1. Both these petitions under S. 482 of the Criminal Procedure Code are being disposed of by this common judgment, inasmuch as they arise out of the same case, being Criminal Case No. 2214 of 1984, on the file of Judicial Magistrate, First Class, 2nd Court, Nagpur. The applicant in Criminal Application No. 501 of 1984, Shri S. B. Deshmukh, Chief Regional Manager, State Bank of India, Nagpur, is accused No. 1 in the said prosecution, while the applicant in Criminal application No. 522 of 1984, M/s. Yasha Pest Control, is accused No. 2 in the said criminal case. These two accused have preferred these two criminal applications under S. 482 of the Criminal Procedure Code. The non-applicant No. 1 in both these criminal applications is the State represented through the Labour Enforcement Officer (Central), Nagpur.
2. The facts leading to the present prosecution are not disputed. The applicant in Criminal Application No. 501 of 1984, Shri S. B. Deshmukh, is the Chief Regional Manager of the State Bank of India. He has the administrative control over the branches of the said Bank in Vidarbha region. The applicant in Criminal Application No. 522 of 1984, M/s. Yasha Pest Control, is a contractor who supplies labours, and the said contract labours are employed in the establishment of the State Bank of India, Nagpur.
3. The complainant-Labors Enforcement Officer, filed a Criminal Complaint No. 2214 of 1984 against these two applicants under Ss. 23 and 24 of the Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter referred to as the 'Act'). The allegations in the said complaint are that the Labour Enforcement Officer, (Central), Nagpur, had inspected the establishment of the accused No. 1 State Bank of India, under the provisions of the above Act and the rules made thereunder, and observed the following irregularities :
'Employment of contract labour through M/s. Yasha Pest Control, Contractor is prohibited category work in contravention of S. 10(1).'
It is further alleged that the inspection report dated 14th April, 1984 was delivered to the accused pointing out the above infringements.
4. According to the complainant, the accused by not implementing the provisions of the Act and the rules made thereunder have committed an offence and rendered himself for penalty under Ss. 23 and 24 of the Act. The complainant, therefore, prays for issue of process against the accused.
5. Both these criminal applications invoking the inherent powers of this Court under S. 482 of the Criminal Procedure Code pray for quashing of the Complaint Case No. 2214 of 1984 as the same is in clear and gross abuse of the process of the Court and is meant only to harass the applicants.
6. The inspection report dated 14th April, 1984, which is the basis of the present prosecution, is at Annexure-3. It states in Item No. 6 of the particulars that 12 workers were found working as contract labours on 14th April, 1984, employed through the contractor M/s. Yasha Pest Control, in the establishment of the State Bank of India. It further states that such employment of contract labours for maintenance-cleaning and dusting of the building of the State Bank of India is in breach of S. 10(1) of the Act after prohibition issued under Government of India Notification No. 779(E), dated 9th December, 1976.
7. The trial Judge, on perusal of the complaint, has passed the following order :
'The complaint is presented by Labour Enforcement Officer Shri Atisykumar. Register it and issued summons to the accused for an offence punishable u/s 23 and 24 of Contract Labour (Regulation and Abolition) Act, 1970.'
The accused 1 and 2 were directed to appear on 7th August, 1984. On learning of the issuance of summons, the State Bank of India, through Shri S. B. Deshmukh, presented this petition on 2nd August, 1984 in this Court, while the accused No. 2, Yasha Pest Control, presented its petition on 7th August, 1984. Rule has been issued and made returnable early. Interim stay of further proceedings in the trial Court was also ordered.
8. Shri G. G. Modak, advocate, appeared for the State Bank of India, while Shri C. W. Moharir, advocate-appeared for the contractor, M/s. Yasha Pest Control. The State is represented in both the petitions by Shri Ramesh Darda, advocate.
9. Amongst other contentions the main contention on behalf of Shri Modak, advocate for accused No. 1, is that under S. 1(4) of the Act, the same is made applicable to every establishment in which twenty or more workmen are employed within the preceding 12 months as contract labour. So also the Act is made applicable to every contractor who employs within the preceding 12 months, 20 or more workmen. According to Shri Modak, the inspection note-Annexure 3, shows that at the material time, only 12 labours were employed and, therefore, the Act does not apply to both the accused. According to him, even though S. 10(1) of the Act states that the appropriate Government may prohibit by notification employment of contract labour in any process, operation or other work in any establishment, yet the word 'establishment' mentioned in S. 10 of the Act must refer to an establishment to which the Act applies.
