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State of Gujarat Vs. N. Viswanatha, Project Manager of Oil and Natural Gas Commission - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1970CriLJ1053; (1970)GLR815
AppellantState of Gujarat
RespondentN. Viswanatha, Project Manager of Oil and Natural Gas Commission
Excerpt:
- - at cambay since 1960 and that he had failed to send to the inspector of the local area the statement in prescribed form together with the registration fees within 30 days of the commencement and to obtain the registration certificate and that way made himself liable for an offence under section 52(a) read with section 7(1) of the act, the accused denied to have committed any offence, as according to him, it was not an establishment contemplated under the act and that complaint filed against him was not in time. rasiklal, the inspector of the municipality, has clearly admitted in his cross-examination that the establishment had commenced its work before 11-6-65 and that there was no doubt about the fact that it required registration......indicates the nature of such an offence as of a continuing character till such time that any such employer or manager of the establishment does not comply with the requirements of registration under section 7(1) of the act. the proviso does not in any way suggest any breach of the provisions contained in section 7(1) of the act as in any way of a continuing nature and all that it contemplates is that if the contravention of the provisions of sub-section (1) of section 7 is continued after the expiry of the tenth day after conviction, the employer shall on conviction be punished, with a further fine which may extend to ten rupees for each day on which the contravention is so continued. in other words, all that it provides is to entitle the inspector to take action against any such.....
Judgment:

N.G. Shelat, J.

1. This appeal arises out of an order passed on 13th September 1966, by Mr. H, C Shah, Judicial Magistrate, First Class, Carnbay, in Criminal Case No. 728 of 1966 (Summary Case No. 1489 of 1966) whereby the respondent accused came to be acquitted under Section 245 (1) of the Criminal P. C., in respect of an offence under Section 52(a) read with Section 7(1) of the Bombay Shops and Establishments Act, 1948 as applied to the State of Gujarat.

2. The facts of the case are quite simple. The Oil & Natural Gas Commission was established under Oil & Natural Gas Commission Act, 1959 and it has its office at Cambay. The clearing and forwarding section thereof was started in 1960 within the Municipal limits of Cambay to which the Bombay Shops and Establishments Act, hereinafter referred to as the 'Act', came to be applied with effect from 1-4-1950. Though the aforesaid section of the O.N. G. C. was started in the year 1960, it was not registered as required under Section 7(1) of the Act. It appears that a notice dated 11-6-65 as to the resolution passed by the Executive Committee of the Municipality of Cambay was sent to the Director of the O. N.G. C. at Cambay drawing his attention about the same having not been registered within the time-limit prescribed under Section 7(4) of the Act. No steps appear to have been taken in that direction and that led the Chief Officer of the Municipality of Cambay to send another letter to the Director of the O. N. C. C. Cambay, calling upon him to get the same registered within 3 days from the date of the receipt of his letter failing which the criminal proceedings under Section 7(1) of the Act would be taken against him. That letter is at Ex. 14 and is dated 7-12-65. That led the Assistant Manager of the clearing and forwarding section of the O. N. G. C. at Cambay to send an application form duly filled in with a request to register the same under the provisions of the Act. The registration fee amounting to Rs. 2,50 was also sent therewith. It was also declared by the Manager Oil & Natural Gas Commission that he was running an office of the Oil & Natural Gas Commission at Railway Yard, Cambay, under the Bombay Shops & Establishments Act. The statement under Section 7(1) was duly filled in by the Manager Mr. N. Vishwanathan of the said Commission.

