BHARAT HEAVY ELECTRICAL LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) The respondent herein instituted a complaint against the petitioner herein before the learned Chief Judicial Magistrate, Bilaspur. The complaint stands enclosed with the petition at hand as Annexure P -8. Thereunder allegations stand constituted against the petitioner herein of it by its various omissions constituted in the apposite complaint, infracting the provisions of Sections 23 and 24 of the Contract Labour (Regulation and Abolition)Act, 1970 (for short "the Act"). On the complaint standing instituted before the learned Chief Judicial Magistrate, Bilaspur the latter Court issued summons upon the petitioner -company for its recording its presence thereat on 6.3.2009 through its authorized representative. On appearance standing put on behalf of the petitioner/company before the learned Chief Judicial Magistrate, an application under Section 190 (1) (A), 204, 203 readwith Section 245(2) Cr.P.C stood instituted thereat by the petitioner -company. The aforesaid apposite application stands dismissed under orders comprised in Annexure P -12 by the learned Chief Judicial Magistrate concerned. The petitioner -company stands aggrieved by the order rendered by the learned Chief Judicial Magistrate comprised in Annexure P -12.

(2.) The petitioner -company recorded in the year 2006 a contract with National Thermal Power Limited (for short "NTPC") for erection, testing and commissioning of 4X200 MW Hydroelectric Project and material testing at Kol Dam Hydroelectric project, Barmana, District Bilaspur, H.P. Under Annexure P -2 the petitioner -company was authorized to engage the service of other sub -contractors for execution of the work aforesaid awarded to it by the NTPC foisting a right in the petitioner -company to subcontract the work awarded to it by the NTPC stands embodied in clause 19 thereof. In pursuance to the aforesaid empowerment foisted in the petitioner -company, it proceeded to on 24.11.2006 under Annexure P -3 assign all the works pertaining to erection, testing and commissioning of 4X200 MW Hydroelectric Project and material testing at Kol Dam Hydroelectric project to M/S Purvanchal Engineering Projects, B/M -27, Nehru Nagar, Bhopal execution of works whereof stood hitherto awarded to it under a contract which stood entered inter -se the petitioner -company with the NTPC. The aforesaid assignment of works by the petitioner -company to M/S Purvanchal Engineering Projects which hitherto stood awarded to it for execution by the NTPC, occurred on 24.11.2006, however the apposite complaint stood instituted before the learned Chief Judicial Magistrate by the respondent in the year 2009. Having extracted from the pleadings existing before this Court the relevant facts germane for putting at rest the controversy engaging the parties at lis before this Court, it is imperative to advert to the prime factum of the respondent alleging infringements standing begotten at the instance of the petitioner -company of the apposite provisions of Sections 23 and 24 of the Act constituted by its apposite omissions displayed in the complaint. Hereat the relevance of the petitioner -company prior thereto under Annexure P -3 on 24.11.2006 assigning to M/s Purvanchal Engineering Projects the hitherto work allotted to it under an agreement recorded inter -se it with NTPC comes to the forefront. The factum of the petitioner -company prior to the institution of the complaint against it by the respondent assigning works, ordained to be executed by it under a previous contract recorded inter -se it and NTPC, to M/S Purvanchal Engineering Projects is of its assignee aforesaid alone holding responsibility to mete adherence to the provisions of Section 23 and 24 of the Act. Given the inference recorded by this Court on the anvil of the petitioner -company assigning to M/S Purvanchal Engineering Projects works hitherto allocated to it by NTPC has a bearing upon the respondent herein holding empowerment to solitarily insist upon the compliance by M/S Purvanchal Engineering Projects of the apposite provisions of the Act also in the event of non -compliance thereto occurring it alone being penally inculpable.

