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Madras High Court · body

1985 DIGILAW 24 (MAD)

State by Public Prosecutor v. Shanmugham

1985-01-17

S.SWAMIKKANNU

body1985
Judgment This is an appeal filed by the State against the acquittal of the respondent herein by the lower Court holding that the prosecution had not proved its case against the respondent herein under Rules 16AA and 16B of the Tamil Nadu Shops and Establishments Rules, 1948. 2. The case of the prosecution is that on 21.7.1980 at about 5.10 p.m., when the shop of the respondent herein which is run under the name and style of ‘Karpagam and Company’ dealing in piece-goods was inspected by P.W.1, it was found that the respondent herein was not maintaining service book and that he had also not made available the register, records and notices maintained or exhibited under Rule 16B of the Tamil Nadu Shops and Establishments Rules, 1948. After furnishing copies of the relevant documents, the respondent herein was questioned by the lower Court with respect to the case instituted against him by the prosecution. The learned Counsel who appeared on behalf of the respondent herein pleaded not guilty to the charge. On behalf of the prosecution, P.W.1 Arumugam, Assistant Inspector of Labour was examined and Exs. P-1 to P-5 were filed. Ex.P-1 is the inspection report. Ext. P-2 is the order passed on inspection. Ex.P-3 is the show cause notice issued to the respondent by the Assistant Inspector of Labour. Ex.P-4 is the reply given by the respondent herein. Ex.P-5 is the permission granted to P.W.1 to prosecute the respondent herein. The lower Court had acquitted the respondent herein on the ground that apart from P.W.1 no other witness was examined to corroborate the oral testimony of P.W.1 and further it is not in evidence whether Ex.P-4 reply was accepted by the authorities concerned or not. 3. Mr. A.N.Rajan, learned Government Advocate, contends that it is not the number of witnesses that counts, but it is the veracity of the evidence that is tendered through the witness that has to be examined by the Court either to accept or to reject, and inasmuch as no motive is imputed or proved against P.W.1 to institute a false complaint against the respondent herein, the evidence of P.W.1 ought to have been accepted by the lower Court. In other words, the learned Government Advocate submits that there is absolutely no reason to reject the evidence of P.W.1 which is not in any way affected by his cross-examination. 4. In other words, the learned Government Advocate submits that there is absolutely no reason to reject the evidence of P.W.1 which is not in any way affected by his cross-examination. 4. The point for consideration is whether the prosecution has provide its case against the respondent herein beyond all reasonable doubt. 5. P.W.1 Assistant Inspector of Labour states in his evidence that on 21.7.1980 at about 5.10 p.m., he had inspected the piece-goods shop known as ‘Karpagam and Company’ situate in No.177, Gandhi Road, Conjeevaram, which is owned by the respondent herein. At the time of inspection, the father of the respondent was in the shop. The service books as contemplated under Rule 16AA of the Tamil Nadu Shops and Establishments Rules, 1948, were not supplied to 17 of the employees of that shop. Evan when those service books were required to be produced by him as per the provision of Rule 16B of the Rules, they were not produced by him, as they were not maintained by the owner of the shop. So, P.W.1 prepared Ex.P-1 report. Ex.P-2 is the order dated 1.8.1980 issued by the Assistant Inspector of Labour - I Circle, Conjeevaram, asking the respondent herein as to why prosecution should not be launched against him under Rules 16AA(i) and 16AA(ii) read with Rule 16B of the Rules, 1948. Ex.P-3 is the order directing the respondent herein to maintain the records as contemplated under Rules 16AA(i) and 16AA(ii) read with Rule 16B of the Rules, 1948. P.W.1 has further stated in his evidence that after preparing Exts. P-1 to P-3, he served a notice on the respondent herein on 7.8.1980. On 8.8.1980 Ex.P-4 reply was received from the respondent by P.W.1. The explanation contained Ex.P-4 was not satisfactory and therefore after obtaining permission from the Inspector of Labour, Cuddalore, under Ex.P-5, P.W.1 had instituted the complaint in the lower Court against the respondent herein under Rule 16AA(i) and (ii) read with Rule 16B of the Rules, 1948. In the cross-examination it is elicited from P.W.1 that no signature was obtained from 17 persons employed under the respondent herein and that after inspection in question, another inspection by P.W.1 was not done subsequent to 8.8.1980. It was suggested to P.W.1 that the case has been falsely foisted against the respondent herein by P.W.1. 