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Gordhandas Tekchand Sindhi and ors. Vs. Indore City Municipality - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Case NumberCriminal Revn. No. 57 of 1956
Judge
Reported inAIR1957MP6; 1957CriLJ453; (1958)IILLJ734MP
ActsMadhya Bharat Shops and Establishments Act, 1952 - Sections 53 and 53(1)
AppellantGordhandas Tekchand Sindhi and ors.
Respondentindore City Municipality
Appellant AdvocateDevandas, Adv.
Respondent AdvocateP.R. Sharma, Govt. Adv.
DispositionPetition allowed
Cases ReferredRam Chandra Sharma v. State of U. P.
Excerpt:
- .....act for any offence for which an employer in an establishment is punishable. provided that the firm or association may give nolicc to the inspector that it has nominated one of its members who is resident in the state to be the employer for the purpose of this act and such individual shall so long as he is so resident be deemed to be the employer for the purpose of this act, until further notice cancelling the nomination is received by the inspector or until he ceases to be a partner or member of the firm or association'. 2. the petitioners are partners of a firm bearing the name and style of naraindas takhatrai. they are being prosecuted for a contravention of rule 18 (10) of the madhya bharat shops and establishments rules, 1953. during the course of the trial they raised the.....
Judgment:
ORDER

Dixit, J.

1. The Madhya Bharat Shops and Establishments Act, 1952, (Act No. 7 of 1952) contains a provision by which any one of the individual partners or members of a firm or an association which has committed an offence punishable under the Act and the rules thereunder may be made responsible for the offence. That provision is Section 53 (1) which is as follows:

''53 (1): Where the owner of an establishment is a firm or other association of individuals, any one of the individual partners or members thereof, may be prosecuted and punished under this Act for any offence for which an employer in an establishment is punishable.

Provided that the firm or association may give nolicc to the inspector that it has nominated one of its members who is resident in the state to be the employer for the purpose of this act and such individual shall so long as he is so resident be deemed to be the employer for the purpose of this Act, until further notice cancelling the nomination is received by the Inspector or until he ceases to be a partner or member of the firm or association'.

2. The petitioners are partners of a firm bearing the name and style of Naraindas Takhatrai. They are being prosecuted for a contravention of rule 18 (10) of the Madhya Bharat Shops and Establishments Rules, 1953. During the course of the trial they raised the objection that under Section 53 (1) only one of the partners and not all could be prosecuted. This objection was overruled by the trial Magistrate. The petitioners then filed a revision petition before the Additional Sessions Judge of Indore which was rejected. They have now come up in revision to this Court.

3. The question that arises for determination in this case is as regards the interpretation of Section 53 (1). Mr. Devandas, learned counsel appearing for the petitioners submitted that the plain and natural meaning of the words 'anyone of the individual partners' was one of the partners and not all, that this was the correct meaning of the expression was clear from the proviso to Section 53 (1) which particularised the one partner or member who could he made responsible for an offence under the Act of the rules thereunder when the firm or association had nominated one of its resident members in the State as the employer for the purposes of the Act.

On the other hand, learned Government Advocate contended that the words 'anyone of the individual partners or members' were wide enough to include all the partners and members and that the proviso far from supporting the construction sought to be put by the petitioners only lent support io his contention. Learned Government Advocate drew my attention to a decision of the Allahabad High Court in Ram Chandra Sharma v. State of U. P., AIR 1956 All 4 (A), where the .somewhat analogous provision of Section 100(1) of the Indian Factories Act, 1948, were construed to mean that not one but all the partners would be individually liable under Section 92 of the Factories Act for the breach of rules 6 and 13 of the U. P. Factories Rules, 1950.

4. In my judgment, the construction suggested by the learned counsel for the petitioners is the right one. Section 53 (1) has the force of a penal provision, and, in my view it should be construed strictly. It makes the partners of a firm or members of an association vicariously liable. In this penal provision the words in question arc: 'anyone of the individual partners or members thereof' may be prosecuted and punished under this Act for any offence'. In my judgment, this must mean that the prosecution may select any one of the partners or members for prosecution and not all. The plain, natural and dictionary meaning of the words 'any one' is any single', no matter which and not all.

The word 'one'' in the expression 'anyone' has been used in an absolute sense to indicate that the selection of the single is to be without condition or limitation. If it had been thought necessary or desirable to prosecute all the partners or members, appropriate words such as 'every partner or member' could have been used to effect that purpose.

But such words have not been used in Section 53. There is thus no reason why the natural moaning of the words 'any one' should not be adopted in the construction of Section 53 (1). Tt is to the principle of one of the partners or members being selected by the prosecution for being made liable for an offence under the Act that the proviso makes an exception by laying down that where the firm or an association has nominated one of its resident members in the State a.s an employer for the purposes of the Act, then such nominated individual alone shall be prosecuted. From the fact that the proviso particularises the individual partner or member to be prosecuted, it requires a considerable jump to come to the conclusion that in cases not covered by the proviso, all partners or members are liable to prosecution.

The decision cited by the learned Government Advocate no doubt supports his contention, but with all due deference to the learned Judge of the Allahabad High Court I do not find myself in agreement with the view taken by him. In fact, in that case the meaning and significance of the words 'any one of the individual partners or members' was not considered at all.

Nor did the learned Judge consider whether the proviso to Section 100(1) Factories Act could properly be read as an exception to the rule of all partners or members being made liable or to the rule of any one of the partners or members selected by the prosecution could be held liable.

5. For these reasons, I am of the opinion thatthe prosecution of all the petitioners is not legal andin conformity with Section 53 (1). It must, therefore beand is quashed. The prosecution is no doubt atliberty to select any one of the partners and prosecute him in accordance with law for the allegedcontravention.


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