(3.) Contrarily, the respondent herein was de - facilitated to for the reasons aforesaid hold of the petitioner - company yet especially when it is not executing the work hitherto allotted to it by NTPC, to form an opinion of the petitioner -company subsequent to 24.11.2006 whereat it assigned the apposite works for their execution to M/S Purvanchal Engineering Projects holding any liability to beget compliance with or adherence to the apposite provisions of the Act nor also it was tenable on the part of the respondent herein to hold any opinion of any infraction at its instance standing begotten of the aforesaid provisions of the Act. Amplifying vigor to the aforesaid inference stands spurred from the factum of a manifestation in Annexure P -6 unveiling the factum of NTPC engaging M/S Purvanchal Engineering Projects to complete the execution of the apposite project besides when there exists a disclosure therein of NTPC as the Principal employer undertaking to adhere to the apposite provisions of the Act, in sequel thereto also the respondent herein could not conclude of the petitioner -company holding in any manner any liability to mete reverence to its apposite provisions. Also it was inapt for the respondent herein to conclude of the petitioner -company infracting the apposite provisions of the Act especially when the principal employer as manifested in Annexure P -6 had rather undertaken therein to mete reverence to the apposite provisions of the Act. The learned ASGI had contended of the definition of "Contractor" occurring in Section 2 (C) of the Act which stands extracted hereinafter encompasses also the liability of the petitioner - company arising from infraction if any even by M/S Purvanchal Engineering Projects of any of its provisions. He contends of the opening part of the definition of "Contractor" occurring in Section 2 (c) of the Act aforesaid while communicative of establishments as is the work undertaken to be executed by M/S Purvanchal Engineering Projects when would on its completion produce a result initially assigned to be produced by the petitioner -company hence on completion of work by the assignee of the petitioner -company the work whereof stood initially allotted to it by NTPC to the petitioner -company notwithstanding the apposite assignment of work hitherto allotted to it by the NTPC occurring prior to the institution of the complaint yet when on its completion it would produce a result as initially was enjoined to be produced by the petitioner -company would also thereupon attract the liability of the petitioner -company qua infringements if any qua the apposite provisions of the Act begotten by M/S Purvanchal Engineering Projects especially when the provisions of Section 2 (c) of the Act stand attracted qua the petitioner herein. However, the aforesaid submission as espoused by the learned ASGI while his reading the definition of contractor occurring in Section 2 (c) aforesaid in a fragmentary and in an isolated manner has obviously rendered him unmindful of the latter communications occurring therein whereas on theirs standing read conjunctively with the earlier communications occurring therein theirs bearing a parlance of not as articulated by the learned ASGI of its mere completion begetting the sequel of its standing foisted with an inculpatory penal liability alongwith its assignee rather a reading of the apposite provisions in their entirety bearing a signification of for a entity or an individual to fall within the ambit of the definition of a "Contractor", it or he merely undertaking to suo moto complete the work for the establishment besides also encompassing within its ambit any entity/individual who for completing the work of the establishment supplies contract labour to the entity/individual who has secured an award for its execution from the competent authority moreover also takes within its fold a sub - contractor whose services stand engaged by the principal employer for supplying man power on a contract basis for producing a given result for the establishment. Now with M/S purvanchal Engineering Projects being the assignee of the works hitherto allotted for execution to the petitioner - company by NTPC thereupon perse its undertaking to by completing works assigned to it by the petitioner -company produce the apposite result of its hence completing the project for the assignor naturally its concert to complete execution of the project hitherto to be executed by the petitioner -company by its suo moto engaging contract labour or its requisitioning though an appropriate aegis supply of contract man power for execution of the apposite work of the establishment besides its also requisitioning the services of a sub -contractor for the latter purveying man power to it for enabling it to complete the project would render the assignee to solitarily fall within the ambit of the definition of "contractor" dehors the factum of its completing the apposite work for the establishment or its executing the project hitherto to be executed by the petitioner -company. For reiteration, a reading of the definition of contractor occurring in Section 2 (c) of the Act in a wholesome manner when efficaciously effaces the submission of the learned ASGI of on a mere completion of the project by M/S Purvanchal Engineering Projects an assignee of the petitioner -company begetting also the fastening of the apposite penal liability on completion thereof upon the petitioner -company, also has the effect of this Court standing facilitated to conclude of the petitioner -company when has assigned the work hitherto allotted to it by NTPC to M/S Purvanchal Engineering Projects, the latter alone holding authority to engage workmen either through contractors or through sub -contractors. In no manner it can be held of the petitioner -company hence either suo moto engaged/engaging contract labourers for completion of the work of the project or its engaging or having engaged relevant man power for executing the project through contractors or through sub -contractors. In sequel when the aforesaid inference constrains a conclusion of the petitioner - company falling outside the ambit of the definition of "contractor" occurring in Section 2 (c) of the Act besides when as manifested in Annexure P -6 of the principal employer undertaking therein to mete adherence to the provisions of the Act thereupon a conclusion can also stand erected of the petitioner -company also not being the principal employer.