S.S. PARKAR, J.
( 1 ) ONCE both these petitions involve a common question of law on the identical facts they are being disposed of together by common judgment.
( 2 ) THE short question involved in these petitions is whether the Chairman and the managing Director who have been prosecuted under the provisions of the Factories Act, 1948, could be prosecuted and held liable for not displaying notice of period of work under section 61 of the Act or for not maintaining the leave and wages register under Section 83 or not maintaining inspection book under Section 92 of the Act read with Rule 124 of the Rules.
( 3 ) UNDISPUTED facts which have been made basis for prosecution under the provisions of the Factories Act are as follows: petitioner 1 was the Managing Director of petitioner 2-company which is. a registered company. The Factory Inspector had visited the factory on September 16, 1987 for inspection. He noticed that there was contravention with regard to the notice of period of work not having been displayed and the leave with wages register not being maintained. At the relevant time Factory Manager had gone out of the factory for urgent work and, therefore, the requisite registers were not produced for inspection. A notice was addressed to the chairman and the Managing Director of the company on October 16, 1987 drawing their attention about the alleged violation of the rules. On behalf of the petitioners reply was sent, dated November 24, 1987, in which it was pointed out that the aforesaid documents were being maintained by their Kalwe Factory manager and were kept in the safe custody by the Factory Manager at their Kalwe unit. It was further pointed out that since their factory manager Sri A. V. Pius was away from the duty, the said registers could not be produced. By the said reply there was an offer made to produce the said documents for inspection. Copy of the said reply is annexed as Exhibit E in both the petitions. By letter, dated January 5, 1988 (Exhibit F to the petitions) the factory had sent the stability certificate, dated December 31, 1987, to the Inspector of factories. The said certificate was issued by a competent person, viz., Sri M. P. Pandit, chartered Structural Engineer. In spite of the above correspondence the prosecution was launched by filing a complaint in the Court of judicial Magistrate, First Class at Thane, copy whereof is annexed as Exhibit L to these petitions.
( 4 ) AS regards contravention of Section 61 punishable under Section 92 is concerned in respect of the notice of period of work, the inspector of Factories had filed Criminal Case no. 7920 of 1990 which is the subject-matter of Criminal Writ Petition No. 256 of 1992 whereas Factory Inspector had filed Criminal case No. 8058 of 1990 and Criminal Case No. 19031 of 1987 which are the subject-matter of criminal Writ Petition No. 1096 of 1994.
( 5 ) FROM the perusal of the provisions of section 61, Section 83 and Section 92 it is clear that the obligation to maintain the aforesaid registers is of the Manager or the Occupier and manager. While applying for the renewal of the licence the company had passed the resolution appointing Sri R. P. Khator as the Occupier of the company and Sri A. V. Pius as the Factory manager. This appears from the application in form No. 3 for renewal of the factory licence for the year 1988 which was submitted on October 12, 1987 a copy whereof is annexed at exhibit C to both the petitions. In spite of that the prosecution was launched against the chairman who, according to Sir Kini, appearing for the petitioners, had died on May 10, 1989, and against the Managing Director who is petitioner 1 in both these petitions. The aforesaid provisions do not cast the liability on either the Chairman or the Managing Director nor even on the company.
( 6 ) SRI Kini has relied on the reported judgment of the Division Bench in the case of state Government, Madhya Pradesh v. Maganbhai, AIR 1954 Nag. 41, holding that if the obligation to maintain the register is imposed on the Manager and not the occupier, then the occupier cannot be held liable for the failure of the Manager, as the Occupier cannot be said to have guilty mind when he is not charged with the duty of maintaining registers. Similar view was taken by this Court in the case of State of Maharashtra v. Sampatlal Nensukhi Bothara, 1990 (2) LLN 919, holding that the obligation to maintain the registers is imposed on the Manager and not the Occupier and, therefore, the Occupier could not be held liable for failure of the Manager to comply with the same.
( 7 ) FROM Exhibit A to the petition, i. e. application for renewal of licence, dated October 14, 1986, is concerned, it appears mat the Occupier of the fac
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tory was one Sri R. P. Khator while the Manager was one Sri R. S. Shenoy. Thereafter for the subsequent year, i.e., for 1988, the Occupier remained the same, i.e., Sri R. P. Khator but one Sri A. V. Pius had become Manager of the factory. None of these persons, i. e. , Occupier or the Manager have been prosecuted in the instant case. Therefore, all the three prosecutions are liable to be quashed. ( 8 ) IN the result both the petitions are allowed. Rule is made absolute in terms of prayer Cl. (b) in both the petitions.