SOUTH INDIA CO OPERATIVE SPINNING MILLS EMPLOYEES CO OPERATIVE STORES LIMITED Vs. DEPUTY INSPECTOR OF LABOUR FIRST CIRCLE T VELI

JUDGEMENT

(1.) THE South India Co-operative Spinning Mills Employees Co-operative Stores Limited, the petitioner herein is third accused in S.T.C.No.449 of 1989 on the file of Judicial Magistrate No.6, Tirunelveli. THE present first respondent Deputy Inspector of Labour, First Circle, Tirunelveli initiated a complaint against respondents 2 and 3 herein for an alleged offence under Sec.32 of the Weights and Measures Act, 1956. THEse two respondents are the salesmen and bill clerk of the Society. THE allegation against them is that on 4.2.1989 at about 10.10 a.m. One Sivalingam had purchased 10 litres of kerosene from the Cooperative Stores and that on actual measurement it was subsequently found out to be less by 0.200 ml. and as such an offence under Sec.32 of the Weights and Measures Act was attracted. After filing of the above complaint summons were issued to respondents 2 and 3. On 23.2.1990 the first respondent herein come forward with an application under Sec.319, Crl.P.C. seeking to implead the present petitioner- Society as a co-accused in the case. By his order dated 14.3.1990 learned Magistrate allowed this application after recording a finding that respondents 2 and 3 had no objection to this course. It is as against this order passed by learned Magistrate that the present petition underSec.482, Crl.P.C. to quash the same is being filed by the society.

(2.) THE memo dated 23.2.1990 by the Complainant seeking to implead the Society as an accused reads that only the bill clerk and salesman have been cited as accused in the case. But as per Sec.40(1) of the Weights and Measures Act, 1958, the Society must also be an accused along with the other workers. Hence, the Society has to be impleaded. Learned Magistrate had passed an order stating that the petition is allowed Since there is no objection from the present respondents 2 and 3.

(3.) SEC.40 of the Tamil Nadu Weights and Measures (Enforcement) Act 20 of 1958 provides that if a person committing an offence under this Act or any rule made thereunder is a company, every person who at the time the offence was committed was incharge of and was responsible to, the company for the conduct of the business of the com-pany, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. In State, by Public Prosecutor v. Raja, 1988 L.W. (Crl.) 190, the salesman and the bill clerk of a Cooperative Society were acquitted under the Tamil Nadu Weights and Measures (Enforcement) Act, on the ground that the Co-operative Society also ought to have been made a party and in the absence of the Co-operative Society as a party, the accused cannot be found guilty as the offence has been committed by the accused hot in their individual capacity. A single Judge of this Court has held that under the proviso to Sub-sec(1) of SEC.40, the workers who are working in the Society cannot be independently liable for the commission of the offence. The view of the Magistrate that the Society must be made a party, appears to be correct and in the absence of the Society, the accused alone cannot be punished. And accordingly, it dismissed the appeal against acquittal. The memo filed by the complainant on 23.2.1990 in the trial court discloses that only in view of this decision the Society is sought to be impleaded.