10. Thus, according to Shri Modak, Counsel for the State Bank of India accused No. 1, there is no breach of S. 10(1) of the Act. Alternatively, he submitted that mens rea is an essential ingredient for the offence under this Act, unless it is expressly or impliedly excluded by it. In the instant case, the documents filed along with the petition and the queries made on behalf of the State Bank of India with the Labour Enforcement Officer clearly shows that the State Bank of India bona fide believed that the Act does not apply to their establishment and, at any rate, they were not committing any breach by employing more than 20 labours. Thus there was no intentional breach and the absence of mens rea would render them innocent.
11. Shri C. W. Moharir, advocate, for accused No. 2, M/s. Yasha Pest Control, the contractor, submitted on the same lines as Shri Modak, advocate, and further added that the plain reading of S. 10(1) of the Act would show that the prohibition of certain type of contract labour is qua an employer and not the contractor. He also pleaded absence of mens rea on his behalf.
12. Shri Ramesh Darda, advocate, appearing for the State-complainant supported the issuance of process against both the accused. It was his contention that S. 1(4)(a) of the Act regarding the applicability of the same to establishments where more than 20 workmen are employed as labourers or to every contractor who employs more than 20 workmen, is not a definition clause. The definition of 'establishment' is in sub-clause (e) of S. 2 of the Act, which states :-
'(i) any office or department of the Government or a local authority, or
(ii) any place where any industry, trade, business manufacture or occupation is carried on.'
The definition of 'contractor' is given in Sub-cl. (c) of S. 2 of the Act. Both these definitions do not relate to the number of contract labours employed by them.
13. Lastly, it was the submission of Shri Ramesh Darda, Counsel for the complainant, that S. 10(1) of the Act is non-obstante clause beginning with the words 'notwithstanding' anything contained in this Act'. This section, therefore, overrides other provisions of the Act and once an order prohibiting employment of contract labours is duly issued under a notification, it operates as a total bar for that class of contract labours irrespective of the number of workers employed. In respect of the alternate submission of Shri Moharir and Shri Modak, advocates, about the absence of mens rea, Shri Ramesh Darda, for the complainant, submitted that the same is not necessary in the case of a welfare legislation for the benefit of the poor workers and that the provisions of the Act should be construed strictly and absolutely.
14. With the assistance of the Counsel for both the parties, I have gone through the complaint, inspection report, the correspondence between the accused and the Labour Enforcement Officer, etc.
15. The first contention of Shri Modak, Counsel for accused No. 1 that S. 10(1) of the Act does not apply to the establishment of the State Bank of India, in view of S. 1(4) making it applicable only to an establishment where 20 or more workmen are employed as contract labours, does not stand to reason. The scheme of the Act and the aims and objectives of the Act were considered by the Supreme Court in BHEL Workers Association and v. Union of India & Others, reported in : (1985)ILLJ428SC . It is observed in paragraphs 4 and 5 as follows at page 430 to 432 :
'4. It is true that for a long time, the maleficent nature of the system of contract labour and the destructive results of contract labour and the destructive results which flow from it had been noticed by various committees appointed by the Government, including the Planning Commission and that as a result of the reports and the decisions etc. that took place, the Contract Labour (Regulation and Abolition) Act, 1970 was passed. According to the Statement of Objects and Reasons :
1. The system of employment of contract labour lends itself to various abuses. The question of its abolition has been under the consideration of Government for a long time. In the Second Five Year Plan, the Planning Commission made certain recommendations, namely, undertaking of studies to ascertain the extent of the problems of contract labour, progressive abolition of system and improvement of service, conditions of contract labour where the abolition was not possible. The matter was discussed at various meetings of Tripartite Committees at which the State Governments were also represented and general consensus of opinion was that the system should be abolished wherever possible or practicable and that in cases where this system could not be abolished altogether, the working conditions of contract labour should be regulated so as to ensure payment of wages and provision of essential amenities.
