Thomas John Muthoot v. Assistant Labour Officer, Punalur and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY, THE 16TH DAY OF JUNE 2014/26TH JYAISHTA, 1936** ## **Crl.MC.No. 1650 of 2010 ( )** **---------------------------AGAINST THE COMPLAINT AND PROCEEDINGS IN THE SUMMARY TRIAL CASE BEARING NUYMBER 289/2006, OF THE LEARNED JUDICIAL FIRST CLASS MAGISTRATE COURT III, PUNALUR** **---------** **PETITIONER/ACCUSED :** **--------------------------------** **THOMAS JOHN MUTHOOT, MUTHOOT CENTRE, PUNNEN ROAD, THIRUVANANTHAPURAM.** **BY ADV. SRI.C.M.STEPHEN** **RESPONDENTS/COMPLAINANTS :** **-----------------------------------------------** **1. ASSISTANT LABOUR OFFICER, PUNALUR.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT. BINDU GOPINATH** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 16-06-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **BP** ## **Crl.MC.No. 1650 of 2010 ( )** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** |**ANNEXURE A1:**|**COPY OF THE COMPLAINT FILED BY THE FIRST RESPONDENT.**| |---|---| |**ANNEXURE A2:**|**COPY OF THE REGISTRATION CERTIFICATE UNDER SECTION**| ||**45-1 OF THE RESERVE BANK OF INDIA ACT.**| |**ANNEXURE A3:**|**COPY OF THE INSPECTION NOTE.**| |**ANNEXURE A4:**|**RECITAL FROM THE KERALA MATERNITY BENEFIT**| ||**RULES 1964.**| |**ANNEXURE A5:**|**RECITAL FORM THE MATERNITY BENEFIT ACT, 1961.**| |**ANNEXURE A6:**|**RECITAL FROM THE ACT (SECTION 2 (1)(B) OF THE MATERNITY**| ||**BENEFIT ACT AND SECTION 2(8) OF THE KERALA SHOPS AND**| ||**COMMRCIAL ESTABLISHMENTS ACT)**| |**RESPONDENT'S**|**ANNEXURES :**<br>**NIL.**| ## **//TRUE COPY//** ## **P.A. TO JUDGE** **BP** ## **P.D. RAJAN, J.** **- - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No.1650 of 2010 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16[th] day of June, 2014** ## **O R D E R** This petition is filed under Section 482 of the Code of Criminal Procedure to quash Annexure A1 complaint pending before the Judicial First Class Magistrate Court III, Punalur under Sections 21(2) and 22 of the Maternity Benefit Act, 1961 (hereinafter called 'the Act') by invoking inherent jurisdiction. 2. The above complaint was filed by the Assistant Labour Officer, Punalur for the contravention of the above provisions of the Act. The petitioner is a partner of 'Muthoot Bankers', Chandrika Towers, Kunnicodu, which is a partnership firm with eight partners. In the above complaint, the manger or the managing director of the establishment was not arrayed as an accused. Instead of that, the petitioner was impleaded as an accused. He has no direct contact with the day-to-day business of the Crl.M.C.No.1650 of 2010 **-2-** partnership firm. Therefore, if trial is proceeded on the basis of Annexure A1 complaint, it is only a mere abuse of the process of the Court. Hence, he prays to invoke inherent jurisdiction. 3. The first respondent is the Assistant Labour Officer, Punalur. He inspected M/s. Muthoot Bankers, Chandrika Towers, Kunnikode, Kollam District, on 19.07.2005 at 3 p.m. and noticed that the petitioner failed to maintain and produce information regarding the name and address of the women engaged in the establishment, their payments, application or notes if any received under the Act for the period from 01.01.2004 to 30.06.2005 and he also failed to maintain proper muster roll as per the Act. In these circumstances, Annexure A1 complaint was filed before the Judicial First Class Magistrate Court III, Punalur. Hence the petition. 4. The learned counsel appearing for the petitioner contended that the establishment consists of only five employees. Therefore, the provisions of the Maternity Crl.M.C.No.1650 of 2010 **-3-** Benefit Act, 1961 is not applicable to that firm. He further submits that the first respondent has not produced any notification before the competent authority to show that he is an empowered officer for inspection as per Section 14 of the Act. The manager or the managing director, who is in charge of the day-to-day affairs of the establishment was not arraigned as a party. In the absence of such pleadings, prosecution against the petitioner will not lie. 5. The learned counsel appearing for the first respondent strongly resisted the above contention and contended that the respondent is the empowered officer as per the notification. More over by virtue of the notification dated G.O.MS No.5/72 Labour dated 21.01.1972 the provisions are applicable to those firms functioning as per the Kerala Shops and Commercial Establishments Act, 1960. Section 2 (1) (b) of the Maternity Benefit Act, 1961 provides as follows: 2. Application of Act.- (1) It applies, in the first instance,(a) x x x x Crl.M.C.No.1650 of 2010 **-4-** (b) to every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months. Therefore, it is clear that the provisions of the Act shall apply only to such establishment or class of establishments, industrial, commercial, agricultural or other units where ten or more persons are employed on the day of preceding 12 months. The first respondent verified the records and in Annexure A3 it is mentioned that there are only five members i.e. two male and three female employees working in the establishment. Therefore, it is clear that when the employees are less than ten, the establishment will not come under the provision of the above Act. 6. As per Section 14 of the Act, a notification is necessary by the appropriate Government empowering inspectors for the purpose of the above Act. Section 14 reads thus: “ **14. Appointment of Inspectors.