3. Mr. Rasiklal Mansukhlal Divanji has been working as an Inspector appointed under the provisions of the Act and he has been in the service of the Municipality of Cambay. After verifying the application received from the respondent, he found, that the establishment was started in the year 1960. Thereupon he made a report to the Executive Committee for obtaining sanction for the prosecution of the accused for breach of the provisions contained in Section 7(1) of the Act. A resolution No. 832, dated 11-3-1966 was passed by the Managing Committee whereby the sanction as required under Section 52 of the Act was accorded for prosecuting Shri Vishwanathan, the Manager of the establishment, for contravening the provisions of Section 7(1) of the Act so as to be liable for an offence under Section 52 of the Act. That resolution is at Ex. 13 and it is dated 11-3-66. In pursuance thereof, the complaint was filed by the Inspector Shri Rasikbhai at Ex. 28 in the Court of the Judicial Magistrate, First Class at Cambay. The accusation against the accused was that he had commenced the work of his establishment relating to the clearing and forwarding section of the O. N. G. C. at Cambay since 1960 and that he had failed to send to the Inspector of the local area the statement in prescribed form together with the registration fees within 30 days of the commencement and to obtain the registration certificate and that way made himself liable for an offence under Section 52(a) read with Section 7(1) of the Act, The accused denied to have committed any offence, as according to him, it was not an establishment contemplated under the Act and that complaint filed against him was not in time. The learned Magistrate oh a consideration of the evidence adduced in the case, found that the clearing and forwarding section of the O. N. G. C. at Cambay was not an establishment under Section 2(8) of the Act and, therefore, it was not required to be registered under Section 7(1) of the Act. On a question of bar of limitation under Section 61 of the Act, he held that the offence of nonregistration of the establishment was in the nature of a continuing offence and that the commission of the offence took place from day-to-day, On that basis, he found that the complaint was in time. In the result, the learned Magistrate found the offence not established against the respondent-accused and acquitted him. Feeling dissatisfied with that order, the State has come in appeal before this Court.

4. Before Mr. Chhaya, the learned Assistant Government Pleader for the State, took up the consideration of the question as to whether the clearing and forwarding section of the O. N. G. C. at Cambay fell within the meaning of the term 'establishment' defined in the Act, Mr, Shah, the learned advocate for the respondent, requested this Court to consider the other question in respect of which the finding was recorded viz. that the complaint was not barred by time under Section 61 of the Act. According to him, that goes to the root of the matter, and in case this Court agrees with him, the other question would not arise to be considered. This question has, therefore, been taken first. Now Mr. Chhaya says that this clearing and forwarding section of the O. N. G. C. is an establishment falling within the definition of Section 2(8) of the Act and obligation to have the same registered would arise on the employer or the Manager under Section 7(1) of the Act. Section 7(1) provides as under:

7 (1). Within the period specified in Sub-section (4), the employer of every establishment shall send to the Inspector of the local area concerned a statement, in a prescribed form, together with such fees as may be prescribed, containing -

(a) the name of the employer and, the manager, if any;

(b) the post address of the establishment ;

(c) the name, if any, of the establishment;

(d) the category of the establishment, i. e., whether it is a shop, commercial establishment, residential hotel, restaurant, eating house; theatre or other place of public amusement or entertainment; and

(e) such other particulars as may be prescribed.