2. The proposed Bill aims at abolition of contract labour in respect of such categories as may be notified by appropriate Government in the light of certain criteria that have been laid down, and at regulating the service conditions of contract labour where abolition is not possible. The Bill provides for the setting up of Advisory Boards of a tripartite character, representing various interests, to advise Central and State Governments in administering the legislation and registration of establishments and contractors. Under the Scheme of the Bill, the provision and maintenance of certain basic welfare amenities for contract labour, like drinking water and first-aid facilities, and in certain cases rest-rooms and canteens, have been made obligatory. Provisions have also been made guard delays in the matter of wage payment.
5. The long title of the Act describes it as 'an Act to regulate the employment of contract labour in certain establishments and to provide for its abolition in certain circumstances and for matters connected therewith'. As the long title itself indicates, the Act does not provide for the total abolition of contract labour, but only for its abolition in certain circumstances, and for the regulation of the employment of contract labour in certain establishments. Section 1(4) applies to all establishments in which 20 or more workmen are employed or were employed on any day of the preceding 12 months as contract labour and to every contractor who employs or has employed on any day of the preceding 12 months 20 or more workmen. The Act does not apply to establishments in which work of an intermittent or casual nature alone is performed. Section 2(a) defines an establishment as meaning : (i) any office or department of the Government or local authority; or (ii) any place where any industry, trade, business, manufacture or occupation is carried on. Section 2(g) defines 'principal employer' as meaning :
(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,
(ii) in a factory, the owner or occupier of the factory and where a person has been named as the manager of the factory under the Factories Act, 1948, the person so named,
(iii) in a mine, the owner or agent of the mine and where a person has been named as the manager of the mine, the person so named,
(iv) in any other establishment, any person responsible for the supervision and control of the establishment.
The definitions of 'establishment' and 'principal employer' clearly do not exclude but on the other hand expressly include the Government or any of its departments and the Act applied to them too. The Act is not confined to private employers only. Section 2(c) defines a contractor, in relation to an establishment, as meaning 'a person who undertakes to produce a given result for the establishment, other than a mere supply of goods or article of manufacture to such establishment, through contract labour or who supplies contract labour for any work of the establishment and includes a sub-contractor'. Sections 3 and 4 provides for the constitution of Central and State Advisory Boards. Section 7 provides for the registration of an establishment, S. 8 provides for the revocation of registration and S. 9 provides for the effect of non-registration. Section 10 which is important provides for and enables the prohibition of employment of contract labour in any processes operations or other work employment in any establishment. Section 10 may be usefully extracted :
(1) Notwithstanding anything contained in this Act, the appropriate Government may, after consultation with the Central Board, or, as the case may be, a State Board, prohibit, by notification in the Official Gazette, employment of contract labour in any process, operation or other work in any establishment.
(2) Before issuing any notification under Sub-s. (1) in relation to an establishment, the appropriate Government shall have regard to the conditions of work and benefits provided for the contract labour in that establishment and other relevant factors, such as -
(a) Whether the process, operation or other work is incidental to, or necessary for the industry, trade, business, manufacture or occupation that is carried on in the establishment;
(b) Whether it is of perennial nature, that is to say, it is of sufficient duration having regard to the nature of industry, trade, business, manufacture or occupation carried on in that establishment;
(c) Whether it is done ordinarily through regular workmen in that establishment or an establishment similar thereto;
(d) Whether it is sufficient to employ considerable number of wholetime workmen.
