M/S Giddegowda Contractors Vs State by Bhadravathi Old Town P S

M/S GIDDEGOWDA CONTRACTORS NO.SHOP NO.5, NO.538 11TH CROSS, 4TH MAIN, NAGAPURA MAIN ROAD, WEST OF CHORD ROAD, MAHALAKSHMIPURAM, BANGALORE-560086 REPRESENTED BY ITS PARTNER SRI ROOPESH GOWDA

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&PETITIONER

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(BY SRI. PRASHANTH P N, ADVOCATE)

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Digitally signed by REKHA R Location: High Court of Karnataka

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AND:

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STATE BY BHADRAVATHI OLD TOWN P S REPRESENTED BY THE

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STATE PUBLIC PROSECUTOR

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S GOPINATH

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ASSISTANT DIRECTOR (GRADE-1) OFFICE OF DEPUTY DIRECTOR, SOCIAL WELFARE OFFICE BHADRAVATHI, SHIMOGA KARNATAKA-577301

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&RESPONDENTS

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(BY SRI.VINAY MAHADEVAIAH, HCGP FOR R1 & R2)

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HC-KAR

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THIS CRL.P IS FILED U/S.482 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING TO QUASH THE FIR REGISTERED AS CR.NO.46/2022 AGAINST THE PETITIONER FOR THE OFFENCE P/U/S 7 AND 9 OF PROHIBITION OF EMPLOYEMENT AS MANUAL SCAVENGERS AND THEIR REHABILITATION ACT, 2013 BY THE BHADRAVATHI OLD TOWN POLICE STATION ON HE BASIS OF THE WRITTEN COMPLAINT LODGED BY THE INFORMANT / 2ND RESPONDENT FOR BEING AN ABUSE OF PROCESS OF LAW PRODUCED AND ANNEXED AS ANNEXURE-A.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MS. JUSTICE J.M.KHAZI

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ORAL ORDER

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Petitioner who is the sole accused has filed this petition under Section 482 Cr.P.C, challenging the criminal proceeding initiated against him in Cr.No.46/2022 for the offences punishable under Sections 7 and 9 of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act 2013.

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In support of the petition, petitioner has contended that he is one of the partners of M/s Giddegowda contractors. The Karnataka Urban Water Supplies and Drainage Board Division, Shimoga awarded contract, as per agreement dated 14.12.2018. On 08.04.2022 the

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Assistant Director (Grade-I), filed a complaint alleging that on 27.02.2022 when he visited a Wet Well Tank near private bus stand, adjacent to Indira canteen, Bhadravati, he found manual scavenging work carried out without any safety gears. Based on the said complaint, the concerned police registered the case in Cr.No.46/2022, and petitioner was issued with notice. He has secured anticipatory bail.

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On 26.02.2022, the workers were trying to remove

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defunct Pump set from the wet well in order to replace it with a new pump set. The workers were provided with safety gears, and other material, including uniform. The wet well was closed for operations due to failure of the pump set, and there was no sewage water or other affluent flown to the sewage treatment plant. No manual scavenging was done. The workers who were working were not belonging to Schedule Caste or Schedule Tribe.

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Wet well tank is neither a sewage nor a septic tank. The complaint is filed on the instruction of Kumar, an ex-

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employee of petitioner was not given sub-contract. Even where the entire allegations made in the complaint taken into consideration on its face value, it would not attract any of the provisions of the act. Continuation of the proceedings, would amount to abuse of the process of the Court and pray to dismiss the petition.

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On the other hand, learned HCGP representing respondents submit that petitioner being the partner of M/s Giddegowda partners was awarded the contract of commissioning of 400 MM Daya ductile, pumping main from KSRTC bus stand to the proposed STP near APMC

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and providing house service connections, etc., on 08.04.2022 when S Gopinath, Assistant Director Grade-I, inspected the spot, he found few workers engaged in manual scavenging without safety gears and in this connection, he filed the complaint. On the basis of it case is registered in Cr.No.46/2022 and investigation is taken up. Matter requires detailed investigation, and pray to dismiss the petition.

