Anand Prasad Sinha, J.

1. Since both these applications arise out of the same order in the same case, they have been heard together and are being disposed of by this common judgment.

2. In Criminal Misc. No. 273 of 1981 (R) petitioner No. 1 is the Company and petitioner No. 2 has been described to be the Area Manager and in Criminal Misc. No. 323 of 1981 (R) the petitioner is a Contractor. These two applications have been directed against the impugned order dated 27th September 1980 passed by the learned Chief Judicial Magistrate, Dhanbad in C.L.A. (Cr.) Case No. 55 of 1980 by which the learned Magistrate has taken cognizance against the petitioners for an offence under Sec.23 of the Contract Labour (Regulation & Abolition) Act, 1970 (hereinafter to be referred to as the Act).

3. The prosecution in question has been launched for violation of notification dated February 1, 1975 published in the Gazette of India Part II, Sec.3(II) on 15th February 1975 (Annexure-1). It appears that the aforesaid notification has been issued under the powers conferred by Sub-section (1)of Sec.10 of the Act. From a perusal of the notification in question, it appears that the employment of contract labour in the works specified in the Schedule has been prohibited. The Schedule mentioned is as follows:

1. Raising-cum-selling of coal.

2. Coal loading and un-loading.

3. Overburden removal and earth cutting.

4. Soft coke manufacturing.

5. Driving of stone drifts and miscellaneous stone cutting underground.

4. The criminal case has been initiated on the basis of a complaint filed by the Labour Enforcement Officer (Central) Dhanbad and the three petitioners, as aforesaid, have been indicated as the accused persons. The complaint has been filed under Sec.23 of the Act and further there is a mention of Section 10(1) of the said Act. It appears that the main allegation has been attributed to be that the accused persons had permitted employment of 22 contract labour for overburden removal and earth cutting work at their Chasnalla Colliery through the engagement of Gutu Mehar Construction, Contractor, which had been prohibited to be done through contract labour-vide Govt. of India Ministry of Labour Notification dated 1st February 1975, which appears to be Annexure-1 stated above.

5. Mr. S.B. Sinha, learned Counsel appearing on behalf of the petitioners, has raised several points. He has challenged the prosecution on the basis of the notification aforesaid, on the ground that any violation of the notification cannot attract the penal provision of the Act unless the conduct attributed against the petitioners falls strictly under the penal provision for having violated the provisions of the Act or rules framed thereunder.

6. I find sufficient force in this contention. It appears that a definite provision has been made in the Act itself for making rules and that is Section 35 of the Act. It is an admitted fact that the prosecution sought is not for violation of any rule or Act whatsoever.

7. The prosecution cannot take aid of Sec.10(1) of the Act for launching the prosecution as appearing in the facts and circumstances of the case on the strength of the alleged notification because if there be any contravention of any such notification issued as contemplated under Sec.10(1) of the Act, I am afraid that will not attract the penal provision of the Act and the remedy for the prosecutor may be elsewhere in a different manner in an administrative way affecting the licence etc. But Sec.10(1) of the Act cannot be substituted for Sec.35 of the Act at all. In support of this contention, learned Counsel for the petitioner has relied upon a decision of the Supreme Court in the case of East India Commercial Co. Ltd., Calcutta V/s. Collector of Customs, Calcutta -- . Of course this decision relates to a case under Sea Customs Act but the principle laid down in para 34 of this decision is quite applicable in the facts and circumstances of the instant case. Para 34 of