Section 12 provides for the licensing of contractors. Sections 13, 14 and 15 provides for the grant of licences, revocation, suspension and amendment of licences and appeal. Sections 16 to 21 make detailed provision for the welfare and health of contract labour. Section 20 in particular provides that if any amenity required to be provided for the benefit of the contract labour employed in an establishment is not provided by the contractor within the prescribed time, such amenity shall be provided by the principal employer. Section 21 makes the contractor responsible for payment of wages to each worker employed by him as contract labour but further prescribes that the principal employer shall nominate a representative duly authorised by him to be present at the time of disbursement of wages by the contractor. Sections 22 to 27 provide for penalties and procedure. Section 28 provides for the appointment of inspecting staff. Section 30 makes the provisions of the Act effective notwithstanding anything inconsistent therewith contained in any other law or in the terms of any agreement or contract of service or any standing orders applicable to the establishment. It, however, saves to the contract labour any favourable benefits that the contract labour may be entitled to under the agreement, contract of service or standing orders. Section 35 invests the appropriate Government with power to make rules for carrying out the purposes of the Act. Rules made by the Central Government are required to be laid before each House of Parliament for a total period of 30 days. In exercise of the powers conferred by S. 35 of the Contract Labour (Regulation and Abolition) Act, 1970, the Central Government has made the Contract Labour (Regulation and Abolition), Central Rules, 1971. Chapter II of the rules relates to matters pertaining to the Central Advisory Contract Labour Board, while Chapter III of the rules deals with registration of establishments and licensing of contractors. Rule 25 prescribes the forms, terms and conditions of licence. Rule 25(ii)(iv) prescribes that it shall be the condition of every licence that the rates of wages shall not be less than the rates prescribed under the Minimum Wages Act, 1948, for such employment where applicable, and where the rates have been fixed by agreement, settlement or award, not less than the rates so fixed. Rules 25(ii)(v)(a) prescribes that it shall be the condition of every licence that,
(v) (a) in cases where the workmen employed by the contractor perform the same or similar kind of work as the workmen directly employed by the principal employer of the establishment, the wage rates, holidays, hours of work and other conditions of service of the workmen of the contractor shall be the same as applicable to the workmen directly employed by the principal employer of the establishment on the same or similar kind of work;
Provided that in the case of any disagreement with regard to the type of work the same shall be decided by the Chief Labour Commissioner (Central) whose decision shall be final;
Similarly Rule 25(ii)(v)(b) provides that in other cases the wage rates, holidays, hours of work and conditions of service of the workmen of the contractor shall be such as may be specified in this behalf by the Chief Labour Commissioner (Central). While determining the wage rates, holidays, hours of work and other conditions of service under Rules 25(ii)(v)(b) the Chief Labour Commissioner is required to have regard to the wage rates, holidays, hours of work and other conditions of service obtaining in similar employments. There is no dispute before us that the Payment of Wages Act applies as much to contract labour as to labour directly employed by the principal employer of the establishment.'
16. Further in another ruling of the Supreme Court in Veg. oils Private Ltd. v. The Workmen, : (1971)IILLJ567SC , it is observed in paragraph 31 as follows :
'31. The following points emerge from S. 10(1). The appropriate Government has power to prohibit the employment of contract labour in any process, operation or other work in any establishment; (2) Before issuing a notification prohibiting contract labour, the appropriate government has to consult the Central or State Board, as the case may be which we have already pointed out, comprises of the representatives of the workmen, contractor and the industry; (3) Before issuing any notification under sub-section (1), prohibiting the employment of contract labour, the appropriate Government is bound to have regard not only to the conditions of work and benefits provided for the contract labour in a particular establishment, but also other relevant factors enumerated in clause (a) to (d) of sub-section (2); and (4) under the Explanation which really relates to clause (b), the decisions of the appropriate Government, or the question whether any process, operation or other work is of perennial nature, shall be final.'
17. Thus, it was the question of abolition of contract labour which was under consideration of the Government for a long time, and after various meetings, the general consensus of opinion was that the system should be abolished wherever possible or practicable and that in cases where this system could not be abolished altogether, the working conditions of contract labour should be regulated as to ensure payment of wages and provision of essential amenities. The Act does not apply to establishments in which work of an intermittent or casual nature alone is performed, but certainly applies to such establishment where an activity of perennial nature and of sufficient duration which could ordinarily be done through regular workmen in that establishment is carried out.
