THE STATE OF GUJARAT Vs. JAYANTILAL KESHAVJI MEHTA

JUDGEMENT

(1.) The facts giving rise to these three appeals broadly stated are that Mr. C. J. Patel, the complainant, an Inspector appointed by the Government of Gujarat under S. 80 of the Payment of Bonus Act, 1965, hereinafter referred to as 'the Act,' filed a complaint No. 777 of 1968 against the Sihor Electricity Works Ltd., Sihor and two others in the Court of the Judicial Magistrate First Class, Sihor. The two other are accused No. 2, the Chairman, of the Board of Directors of Sihor Electricity Works Ltd., and accused No. 8, a Manager and Engineer there, of. They are referred to along with accused No. 1 the Company as employers in respect of the said company, which has in its employment more than 20 persons, as defined in S. 2 (14) (ii) of the Act. While the complainant visited the establishment on 20- '5-1967 he found that the accused had not paid bonus to its employees for the years 1964-65, 1965-66 and 1966-67, which they were liable to pay under the Act, on 30th Nov. of each of these years and thereby they had contravened the provisions of S. 19 (b) read with Sections 10 and 11 of the Act. They are thus said to have committed offences punishable under S. 28 of the Act. Three separate complaints bearing Nos. 776, 777 and 778 of 1968 were filed on 27-9-68 by the Electrical Inspector after obtaining necessary sanction, in the Court, which after registering the same issued summons to the accused in respect thereof. On the date fixed for appearance, the accused No. 2 Jayantilal Keshavji Mehta presented an application in each of the three cases inter alia saying that he was wrongly joined in the complaint in as much as not only he was not managing the affairs of the company, but even he was not the Managing Director or Managing Agent of the Company, and that way not an employer so as to come within the ambit of S. 2 (14) (ii) of the Act. He, therefore, requested to discharge him. The complainant filed a reply thereto and pointed out that he was the person or authority with whom lay the ultimate control with regard to the affairs of the establishment and since he was that way an employer as defined under 8. 2 (14) of the Act, and was thus responsible for the payment of bonus due to the employees of the Company. He, therefore, requested the Court not be decide it on such a preliminary point but decide the same after allowing parties to lead evidence. The learned Magistrate did not consider it necessary to allow complainant to lead evidence and decided that the Chairman of the Directors of any Buoh company was not covered within the definition of an employer given under S. 2 (14) (ii) of the Act, and, therefore, he by reason of his being only a Chairman, cannot be held responsible for payment of bonus, and consequently there was no justification for prosecuting accused No. 2 in the case. He, therefore, acquitted him of the offence under S. 28 of the Act, under S. 245 (l) of Criminal P. C. in all the three cases. Feeling dissatisfied with that order passed on 28-8-1969 by Mr. D. N. Medh, Judicial Magistrate First Class, Bihor, the State has come in appeal in all the three cases. They are Criminal Appeals Nos. 379, 880 and 878 of 1969 respectively. Since they raise a common question, they are heard together and a common judgment is recorded.

(2.) The point made out by Mr. Chhaya, learned Assistant Government Pleader for the appellant is that the learned Magistrate has not properly considered the effect of the definition of the term "Employer," and for ascertaining a3 to whether accused No. 2 was an employer, it was necessary for the Court to record the evidence that was to be adduced by the complainant in the case. Now S. 2(14) of the Act defines the term "Employer." Clause (1) thereof relates to an establishment which is a factory and Clause (2) relates to any other establishment. In this case, we are concerned with clause (2) in as much the Electricity Works is-not covered by clause (1)-it being not a factory. Thus the employer of any such establishment covered by Clause (ii) of Sec. 2 (14) of the Act has to be considered. It includes,

(3.) All the three appeals are allowed and the orders of acquittal passed in all the three cases by the learned Magistrate are set aside. The cases shall be sent back to the Trial Court for proceeding further in accordance with law. Appeals allowed.