J ANAND Vs. INSPECTOR OF INSURANCE

JUDGEMENT

(1.) This revision is filed against the order passed in C.M.P.No.8449/98 in S.T.C.No.1448/1998 on the file of the Judicial Magistrate No.II, Coimbatore dismissing the petition for dropping proceedings against the petitioner who is the Managing Director of M/s Jaya Automative Private Limited for the offence under Section 85 (e) (ii) of the E.S.I.Act.

(2.) The short point that arises for consideration is that according to the learned counsel for the petitioner only the principal employer can be prosecuted under Section 2(17) of the said Act which reads as under: '(17)"Principal employer" means- (i) in a factory, the owner or occupier of the factory, and includes the managing agent of such owner or occupier, the legal representative of a deceased owner or occupier, and where a person has been named as the manager of the factory under [the Factories Act, 1948];the person so named; (ii)in any establishment under the control of any department of any government in India, the authority appointed by such government in this behalf or where no authority is so appointed, the head of the department; (iii)in any other establishment, any person responsible for the supervision and control of the establishment; According to the learned counsel, the Managing Director cannot be termed as 'principal employer' especially because, there is a Manager in the Company.

(3.) I am not able to agree with the argument of the learned counsel for the petitioner. The penalty clause, namely, Section 85, begins as 'if any person' and clause (e) states 'fails or refuses to submit any return required by the regulations, or makes a false return', it goes without saying that a person who fails to do or obey the mandate of the Act is to be prosecuted and nowhere the Act says only the principal employer should be prosecuted.