ORDER L. Mohapatra, J.

1. This revision is directed against the order of conviction and sentence passed by the Courts below wherein the petitioner No. 2 as Manager of Petitioner No. 1 has been convicted for commission of offence under Section 41(2) of the Water (Prevention & Control of Pollution) Act, 1974 (hereinafter called "the Act") and has also been sentenced to simple imprisonment for one and half years as well as fine of Rs. 5,000/-in default to undergo simple imprisonment for one month.

2. From the record, it appears that notice was issued on the question of admission and a direction was also issued for disposal of the revision at the admission stage. In view of such earlier direction issued by this Court, the case was taken up for hearing and disposal at the stage of admission.

3. The complainant is Orissa State Pollution Control Board and the case of the complainant is that the Hon'ble Supreme Court in Writ Petition (Civil) No. 16 of 1991 issued a direction on 9-1-1995 to the complainant to identify all the polluting units in the city of Puri, issue notice to them within six weeks directing them to set up pollution control device/effluent treatment plants within a reasonable period, failing which, to issue notice for closure of the units. Pursuant to such direction of the Supreme Court, the South Eastern Railway Hotel situated in Chakratirtha Road was identified as one of the eight polluting units in Puri Town. The complainant found that the said hotel is discharging its effluent without treatment to "Dhobisahi Nala" which was ultimately discharged to "Bankimuhan" without obtaining the consent of the complainant as required under Sections 25 and 26 of the Act. Having found that petitioner No. 1 unit was discharging its effluent in the manner as stated above, the complainant issued notice to the petitioner No. 1 to set up an effluent treatment plant by 31st of December, 1995. On 12-6-1996 the Environmental Scientist and Environmental Engineer of the complainant collected sample of waste-water discharged by the petitioner No. 1 unit and on analysis it was found that the effluent discharge did not meet the standard prescribed by the Board. On 20-7-1996 the Board issued notice to the petitioner No. 1 again as well as to the petitioner No. 2 directing to show cause within thirty days as to why action under Section 31-A of the Act shall not be taken against them. It is alleged that there was no response to the said notice. Again on 31-8-1996 the complainant called upon the petitioners to attend the Hearing Committee of the board and the petitioner No. 2 appeared before the Hearing Committee on 23-9-1996 and prayed for time till November, 1996 for installation of the effluent treatment plant. The prayer was turned down by the Hearing Committee and a direction was issued under Section 33-A of the Act on 18-10-1996 for closure of the hotel unit within fifteen days till installation of effluent treatment plant. The said notice was received on 11-11-1996. However, while inspection made by the Officers of the complainant on 28-12-1996 the hotel was found operating and discharging the effluent as before. In view of such violation as alleged by the complainant, the complaint was filed for commission of offence under Section 41(2) of the Act.

4. The petitioners took the plea before the trial Court that petitioner No. 1 Hotel is a Central Government organization under the Ministry of Railways and Chief Commercial Manager (Catering) Garden Reach, Calcutta is the Head of the Department and he being the decision making authority, the notice issued by the complainant board had been sent to him for necessary action. The further plea taken by the petitioners is that the complaint is not maintainable as the petitioner No. 1 hotel is not a company and there is no prosecution against the Head of the department for commission of the alleged offence.

5. The complainant examined two witnesses and produced and proved several documents whereas the defence examined one witness. The trial Court on consideration of the materials placed before it convicted the petitioners for commission of offence under Section 41(2) of the Act and sentenced petitioner No. 2 as stated earlier. An appeal was preferred before the Sessions Judge, Bhubaneswar which was also dismissed giving rise to the present revision.

6. The learned counsel appearing for the petitioners challenged the findings of both the Courts below basically on two grounds :

(1) The petitioner No. 1-Hotel is not a company registered under the Companies Act and the same being a department of the Central Government under Ministry of Railways and the Chief Commercial Manager (Catering) being its Head of the Department, the notice issued to petitioner No. 1 in the name and style of M/s. South Eastern Railway Hotel without the person representing for it is not a valid notice as envisaged under the law.

(2) the petitioner No. 2 not being the occupier and as per provisions contained in the Act, the Head of the Department being the person to be prosecuted, conviction of petitioner No. 2 under the Act is liable to be set aside.

7. From the reading of the judgment passed by the appellate Court, it appears that apart from the above two grounds, two other grounds were taken. The learned counsel appearing for the petitioners confined his argument to the above two points and drew attention of the Court to the discussion made by the learned Sessions Judge on those two grounds. From the discussion made by the learned Sessions Judge, it appears that the findings have been (arrived) at in respect of the above two grounds without assigning any reason for the same. I, therefore, feel it necessary to examine the above two grounds which involve questions of law.

8. So far as the first ground is concerned, the learned Sessions Judge found the notice issued against the petitioner No. 1 to be valid. The question raised before the Courts is that the petitioner No. 1, Hotel is not a company registered under the Companies Act, but a department of the Central Government under the Ministry of Railways.

This question has not been answered by the appellate Court. The learned Counsel appearing for the complainant board does not dispute that the petitioner No. 1 is a Hotel run by the Central Government under the Ministry of Railways. It is also not in dispute that the Chief Commercial Manager (Catering) whose office is located at Garden Reach, Calcutta functions as its Head of the Department.

Section 48 of the Act runs as follows :--

"Offences by Government Departments :-- Where an offence under this Act has been committed by any Department of Government, the Head of the department shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this section shall render such Head of the Department liable to any punishment if he proves that the offence was committed without his knowledge or that he exercised all due vigilance to prevent the commission of such offence."

9. On perusal of the said provision, it is clear that where an offence under the Act is committed by any Department of the Government, the Head of the Department shall be deemed to be guilty of the offence and shall liable to be prosecuted and punished. So far as the present case is concerned, there being no dispute that the No. 1, Hotel is run by the Ministry of Railways and is a Department of Central Government, Section 48 is attracted. In view of what has been provided in Section 48, it is the Head of the Department who is to be prosecuted and none else. Admittedly, so far as petitioner No. 1- Hotel is concerned, the Head of the Department is the Chief Commercial Manager (Catering) Garden Reach and admittedly he has not been prosecuted. All notices have been issued to Petitioner Nos. 1 and 2, but no notice has been issued under the Act to the Head of the department. So far as petitioner No. 2 is concerned, there is no dispute that he is the Manager of the Hotel and Section 48 of the Act only provides prosecution of the Head of the Department.

I am, therefore, of the view that both the Courts below committed an error of law by holding that even under Section 48 of the Act, the Manager of the Hotel can be prosecuted even though admittedly he is not the Head of the Department. I, accordingly, find that notice issued by the complainant to petitioner Nos. 1 and 2 are not valid notices in view of Section 48 of the Act. The above discussions also cover the ground No. 2 taken by the petitioners. Since I have already held that notices issued to the petitioner Nos. 1 and 2 are not valid notices in view of Section 48 of the act and that only the Head of the Department in this case can be prosecuted, the prosecution of the Petitioner No. 2 as Manager of the Hotel is not in accordance with law. Moreover, during pendency of the case before the Courts below, the petitioner No. 1 unit has already installed the effluent treatment plant as required.

10. In view of the above finding, the Criminal Revision is allowed and the order of conviction and sentence are set aside.