18. There are also safeguards incorporated in S. 10 of the Act. Sub-clause (2) of S. 10 of the Act states that -
'Before issuing any notification under sub-section (1) in relation to an establishment, the appropriate Government shall have regard to the conditions of work and benefits provided for the contract labour in that establishment and other relevant factors, such as -
(a) Whether the process, operation or other work is incidental to, or necessary for the industry, trade, business, manufacture or occupation carried on in that establishment;
(b) Whether it is of perennial nature, that is to say, it is of sufficient duration having regard to the nature of industry, trade, business, manufacture or occupation carried on in that establishment;
(c) Whether it is done ordinarily through regular workmen in that establishment or an establishment similar thereto;
(d) Whether it insufficient to employ considerable number of whole-time workmen.'
19. Explanation to S. 10 of the Act further makes it clear that 'if a question arises whether any process or operation or other work is of perennial nature, the decision of the appropriate Government thereon shall be final. It must be assumed that the appropriate Government in the instant case before issuing the Notification No. 779(E) dated 9th December, 1976 have gone through the guidelines provided by sub-clause (2) of S. 10 of the Act, and that it is as a result of that enquiry that the Government considered the activity of contract labour for purpose of sweeping, cleaning, dusting and watching of buildings of establishments should be prohibited.
20. Moreover, S. 10(1) of the Act gives authority to the appropriate Government to prohibit employment of contract labour in any process, operation or other work in any establishment. Thus, the prohibition under S. 10 of the Act is not qua the establishment, but it is qua a particular activity of contract labour. Once the object of S. 10(1) is realised, then it would be obvious that the same is applicable to all establishments, irrespective of the number of workmen employed in any particular activity of contract labour which is prohibited under S. 10(1) of the Act.
21. Lastly, I find that S. 10(1) opens with a non-obstante clause, and the non-obstante clause means notwithstanding any statute to the contrary. A non-obstante clause is usually used in a provision to indicate that provision should prevail despite anything to the contrary in the provision mentioned in such non-obstante clause. In case there is any inconsistency or a departure between the non-obstante clause and another provision, one of the objects of such a clause is to indicate that it is the non-obstante clause which would prevail over the other clause, provided of course that there is no repugnancy between the two provisions. If the words of the enactment are clear and are capable of only one interpretation on a plain and grammatical construction of the words thereof, a non-obstante clause cannot cut down the construction and restrict the scope of its operation. In such cases the non-obstante clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment by the legislature by way of abundant caution and not by way of limiting the ambit and scope of the operative part of the enactment.
22. In view of the above, and particularly in view of the aims and objectives of the Act that it was the abolition of contract labour which was under consideration, one would realise that as and where possible abolition of a particular category of contract labour must prevail over the other provisions of the Act which merely relate to regulation of contract labour.
23. In dealing with Article 227 of the Constitution of India, Their Lordships of the Supreme Court in south India Corporation (P) Ltd. v Secretary, Board of Revenue, Trivandrum and another, : 4SCR280
'... It is well settled law that a special provision should be given effect to the extent of its scope, leaving the general provision of control cases where the special provisions does not apply... The expression 'subject to' conveys the idea of a provision yielding place to another provision or other provisions to which it is made, subject. Further Article 278 opens out with a non-obstante clause. The phrase 'now withstanding anything in the Constitution' is equivalent to saying that inspite of the other article of the Constitution, or that the other articles shall not be impediment to the operation of Article 278...'
24. Thus, I hold that S. 10(1) of the Act, the non-obstante clause, operates in its own field notwithstanding other provisions of the Act, and, hence, the contention of both the applicants that it does not apply to their establishments cannot be sustained.
25. The other alternate submission on behalf of both the accused is that mens rea is a necessary ingredient, and if the prosecution is unable to show any criminal intention on the part of the accused, then the prosecution cannot succeed. This submission has some substance.
26. It is well settled that mens rea is an essential ingredient in criminal offence. A statute may exclude the element of mens rea; it is, however, a sound rule of construction which is adopted in England and also accepted in India, to construe a provision which creates an offence in conformity with the common law rather than against it except, where the statute expressly or by necessary implication excludes mens rea. Of the question whether the element of guilty mind is excluded from the ingredients of an offence the mere fact that the object of the statute is to promote welfare activities or to eradicate a grave social evil is not by itself decisive. Only where it is absolutely clear that the implementation of the object of the statute would otherwise be defeated that mens rea may, by necessary implication, be excluded from a statute. The nature of the mens rea that would be implied in a statute creating an offence depends on the object of the Act and the provisions thereof. Refer paragraph 4 of the decision in the case of Nathulal v. State of Madhya Pradesh : 1966CriLJ71 , and paragraph-10 of the decision in the case of Inder Sain v. State of Punjab, : 1973CriLJ1537 .