Sub-section (4) of Section 7 provides that the statement together with the fees shall be sent within thirty days from the date mentioned in Col. 2, viz. the date on which the section comes to be applied in the local area in respect of an establishment existing in local area. Non-compliance of this provision contained in Section 7(1) is made punishable under Section 52(a) of the Act which says that if any employer fails to send to the Inspector a statement within the period specified in Section 7... the employer and the manager shall, on conviction, each be punished with fine which shall not be less than twenty-five rupees and which may extend to two hundred and fifty rupees ; provided that, if the contravention of the provisions of Sub-section (1) of Section 7 is continued after the expiry of the tenth day after conviction, the employer shall on conviction be punished, with a further fine which may extend to ten rupees for each day on which the contravention is so continued. Then comes the relevant Section 61 which says that no Court shall take cognisance of any offence under this Act or any rule or order made thereunder, unless complaint thereof is made within three months from the date on which the alleged commission of the offence came to the knowledge of an Inspector. Now, before we actually consider the question as to whether the offence was in the nature of a continuing one or not, we may first determine as to whether the complainant-Inspector had come to know about the alleged commission of the offence, and if so, to fix the starting point for commencing the prosecution of the accused before the Court. I have-already made reference to the correspondence that appeared to have taken place between the parties and more particularly the letter Ex. 14 dated 7-12-65 sent by the Chief Officer of the Cambay Municipality to the respondent-accused wherein a clear reference about the resolution No. 263 dated 11-6-65 passed by the Executive Committee of the Municipality has been made and under which a notice was sent to the respondent for nonregistration of the alleged establishment within the time prescribed for the same. Obviously therefore, the Municipality of Cambay had come to know about the existence of this establishment run by the respondent long before 11-6-65 let alone the admission of the complainant saying that this establishment was started in the year 1960. In fact, Mr. Rasiklal, the Inspector of the Municipality, has clearly admitted in his cross-examination that the establishment had commenced its work before 11-6-65 and that there was no doubt about the fact that it required registration. Then he has stated that it was not that as there was doubt that they took action only after the respondent made the application. Thus, at any rate on 11-6-65 the Municipality and its officers including the complainant-Inspector knew about the non-registration of this establishment and incidentally the respondent having committed an offence in respect thereof under Section 52(a) read with Section 7(1) of the Act. That can, therefore, be. taken to be the starting point for the purpose of counting the period of limitation provided under Section 61 of the Act for any complaint to be filed in respect thereof. The complaint was filed on 18.3-66 and since it was beyond the period of three months provided under Section 61, it was barred by time. The Court could not take cognizance of any such offence under Section 61 of the : Act.

