R. K. Sharma v. State — 1972 DIGILAW 482 (ALL)

ORDER P.N. Bakshi, J. - This is a revision against an order of the 1st Temporary Sessions Judge, Allahabad in Criminal Appeal No. 147 of 1970 arising out of Case No. 26/439 of 1970 of the court of City Magistrate Allahabad, by which the Applicant was convicted for an offence punishable u/s 28 of the Payment of Bonus Act and sentenced to a fine of Rs. 250/-, in default to two months' rigorous imprisonment. 2. Sri R.K. Sharma is said to be the Manager and occupier of M/s. Prayag Patrika, 13-A Albert Road, Civil Lines Allahabad. The prosecution case is that Sri K.C. Dubey Labour Inspector, who is also an Inspector under the Payment of Bonus Act, visited the aforesaid concern on 20-9-1967. On inspection he found that Sri R.K. Sharma had not paid bonus to the workmen of the aforesaid concern for the years 1964-65 and 1965-66. He made an inspection note directing payment of bonus by Sri Sharma within seven days under intimation to him. Sri Sharma failed to make payment of the bonus to the employees for the years in question. A show-cause notice was issued to him by the Deputy Secretary, U.P. Government, Labour Department against his failure to comply with the direction of the Labour Inspector. No reply was sent by Sri Sharma nor was bonus paid by him to the employees of the aforesaid concern. In these circumstances a complaint was filed against Sri R.K. Sharma for breach of Sections 10, 19 and 29 of the Payment of Bonus Act punishable u/s 28 of the said Act for non payment of bonus to the employees for the years 1964-1965 and 1965-66. 3. The accused pleaded not guilty. He denied being the Manager and occupier of the Prayag Patrika Press. He also denied his liability to pay bonus. He filed his written statement raising the following pleas: (a) That the Prayag Patrika Press, situate at 13-A, Albert Road, Civil Lines, Allahabad is not a factory and hence the Bonus Act is not applicable to it. (b) That the concern is a co-operative venture of Journalists and no person is working as an employee within the meaning of the Bonus Act. (c) That no Inspector ever inspected the concern on 20-9-1967. (d) That the accused is not a Manager of any factory as contemplated u/s 7(1)(f) of the Factories Act. 4. (b) That the concern is a co-operative venture of Journalists and no person is working as an employee within the meaning of the Bonus Act. (c) That no Inspector ever inspected the concern on 20-9-1967. (d) That the accused is not a Manager of any factory as contemplated u/s 7(1)(f) of the Factories Act. 4. The City Magistrate relying upon the entries in Form No. 4 in which the accused has shown himself as the occupier of the factory and has purported to have signed the aforesaid Form in the same capacity, held that Sri R.K. Sharma was the occupier of the factory at the material time. He also overruled the contention of the accused that Prayag Patrika Press was not covered by the Payment of Bonus Act. He also disbelieved the defence that no Labour Inspector visited the concern in question on 20th September 1967. The City Magistrate thus found the accused guilty of an offence punishable u/s 28 of the Payment of Bonus Act for non-payment of bonus for the years 1964-65 and 1965-66. 5. Aggrieved thereby Sri R.K. Sharma filed two appeals Nos. 147 of 1970 and 148 of 1970 before the Sessions Judge, Allahabad. Cr. A. No. 147 of 1970 which arises out of Cr. Case No. 26 of 539 of 1970 related to the year 1961-65. This appeal was dismissed by the Sessions Judge Allahabad by his order dated 26th November 1970. It is against this order that the present revision has been filed. It is worth mentioning here that the connected appeal No. 148 of 1970 pertaining to the year 1965-1966 even though disposed of by the same judgment of the Sessions Judge, was allowed by him. 6. I have heard counsel for the patties and have also perused the record of the case. I shall now deal with the points raised on behalf of the parties. 7. In support of its case the prosecution examined Sri K.C. Dubey, Labour Inspector and produced two documents, namely (1) a true copy of the application for registration and renewal of licence NO. 88 Under Sections 6 and 7 of the Factories Act in prescribed Form No. 4, Ex. Ka-3. 7. In support of its case the prosecution examined Sri K.C. Dubey, Labour Inspector and produced two documents, namely (1) a true copy of the application for registration and renewal of licence NO. 88 Under Sections 6 and 7 of the Factories Act in prescribed Form No. 4, Ex. Ka-3. This application was signed by Sri R.K. Sharma occupier and Sri Parmanand Misra on behalf of M/S. Prayag Patrika Press and (2) a copy of the list of Executive Members purporting to have been submitted by Sri Parmanand Misra Ex. Ka-4. It may be mentioned here that Under Rule 9(2) of the Factories Rules the occupier of every factory is required to submit to the Chief; Inspector an application on the prescribed Form No. 4 in triplicate for the renewal of licence. Ext. Ka-3 referred to above, was a copy of the original application in Form No. 4. A perusal of this annexure shows that it has been attested as true copy by the Pradeshik Sahayak Shramayukt, 1 Muir Road, Allahabad Counsel for the Applicant argued that there is nothing in Ex. Ka-3 to indicate the year for which the application for renewal of licence No. ALD 88 Was made. From a close scrutiny of Ex. Ka-3 it