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Tolaram Mulchand and anr. Vs. Shop Inspector, Nagar Palika - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Case NumberCriminal Ref. No. 25 of 1956
Judge
Reported inAIR1959MP382; 1959CriLJ1335
ActsMadhya Bharat Shops and Establishments Act, 1952 - Sections 53(1)
AppellantTolaram Mulchand and anr.
RespondentShop Inspector, Nagar Palika
Appellant AdvocateDevandas, Adv.
Respondent AdvocateJhanjharia, Adv. and ;S.L. Dube, Dy. Govt. Adv.
Cases ReferredGoods Bazar Co. v. Income
Excerpt:
..... - ' from this, it is clear that the contention before the allahabad high court was not precisely the one which we are considering. it is well known that in the case of a firm, all the partners are the owners thereof......the owner of an establishment 4 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 notice to the inspector that it has nominated one of its members who is resident in the state to be the employer for the purposes of this act and such individual shall so long as he is so resident be deemed to be the employer for the purposes of this act until further notice cancelling the nominationthe expression 'any one of the individual partners or members thereof' was interpreted by one of us (dixit, j.) to mean that only one of the partners or members could be prosecuted and more.....
Judgment:

Shiv Dayal, J.

1. This case has been referred to the Division Bench by Newaskar J., since he took a different view than the one taken by this court in criminal Revn. No. 57 of 1956, Gordhandas v. Indore City Municipality, 1957 MPC 11: (AIR 1957 Madh Pra. 6). The question is, whether under Section 53(1) of the Madhya Bharat Shops and Establishments Act (No. 7 of 1952), only one person can be prosecuted or it is permissible to prosecute more than one.

2. The Municipal Magistrate. Indore convicted Tolaram and Uttamchand under Section 47(a) read with Section 7(1) of the Madhya Bharat Shops and Establishments Act, 1952, and under Section 47(a) read with Rule 18(14) of the Rules framed thereunder, and sentenced each of them to a fine of Rs. 25/-on each count. On a revision petition having been filed by them the learned Sessions Judge. Indore referred the case to this court under Section 438 of the Code of Criminal Procedure with the recommendation that the conviction of one of them might be set aside.

3. The question for decision is only one and it turns on the construction of Section 53(1) of the Act which runs thus:

'53(1). Where the owner of an establishment 4 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 notice to the Inspector that it has nominated one of its members who is resident in the State to be the employer for the purposes of this Act and such individual shall so long as he is so resident be deemed to be the employer for the purposes of this Act until further notice cancelling the nomination

The expression 'any one of the individual partners or members thereof' was interpreted by one of us (Dixit, J.) to mean that only one of the partners or members could be prosecuted and more than one could not be prosecuted: 1957 MPC 11: (AIR 1957 Madh Pra. 6) (Supra). My learned brother Nevaskar J., disagreed with that interpretation because in his judgment the expression 'any one' did not mean 'only one' and he relied upon the decision of the Allahabad High Court in the case of Ramchandra Sharma v. State of Uttar Pradesh, AIR 1956 All 4.

4. After giving a very considered thought, I have not the slightest doubt in my mind that the expression 'any one of the individual partners or members thereof does not admit of two meanings. The expression used is not 'every one of the individual partners. .......', nor 'every individual partner or member......', nor 'every person belonging to the firm or other association'. In Oxford dictionary, the meaning of the expression 'any one' has been given as 'any single'. In Webster's dictionary also --

'Anyone -- Any person indiscriminately ......Any one-- Any single or particular person or thing'.

It is now settled law that the ordinary meaning has to be adopted unless it leads to absurdity or it defeats the object of the provision: New Piece-Goods Bazar Co. v. Income-tax Commissioner, 1950 SCR 553: (AIR 1950 SC 165). In common parlance, when we say 'any one of you may accompany me' it means only one person out of several and not more than one. Really, it means one out of many and although the word 'out' is not there, yet, the meaning is not different. The legislature is emphatic in saying 'of the individual partners or members.'