5. The learned Magistrate, however, took the view that this was in the nature of a : continuing offence and, therefore, there was hardly any question of the limitation contemplated under Section 61 of the Act. According to him, the complaint filed on 18-3-66 in respect of an offence said to have been committed by the respondent-accused on 1-1-66 -the date on which he had sent statement contemplated under Section 7(1) of the Act for obtaining the registration of the said establishment is in the nature of a continuing offence. As to how the learned Magistrate thought it to be in the nature of a continuing offence, he has given no reasons whatsoever. It was, however, pointed out by Mr. Chhaya, the learned Assistant Government Pleader for the State, that the proviso to Section 52 of the Act indicates the nature of such an offence as of a continuing character till such time that any such employer or manager of the establishment does not comply with the requirements of registration under Section 7(1) of the Act. The proviso does not in any way suggest any breach of the provisions contained in Section 7(1) of the Act as in any way of a continuing nature and all that it contemplates is that if the contravention of the provisions of Sub-section (1) of Section 7 is continued after the expiry of the tenth day after conviction, the employer shall on conviction be punished, with a further fine which may extend to ten rupees for each day on which the contravention is so continued. In other words, all that it provides is to entitle the Inspector to take action against any such employer who continues to commit the same breach even after he has been already convicted by the Court for the said offence under Section 7(1) of the Act. On the contrary, the right to take action, with the purpose of seeing that the employer complies with the provision of Section 7(1) of the Act, is given, but that can only be done after his conviction is obtained for the first offence. This proviso does not take away the effect of the period of limitation contemplated under Section 61 of the Act for filing a complaint in respect thereof against any such person. The object behind providing for such period of limitation for filing any such complaint in Court appears to be of a two-fold character. One is to see that the offence will not be allowed to become stale and secondly, since the offences of this nature are not serious, in fact they are of a technical or administrative nature, such bar is necessary to avoid any harassment to the persons. Such a bar of limitation is also meant to keep the prosecuting authorities very vigilant and active if they want to bring the offenders to book and see that the provisions of the Act are properly observed. The Legislature has by making the necessary amendment appears to have enlarged the scope of the provision by saying that the period of three months shall commence from the date on which the alleged commission of the offence came to the knowledge of the Inspector. The essence of Section 61, therefore, is that if any employer or manager of any such establishment were to be prosecuted under Section 52(a) read with Section 7(1) of the Act, it must be so done within a period of three months from the date when the existence of any such establishment came to be known to the Inspector in charge of the case. It was pointed out by Mr. Chhaya, the learned Assistant Government Pleader, that if no such complaint were filed within any such period fixed under Section 61 of the Act, there is no other power to make any such employer or Manager of the establishment to obey and follow the requirements contemplated under Section 7(1) of the Act, and when that is so, there must be some machinery to make them get their establishment registered and that can only be done if such an offence were treated as of a continuing nature. We find no doubt no provision whereby any such Inspector or authority under the Act can enforce the requirement to be carried out by any such employer or manager of the establishment. But if we were to peruse the provisions of the Act, it appears that by no provision in the Act registration is made the basis of the application of the other provisions of the Act Provided no doubt the establishment would be subject to such provisions of the Act. It is not that other provisions which are intended for the benefit of the workers etc. cannot be applied on the ground that a particular establishment has not been registered under Section 7(1) of the Act. Any establishment falling within Section 2(8) of the Act would remain the same whether it is registered or not and in case it is not registered, it remains open to the State Government or an Inspector appointed under the Act within the local limits for which he is appointed, to ascertain the same by even entering, at all reasonable times and with such assistants if any, being persons in the service of the Government or of any local authority as he thinks fit, any place which is or which he has reason to believe is an establishment as contemplated under Section 49(a) of the Act. Clause (b) thereof then empowers him to make such examination of the premises and of any prescribed registers records and notices, and take on the spot or otherwise evidence of any persons as he may deem necessary for carrying out the purposes of the Act. In the event of any such Inspector having reason to suspect that any employer of an establishment to which the Act applies has committed an offence punishable under Section 52 or 55, he may seize, with the previous permission of such authority as may be prescribed, such registers, records or other documents of the employer, as he may consider necessary... or for prosecution, and then Clause (c) thereof says that he can exercise such other powers as may be necessary for carrying out the purposes of the Act. This section nowhere says that he cannot exercise his powers under Section 49 in respect of any establishment which has not been registered under the provisions of the Act. The powers of the Inspector can be exercised if there existed any such establishment which falls within the ambit of the provisions of this Act and he can ascertain whether the other provisions of the Act so applied are carried out by the same. In case of any action taken against any such employer or manager of the establishment, it would be no doubt open to the accused to say that it was not an establishment falling under Section 2(8) of the Act. But that does not mean that the Inspector cannot take any such action for the enforcement of other provisions against any such establishment under the Act. As I said above, the registration of an establishment is not made a condition precedent before taking any action for breach of the provisions of the Act. If, therefore, there is no specific provision for enforcing registration thereof, it cannot make non-registration of the establishment a continuing offence. If the Inspecter wants to so enforce by following the proviso to that section, he must obtain first the conviction of the owner of the establishment, and for that he must file the complaint within the period provided in Section 61 of the Act. If he does not of his own get it registered and if for some reason, the Inspector fails to take action for non-registration thereof within certain time prescribed, there is nothing to prevent the Inspector to gather information and register the establishment in his record. But it is clear that on that ground it cannot be taken as a continuing offence so as to treat this period prescribed for filing the complaint in Court as non-existent. If therefore, he were to file a complaint after a period of three months from the date of his knowledge of its existence, the Court is not entitled to take cognizance of any such offence as the complaint can be said to be barred by law under Section 61 of the Act, The complaint was, therefore, barred by time and liable to be rejected. The finding in that respect arrived at by the learned Magistrate is not correct. No cognizance of the offence can, therefore, be taken by the Court and the accused was liable to be discharged.

6. In this view of the matter, it becomes unnecessary to go into the question whether the clearing and forwarding section of the O. N. G. C. at Cambay is an Establishment as contemplated under Section 2(8) of the Act. The learned advocates appearing for both the sides agree that the finding of the Court that it did not amount to establishment under Section 2(8) of the Act should not be treated as final and that it would be open to a challenge in Court by the accused since we do not go into that question.

7. In the result, therefore, the order passed by the learned Magistrate stands and the complaint is dismissed.


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