Research › Browse › Judgment

Allahabad High Court · body

1970 DIGILAW 404 (ALL)

State of UP v. Kailash Chandra Bhargava

1970-10-12

S.MALIK

body1970
ORDER S. Malik, J. - This is a Government Appeal against the judgment dated 10-7-1967 passed by Shri P.K. Misra, Magistrate 1st Class, Allahabad, acquitting Kailash Chandra Bhargava who was prosecuted as manager and employer of M/s. Kailash Paper Trading Company situate at 10, Sheo Charan Lal Road, Allahabad, u/s 35 of the UP Shops and Commercial Establishment Act, 1962 (UP Dookan Aur Vanijya Adhishthan Adhiniyam, 1962) (hereinafter referred to as the Act). 2. The relevant facts not controverted in this Court are that inspector J.K. Singh who was the only witness examined by the prosecution during the trial, inspected the said establishment on 28-9-1966 at about 2.30 P.M. in the presence of the accused. 3. According to the prosecution, during the inspection the inspector found that no leave register or inspection book was being maintained and that the signature of Bharat Lal, an employee of the firm, was not being obtained in the prescribed column of the attendance register and that the names of two other employees, R.N. Misra and Sarvajit Singh who were working as employees of the firm since three months before the date of inspection, were not entered in the attendance register. It was further alleged that particulars of employment of the said employees were not shown in the prescribed column of the attendance register. It is said that due to the omissions and irregularities pointed out the accused contravened the provisions of Section 32 of the Act read with Rules 18 and 20 of the Rules framed under the Act. 4. The accused pleaded not guilty and alleged that the registers in question were maintained by the manager of the firm who had left the firm without making over charge and therefore, the registers etc. were not traceable. It was further alleged that R.N. Misra and Sarvajit Singh were casual hands and were not employees of the firm under the Act as they came under the provisions of Clause (b) of Sub-section (1) of Section 3 of the Act. The other irregularities and omissions alleged by the prosecution were denied. 5. As was pointed out, a perusal of Section 29 of the Act will show that inspectors for different areas may be appointed by the State Government besides a Chief Inspector and a Dy. The other irregularities and omissions alleged by the prosecution were denied. 5. As was pointed out, a perusal of Section 29 of the Act will show that inspectors for different areas may be appointed by the State Government besides a Chief Inspector and a Dy. Chief Inspector who shall be for the whole of U.P. Therefore, an inspector will have jurisdiction to inspect and do all such acts enumerated in Section 30 of the Act in regard to the area for which he was appointed as inspector u/s 29 of the Act. According to PW 1 Inspector J.K. Singh, who was neither the Chief Inspector nor the Dy. Chief Inspector, the area in which the firm of the accused is situate, was allotted to him by the Assistant Labour Commissioner, Allahabad. It was argued on behalf of the accused that there is nothing on the record to show that the Assistant Labour Commissioner, Allahabad, was empowered by the State Government or could be empowered by the State Government to allot the area in question to the inspector concerned or in other words there is nothing on the record to show in that PW 1 J.K. Singh was appointed inspector, for the area in which the firm of the accused is situate, as laid down in Section 29 of the Act. Unless this was established, it could not be said that the inspector had jurisdiction to inspect the firm or that the accused could be prosecuted for the alleged irregularities. The learned Counsel for the State asked for 15 days' time to produce the necessary notification or provision of law to show to the Court that J.K. Singh was duly appointed in accordance with law inspector for the area in which the firm of the accused is situate. The appeal was heard on 9-9-1970 and because of the request made on behalf of the State, judgment was reserved. Though more than three weeks have elapsed, No. provision of law could be brought to the notice of the Court to show that J.K. Singh was appointed according to law inspector for the area in question or that he had the authority to inspect the shop or the commercial establishment of the accused on the date when he did so. On this ground alone, therefore, the appeal is liable to be dismissed. On this ground alone, therefore, the appeal is liable to be dismissed. In this connection, the definition of the word 'inspector' given in Sub-section (10) of Section 2 of the Act is also relevant. 6. It was next pointed out on behalf of the accused that a perusal of Section 29 of the Act makes it clear that the State Government could appoint only a Chief Inspector and a Dy. Chief Inspector for the whole of UP and that the other inspectors may be appointed only for different areas. Section 29 of the Act does not empower the State Government to appoint an inspector other than a Chief Inspector and a Dy. Chief Inspector for the whole of UP for filing a complaint or for exercising the powers enumerated in Section 30 of the Act in the whole of UP though the State Government may appoint as many inspectors as they like for different areas. Admittedly in this case the complaint was not filed by the inspector] duly authorised for the area concerned or by the Chief Inspector or the Dy. Chief Inspector who had jurisdiction to act as an inspector throughout UP. As deposed to by J.K. Singh, the complaint was filed by one D.K. Singh, labour Inspector who, it is said, (was appointed by the State Government as an inspector under the Act in respect of whole of UP for filing complaints. But ho such order has been produced and in view of the provisions of Section 29 of the Act, it is doubtful if the State Government had the power to do so. Under the circumstances, it appears that no proper complaint was filed in this case. 7. It was next argued that the offences with which the accused was charged were continuing Offences and continued upto the date on which inspection was made and therefore, the period of limitation of six months should have been counted by the lower court from that date and not from throve months earlier, since when, it is said, the accused started committing the Offences. I agree with the contention put forward on behalf of the Appellant regarding the question of limitation but in view of my findings already mentioned the question of limitation becomes irrelevant for the purposes of this appeal. 8. I agree with the contention put forward on behalf of the Appellant regarding the question of limitation but in view of my findings already mentioned the question of limitation becomes irrelevant for the purposes of this appeal. 8. As is apparent from the statement made by DW 1 Sarvajit Singh, both Bharat Lal and R.N. Misra like DW 1 Sarvajit Singh were not employees within the meaning of the Act as according to DW 1 Sarvajit Singh, all these three persons were casual employees and their work was inherently intermittent within the meaning of Clause (b) of Sub-section (1) of Section 3 of the Act. There w nothing in the statement made by PW 1 J.K. Singh due to which the statement made by Sarvajit could be doubted. 9. Under the circumstances, after considering the entire evidence on the record I see no force in this appeal and dismiss it.