If the legislature had stooped there and had not used the expression 'any', there would have been an ambiguity as to which of the individual partners or members was meant. It was for that end that the word 'any' was also used so as to give a choice to the prosecution to choose one of them in its discretion. It is plain enough that the word 'any' connotes indiscrimination and the word 'one' fixes the number. There is no ambiguity or indefinite-ness in the language employed.

5. This construction finds further support when the proviso is looked at. The proviso enables the firm Or association to mate its own choice by nominating one out of the members to be deemed the employer and thereby to he liable to prosecution under Section 53(1). In that event the indiscriminate choice which is given to the prosecution in the main provision becomes restricted and limited. If the expression 'any one' means 'every one' the proviso becomes anomalous inasmuch as by fixing the choice on one of the members, the firm would be exonerating the rest of them. I am quite clear that the proviso does not affect the limit of 'one' but takes away the indiscriminate choice imported by 'any'.

6. The Allahabad case relied on by Nevaskar, J, in the order of reference is in regard to Section 100 of the Factories Act, 1948. In that case Brijnandan and five others had been convicted under Section 92 of the Factories Act and the only ground raised before the High Court was that it was Brijnandan alone who was the occupier of the factory and was therefore responsible for the breach of Rules 6 and 13 of the Uttar Pradesh Factories Rules, 1950 and the others could not be convicted. It was in that context that Roy J., held that the word 'occupier' in Section 2(n) 'may be a firm or other association of individuals and any one of the individual partners or members thereof, may, in view of Section 100 of the Act, be prosecuted and punished.' Then it was observed --

'In the present case the firm never gave any notice to the Inspector that it has nominated Brijnandan La], one of its members, to be the occupier of the factory for the purposes of Chapter X of the Factories Act. In the absence of any such notice, all the partners would be individually liable.'

From this, it is clear that the contention before the Allahabad High Court was not precisely the one which we are considering. In that case the High Court was not asked to consider whether in Section 100 of the Factories Act, the expression 'any one of the individual partners or members' meant 'only one' or 'all of them'. The whole attention there was concentrated on the definition of the word 'occupier'. In that view, the Allahabad decision is not' in point. If the Allahabad decision really means to interpret 'any of the partners' as 'all the partners' then, with greatest respect, I am unable to agree with it.

7. The interpretation of Section 53(1) made in Gordhandas's case, 1957 MPC 11: (AIR 1957 Madh Pra. 6) does not in anyway militate against the object of the provision. In Chapter X which deals with offences and penalties, the penal clauses contained in Sections 47, 49, 50 and 51, make the 'employer' (and in some cases, the manager) liable to punishment. The Legislature thought that a question would arise in the case of firms, companies and other associations as to who should be deemed to be the employer.

It was for that reason that Section 53 was embodied for the removal of doubts. It is well known that in the case of a firm, all the partners are the owners thereof. If the framers of the law intended that all the employers could be prosecuted, Section 53(1) was wholly unnecessary. Thus, the necessary intention which Section 53(1) brings with it is that only one person was meant to be punished and that person must fall within the expression 'employed. The next question that must have arisen was as to which of the several partners or members of the association was to be prosecuted. The Legislature, in that regard also, did not want to leave the matter uncertain and that is why a definite and precise language was employed, saying that 'one'. out of the individual partners will be prosecuted and he can be 'any' of those partners.

8. In my judgment, therefore, the expression in question means that only one and not more than one of the individual partners or members can be prosecuted and the choice as to who is to be prosecuted lies with the prosecution, unless one of them has been nominated under the proviso. The view taken in Gorhandas's case, 1957 MPC 11: (AIR 1957 Madh Pra 6) is sound and that decision lays down the correct law.

9. The reference is allowed, the conviction and sentence as regards each of the two accused are set aside and the case is sent back to the trial Magistrate with the direction that he shall call upon the prosecution to choose one of them and decide the case afresh in accordance with law.

P.V. Dixit, J.

10. I regret I am not persuaded by what my learned brother Newaskar, J., has said in the order of reference, to revise the view expressed by me in 1957 M. P. C. 11: (AIR 1957 Madh Pra 6). I adhere to that view. Accordingly the convictions and sentences imposed on the petitioners are quashed and the case is remitted to the trial Magistrate for trial according to law of that partner whom the opponent may select for prosecution.


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