w w w . L a w y e r S e r v i c e s . i n



Bashistha Choudhary v/s State of Bihar

    Cr.Misc.App. 22342 Of 2004

    Decided On, 08 January 2007

    At, High Court of Bihar

    By, THE HONOURABLE MR. JUSTICE GHANSHYAM PRASAD

    For the Appearing Parties: ---------



Judgment Text

GHANSHYAM PRASAD, J.

(1.) Heard. This application under Section 482 Cr.P.C. has been filed to quash the order, dated January 17, 2004 passed by Chief Judicial Magistrate, Darbhanga in S.O. Case No. 546 of 2003, Trial No. 354 of 2004 thereby and thereunder cognizance has been taken against the petitioner and others under Section 10(1)(a) of the Equal Remuneration Act, 1976.

(2.) The complaint petition lodged by opposite party No. 2, Labour Enforcement Officer, Patna goes to show that at the relevant time, this petitioner was posted as Chief Manager, S.B.I., Main Branch, Darbhanga and the other accused Shri K.C. Rau

Please Login To View The Full Judgment!

t was posted as Chief General Manager, S.B.I., Local Head Office, Patna. On December 10, 2002, the: opposite party No. 2 inspected the Branch Office, Darbhanga and found that the accused persons had violated the provision of Section 10 of the Act, 1976 by not maintaining register in Form-D as required under the Act.

(3.) Accordingly, the opposite party No. 2 on January 21, 2003 issued show cause notices upon the accused persons for rectification of irregularities but they failed. Accordingly, after obtaining required sanction the opposite party No. 2 filed a complaint before the Court of C.J.M., Darbhanga on December 15, 2003.

(4.) The learned counsel for the petitioner challenged the impugned order mainly on two grounds. It is submitted that at the relevant time, the petitioner was posted as Branch Manager at Darbhanga. He was not 'employer' within the meaning of provision of the Act, 1976 and, therefore, he could not be prosecuted under Section 10 of the Act. The second submission is that the prosecution is barred by limitation. The maximum punishment under Section 10 of the Act is only one month and, therefore, prosecution ought to have been launched and cognizance taken within one year of the alleged occurrence as provided under Section 468(2) (b) of the Cr.P.C. But in this case, the learned Court has taken cognizance of the offence after lapse of one year without assigning any reason for condonation of delay or giving opportunity to the petitioner to be heard on this point. Lastly, it is submitted that in compliance of the notice issued by the department registered has already been opened in Form-D and, therefore, prosecution of the petitioner is abuse of process of the Court.

(5.) Section 10 of the Act, 1976 provides prosecution of 'employer' for violation of any provision of the Act or Rules. Section 2(c) of the Act goes to show that definition of employer has been adopted as defined in Clause (f) of Section 2 of.the Payment of Gratuity Act, 1972. Section 2(f) of the Gratuity Act runs as follows:

"2(f) employer means, in relation to any establishment, factory, mine, oilfield, plantation, port, railway company or shop- (i) belonging to, or under the control of, the Central Government or a State Government a person or authority appointed by the appropriate Government for the supervision and control of employees, or where no person or authority has been so appointed, the head of the Ministry or Department concerned,

(ii) belonging to, or under the control of, any local authority, the person appointed by such authority for the supervision and control of employees or where no person has been so appointed, the Chief Executive Officer of the local authority,

(iii) in any other case, the person, who, or the authority which, has the ultimate control over the affairs of the establishment, factory, mine, oilfield, plantation, port, railway company or shop, and where the said affairs are entrusted to any other person, whether called a Manager, Managing Director or by any other name, such person;"

(6.) In this case, two officers of the Bank including this petitioner have been arrayed as accused. The other is Chief General Manager of the Local Head Office of the Bank situated at Patna. It means the complainant himself is not clear who out of the two accused is deemed to be employer for the purpose of prosecution under Section 10 of the Act. There is no allegation in the complaint petition that the petitioner was deemed to be 'employer' under the Act, 1976 for the purpose of prosecution. The learned counsel for the opposite party has failed to show that this petitioner being Branch Manager of the Bank in question was appointed by the appropriate authority for control and supervision of the employees of the branch Bank. On the other hand, it is submitted that this petitioner being Junior Officer of the Bank cannot deem to be 'employer' as defined above. It is the Chief General Manager who can deem to be 'employer' under the Act and not this.

(7.) Therefore, I find substance in the submission of the learned counsel of the petitioner that in absence of specific averment and material that this petitioner was 'employer' under the Act he cannot be prosecuted under Section 10 of the Act, 1976. Prosecution of the petitioner is apparently abuse of process of the Court. Apart from it, from paragraph-30 of the petition, it is clear that in compliance of the notice issued by the opposite party No. 2, the defect has already been rectified and now the register is being maintained as envisaged under the Rule and Act. The offence being of technical nature should not be allowed to continue in face of the fact that the defect has already been rectified.

(8.) The other point, the limitation, has got no merit. The Bank was inspected on December 10, 2002. Thereafter, on January 21, 2003 statutory notice was sent to the petitioner and others through registered letter for rectification. Since the petitioner did not comply, the prosecution was filed after obtaining sanction. It appears from the record that the complaint was lodged on December 15, 2003 and cognizance was taken on January 17, 2004 i.e. within one year of the date of notice for rectification. Section 470(3) of the Cr.P.C. provides for exclusion of time taken in service of notice and obtaining sanction. Therefore, it is apparent that the prosecution has been lodged within the prescribed period of limitation.

(9.) Thus, having regard to the facts and circumstances of the case as mentioned above, this application is allowed. The impugned order is hereby quashed but only in relation to the petitioner
O R