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HC-KAR

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Heard arguments and perused the record.

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It is not dispute that Partnership firm M/s

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Giddegowda Contractors, of which petitioner is one of the partner was awarded with the contract in question and execution of the said work was going on. At this stage, making allegations that workers were engaged in manual scavenging complaint came to be filed. Of course petitioner is disputing that any manual scavenging work was carried on and the work were engaged in the work were not belonging to Schedule Caste or Schedule Tribe and the there was no violation of the provisions of the Act. Learned counsel for petitioner drew the attention of the Court to the Provisions of The Prohibition of Employment as a Manual Scavengers and their Rehabilitation Act 2013, the preamble of the act reads as follows.

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"An Act to provide for the prohibition of employment as manual scavengers, rehabilitation of manual

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scavengers and their families, and for matters connected therewith or incidental thereto.

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WHEREAS promoting among the citizens fraternity assuring the dignity of the individual is enshrined as one of the goals in the Preamble to the Constitution;

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AND WHEREAS the right to live with dignity is also implicit in the Fundamental Rights guaranteed in Part III of the Constitution;

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AND WHEREAS article 46 of the Constitution, inter alia, provides that the State shall protect the weaker sections, and, particularly, the Scheduled Castes and the Scheduled Tribes from social injustice and all forms of exploitation;

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AND WHEREAS the dehumanising practice of manual scavenging, arising from the continuing existence of insanitary latrines and a highly iniquitous caste system, still persists in various parts of the country, and the existing laws have not proved adequate in eliminating the twin evils of insanitary latrines and manual scavenging;

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AND WHEREAS it is necessary to correct the historical injustice and indignity suffered by the manual scavengers, and to rehabilitate them to a life of dignity".

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As evident from the preamble, it not only prohibits

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employment of manual scavengers, but also provides for

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rehabilitation of the manual scavengers and their families

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and matter related there to.

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Section 2( 1 )(e) defines the term insanitary latrine as;

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"2(1)(e) insanitary latrine= means a latrine which requires human excreta to be cleaned or otherwise handled manually, either in situ, or in an open drain or pit into which the excreta is discharged or flushed out, before the excreta fully decomposes in such manner as may be prescribed:

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Provided that a water flush latrine in a railway passenger coach, when cleaned by an employee with the help of such devices and using such protective gear, as the Central Government may notify in this behalf, shall not be deemed to be an insanitary latrine".

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Section 2( 1 )(g) defines the term manual scavenger;

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"2(1)(g) manual scavenger= means a person engaged or employed, at the commencement of this Act or at any time thereafter, by an individual or a local authority or an agency or a contractor, for manually cleaning, carrying, disposing of, or otherwise handling in any manner, human excreta

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in an insanitary latrine or in an open drain or pit into which the human excreta from the insanitary latrines is disposed of, or on a railway track or in such other spaces or premises, as the Central Government or a State Government may notify, before the excreta fully decomposes in such manner as may be prescribed, and the expression <manual scavenging= shall be construed accordingly.

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Explanation.4For the purpose of this clause,4

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(a) <engaged or employed= means being engaged or employed on a regular or contract basis;

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(b) a person engaged or employed to clean excreta with the help of such devices and using such protective gear, as the Central Government may notify in this behalf, shall not be deemed to be a 'manual scavenger";

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Section 5 prohibit in sanitary latrines and employment and engagement of manual scavengers. It reads as under;

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"5(1) Notwithstanding anything inconsistent therewith contained in the Employment of Manual Scavengers and Construction of Dry Latrines

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(Prohibition) Act, 1993 (46 of 1993), no person, local authority or any agency shall, after the date of commencement of this Act,4

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(a) construct an insanitary latrine; or

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(b) engage or employ, either directly or indirectly, a manual scavenger, and every person so engaged or employed shall stand discharged immediately from any obligation, express or implied, to do manual scavenging.

