Prosecution lacks authority to proceed with criminal proceedings based on a struck down notification.

JUDGMENT :

SANJAY KUMAR DWIVEDI, J.

1. In both the petitions, common question of facts and laws are involved and that is why, both the petitions are being heard together with consent of the parties.

2. These petitions have been filed for quashing the entire criminal proceedings in connection with C.L. Act Case No. 359 of 2010 including the cognizance order dated 16.11.2010, pending in the court of the learned Judicial Magistrate, 1st Class, Dhanbad.

3. Prosecution report was filed by opposite party no. 2 alleging therein that opposite party no. 2 conducted an inspection on 20.08.2010 at Bhowra (North) Colliery of M/s. Bharat Coking Coal Limited and in course of inspection, it was observed that 15 contract labourers were engaged by the Contractor M/s. Banwari Lal Agarwala Infra (J.V.) for executing the contract work of transportation of coal from XIV(A) and XV seams of Bhowra (North) Colliery of E.J. Area, which was prohibited vide notification No. SO 2063 dated 21.06.1988 issued by the Ministry of Labour, Government of India and thereby have acted in contravention of Section 10(1) of the Contract Labour (Regulation & Abolition) Act, 1970. In the prosecution report, it was further stated that show-cause notices were issued to the accused persons and the same were served.

4. Learned counsel for the petitioners submits that the order taking cognizance dated 16.11.2010 is a mechanical order and the same has been passed without any application of mind. He further submits that the basis of prosecution of the petitioners relates to engagement of contract labour in the establishment of the petitioners in violation of Notification No. 2063 dated 21.06.1988 issued by the Ministry of Labour, Government of India, which has been struck down by the Hon’ble Division Bench of Delhi High Court. He further submits that the continuation of the criminal proceeding against the petitioners will be an abuse of the process of the court as the notification for whose violation the prosecution is initiated does not exist in the eye of law.

5. Learned counsel for opposite party no. 2 submits that a Gazette Notification is a 'Law' within the meaning of Article 13(3)(a) of the Constitution of India and the accused persons by engaging contract workers against the prohibited category of employment, have violated the fundamental rights of the contract workers. He further submits that in contravention of Section 10(1) of the Contract Labour (Regulation & Abolition) Act, 1970, the principal employer had engaged 55 contract labourers on 22.01.2010 through their contractor M/s Banwarilal Agarwala Infra (JV) for executing the work of removal of overburden and extraction of coal at Bhowra (North) colliery of Eastern Jharia Area of BCCL. The engagement of contract labour for the job of earth cutting, removal of over burden raising, loading and unloading of coal has been prohibited by the Ministry of Labor and Employment, Government of India, New Delhi and the same is illegal and therefore, the accused are liable for prosecution under Sections 23 and 24 of the Contract Labour (Regulation & Abolition) Act, 1970. He also submits that the learned court has rightly taken cognizance and there is no illegality in the order taking cognizance.

6. Learned counsel for the State jointly submit that the learned court has rightly taken cognizance.

7. In view of the above submissions of the learned counsel for the parties, the Court has gone through the materials on the record including the contents of the C.L. Act case and finds that the complaint filed by the opposite party no. 2 against the petitioners before the learned court disclose that the opposite party no. 2 as Inspector notified under Section 28 of the Contract Labour (Regulation and Abolition) Act, 1970 made inspection of the establishment of the petitioners on 20.08.2010. It appears from the said petition of complaint that the petitioners have engaged contract labourers in the establishment in violation of the Notification No