EXECUTIVE OFFICER PUZHATHI PANCHAYAT Vs. N C SEKHARAN

JUDGEMENT

(1.) The Appeal is against the judgment in C. C. 8 of 1982 of the Judicial Magistrate of the II Class, Cannanore acquitting the accused. The accused was charged by the Executive Officer, Puzhathi Panchayat for offence under S.113(2) of the Kerala Panchayats Act, 1960 read with R.3 of the Kerala Panchayats (Manner of Service of Notices and other Documents) Rules, 1962 for refusing to accept the notice issued by the Panchayat and for not complying with the request contained therein.

(2.) Learned counsel for the appellant submitted that there are 690 and odd employees working in the company managed by the accused, that it was not practicable to issue individual notices to the employees demanding tax and therefore the notice served on the manager was perfectly in order. It is contended that the Manager ought to have received the notice and the failure to receive the same is liable to prosecution. Counsel for the accused submitted that R.3 of the Kerala Panchayats (Manner of Service of Notices and other Documents) Rules, 1962 (hereinafter referred to as Rules) clearly provides that notice has to be tendered to the person concerned and only if such person is not found notice can be given to the head of the Institution and not otherwise. Counsel further pointed out that there is no evidence to show that R.3(1)(a) has been complied with.

(3.) The short point to be considered is as to whether notice calling upon payment of tax due to the Panchayat from the employees of the Company can be served to the Manager without first making an attempt to serve it upon them. R.3 provides that when any notice or other document is required by the Act or by any rule, bye law, regulation or order made under it, to be served on or sent to any person, the service or sending thereof may be effected by giving or tendering the said notice or document to such person. So it is evident that at the first instance it is incumbent upon the Panchayat to tender or give notice or document to the person concerned. R.3(1)(b) provides that in case where notice or document cannot be given or tendered it can be effected at the last known place of abode or business of the person concerned or tender the same to some adult member or servant of his family or to the Head of the Institution or any authorised person in the case of employees working in Firms, Factories, Plants, Workshop, Work place etc. and on shift duties outside the normal working hours of public offices and or where admission of Bill Collectors or other notice serving officials of the Panchayat are restricted and normal course of serving notices is not possible. R.3(1)(d) stipulates that if none of the means provided under clause.(b) and (c) be available the notice could be affixed in some conspicuous part of such place of abode or business. When the statute prescribes a procedure it will have to be complied with. Service of notice to the Head of the Institution or Factory Manager as provided under R.3(1)(b) can be resorted to only when the Panchayat has issued notice first to the employee concerned unsuccessfully. R.3(1)(b) and (c) provides for several modes of service in case notice could not be given or tendered to a particular person. Without complying with the procedure under R.3(1)(a) the Panchayat cannot take up the position that notice was tried to be served on the Factory Manager and that be in his turn is bound to serve it on bis employees. The reading of R.3 would make the position very clear that the Panchayat has to send individual notices to the employees in a factory and if it could not be done then only recourse can be had as provided under R.3(1)(b) of the Rules.