is obvious that this is an application for the renewal of an existing licence No. ALD 88 granted to Prayag Patrika Press. Columns Nos. 10 and 11 also show that the premises of the aforesaid concern was occupied on 15th of February 1960. The name of the occupier is given as Sri R.K. Sharma. The date on which the Manager assumed charge is also given as 15-2-1960 and; the name of the Manager is given as Sri Parmanand Misra. Thus there can be no doubt that Prayag Patrika Press has been in existence since 15-2-1960 and that its occupier was Sri R.K. Sharma and its Manager was Sri Parmanand Misra. A further scrutiny of this document Ex. Ka-3 shows that the application for renewal is dated 6th of December 1963 and the amount of fee paid is Rs. 31/25 P. vide Treasury Challan No. 34-A dated 6-12-1963. It cannot be disputed that according to the schedule prescribed by Rule 7 of the Factories Rules the fee payable by the Prayag Patrika Press during the calendar year was Rs. 25/- only. 31/25 P. vide Treasury Challan No. 34-A dated 6-12-1963. It cannot be disputed that according to the schedule prescribed by Rule 7 of the Factories Rules the fee payable by the Prayag Patrika Press during the calendar year was Rs. 25/- only. The schedule indicates that where quantity of H.P. installed is up to 10 and the maximum number of persons employed on any day during the calendar year is upto 20 the fees payable is Rs. 25/-. Thus there can be no doubt that the annual fees payable by the Prayag Patrika Press for renewal was Rs. 25/- only. Counsel for the Applicant suggests that the amount actually paid in the instant case was Rs. 31/25 and as such it cannot be said for what period this amount was paid. I have carefully examined this argument but I do not find any force in it. Rule 9 of the Factories Rules for renewal of licence reads as follows: (1) Except in cases covered by Sub-rule (3) of Rule 13, the licence of a factory may be renewed by the Chief Inspector for the whole of a calendar year on payment of the fees specified in the schedule under Rule 7: Provided that if the application for renewal is not received within the time specified in Sub-rule (2), the licence shall be renewed only on payment of a fee, 25 per cent in excess of the fee ordinarily payable for the licence. (2) Every application for the renewal of a licence shall be accompanied by the notice of occupation prescribed u/s 7 and shall be sent in triplicate so as to reach the office of the Chief Inspector not less than thirty days before the date on which the licence expires and if the application is so made, the premises shall be held to be duly licensed Until such date as this Chief Inspector renews the licence. This rule makes it amply clear that an application for renewal of licence has to be made not less than 30 days before the date on which the licence expires. In the instant case the application was made on 6th of December 1963 as is clear from Ex. Ka-3. As such under the afore mentioned rule it was necessary to pay 25% in excess of the fee ordinarily payable for the renewal of the licence. In the instant case the application was made on 6th of December 1963 as is clear from Ex. Ka-3. As such under the afore mentioned rule it was necessary to pay 25% in excess of the fee ordinarily payable for the renewal of the licence. If that is not done the application for renewal would not be in order and in that event the premises for which the licence is applied for cannot be held duly licensed upto the date when the application for renewal is actually allowed by the Chief Inspector. I, therefore, find that on account of this delay of six days an excess amount of Rs. 6/25 was added to the ordinarily payable licence fee of Rs. 25/- and thus Rs. 31/25 were deposited vide Treasury Challan mentioned above, as the renewal fee for the coming year. In this view of the matter I am of opinion that the amount of Rs. 31/25 paid as licence fee on 6-12-1963 on which date the application in Form No. 4 was sent to the Chief Inspector for renewal of licence No. ALD 88 of the Prayag Patrika Press related for the whole of the calendar year commencing from 1st January 1964 to 31st December 1964. Ex. Ka-3, to my mind, is sufficient to prove this fact. 8. It appears that in the appellate court the original Form No. 4 of which an attested copy was already on the record was produced on behalf of the State. This was accompanied by a letter on the form of the Prayag Patrika Press dated 6-12-1963 written by Sri Parmanand Misra, Manager to the Chief Inspector of Factories, U.P. Kanpur for renewal of the factory licence No. ALD 88 for the year 1964. The original Form No. 4 and this letter were filed with a list of documents on 23-11-1970. This list has been endorsed by Sri R.K. Sharma accused-Applicant on the same date with the remark "Seen". No objection was taken by Sri Sharma to the filing of this original Form 4 and the letter accompanying it. The genuineness of this original Form 4 and the letter accompanying it cannot therefore be doubted. This is an additional factor which supports the contention on behalf of the State that the application for renewal of licence dated 6-12-1963 was made for the year 1964. The genuineness of this original Form 4 and the letter accompanying it cannot therefore be doubted. This is an additional factor which supports the contention on behalf of the State that the application for renewal of licence dated 6-12-1963 was made for the year 1964. Even if this document is excluded from consideration, I am of opinion, that the true copy of Form 4 Ex. Ka 3 read along with the rules referred to above fully establish that the application dated 6-12-1963 for renewal of licence No. ALD 88 of the Prayag Patrika Press was made for the 1964 and that the licence fee due for this period amounting to Rs. 31/25 was paid in connection therewith. 