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



State of Kerala, Represented by The Assistant Labour Officer, Munnar, Through The Public Prosecutor, High Court of Kerala, Ernakulam v/s Annakutty Varghese, Proprietress, M/s. Misha Holiday Home, Munnar


Company & Directors' Information:- AT HOME INDIA PRIVATE LIMITED [Active] CIN = U17211DL2001PTC112255

Company & Directors' Information:- K P VARGHESE AND COMPANY PVT LTD [Strike Off] CIN = U51909KL1990PTC005731

Company & Directors' Information:- V HOME PRIVATE LIMITED [Active] CIN = U74899DL2001PTC109331

Company & Directors' Information:- G. P. HOME PRIVATE LIMITED [Under Process of Striking Off] CIN = U70102MH2011PTC213056

Company & Directors' Information:- G E CO PUBLIC LIMITED [Strike Off] CIN = U36900WB1951PLC021802

Company & Directors' Information:- MUNNAR COMPANY PRIVATE LIMITED [Strike Off] CIN = U65921KL1995PTC009228

Company & Directors' Information:- K J VARGHESE AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U99999KA1967PTC001702

Company & Directors' Information:- PUBLIC COMPANY LIMITED [Dissolved] CIN = U74900KL1948PLC000930

    CRL.A. No. 109 of 2005

    Decided On, 24 September 2020

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE P.V. KUNHIKRISHNAN

    For the Appellant: Public Prosecutor. For the Respondent: R1, Mathew Sebastian, Roy Thomas, N.M. Varghese, Advocates, M.N. Maya, P.P.



