar requiring him to remove the said violation within one month and to report compliance. The complaint further is that no report of compliance as required by that order has been sent. Section 40 of the act prescribes the period of limitation for prosecution under the act. It lays down that no court shall take cognizance of an offence punishable under the act unless complaint thereof has. Been made or is made within three months from the date on which the alleged commission of the offence comes to the knowledge of the inspector. The complaint in this case, it is seen, has been made beyond three months from the date of the inspection on 31. 1. 72. Limitation bars the prosecution. The state seeks the aid of proviso to section 40 which is as follows : -
"provided that where the offence consists of disobeying a written order made by an inspector, complaint there of may be made within six months of the date on which the offence is alleged to have been committed".
The complaint in this case is within six months of the date of detection of the alleged violation of rules 48 and 49 by the inspector. The prosecution has to satisfy the court that either the act or the rules have prescribed an offence consisting in disobedience of a written order made by the inspector. Neither the act nor the rules mentions any such offence mr. Sanyal, appearing for the state submits that the inspector is empowered to give orders for removal of defects or irregularities observed by him under rule 3 (vii) of the rules and if any such order is not complied with by any person, to whom that order is given, he shall be deemed to have contravened the rule. I am unable to give effect to this contention. There is no rule that lays down that a person willfully or otherwise disobeying any order, lawfully given by the inspector, will commit an offence or will contravene any rule. Without a specific rule to that effect it cannot be said that there is any offence which consists in disobeying a written order given by an inspector under this act. It will be appropriate if i refer to the provisions of section 188 of the indian penal code, section 500 (1) (b) of the bengal municipal act, 1932 and of section, 32 of the motor transport workers act, 1961 which clearly lay down that whoever willfully disobeys any direction lawfully given by any person or authority empowered under this act to give such direction for which no other penalty is elsewhere provided by or under the act, shall be punishable with imprisonment or fine. Proviso to section 36 of that act prescribes only an extended period of limitation for prosecution for such offence. The language of the proviso to section 40 of the plantations labour act "is the same as that of section 36 of the motor trans port. Workers act 1961 - , without the: corresponding, provision, as in section 32 of the latter act, in section 36 of the plantations labour act. The first contention of the state advocate is, therefore, not tenable and is rejected
(2) There is another short ground on which the learned magistrate's order will be upheld. Extended period of limitation in the proviso to section 40 of the act may be availed of only against the person who is given a written order by the inspector none of the petitioners admittedly was given any written order by the inspector. As against them the period of limitation, in the main section 40, is applicable. They have, therefore, been rightly discharged on the ground that institution of the case against them is time barred.
(3) Mr. Mukherji, learned advocate appearing for the opposite parties nos. 1, 3, 4, 6 and 7 has made two other submissions in support of the order made by the learned magistrate. He firstly, submits that the opposite parties axe not "employers" within the meaning of the word "employer" defined in section 2 (e) of the act. The complaint is that the contravention complained of is by the "employer". We have to see whether the opposite parties are the "employers" within the definition in section 2 (e). 'employer' when used to relation to plantation mentis a person who has ultimate control over the affairs of the plantation and where the affairs of any plantation are entrusted to any other person (whether any managing agent, manager, superintendent or by any other name) , such other person shall be deemed to be the employer in relation to that plantation. In the instant ' case, opposite party no. 8 is stated to be the superintending manager of sahabad tea estate, a company. The (submission is that where the affairs of any plantation are entrusted to a manager, he alone is the employer in relation to that plantation. Mr. Sanyal, appearing for the state, joins issue and submits that by the definition, of the word 'employer' in section 2 (e) the manager to whom the affairs of the plantation are entrusted as also the persons who have ultimate control over the affairs of the plantation, are the employers. He lays stress on the word 'and' in the definition joining the two parts namely, the persons who have ultimate control over the affairs and the person to whom the affairs of the plantation are entrusted. On opposite parties' side reference in this connection has been made to the definition of the word 'employer' in section 2 (e) of the motor transport workers act, 1961, to the definition of the word 'owner' in section 2 (1) of the mines, act 1952, to the definition of the word 'owner' in section 2 (f) of the industries (development and regulation) act 1951, to the definition' of 'occupier' in section 2 (n) of the factories act 1948 and to the definition of the word 'employer' in section 2 (1") of the apprentice act 1961. In the apprentice act, a person entrusted with supervision and control by the definition is included in the word 'employer' without any deeming provision, in the factories act, the industries (development and regulation) act, the person entrusted with the control has been made the employer by the deeming provision. But in the motor transport workers act, 1961, the person entrusted with the affairs of the company has been made the employer by the definition itself without any deeming provision. In the mines act where a person who carries on the business of the mines has been made the employer under the definition with a clear recital that the owner will not be exempt from liability because of such inclusion of the person carrying on the business of it. An examination of these various provisions, with different provisions and difference in language clearly shows that where a person has been made the employer by a deeming provision he excludes persons, who have ultimate control over the affairs of the plantation, for the purpose of duties and liabilities required to be performed by the employer under the act or the rules. In that view of the matter, the opposite parties nos. 1 to 7 cannot be said to be 'employers' under the definition in sec. 2 (e) as manager entrusted with the affairs of the company is there. The opposite parties are not, therefore, liable to be prosecuted under section 36 of the act.
(4) The second branch of mr. Mukherjee's argument is that even if the definition 'employer' means the persons who have ultimate control over the affairs of the plantation in addition to the manager, then also the opposite parties cannot be prosecuted for, they are only directors of the company and not the company. He has referred to the provisions of other acts showing that where the company is the employer special provision is made for prosecution of the directors of the company along with the company. Such provision is absent in the act. He has referred to section 32 of the apprentice act; 1961, section 100 of the factories act, 1948, section 76 and section 77 of the mines act 1952 and section 34 of the motor transport workers act 1961. Examination of these provision shows that where the company is the employer its directors cannot be prosecuted under that act in the absence of any such provision in the act. The company, as the employer, may only be prosecuted.
(5) Mr. Mukherji has also relied on the case of karunaketan dutta and anr. V. The coal board, reported in 76 c. W. N. 679 in support of his contention. In that case the directors of the barkar coal co. Ltd. , were prosecuted under rule 97 of the coal mines (service and safety) rules 1954 for violation of rule 40. They moved the court for quashing the proceedings against them on the ground that under the provisions of the act they could not be prosecuted and that only the company, if there has been violation of rule 40, could be proceeded against. It was held that the company, being a juristic person, and the owner of the colliery, is punishable under rule 47 of the rules. As there, was no special or specific provision making the directors held personally punishable, they could not be so prosecuted and the proceeding was quashed. This decision lends support to the contention of mr. Mukherji. For all these reasons, this rub? should be discharged. In the premises i discharge this rule. Crl. Revision case nos. 822 to 824 of 1973. The facts of the complaint involved! in these rules are the same or similar to those in crl. Revision case no. 821 of 1973 which has just been disposed of by me. For the reasons given by me in that case, these rules are also discharged.
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