B.S. SINHA, J. 1. This application, at the instance of the three petitioners, is directed against the order dated 30.3.1976 passed in Case No. 36(0) of 1976 by Shri Vidyanand, Chief Judicial Magistrate, Rohtas, by which cognizance has been taken against the petitioners for offences under Section 32 and 34 of the Bihar Shops and Establishment Act, 1953 (hereinafter referred to as 'the Shops Act'). On 30.3.1976, Shri A.K. Mishra, an inspecting officer appointed under the Shops Act, filed a complaint before the Chief Judicial Magistrate, against these three petitioners, alleging therein that there is a general office of the Rohtas Industries Limited, Dalmianagar, a company incorporated under the Indian Companies Act, to which the provisions of the Shops Act, apply. Under Section 12A of the Shops Act, every establishment has to give to its employees a holiday on full pay on the Independence Day, the Republic any and Mahatma Gandhi's Birthday and such other holidays on full pay up to five days in a year in connection with such festivals as the State Government may declare from time to time under the Shops Act. The proviso provides that if an employee is required to work on any such holiday he shall be paid remuneration at double the rate of his normal wages calculated by the hour. It was said in the complaint petition that although October, 2, 1975 being Mahatma Gandhi's Birthday was a holiday in terms of Section 12A of the Shops Act. The General Office of the Rohtas Industries was open and the employees were working on that date for which they had not been given remuneration at the rate provided in the proviso to Section 12 A of the Shops Act. Even the show cause submitted by the petitioners having not been found satisfactory the complaint was being filed. On the basis of such a complaint the impugned cognizance has been taken. Mr. Katriar appearing for the petitioners has urged that on the facts disclosed no offence is made out against the petitioners and, in that view of the matter, the cognizance taken must be quashed and set aside. There is substance in this submission of the learned Counsel. 2. I have already said that cognizance has been taken for two offences, namely, for Infringement of Sections 32 and 12 A of the Shops Act. There is substance in this submission of the learned Counsel. 2. I have already said that cognizance has been taken for two offences, namely, for Infringement of Sections 32 and 12 A of the Shops Act. Section 32 provides a penalty if any person voluntarily obstructs an Inspecting Officer in the exercise of any power conferred on him by or under the Shops Act, or any person lawfully assisting an Inspecting Officer in the exercise of such power. It also makes an offence if any person fails without any sufficient cause to comply with any lawful direction made by an Inspecting Officer. There is no allegation in the complaint petition that any obstruction was caused to the Inspecting Officer or anyone assisting him during the course of his inspection. There is also no allegation in the complaint petition that any lawful direction given by the Inspecting Officer has not been complied with by the petitioners. In such circumstances, it was conceded by Mr. Vinod Chandra appearing for the State that no cognizance should have been taken against the petitioners under Section 32 of the Shops Act. 3. The question that still remains to be considered is whether an offence has been committed as contemplated under section 34 of the Shops Act. To bring it within the purview of Section 34, it has got to be considered in the instant case whether the petitioners have infringed the provisions of section A of the Shops Act. This section gives a right to an employee working in an establishment and, therefore, it casts an obligation on an employer of the establishment. Employer has been defined under Section 2 (5) of the Shops Act, and it reads as follows :- "(5) "employer" means a person who owns or exercises ultimate control over the affair of an establishment and includes a manager, agent or any other person in the immediate charge of the general management or control of such establishment." By going through the above definition it is manifest that employer, as understood under the Shops Act, are in two classes, namely,(l) who owns or exercises ultimate control over the affairs of an establishment and (2) it includes a manager, agent or any other person In the immediate charge of the general management or control of such establishment. By going through the above provisions it seems further clear to me that to come under the second clause that is to be an employer as a manager, agent or any other person must be in the immediate charge of the general management or control of such establishment. In other words, the words in the immediate charge of the general management or control of such establishment controls the three words used immediately before, namely manager, agent or any other person. Hence, to make the petitioners who admittedly do not either own or exercise ultimate control over the affairs of an establishment, namely, the Rohtas Industries, in the instant case, it must be shown that they come in the second category, that is, they as manager, agent or any other person have immediate charge of the general management or control of such establishment, but there is nothing in the complaint petition to indicate that the petitioners have the immediate charge of the general management or control of Rohtas Industries Limited. All that the complaint petition states that the petitioner no.1. V Poddar is a Works Manager, petitioner No.2 J.P. Saxena is the Executive President and petitioner No. 3 D.V. Singh is the Karkhana Prabandhak which will mean Factory Manager of Rohtas Industries Limited. Therefore, by going through the complaint petition the petitioners might be included in the category of managers, or agents but it is nowhere stated or there is nothing to show in the Complaint petition that they have immediate charge of the general management or control of the Rohtas Industries Limited. 