Skip to content


Deoraj Divanchand Verma Vs. the State - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberCriminal Revn. Appln. No. 7 of 1958
Judge
Reported inAIR1959Bom509; 1959CriLJ1307
ActsCentral Provinces Shops and Establishments Act, 1947 - Sections 2(5) and 2(6); Partnership Act, 1932 - Sections 15 and 18; Central Provinces Shops and Establishments Rules, 1947 - Rules 9(3), 11(1), 11(2), 11(3) and 14; Code of Criminal Procedure (CrPC) - Sections 342
AppellantDeoraj Divanchand Verma
RespondentThe State
Appellant AdvocateG.M. Joshi, Adv.
Respondent AdvocateW.B. Pendharkar, Special Government Pleader
Excerpt:
- - 1) who inspected the shop on 17-5-57. if a register was maintained and the notices published as required by the rules, the applicant could well have produced them before the trial court. i do not think he was in any way prejudiced by the alleged failure of the inspector to give a copy of the employer personally, assuming that a default under rule 9(3) has taken place in not giving a copy to the 'employer',it is clear that tiwari who was working in the shop was a person in charge of the establishment, had control over such establishment, and would therefore be an 'employer'.9. i hold that the convictions of the applicant for the three offences viz......think he was in any way prejudiced by the alleged failure of the inspector to give a copy of the employer personally, assuming that a default under rule 9(3) has taken place in not giving a copy to the 'employer', it is clear that tiwari who was working in the shop was a person in charge of the establishment, had control over such establishment, and would therefore be an 'employer'.9. i hold that the convictions of the applicant for the three offences viz. the breach of rule 11, sub-rule (1), (2) and (3) of the central provinces and berar shops and establishments rules, 1947 were correct and i uphold the same. having regard to the circumstances that no previous conviction is proved, and that the offences were of a very minor nature it seems to me that the sentence of fine of rs. 25/-.....
Judgment:
ORDER

1. The applicant has been convicted for breaches of rule 11, Sub-rules (1), (2) and (3), the Central Provinces Shops and Establishments Rules, 1947, read with Rule 14 thereof, which imposes a fine which may extend to Rs. 50/- for contravention of any of the provisions of Rule 11. The offences alleged to have been committed under the Sub-rules mentioned above by the applicant are (1) that he did not maintain a register of employees in form C appended to the Rules, (2) that he did not exhibit in his establishment a notice in form D specifying the daily hours of work and intervals for rest and meals to be allowed to persons employed, and (c) that he did not exhibit in his establishment a notice in form D specifying the daily hours of work and intervals for rest and meals to be allowed to persons employed, and (c) that he did not exhibit in his establishment any notice in form E specifying the day or days of the week on which the persons employed by him shall be given a holiday. Though the applicant in his examination under Section 342 of the Code of Criminal Procedure denied to have committed these offences and alleged that he had maintained the register and the notices, there is no doubt that the alleged defaults did take place. This is proved by the evidence of the Inspector Ganguli (P.W. 1) who inspected the shop on 17-5-57. If a register was maintained and the notices published as required by the rules, the applicant could well have produced them before the trial Court. He did not do so.

2. The principal contention on behalf of the applicant in this Court has been that he was ill and in a hospital at Jabalpur on the day on which the Inspector inspected the shop and therefore he could not be convicted of the said offence, though the applicant admitted in his examination that he was a partner in the shop known as the Empire Sports doing business at Mount Road, Nagpur.

3. The question argued by Mr. G.M. Joshi on behalf of the applicant is whether he would fall within the definition of 'employer' in section 2(5) of the Central Provinces and Berar Shops and Establishments Act. If he does not, obviously, he cannot be called upon to fulfil the duties required by rule 11, Sub-rules (1), (2) and (3) of the Rules.

4. Now, the definition of 'employer' in section 2(5) of the Act is as follows:-

''employer' means a person having charge of or owning an establishment to which this Act applies and includes the manager, agent or any other person acting in the general management or control of such establishment.'

It seems to me that having regard to this definition, there is not the slightest doubt that the applicant did fall within the definition of 'employer' and I say so for two reasons. On his admission that he was a partner, he would by virtue of the provisions of the Partnership Act, particularly Section 15 thereof, be an owner of the assets of the firm and to that extent he would be said to be owning the shop. There is no dispute that the Empire Sports shop was an establishment as defined in Section 2(6) of the Act.