27. In Sherras v. De Retzen, (1895) 1 Q.B. 918, it was observed by Wright, J., at page 921, that :
'There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by subject matter with which it deals, and both must be considered : Nichols v Hall, (1873) 8 C.P. 322.
28. Chapter VI of the Act contains the penal provisions under S. 22, 23, 24 and 25 of the Act. The present prosecution, on the basis of the complaint by the respondent No. 1, is under S. 23 and 24 of the Act. S. 23 of the Act states :'Whoever contravenes any provision of this Act or of any rules made thereunder prohibiting, restricting or regulating the employment of contract labour or contravenes any condition of licence granted under this Act, shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to one thousand rupees, or with both, and in the case of a continuing contravention with an additional fine which may extend to one hundred rupees for every day during which such contravention continues after conviction for the first such contravention.'
29. Section 24 of the Act refers to other offences for which penalty is provided elsewhere. This section is not at all attracted in the present prosecution, inasmuch as the same rests on the breach of notification prohibiting employment of contract labours.
30. Now, S. 23 of the Act, when it says that a contravention of any provision of the Act or Rules prohibiting, restricting or regulating the employment of contract labour is made punishable, it necessarily implies that the said contravention is done wilfully or intentionally. There is no exclusion of mens rea by the statute. There is also no exclusion of such mens rea by necessary implication of the statute.
31. Annexure-1 in the petition on behalf of accused No. 1 shows that the management had registered the establishment under the Act and had intimated about the completion of the construction work involving contract labours. They had also furnished information regarding the same along with Annexure-1. Annexure-2 is another letter on behalf of the State Bank of India dated 31st March 1984 making a query that the Government is empowered to make applicable the provisions of the Contract Labour Regulations Act to an establishment which has engaged even less than 20 persons as contract labours, and had asked if the Labour Commissioner would advise them whether any such notification has been issued. Annexure-3, which is the inspection report, on which the prosecution is based, addressed to the State Bank of India, indicates that certain irregularities should be rectified as pointed out in the said inspection report and, further, they should show cause within 10 days as to why legal action under S. 23 and/or S. 24 of the Act should not be taken against the management. Annexure-4 is the reply on behalf of the State Bank of India to the show cause notice. The perusal of the reply to the show cause notice clearly shows bona fide belief on the part of the State Bank of India that the provisions of the Act, as per their legal advice, do not apply to their establishment since they are employing less than 20 workmen.
32. These documents clearly show that there was no wilful or intentional breach of any of the provisions of the Act and, apparently, they are also not aware of the notification abolishing the contract labour activity regarding cleaning and dusting of the buildings. In the circumstances of the case, I am of the opinion that this is a fit case, where for want of any criminal intention on the part of the accused, the prosecution must fail.
33. In so far as the case of accused No. 2 the contractor, is concerned, I find that the plain reading of S. 10(1) of the Act, goes to show that a notification under S. 10(1) of the Act prohibits the employment of contract labour in any process, operation or other work in any establishments. Therefore, if at all there is any contravention, the same is done by the principal employer of the establishment. However, if the contractor had aided and abetted the employer in the commission of such offence, then he ought to have been prosecuted on those allegations. The perusal of the complaint in detail shows that all the basic allegations are made against the Chief Regional Manager, State Bank of India in first person, as is seen from paragraphs 2 to 6 of the complaint. Obviously, therefore, there are no averments or allegations made against the contractor, the accused No. 2.
34. Under the above circumstances, both the petitions will have to be allowed. In the result, therefore, both the criminal applications bearing Nos. 522 of 1984 and 501 of 1984 are allowed. The Complaint Case No. 2214 of 1984 and the process issued against the accused Nos. 1 and 2 thereunder are hereby quashed and set aside. The complaint is dismissed. Rule made absolute in above terms.