Judgment Text

1. The above appeal is filed by the State of Kerala challenging the judgment dated 30.4.2004 in C.C.No.297/2002 on the file of the Judicial First Class Magistrate Court, Devikulam. It was a prosecution initiated by the Assistant Labour Officer, Munnar, against the respondent herein alleging offence punishable under Section 21(2) of the Maternity benefits Act 1961. (For brevity Act)2. According to the prosecution, the accused failed to exhibit an abstract of the above Act and Rules in Form K and has not produced the same at the time of inspection by the officers. The accused also failed to maintain the up-to-date muster roll in Form A and failed to produce the same at the time of inspection. Hence, it is alleged that the accused committed the said offence.3. To substantiate the case, two witnesses were examined by the prosecution. Exts.P1 to P7 are the exhibits marked on the side of the prosecution. After going through the evidence and documents, the trial court found that the accused is not guilty, and he was acquitted under Section 255 (1) Cr.P.C. Aggrieved by the same state of Kerala filed this appeal.4. Heard. The point for consideration in this appeal is whether the accused committed the offence under section 21(1) of the Act.5. The trial court acquitted the accused mainly because the prosecution was not able to prove that the accused is an employer, as defined in Section 3 (d) of the Maternity Benefit Act. The trial court discussed the case in detail in paragraph 7 of the impugned judgment. Paragraph 7 of the impugned judgment is extracted hereunder.“The learned counsel for the defence argued that the alleged establishment is exempted from maintaining registers by the Act named as LABOUR LAWS (EXEMPTION FROM FURNISHING RETURNS AND MAINTAINING REGISTERS BY CERTAIN ESTABLISHMENTS) ACT 1988. He further argued that this establishment will come under the purview of the definition of small establishment as per this Act. But I find no merit in this argument because the above said Act is applicable only to the Acts mentioned in the schedule of the above said Act. In the schedule of the above said Act, Maternity Benefit Act is not included. So the argument of the counsel is only to be rejected. Ext.P13 would show that a woman is working in this establishment. PW2 would say that she had been working in the institution. Hence the Maternity Benefit Act is applicable to this institution. Ext.P1 would show that PW1 inspected the establishment on 18.8.02. PW2 identified her signature in Ext.P1. So the case of the PW1 that he inspected the institution on 18.8.02 is only to be accepted. According to PW1 the accused violated the provisions of Sec.19 and Sec.20 of the Maternity Benefit Act. As per Se.21(2) of the Act if any employer contravenes the provisions of the said act is liable to be prosecuted. Admittedly the accused is the proprietress of Misha Holiday Home. In Cross-examination PW1 deposed that under the provisions of the Act Manager is the employer. The Ext.P3 is the show cause notice issued to Misha Holiday Home. It is accepted by the Manager of the institution. Ext.P3 would clearly show that there was a manager working in the institution though it was seen issued to the accused. In this context, it is to be examined whether the proprietress or manager is to be prosecuted as per the provisions of the Maternity Benefit Act. Sec.3(d)(iii) deals with the definition of the employer. As per this clause, the person who, or the authority which has ultimate control over the affairs of the establishments and where the said affairs are entrusted to any other person whether called a manager, a managing director, managing agent, or by any other name, such person" is the employer. So as per the definition clause a person cannot be held liable only for the reason that she is the proprietress or the owner of an establishment. If that person is having ultimate control over the affairs of the establishment, he can be prosecuted. Here, the fact that the manager has control over the Misha Holiday Home is not disputed by PW1. The question of why the manager was not prosecuted by PW1 is put to PW1 by the defence. He answered that it is because the accused was shown as a proprietress in Ext.P3. That means PW1 is not having any case that the accused being the proprietress is having ultimate control over the establishment. The accused is prosecuted only for the reason that she is a proprietress. When there is a manager who is having control over the establishment that person is to be prosecuted for the violations of the provisions of the Maternity Benefit Act. In this context the learned Asst.Public Prosecutor argued that since it is admitted by the accused that she is the proprietress, she can be prosecuted. I cannot accept this contention because the definition clause would speak otherwise. In the Kerala Shops and Commercial Establishment Act the definition of employer includes the person owing or having ultimate control over the establishment and includes the manager agent etc. As per the definition of employer in Shops and Commercial Establishment Act the owner is also termed as an employer. But the definition employer as per Maternity Benefit Act is entirely different. As per the definition under Maternity Benefit Act a person only for the reason that he is proprietress or owner is not termed as an employer. The very pertaining question to be considered is that whether such person is having any ultimate control over the affairs of the establishment or not. Here the prosecution failed to prove that the accused is the person who is having ultimate control over the affairs of the establishment. From the evidence I find that the prosecution failed to prove that the accused is liable for the violation of the provisions of Maternity Benefit Act. So I find that the accused has not committed any offence u/s 21(2) of the Maternity Benefit Act.”6. After going through the above finding of fact, I think there is nothing to interfere with the impugned judgment. Admittedly, there was a Manager in Misha Holiday Home. It is also an admitted fact that the said Manager was having ultimate control over the affairs of the establishment. In such situation the prosecution will be maintainable only against that Manager in the light of Section 3 (d) (iii) of Maternity Benefit Act 1961. Therefore simply because the respondent/accused is the proprietress or the owner of the establishment, the prosecution is not maintainable under Section 21(2) of the Maternity Act, 1961, unless the prosecution is able to establish that the proprietress will come within the definition of employer as per Section 3 (d)(iii) of the Act. In this case, the prosecution miserable failed to prove the same. Section 3(d) of the Maternity Benefit Act 1961 is extracted hereunder :-Section 3(d) of The Maternity Benefit Act, 1961(d) “employer” means—(i) in relation to an establishment which is under the control of the Government a person or authority appointed by the Government for the supervision and control of employees or where no person or authority is so appointed, the head of the department;(ii) in relation to an establishment under any local authority, the person appointed by such authority for the supervision and control of employees or where no person is 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 and where the said affairs are entrusted to any other person whether called a manager, managing director, managing agent, or by any other name, such person;Section 21 of the Maternity Benefit Act is extracted hereunder:-21. Section 21 of The Maternity Benefit Act, 1961 21 Penalty for contravention of Act by employer.—(1) If any employer fails to pay any amount of maternity benefit to a woman entitled under this Act or discharges or dismisses such woman during or on account of her absence from work in accordance with the provisions of this Act, he shall be punishable with imprisonment which shall not be less than three months but which may extend to one year and with fine which shall not be less than two thousand rupees but which may extend to five thousand rupees: Provided that the court may, for sufficient reasons to be recorded in writing, impose a sentence of imprisonment for a lesser term or fine only in lieu of imprisonment.(2) If any employer contravenes the provisions of this Act or the rules made thereunder, he shall, if no other penalty is elsewhere provided by or under this Act for such contravention, be punishable with imprisonment which may extend to one year, or with fine which may extend to five thousand rupees, or with both:Provided that where the contravention is of any provision regarding maternity benefit or regarding payment of any other amount and such maternity benefit or amount has not already been recovered, the court shall, in addition, recover such maternity benefit or amount as if it were a fine and pay the same to the person entitled thereto.7. A combined reading of Section 21(1) along with Sec

Please Login To View The Full Judgment!

tion 3 (d)(iii) of the Maternity Benefit Act 1961, it is clear that the prosecution is maintainable only against the employer who has the ultimate control over the affairs of the establishment. It need not be always the owner of the establishment. The prosecution should establish that the accused is an employer as defined in Section 3 (d) (iii) of the Maternity Benefit Act 1961.8. Moreover, the alleged violation was detected about 18 years back. The trial court, after the trial, acquitted the accused. The jurisdiction of this Court to interfere in an appeal against acquittal is very limited. After considering the entire facts and circumstances of the case and considering the available oral and documentary evidence, I think the trial court is perfectly justified in acquitting the accused. There is nothing to interfere with the impugned judgment.Hence, this Crl.Appeal is dismissed confirming the judgment dated 30.4.2005 in C.C.No.297/2002 on the file of the Judicial First Class Magistrate Court, Devikulam.
O R