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(2) Every insanitary latrine existing on the date of commencement of this Act, shall either be demolished or be converted into a sanitary latrine, by the occupier at his own cost, before the expiry of the period so specified in clause (b) of sub-section (1) of section 4:

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Provided that where there are several occupiers in relation to an insanitary latrine, the liability to demolish or convert it shall lie with,4

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(a) the owner of the premises, in case one of the occupiers happens to be the owner; and

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(b) all the occupiers, jointly and severally, in all other cases:

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Provided that the State Government may give assistance for conversion of insanitary latrines into sanitary latrines to occupiers from such categories of persons and on such scale, as it may, by notification, specify:

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Provided further that non-receipt of State assistance shall not be a valid ground to maintain or use an insanitary latrine, beyond the said period of nine months.

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(3) If any occupier fails to demolish an insanitary latrine or convert it into a sanitary latrine within the period specified in sub-section (2), the local authority having jurisdiction over the area in which such insanitary latrine is situated, shall, after giving notice of not less than twenty one days to the occupier, either convert such latrine into a sanitary latrine, or demolish such insanitary latrine, and shall be entitled to recover the cost of such conversion or, as the case may be, of demolition, from such occupier in such manner as may be prescribed".

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Section 6 provides that any contract,

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agreement or other instrument for manual convening shall be terminated and it shall be void and inoperative. It reads as follows.

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"6.(1) Any contract, agreement or other instrument entered into or executed before the date of commencement of this Act, engaging or employing a person for the purpose of manual scavenging shall, on the date of commencement of this Act, be terminated

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and such contract, agreement or other instrument shall be void and inoperative and no compensation shall be payable therefor.

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(2) Notwithstanding anything contained in subsection (1), no person employed or engaged as a manual scavenger on a full-time basis shall be retrenched by his employer, but shall be retained, subject to his willingness, in employment on at least the same emoluments, and shall be assigned work other than manual scavenging".

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Similarly, Section 7 prohibits any person,

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local authority, or any agency to engage or employee, any person for hazardous cleaning of sewage or septic tank. He treats as follow.

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"7. No person, local authority or any agency shall, from such date as the State Government may notify, which shall not be later than one year from the date of commencement of this Act, engage or employ, either directly or indirectly, any person for hazardous cleaning of a sewer or aseptic tank".

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Section 8 prescribe penalty for contravention

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of Section 5 or Section 6.

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"8. Whoever contravenes the provisions of section 5 or section 6 shall for the first contravention be punishable with imprisonment for a term which may extend to one year or with fine which may extend to fifty thousand rupees or with both, and for any subsequent contravention with imprisonment which may extend to two years or with fine which may extend to one lakh rupees, or with both".

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Similarly, Section 9 prescribed punishment for contravention of Section 7.

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"9. Whoever contravenes the provisions of section 7 shall for the first contravention be punishable with imprisonment for a term which may extend to two years or with fine which may extend to two lakh rupees or with both, and for any subsequent contravention with imprisonment which may extend to five years or with fine which may extend to five lakh rupees, or with both".

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Section 10 deals with cognizance and

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limitation for prosecution. It reads as under.

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"10. No court shall take cognizance of any offence punishable under this Act except upon a complaint thereof is made by a person in this behalf within

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three months from the date of the occurrence of the alleged commission of the offence".

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From the perusal of these provisions, more particularly Section 10 makes it evident that a complaint under Section 200 is required to be filed within three months of the alleged incident. Consequently, the concerned police have no jurisdiction to register the case and conduct investigation. Therefore, the continuation of the criminal proceedings based on the first information and the criminal case registered by the concerned police amount to abuse of the process of the Court and as such, it is liable to be quashed, and accordingly, the following:

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ORDER

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(i) Petition filed by petitioner/Accused under Section 482 Cr.P.C is allowed.

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(ii) Criminal proceeding initiated against the petitioner/accused in Cr.No.46/2022 of Bhadravathi old Town PS, is quashed.

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