Obul Reddi, J.
1. These two connected appeals preferred by the State arise out of the judgments of the Additional Judicial Second Glass Magistrate, Nellore, acquitting the respondent of the charge framed against him In each case In Calendar Case No. 1483 of 1964 under Rule 16 (4) read with Rule 16 (7) and In Calendar Case No. 1484 of 1964 under Rule 16 (1) read with Rule 16 (7) punishable under Rule 18 of the rules framed under the Madras Shops and Establishments Act (36 of 1947),
2. The case against the accused In Calendar Case No. 1484 of 1964 is
(1) that he bad failed to enter the name of one Subrahmanyam, chief operator, In the register of employment, and
(2) that when the Assistant Inspector of Labour Inspected the theatre of the respondent (accused) at 6 p.m. on 31 May 1964, he found Subrahmanyam working In the establishment of the accused but when he Inspected the register of employment hid name was not found there.
Similarly, In Calendar Case No. 1483 of 1984, his name was not found In form J. the establishment notice to be exhibited at the theatre premises.
3. It was the defence of the accused In both the cases that Subrabmanyam was not an employee In his theatre, that his services were taken on loan from the management of the Leela Mahal Theatre, Vijayawada, and that, therefore, no offence has been committed by the theatre management In not showing his name in the register of employees and also in form J notice.
4. The magistrate took the view that the Leela Mahal Theatre management, Vijayawada, deputed Sabrahmanyam from 10 to 31 May 1964, and he was not, therefore, an employee In the establishment of the respondent, and consequently, there was no contravention of the statutory rules.
5. The learned Public Prosecutor invited my attention to the definition of an employee as given In Section 2 (12)(v) of the Madras Shops and Establishments Act (36 of 1947):
6. Section 2 (12)(v): ' person employed ' means-
In the case of a theatre, a person employed as an operator, clerk, doorkeeper, usher or In such capacity an may be specified by the (State) Government by general or special order.
7. This definition, the learned Public Prosecutor points out, is not similar to the definition of a person employed In the case of a shop Section 2 (12)(1) of the Act defines:
In the case of a shop, a person wholly or principally employed therein in connexion with the business of the shop.
8. In view of the fact that the words ' wholly or principally employed ' are not used in the definition of a parson employed in the case of a theatre, the learned Pallid Prosecutor argued that any parson employed either of deputation or on temporary basis or on trial would be a person employed in She case of a theatre within the meaning of Section 2 (12)(v) of the Act.
9. Sri Panduranga Rao, the learned Counsel appearing for the respondent, has contended that unless there is a contract of service between the employer and the employee whereunder the employee agrees to serve the employer subject to his control and supervision, the question of Subrahmanyam in this case becoming an employee of the theatre establishment at Nellore will not arise.
10. It is not the case of the prosecution that for the period between 10 and 31 May 1964, the theatre management at Nellore paid him any salary or that there was any agreement or contract of work between the respondent and Subrahmaoyam for this particular period. It Is also not disputed that Subrahmanyam's name was shown aa the chief operator of the Leela Mahal Theatre at Vijayawada and that he was In the pay-roll of the theatre establishment at Vijayawada. Therefore, the question that falls for consideration IB whether on these facts Subrahmanyam could be considered as a person employed In the theatre of the respondent.
11. The High Court of Gujarat In Jitendra Amulakhrai v. State of Gujarat [1964-II L L.J. 232], dealing with a case arising under the Bombay Shops and Establishments Act, held:
For the purposes of these sections and the rules, the employee must be an employee of the employer.
12. In that case a Superintendent of Police appointed a watchman and deputed his service to a bank on requisition from the bank. The salary of the watchman so appointed was paid by the Police department and his conditions of service and hours of work were also regulated by the Police department. The agent of the bank, where the watchman was working had no control over the watchman. Therefore, the prosecution of the agent of the bank under the provisions of the Bombay Shops and Establishments Act for not paying overtime wages to the watchman and for not giving holidays to him could not be sustained.
13. In the Instant case, the power to grant leave, to pay the salary and also to punish Subrahmanyam ware vested In the theatre management of Vijayawada. The disciplinary control over Sabrahmanyam was also with the minagemaat of the Vijayawada theatre and his services were only lent by the Vijayawada theatre for a short period of twenty days. It cannot, therefore, he Bald that by reason of the definition given In Section 2 (12)(v) of the Act, Suhrahmanyam became a person employed by the respondent.
14. The learned Counsel for the respondent has also relied upon a decision of their lordships Of the Supreme Court In Chintaman Rao v. State of Madhya Pradesh [1958-II L.L. J. 252] to show the Ingredients of employment. Their lordships observed that the concept of employment involves three things:
(2) employee, and
(3) the contract of employment.
The employer is one who employs, i.e., one who engages the services of other persona. The employee is one who works for another for hire. The employment is the contract of service between the employer and the employee where under the employee agrees to serve the employer subject to his control and super vision.
15. None of the Ingredients pointed out by their lordships appears to be present In the Instant case before me and, therefore, it cannot be said that for the purpose of Section 2 (12)(v) of the Act Subrahmanyam was a person employed in the service of the respondent. The employer is one who employs or engages or keeps a man In service or one who engages or uses his services for pay and In this case the services of Subrahmaniyam were engaged not by the respondent but by the Vijayawada theatre and his salary was also paid by the management of the Vijayawada theatre, and he was under the disciplinary control of the Vijayawada theatre.
16. I am unable to agree with the learned Public Prosecutor, on the facts presented In these two appeals, that Sabrahmanyam la a person employed within the meaning of Section 2 (12)(v) of the Act.
17. In the result, the two State appeals are dismissed and the judgments of the lower Court are confirmed.