4. It has been held in a number of decisions under the Essential Commodities Act, as also under the payment of Bonus Act, (hereinafter referred to as' the Bonus Act') that persons employed by a Company in a responsible position like Directors or Managers cannot be prosecuted for the violation of any orders made under Section 3 of the Essential Commodities Act, or under the provisions of the Bonus Act, unless there is a specific recital in the complaint petition that such persons were in charge of and were responsible to the company for the conduct of the business of the company. In this context it might be useful to refer to the provisions of the Bonus Act, where also under Sections 10 and 19 of the Bonus Act, an employee is made responsible for the payment of bonus. Section 28 of the Bonus Act, provides for penalty if there has been a contravention of any of the provisions of the Bonus Act. Section 29 provides that if the person committing an offence under this Act, is a company, every person who, at the time the offence was committed, was incharge of or responsible to, the company for the conduct of business or the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Construing this provision a bench of this Court in Cr. Miscellaneous 554 of 1972 dated 6.9.1973, held that in the absence of a specific allegation in the complaint petition that at the relevant time the persons charged were responsible to the firm for the conduct of the business of the firm or that the offence had been committed with the consent or connivance of or is attributable to any neglect on the part of such person, no offence is disclosed as against them and hence the cognizance taken against them must be quashed. In Section 29 of the Bonus Act, the provisions are similar to those as are found in Section 2 (5) of the Shops Act. 5. In the aforesaid decision the principles stated in Rabindra Nath Dutta case, a Bench decision of this Court reported in 1971 B.L.J.R. 1005 was reiterated. In that case it was held that in the absence of a specific allegation against the Manager or the Director of a Company cognizance taken under the provisions of the Essential Commodities Act, had to be quashed. 6. By reference to sections 2(5) and 34 read with Section 36 (1) of the Shops Act, a person who does not own or exercise control Over the affairs of an establishment cannot be prosecuted if in the complaint petition there is nothing to indicate that he was the person in immediate charge of the general management or control of such establishment. There being no such allegation in the complaint petition, the cognizance taken against the petitioners cannot be sustained. 7. There being no such allegation in the complaint petition, the cognizance taken against the petitioners cannot be sustained. 7. It was however, urged on behalf of the State that at least cognizance taken against the petitioners no. 1 and 3 was in order in view of Section 35 of the Shops Act, which read thus: "If the person contravening any provision of this Act, or a rule or order made there under is a company or a partnership firm, every director, partner manager or secretary thereof shall unless he proves that the contravention took place without his knowledge or that he exercised all due diligence to present such contravention, be deemed to be guilty of such contravention." It has been urged that petitioners nos. 1 and 3 are Managers, as contemplated under this provision and hence would be liable unless they prove that the contravention took place without their knowledge or that they had exercised all due diligence to prevent such contravention. On the face of it this argument seems to be attractive and there seems no reason not to include "works manager" or "factory manager" within the meaning of word "manager" as used in the aforesaid section. Petitioner no.1 has been described as the works manager and petitioner no. 3 as the factory manager in the complaint petition. In the petition filed in this Court petitioner no.1 has described himself as works manager while petitioner no. 3 has been designated as Chief personnel manager. A close reading of this section however shows that only when the company or partnership Firm is charged with contravening any provision of the Shops Act, then only every Director, partner, manager or Secretary there of shall be deemed guilty of such contravention unless he proves that the contravention took place without his knowledge or Inspite of his due diligence to prevent such contravention. Therefore, if the Company has not been prosecuted Director Partner, Manager or Secretary cannot be charged for the contravention. Section 10 of the Essential Commodities Act, is in pari materia with Section 35 of the Shops Act. In the case of The State of Madras V. C.V. Parekh and anr, it was held that the first condition for the applicability of Section 10 of the Essential Commodities Act, is that the personnel contravening the order must be a Company itself. In the case of The State of Madras V. C.V. Parekh and anr, it was held that the first condition for the applicability of Section 10 of the Essential Commodities Act, is that the personnel contravening the order must be a Company itself. In that case it was further found that the Company was not charged with the offence at all and accordingly it was laid down that the liability of the persons incharge of the Company only arises when the contravention is by the Company itself. Similarly, in this case as well the liability of petitioners nos. 1 and 3 could only arise if the Company had been charged which has not been done. Therefore, the submission on behalf of the State has to be rejected. 8. In the result, the application is allowed and the impugned cognizance taken against the petitioners is set aside. Application allowed.