** - The appropriate Government, may by notification in the Official Gazette, appoint such officers as it thinks fit to be Inspectors for Crl.M.C.No.1650 of 2010 **-5-** the purpose of this Act and may define the local limits of the jurisdiction within which they shall exercise their functions under this Act.” The learned counsel appearing for the petitioner contended that the first respondent neither produced the notification in the trial court nor before this Court to show that he is the empowered officer as per the Act. 7. The liability of the manager or the managing director or managing agent has been explained in Section 3 (d) (iii) of the Act. Section 3 (d) (iii) reads thus: 3(d) “employer” means- (i) x x x x (ii) x x x x (iii) in any other case, the person who, or the authority which, has the ultimate control over the affairs of the establishment and where the said affairs are entrusted to any other person whether called a manger, managing director, managing agent, or by any other name, such person; The petitioner contended that he is only an ordinary partner. The managing partner is one Sri.Thomas Muthoot. Annexure A3 report prepared by the first respondent shows that one Rajasekharan Pillai is the manager of the Crl.M.C.No.1650 of 2010 **-6-** establishment and on the day of inspection he was absent and one Susan was in charge of the firm. She put her signature in Annexure A3 for and on behalf of the firm. He further contended that instead of impleading the manager or the manager who is in charge of the firm, first respondent impleaded a partner, who has no direct connection with the day-to-day administration of the establishment. The Apex Court while discussing Section 17 (1) of the Prevention of Food Adulteration Act, 1954 explained the liability of the company. In **Municipal Corporation of Delhi v. Ram Kishan Rontai [1983 SCC** ## **(Cri) 115** held as follows: “15. So far as the Manager is concerned, we are satisfied that from the very nature of his duties it can be safely inferred that he would undoubtedly be vicariously liable for the offence; vicarious liability being an incident of an offence under the Act. So far as the Directors are concerned, there is not even a whisper nor a shred of evidence nor anything to show, apart from the presumption drawn by the complainant, that there is any act committed by the Directors from which a reasonable inference can be drawn that they could also be vicariously liable. In these circumstances, therefore, we find ourselves in complete agreement with the argument of the High Crl.M.C.No.1650 of 2010 **-7-** Court that no case against the Directors (Accused 4 to 7) has been made out ex facie on the allegations made in the complaint and the proceedings against them were rightly quashed.” ## This Court in another decision **Rahul Sehgal v. State of Kerala [2014 (2) KHC 11]** held as follows: “There is no averment in Annexure-1 that the petitioner was in charge of day-to-day business of the Company and was the person responsible for the conduct of the business of the Company. The petitioner is the Chairman of the Company and simply because a person becomes Chairman or a Director of the Company does not mean that he is fully responsible for the day-to-day affairs of the Company. Vicarious liability can be inferred against a company or its Directors only after satisfying the condition u/s.34 of the Drugs and Cosmetic Act. Person made liable should be in charge of the company at the relevant time, which cannot be presumed from the complaint. Otherwise it may result in implication of innocent Chairman and Directors who have no connection with the offence and thereby cause miscarriage of justice. Therefore, this is a fit case to invoke the inherent jurisdiction under the Code to quash the criminal proceedings against the petitioner. It is clarified that, while quashing the proceedings, there is no bar for the 2[nd] respondent to prosecute the person in charge of and was responsible to the company for the conduct of the business of the company, according to law. Hence, I quash all proceedings in C.C.No.2408/2003 against the petitioner, who is the second accused, pending before Additional Chief Judicial Magistrate Court, Ernakulam invoking inherent jurisdiction U/s.482 of the Code of Criminal Procedure.” This Court in **Rahul Sehgal's** case (cited supra), while discussing Section 18(a) (i), Section 32, Section 27 (d) of Crl.M.C.No.1650 of 2010 **-8-** ## Drugs and Cosmetic Act, 1940 held as follows: “There is no averment in Annexure-1 that the petitioner was in charge of day-to-day business of the Company and was the person responsible for the conduct of the business of the Company. The petitioner is the Chairman of the Company and simply because a person becomes Chairman or a Director of the Company does not mean that he is fully responsible for the day-to-day affairs of the Company. Vicarious liability can be inferred against a company or its Directors only after satisfying the condition u/s.34 of the Drugs and Cosmetic Act. Person made liable should be in charge of the company at the relevant time, which cannot be presumed from the complaint. Otherwise it may result in implication of innocent Chairman and Directors who have no connection with the offence and thereby cause miscarriage of justice.” 8. There is no averment in Annexure-A1 that the petitioner was responsible for the affairs of the establishment as mentioned under Section 3 (d) (iii) of the Act. When responsible managing partners and managers are available, the act of the 1[st] respondent impleading the petitioner as the accused in the above proceedings is a mere abuse of the process of court. According to Section 482 Cr.P.C., inherent powers can be invoked for three grounds mentioned thereunder, to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of Crl.M.C.No.1650 of 2010 **-9-** any Court or otherwise to secure the ends of justice. The Apex Court in **State of Haryana** v. **Bhajanlal** , [1992 SCC (Crl) 426] laid down the parameters for invoking inherent jurisdiction. Considering the averments in this petition, it is clear that this is a fit case to invoke inherent jurisdiction under Section 482 Cr.P.C. and I do so. Hence in the circumstance, I quash Annexure AI complaint against the petitioner. Since the firm has only three persons, it will not come under the Maternity Benefit Act, 1961 and this petition is allowed. Sd/- **P.D. RAJAN, JUDGE** //True copy// P.A. TO JUDGE shg/