9. Counsel for the Applicant has argued that, the Payment of Bonus Act is not applicable to the Prayag Patrika Press. His contention is that u/s 1(3)(a) the said Act is applicable to every factory. He submits that according to Section 2(17) of the Payment of Bonus Act, the word 'factory' has to be given the same meaning as is embodied in Section 2(m) of the Factories Act. Section 2(m) of the Factories Act runs as follows: (m) 'factory' means any premises including the precincts thereof-- (i) Whereon ten or more workers are working, or were working on any day of the preceding twelve months and in any part of which a manufacturing process is being carried on with the aid of power, or is ordinarily so carried on.... Learned Counsel relies upon the entries in the attested copy of Ext. Ka-3. He refers to columns 5(a), (b) and (c) of Form 4 (annexure 2 attested copy). In column 5(a) the maximum number of workers proposed to be employed on any one day during the year is shown as not more 8 persons. In column 5(b) the maximum number of workers employed in any one day during the last twelve months is also shown as 8 persons. In column 5(c) the number of workers to be employed in the factory is shown as 8. In column 5(b) the maximum number of workers employed in any one day during the last twelve months is also shown as 8 persons. In column 5(c) the number of workers to be employed in the factory is shown as 8. The contention of the learned Counsel is that even though the Prayag Patrika Press may be Working with the aid of power yet because according to the above mentioned entries there were less than 10 workers working on any day of the preceding 12 months, the premises in question would not be covered by the definition of the word 'factory' and as such the Payment of Bonus Act 1965, not be applicable. I have very carefully considered this argument of the learned Counsel for the Applicant, but I am not inclined to agree with him. I have referred above to the original Form 4 which has been filed before the Sessions Judge on behalf of the State. It is significant to note that in this original Form 4 the entry made in col. 5(b) is different from the entry made in Ex. Ka 3, which is said to be an attested true copy of the original. In the original Form No. 4 Under Clause 5(b) the maximum number of workers employed in any one day during the last 12 months has been shown as 18. Whereas in the corresponding entry in the alleged attested true copy the number of persons shown is only 8. This attested true copy is one of the three copies which have been sent on behalf of the Prayag Patrika Press along with the original Form 4 for the renewal of licence for the year 1964. I have no doubt in my mind that the mention of eight I persons col. No. 5(b) of Ex. Ka-3 is an incorrect entry. It is not a true copy of the original. Whether this incorrect entry has been made deliberately or mistakenly is a serious matter and may require a further probe, but the fact is the this entry, in the so called attested true copy, is a wrong entry and it not according to the original Form 4. It is not a true copy of the original. Whether this incorrect entry has been made deliberately or mistakenly is a serious matter and may require a further probe, but the fact is the this entry, in the so called attested true copy, is a wrong entry and it not according to the original Form 4. I have no hesitation in accepting the entry made is the original Form 4 and in holding that according to she said Form (sic) the lumber of (sic) employed in any one day during the lass 12 months bf the Prayag Patrika Press was 18. This finding recorded by me knocks the bottom out of the submission made by the learned Counsel as to the inapplicability of pie Payment of Bonus Act, 1965. The Sessions Judge, while considering this question has also relied upon this original entry in Form 4, col. 5(b) (sic) has held that the (sic) was the (sic) of the factory in question according to Section 2(m) of the Factories Act. I fully agree with this finding given by tin Sessions Judge. 10. In my opinion, therefore, the said concern is liable to pay bonus to its workers under the Payment of Bonus Act 1965 and by failing to do so the accused has clearly committed an offence which is punishable u/s 8 of the Payment of Bones Act, 1965. 11. Counsel for the Applicant has also surged that the concern in question was a co-operative venture and no person working therein was an employee within the meaning of the Act. This argument has only to be mentioned to be rejected. Sections 16 and 32 of the Payment of Bonus Act deal with the exception to which the Act does not apply. Mere reading of those sections clearly indicates that a co-operative venture is net at all included within those exceptions. 11. No other point has been argued before me. 13. This revision has no force and is hereby dismissed. The interim order passed by this Court on 19-3-1971 staying realization of fine is vacated.