5. Mr. Joshi on behalf of the applicant urged that the applicant was only a sleeping partner and was not a person having charge or control over the management and therefore he would not fall within the definition of 'employer'. In my opinion, the two clauses 'person having charge of' and 'owning an establishment to which this Act applies' stand unrelated to each other and one cannot import the requirements of the first clause into the second clause, that is to say, it cannot be said that a person owning an establishment must also be shown to be in charge of it or controlling the establishment. The definition would equally apply to a part-owner or, as Mr. Joshi called him, a sleeping partner. This is quite apart from the fact that it is not established in the present case that the applicant was a sleeping partner. His statement merely was that he was a partner and if he intended to show that he had nothing whatsoever to do with the control or management of the establishment, it was his duty to have produced the partnership deed which may or may not have established a contract to the contrary as contemplated by Section 15 of the Partnership Act. Since no such contract was produced, and the applicant admitted that he was a partner, it is clear that he was an owner of the establishment.

6. Apart from this, he would also be deemed to be an agent of the firm by virtue of Section 18 of the Partnership Act, and so would also be included in the definition of 'employer'. As to this, Mr. Joshi urged that the concluding clause of Section 2(5) acting in the general management or control of such establishment' applies to all the three categories which precede that clause, viz., 'manager', 'agent' or 'any other person acting'. That, in my opinion, is not a correct interpretation of Section 2(5) because the concluding words 'in the general management or control of such establishment' can logically apply to the third category alone viz. 'any other person acting' and not to 'manager' or 'agent'. If the argument of Mr. Joshi were to be accepted, the clause would read 'the manager..... such establishment' which would make no sense because the manager is already a manager and it would not be a fair construction of the clause to impute so much redundancy to the legislature. Similarly, an agent represents the proprietary body, and therefore, it is unnecessary to mention that he should be in the general management or control of such establishment. These words 'in the general management or control of such establishment' can in my opinion, logically apply only to 'any other person acting' and not to 'manager' or 'agent'.

7. Upon this view, therefore, the applicant was rightly held to be an 'employer'. If this be so, the infringement of rule 11, Sub-rule (1), (2) and (3) has been sufficiently established and has actually not been challenged before me. The conviction of the applicant for the said offences was therefore correct.

8. Mr. Joshi on behalf of the applicant urged another point, viz., that the Inspector when he inspected the establishment did not comply with the requirement of rule 9(3), that is to say, on examining the establishment he did not furnish a copy of the inspection Note to the employer. He pointed to the finding that it was handed over to one Tiwari who was one of the employees of the shop. The Additional Sessions Judge held that consequent upon the copy being handed over to Tiwari, there was sufficient compliance with Rule 9(3) (the Additional Sessions Judge has wrongly mentioned it as Section 9(3).) In my opinion, nothing turns upon this contention. Even assuming that it is true that the Inspector did not furnish a copy of the Inspection Note to the employer as required by Rule 9(3), I do not see how it can affect the merits of the convictions in the present case. Mr. Joshi urged that the provisions of rule 9(3) are made with the object of giving a preliminary intimation to the person concerned that he was being accused of certain offences and to give him an opportunity either to rectify the omissions or to satisfy the Inspector that no breach had been committed. Even so, I do not see how that can affect the trial of the offence, or the finding that the offence was committed. If the applicant at all had an effective answer to the prosecution, he could have furnished evidence to that effect at the trial. I do not think he was in any way prejudiced by the alleged failure of the Inspector to give a copy of the employer personally, assuming that a default under Rule 9(3) has taken place in not giving a copy to the 'employer', it is clear that Tiwari who was working in the shop was a person in charge of the establishment, had control over such establishment, and would therefore be an 'employer'.

9. I hold that the convictions of the applicant for the three offences viz. the breach of rule 11, Sub-rule (1), (2) and (3) of the Central Provinces and Berar Shops and Establishments Rules, 1947 were correct and I uphold the same. Having regard to the circumstances that no previous conviction is proved, and that the offences were of a very minor nature it seems to me that the sentence of fine of Rs. 25/- for each of the offences was somewhat severe. I therefore reduce the fine for each of the three offences to Rs. 10/- each.

10. Subject to the modification in the sentence the application for revision is dismissed.

11. Sentence modified.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //