MURIGAPPA KARABASAPPA MEKKI VS. STATE OF MYSORE ( 1 ) THERE were two accused persons in CC. No. 171 of 1969 on the file of the Munsiff and Judicial Magistrate, First Class, Laxmeshwar. An application dated 16-1-1970 filed by them was dismissed by the Munsiff-Magistrate by his order dated 10-3-1970. It is against that order that both the accused have come up here in this Revision Petition, praying that the entire proceedings in CC. 171 of 1969 be quashed and the petitioners be acquitted. ( 2 ) THE Labour Inspector, II Circle, Gadag, filed the complaint against the accused on 15-3-1969. It was prosecuted by the State. The first accused is escribed as the Chairman, Doddapramanad Prathmik Pattin Vyavasaya sahakari Sangh Niyamit, Laxmeshwar, and the second accused as the Secretary of that Society (hereinafter called the Society ). In the complaint the brief facts of the case are given as below by the Labour inspector:"1. During my visit to the abovesaid Establishment on 26-12-1968 at 4-10 p. m. it is found that the accused SL. No. 1 and 2 have failed to maintain the following Registers and records with necessary entries. The Registers were kept blank. (1) Register of employment in Form 'm' as required under Rule 24 (1) of the Mysore Shops and Commercial Establishments Rules, 1962. (2) The register of Leave with Wages in form 'f' as required under Rule 8 of the abovesaid rules. Hence the accused have contravened S. 34 of the above read with s. 30 (2) of the abovesaid Act. 2. Further it is found that the accused have failed to notify the notice of Weekly Holiday to the Inspector, and the notice of Weekly holiday has not been prominently displayed in the conspicious place of the establishment. Hence the accused have contravened S. 12 (1) read with S. 30 (1)of the abovesaid Act. " ( 3 ) THE Act is the Mysore Shops and Commercial Establishments Act, 1961, and the Rules framed thereunder are the Mysore Shops and Commercial establishments Rules, 1963. I shall hereinafter refer to them as the Act and the Rules, respectively. The petitioners do not deny that the society is an 'establishment' within the meaning of S. 2 (1) of the Act. ( 4 ) I shall first set out the relevant Sections of the Act and the relevant rules of the Rules. "s. 34. I shall hereinafter refer to them as the Act and the Rules, respectively. The petitioners do not deny that the society is an 'establishment' within the meaning of S. 2 (1) of the Act. ( 4 ) I shall first set out the relevant Sections of the Act and the relevant rules of the Rules. "s. 34. Maintenance of registers and records and display of notices; subject to the general or special orders of the State Government, an employer shall maintain such registers and records and display on the premises of his establishment, such notices as may be prescribed. All such Registers and records shall be kept on the premises of the establishment to which they relate. S. 12 Weekly Holidays- (1) Every establishment shall remain closed for one day of the week. The employer shall fix such date at the beginning of the year, notify it to the Inspector and specify it in a notice prominently displayed in a conspicuous place in the establishment. The employer shall not alter such date more often than once in three months, shall notify the alteration to the Inspector, and shall make the necessary change in the notice in the establishment. Rule 8. Leave with wages register- (1) The employer shall maintain a leave with Wages Register in Form 'f' and make a return to the Inspector concerned in Form 'g' not later than the 1st September of the year subsequent to that to which it relates: rule 24. Maintenance of registers and records and display of notices- (1) Every employer shall maintain a register of employment in Form 'l' provided that where the opening and closing hours are ordinarily uniform the employer may maintain such Register in form 'm'. " (Underlining (italics) is mine ). ( 5 ) S. 30 of the Act prescribes the penalties for contravention of certain provisions of the Act. S. 12 appears in Cl. (1) of S. 30, and S. 34 appears in Cl. (2) of that Section. ( 6 ) HERE itself T may set out Cl. (h) of S. 2 and Cl. (1) (h) of S. 3 of the Act.-"2. S. 12 appears in Cl. (1) of S. 30, and S. 34 appears in Cl. (2) of that Section. ( 6 ) HERE itself T may set out Cl. (h) of S. 2 and Cl. (1) (h) of S. 3 of the Act.-"2. Definitions-In this Act unless the context otherwise requires- (h) 'employer' means a person having charge of owning or having ultimate control over the affairs of an establishment and includes members of the family oi an employer, a manager, agent or other person acting in the general management or control of an establishment. 3. Exemptions- (1) Nothing in this Act shall apply to- (h) persons occupying positions of management in any establishment. " ( 7 ) PARAGRAPH 4 in the application dated 16-1-1970 filed by the accused in the Munsiff-Magistrate's Court is the following: "the accused No. 1 being the Chairman and accused No. 2 being the Secretary arc holding and occupying positions of management and hence the Act is not made applicable to them. " the prayer in the application is to drop the proceedings in toto by discharging the accused. Para 4 of the application is controverted at paragraph 4 of the objections filed by the State, which runs thus-"as the Chairman is having the ultimate control over the affairs of the establishment and the Secretary as a person having a charge of activity in the general management and is having a control of an establishment, they come under the definition of 'employer'. Hence the Act is applicable to them also. Please vide Cl. 'h' of S. 2 of the said Act. "in the order of the Munsiff-Magistrate dated 10-3-1970, this aspect has not been dealt with at all. He has only discussed the other grounds contained in the application. Before me, the only ground urged by Sri V. K. Govindarajulu, the learned Advocate for the petitioners, is that contained in paragraph 4 of the application, referred to above. This attack is embodied in grounds Nos. 2 and 3 in the Revision Petition here, viz. , "the petitioners filed an application specifically raising an objection for the prosecution and claiming exemption under S. 3 (1) (h) of the Mysore Shops and Commercial establishments Act, 1961, and the learned Magistrate has not at all discussed this aspect of it which goes to the root of the prosecution and he has dismissed the application on other considerations. , "the petitioners filed an application specifically raising an objection for the prosecution and claiming exemption under S. 3 (1) (h) of the Mysore Shops and Commercial establishments Act, 1961, and the learned Magistrate has not at all discussed this aspect of it which goes to the root of the prosecution and he has dismissed the application on other considerations. The petitioners in this case are undisputedlv elected as Chairman and Secretary of the co-operative Society and they are persons occupying places of management who are exempted under the law. " ( 8 ) DUTIES are cast on the 'employer' under the provisions mentioned in paragraph 4 and, under S. 30 of the Art. it is the 'employer' who is punishable for non-compliance with these provisions ( 9 ) UNDER S. 4 of the Art. read with Rule 3 of the Rules, a statement in Form 'a' has to ho made to the Inspector of the area by the employer of an Establishment The statement in Form 'a' in this case is dated 26-12-1968. Column No. 4 is 'name of the employer' Column No. 6 is 'name of the Manager, if any, and his residential address'. As against Column NO. 4, the name of the first accused is given. In column No. 6, the word 'manager' is struck off and the word 'secretary' is inserted. The name of the second accused is given against that column At the bottom just above the 'signature of the Emplover', the first accused has signed as Chairman of the society. ( 10 ) SRI V. K. Govindarajulu conceded, and must say fairly, that since the first accused is mentioned as the 'employer' in Form 'a', and has signed as 'employer', the Revision Petition as regards him will not be sustainable since evidence will have to be taken by the Court below to ascertain whether he is in reality an 'employer' within the meaning of s. 2 (h) of the Act or is an exempted person occupying a position of management as per S. 3 (1) (h) of the Act Sri Govindarajulu, however, represented that the Revision Petition, so far as the second accused is concerned, ought to be allowed and the proceedings in CC. No. 171 of 1969 on the file of the Court below as against him. No. 171 of 1969 on the file of the Court below as against him. he quashed ( 11 ) 'secretary' is not defined in the Act We have yet to know what his powers and functions are. There is at present no material whatever to show whether the second accused who is described as the 'secretary' of the society comes within the category of 'employer' in S. 2 (h), or is a person occupying a position of management in the Society, who is exempt under s. 3 (1) (h), of the Act. To ascertain this also, evidence will have to be let in as rightly contended by the learned State Public Prosecutor ( 12 ) S. 3 (1) (h) of the Act is in pari materia with S. 4 (1) (a) of the madras Shops and Establishments Act, 1947 The latter provision came up for consideration before a Division Bench of the Madras High Court in T. P. Chandra v. Commissioner of Workmen's Compensation in Madras, AIR 1957 Mad. 668 , and the Supreme Court in T. Prem Sagar v. M/s. Standard Vacuum Oil Co. , Madras, air 1965 SC 111 , both of which were placed before me by the petitioner's learned Advocate. These decisions themselves indicate that the question whether a person is occupying or is employed in a position of management in any Establishment, is essentially a question of fact. Thus, as already mentioned, evidence will also have to be let in regarding the actual position occupied by the second accused 'secretary' in the Society. ( 13 ) THE Order dated 10-3-1970 of the learned Munsiff-Magistrate passed on the application dated 16-1-1970 of the petitioners, does not call for interference in revision. This petition stands dismissed The Court below will proceed with the case and deal with it according to law.