ASHOK KUMAR JAJODIA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THIS Rule seeks to quash a proceeding under section 85(g) of the Employees' State Insurance Act, 1948, pending in the court of a learned Magistrate against petitioner No.1 and petitioner No.2, respectively a director and the manager of Messrs. Roger Engineering Private Limited, a factory and are alleged to be the principal employers.

(2.) FIRST of all, the learned advocate for the petitioners has taken me through the petition of complaint a copy of which has been made annexure' A' to the revisional application. It has been contended that the proceeding is liable to be struck down as averments are not adequate to incriminate any of the petitioners. It has been pointed out that so far as the petitioners are concerned it has only been stated that one of them was a director and the other the manager of the factory and it has been contended that a mere description of an accused as a director is not enough to sustain a charge against him in the absence of an averment that he was in ultimate control over the affairs of the factory. This contention appears to be substantial so far as the petitioner No.1 is concerned. The person who can be prosecuted under section 85(g) of the Employees State Insurance Act is the principal employer which has been defined in section 2(17) of the Act. A reference to the definition will show that in a factory the principal employer means 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. In the instant case there is no doubt that the owner of the factory is the company itself and. therefore, the petitioner No. 1 may be held to be the principal employer, if at all, only if he is found to be the principal employer, if at all, only if he is found to be the occupier, of the factory. Now looting to the provisions of section 2(15) of the Act, an occupier of a factory is to have the same meaning assigned to it under the Factories Act. Section 2(n) of the Factories Act provides that occupier of a factory means the person who has ultimate control over the affairs of the factory and where the said affairs are entrusted to a managing agent, such agent shall be deemed to be the occupier of the factory. Therefore, petitioner No.1 can be regarded as the principal employer only if he has ultimate control over the affairs of the factory, which however, has not been alleged in the complaint. In the circumstances the inescapable conclusion is that the minimum averment, which should have been made in the petition of complaint is lacking so as to sustain a charge against the petitioner No.1.

(3.) THE learned advocate for the petitioners has also assailed the order passed by the learned Magistrate on a petition filed on behalf of the accused persons for their exemption from appearance in court under section 205 Criminal Procedure Code. The learned Magistrate by an order recorded on the 24th November 1981 rejected the petition with an observation that the question of representation would be considered after they entered appearance and observed the formalities of bail. The learned Magistrate has also noted that the attendance of the accused persons was required for recording their plea under section 251 Code of Criminal Procedure. On the same date bailable warrant for arrest of the petitioners were ordered to be issued. The learned advocate for the petitioners has contended that there was no valid ground for the learned Magistrate to reject the petition under section 205 Criminal Procedure Code and warrant for arrest of the petitioners should not have been ordered to be issued. Since the learned Magistrate has recorded that the question of representation would be considered after the accused appeared before him. I am not disposed to interfere in revision but the order for issue of warrant of arrest cannot be sustained specially after lapse of so many years as it appears to me that the learned Magistrate should have given an opportunity to the accused persons to appear before him after be had rejected their petition under section 205 Criminal Procedure Code.