R S NIGAM Vs. STATE

JUDGEMENT

(1.) THIS revision is directed against an order dated 30-5- 1973 passed by Additional Sessions Judge, Allahabad, confirming the conviction and sentence recorded against the applicant under Section 35 of U. P. Dookan Aur Vanijya Adhishthan Adhiniyam, 1962 (hereinafter referred to as the Adhiniyam).

(2.) IN May 1972 the applicant (Sri R. S. Nigam) was the Branch Manager of General Assurance Society, Ltd., situate at 17, Sardar Patel Marg, Allahabad. On 4-5-1972 the Labour INspector inspected the office of the said company and found that the Branch Manager had not maintained the Attendance and Wages Registers of the employees. He, therefore, filed a complaint against the applicant under Section 35 of the Adhiniyam.

(3.) SECTION 3 of the Adhiniyam lays down that the provisions of the Adhiniyam will not apply to employees occupying positions of confidential, managerial or supervisory character in a shop or commercial establishment, wherein mare than five employees are employed. Admittedly, the applicant is the Branch Manager of General Assurance Society Ltd and as such enjoys position of a supervisory character. The question that calls for determination, however, is whether in the establishment managed by the applicant more than five persons were employed or not. In case five or less than five persons are employed, then the applicant would be amenable to the provisions of the Adhiniyam, otherwise not. The courts below have come to the conclusion that in the establishment of the applicant there were only five employees and as such the applicant was amenable to the provisions of the Adhiniyam and he was, therefore, bound under law to maintain proper attendance and Wages Registers. This finding of the courts below does not appear to me to be based on proper appreciation of evidence. In the Attendance Register names of five employees are entered but the salary sheet of the establishment, Ex. Kha-2, shows the number of employees to be seven. Sri Ramesh Chandra, Assistant Branch Secretary, was examined in this case on behalf of the applicant. He stated on oath that there were seven employees in the establishment of the applicant. One will find that not even a word was put: to him in cross-examination with a view to assail the correctness of the averments made by him. This means that the prosecution never intended to break his testimony on the points stated by him. Despite that, I find that his statement was not accepted in this case. The; learned Magistrate ignored his evidence saying that he was an interested witness as he happens to be an employee of the insurance company. The lower revisional Court did not even care to refer to his statement in its judgment. In my opinion, Sri Ramesh Chandra was not a person who should have been disbelieved in this case. From his statement, it is clear that in the establishment managed by the applicant, there are seven employees. His statement finds support from the salary sheet also. In the Attendance Register names of seven employees were not entered because two of them happened to be Inspectors and they constantly remained on tour. It is for this reason that names of only five employees were found therein. On the basis of the material present on record, I am satisfied that the provisions of the Adhiniyam were not applicable to the establishment of the applicant and his conviction in this case was definitely bad in law.