DEEPAK PAREKH Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) Heard Mr. R.S. Mazumdar, the learned Senior counsel appearing on behalf of the petitioner and Mr. Fahad Allam, the learned counsel appearing on behalf of the respondent State.

(2.) This petition has been filed for quashing of the entire criminal proceeding including the order taking cognizance dtd. 24/1/2009 passed by the learned Chief Judicial Magistrate, Dhanbad in connection with Employment Exchange Case No.70 of 2009 whereby the learned court has been pleased to take cognizance under Sec. 4(2), 5(2) and 6 of the Employment Exchange (Compulsory Notification of Vacancy) Act, 1959 (hereinafter referred to as Act) and also for quashing of the order dtd. 1/8/2012 by which warrant of arrest against the petitioner was issued, pending in the court of learned Judicial Magistrate, Dhanbad.

(3.) The prosecution case has been filed alleging therein that Assistant Sub Regional Employment Exchange, Dhanbad has authorized by the Director Employment and Training Jharkhand Ranchi to exercise the rights under Sec. 6 of the said Act with Rule 7 of the Rules made there-under. The complainant as the competent Assistant Director Incharge (Employment ) visited the office of the company on 8/3/2007 and found that above named accused persons have violate the provisions of the aforesaid Act. The accused persons failed to notify 6 vacancies of Sales Development Manager and Branch Operation Officer to the prescribed Employment Exchange which occurred and filled above stated establishment from April, 2006 to December, 2006 in contravention of Sub Sec. (2) of Sec. 4 of the said Act. The accused persons neglected to furnish quarterly returns in form ERI to the Local Employment Exchange, Dhanbad, despite the office letter with which the specimen copy of the quarterly return was made available to the establishment and inspite of reminders and thus they have violated Sub Sec. (2) of Sec. 5 of the above mentioned Act read with Rule 6 of the Rules there-under. The accused persons did not furnish information and the documents to that office vide letter no. 696 dtd. 15/3/2007 inspite of the reminders thereupon. It is also stated that the Manager (HR) Corporate has furnished partial information and documents to this office vide letter no.NIL dtd. 27/6/2007 and others and the rest required information under column (a), (b) and (c) of the letter were furnished knowingly and thus they have violated Sec. 6 of the said Act. The Managing Director, Regional Manager, Manager (HR) Corporate and the then Br.Manager and the Br. Manager of the company were given notice vide this office memo no.1564-68 to show cause within 15 days. The Sr.Manager Human Resource replied to the show cause notice which was not found satisfactory and the Sr.Manager (HR) was informed with the view vide office letter no.1212-13 dt. 14/3/2008. The plea taken by the accused persons that the above named establishment was not covered by the Act as the number of employees on the pay roll were less than 25 during the quarters ended in June, September and December, 2006 is not true. Establishment is private sector- as defined under Sec. 2(g) of the said Act means an establishment which is not an establishment in public sector and where ordinarily 25 or more persons are employed to work for remuneration. Here persons employed to work for remuneration as also explained under column 1(a) of the proforma for quarterly return prescribed by Rule-2(4) and Rule 6 the said rules include all those persons whether they are working proprietors, partners, commission agents, contingent paid and contractual workers. But the named establishment concealed the fact by excluding number of insurance advisors working as commission agents under column 1(a) of the quarterly return of the above mentioned quarters. The accused persons is one Managing Director, one Regional Manager, one Senior Branch Manager (HR) one the then Branch Manager and one Branch Manager of the company and are entrusted with employment, supervision and control of employees of this company and so they are employees within meaning of word "employer " as defined in Sec. 2(c) of the said Act having an establishment in the private sector as defined in Sec. 2(g) of the said Act. The accused persons have committed offence punishable under Sec. 7(1), Sec. 7(2)(a)(i) and 7(2)(b) of the said Act. The complainant applied for the sanction in time and the necessary sanction for filing of complaint has been accorded vide office order no.52 of 2008, Ranchi, dt. 16/12/2008 of Director, Employment and Training Jharkhand, Ranchi.