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SUPREME COURT OF INDIA
A.P. SEN AND S. NATARAJAN, JJ.
U.P. Pollution Control Board, Appellant
Versus
M/s. Modi Distillery and others, Respondents.
Criminal Appeal No. 415 of 1986, D/- 6-8-1987.
Advocates appeared
Mr. R. N. Trivedi, Addl. Advocate General U. P., Mrs. S. Dixit and Mr. C. B. Singh, Advocates with him for Appellant, Mr. Ram Jethmalani and Mr. Rajinder Sachhar, Sr. Advocates and Mr. D. N. Mishra, Advocate with them, for Respondents.
Held, that on a combined reading of the provisions contained in sub-ss. (1) and (2); we have no doubt whatever that the Chairman, Vice-Chairman, Managing Director and members of the Board of Directors of Messrs Modi Industries Limited, the Company owning the industrial unit Messrs Modi Distillery could be prosecuted as having been in charge of and responsible to the company, for the business of the industrial unit Messrs Modi Distillery owned by it and could be deemed to be, guilty of the offence with which they are charged. The learned Single Judge has failed to bear in mind that this situation has been brought about by the industrial unit viz. Messrs Modi Distillery of Messrs Modi Industries Limited because in spite of more than one notice being issued by the Board, the unit of Messrs Modi Distillery deliberately failed to furnish the information called for regarding the particulars and names of the Managing Director, Directors and other persons responsible for the conduct of the Company. Having wilfully failed to furnish the requisite information to the Board, it is now not open to the Chairman, Vice-Chairman, Managing Director and other members of the Board of Directors to seek the Courts assistance to derive advantage from the lapse committed by their own industrial unit. The learned Single Judge has focused his attention only on the technical flaw in the complaint. and has failed to comprehend that the flaw had occurred due to the recalcitrant attitude of Messrs Modi Distillery and furthermore the infirmity is one which could be easily removed by having the matter remitted to the Chief Judicial Magistrate with a direction to call upon the appellant to make the formal amendments to the averments contained in paragraph 2 of the complaint so as to make the controlling company of the industrial unit figure as the concerned accused in the complaint. All that has to be done is the making of a formal application for amendment by the appellant for leave to amend by substituting the name of Messrs Modi Industries Limited, the Company owing the industrial unit, in place of Messrs Modi Distillery. Although as a pure proposition of law in the abstract the learned Single Judges view that there can be vicarious liability of the
Chairman, Vice-Chairman, Managing Director and members of the Board of Directors under-sub sub-so (1) or (2) of s. 47 of the Act unless there was a prosecution against Messrrs Modi Industries Limited, the Company owning the industrial unit, can be termed as correct, the objection raised by the petitions before the High Court ought to have been viewed not in isolation but in the conspectus of facts and events and not in vacuum. We have already pointed out that the technical flaw in the complaint is attributable to the failure of the industrial unit to furnish the requisite information called for by the Board. Furthermore, the legal infirmity is of such a nature, which could be easily cured. Another circumstance which brings out the narrow perspective of the learned Single Judge is his failure to appreciate the fact that the averment in paragraph 2 has to be construed in the light of the averments contained in paragraphs 17, 18 and 19 which are to the effect that the Chairman, Vice-Chairman, Managing Director and members of the Board of Directors were also liable for the alleged offence committed by the Company. (Para 6)
Judgment
SEN, J. :- This appeal by special leave is directed against the judgment And order of the High Court of Allahabad dated May 16, 1984 setting aside in its revisional jurisdiction an order of the Chief Judicial Magistrate, Gaziabad dated November 3, 1983 directing the issue of process against the respondents on a complaint filed by the appellant under Section 44 of the Water (Prevention and Control of Pollution) Act, 1974. The issue involved is whether the Chairman, Vice-Chairman, Managing Director and members of the Board of Directors of Messers Modi Industries Limited, the Company owning the industrial unit called Messers Modi Distillery could be proceeded against on a complaint against the said industrial unit. A learned single Judge (K.C. Agarwal J.) following the decision of this court in State (Delhi Admn.) v. I.K. Nangia (1980) 1 SCC 258 interpreting a similar provision contained in sub-s.(4) of S. 17 of the Prevention of Food Adulteration Act, 1954 has held that there was no sufficient ground against the respondents inasmuch as the allegations made in the complaint do not constitute an offence punishable under Section 44 for the admitted contravention of Ss. 25(1) and 26 read with S. 47 of the Act. The question essentially turns upon the rule of construction to be adopted in S. 47.
2. The facts of the case are these. Messers Modi Industries Limited is an existing company under the Companies Act, 1956. It is a large business organisation having diversified business activities. Prior to the commencement of the Act it had established an industrial unit called Messers Modi Distillery at Modi Nagar, Gaziabad engaged in the business of manufacture and sale of industrial alcohol. During the process of manufacture of such industrial alcohol, the said industrial unit discharges its highly noxious and polluted trade effluents into the Kali River through the Kadrabad Drain which is a stream within the meaning of S. 2(j) of the Act and thereby causes continuous pollution of the said stream without the consent of the Board and therefore it falls within the purview of S. 26. Under the provisions of S. 26, as amended, it has been made mandatory for every existing industry to obtain the consent of the Board for discharging its trade effluent into a stream or well or sewer or on land. The last date for submission of such application seeking the consent of the Board by an existing industry had been extended up to December 31, 1981. In accordance with the procedure laid down under Ss. 25(1) and 26 of the Act, the Company was required to submit an application for consent of the Board in the prescribed form along with the prescribed consent fee and the particulars. Instead of the Company its industrial unit, namely, Messers Modi Distillery on March 27, 1981 applied to the Board for grant of consent to discharge its trade effluents into the stream. The aforesaid application was scrutinised by the Board and found incomplete in many respects. The Board accordingly by its letter dated April 29, 1981 informed the said industrial unit with regard to the discrepancies and the particulars wanting. There was no response from the respondents nor did they rectify the discrepancies pointed out or furnish the particulars required. The Board accordingly by its letter dated July 30, 1981 refused to grant the consent prayed for in the public interest since the application was found incomplete in many respects and also because the said industrial unit did not have proper arrangements for treatment of its highly polluted trade effluents. Thereafter, the Board by its letter dated June 30, 1982 issued a notice under S. 20 of the Act directing the Company to furnish certain information regarding the particulars and names of the Managing Director, Directors and other persons responsible for the conduct of the Company, but the respondents did not furnish the information called for. This was followed by two subsequent letters of the Board dated February 21,
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