6. In the cross-examination it is elicited from P.W.1 that no signature was obtained from 17 persons employed under the respondent herein and that after inspection in question, another inspection by P.W.1 was not done subsequent to 8.8.1980. It was suggested to P.W.1 that the case has been falsely foisted against the respondent herein by P.W.1. 6. Rule 16AA of the Tamil Nadu Shops and Establishments Rules, 1948, reads as follows: “16AA. Maintenance and supply of Service Book.-(i) Every employer shall issue a Service Book in Form N to every person employed immediately on the date of his entry into service, and to every person employed in service who has not been issued with a Service Book with all entries duly made therein. Every entry including any subsequent entry, correction, alteration or deletion of any entry, shall be in ink and attested in ink by the full signature of the employer with date. The service book shall be the property of the person employed and the employer shall not demand it except to make entries/corrections/ alterations/deletion of entries and the employer shall not retain it with him for more than three days at a time. While receiving the Service Book from the person employed, the employer shall issue a receipt duly signed by him with date to the person employed for having received the same.” 7. Rule 16B of the Tamil Nadu Shops and Establishments Rules, 1948, reads as follows: “16B. The registers, records and notices maintained or exhibited under the provisions of these rules shall always be available in the establishment and shall be produced or caused to be produced for inspection at all reasonable hours by any Inspector having jurisdiction.” 8. Even at the outset it is to be stated that neither the provisions of the Tamil Nadu Shops and Establishments Act, 1947 nor the provisions of the Tamil Nadu Shops and Establishments Act, 1947, contemplate that subsequent to the reply given by the respondent herein, as in the instant case before us, that there should be an inspection again by the concerned officer in order to ascertain whether the rules are complied with or not. The fact remains that on the date of inspection, the service books were not furnished to the employees as contemplated under Rule 16AA of the Tamil Nadu Shops and Establishments Rules, 1948, and that they were also not produced at the time of inspection to P.W.1, as contemplated under the provision of Rule 16B of the Rules, 1948. Absolutely nothing is suggested against P.W.1 so as to falsely implicate the respondent herein in this case. It is also relevant to note that in Ex.P-4 the respondent herein himself admitted that subsequent to the inspection, he had furnished the service books to 17 employees, as contemplated under the Rule 16AA of the Tamil Nadu Shops and Establishments Rules, 1948. It is also clear from the contents of Ex.P-4 that the respondent herein had started maintaining the service books, as contemplated under Rule 16AA of the Rules, 1948 only subsequently. The fact of such maintenance of the service books was informed by the contents of Ex.P-4. It is also mentioned in Ex.P-4 that the respondent herein would be maintaining the service books properly, as contemplated by the Rules. The clear admission of the respondent herein under Ex.P-4 corroborates the oral testimony of P.W.1 with respect to the non-maintenance of the service books by the Respondent herein, as contemplated under Rule 16AA of the Rules, 1948 and also about the non-production of the same at the time of demand by P.W.1 on the date of inspection. Thus, we find that the ingredients of the offence contemplated under Rule 16AA and Rule 16B of the Tamil Nadu Shops and Establishments Rules, 1948, are clearly established by the prosecution through the evidence let in by it. Thus, we find that the acquittal of the respondent herein by the lower Court is wrong. Hence the order of acquittal of the accused-respondent herein is reversed and the accused-respondent herein is found guilty under Rules 16AA and 16B of the Tamil Nadu Shops and Establishments Rules, 1948 and convicted thereunder. 9. Under the circumstances, I am of the view that interest of justice will be amply met by imposing a lenient sentence on the accused-respondent herein. 9. Under the circumstances, I am of the view that interest of justice will be amply met by imposing a lenient sentence on the accused-respondent herein. So far as the penalty contemplated under the Tamil Nadu Shops and Establishments Act, 1948 is concerned, the provision of Rule 18 can usefully be extracted hereunder: “18.Penalty-Any person who contravenes any of the provisions of these rules shall on conviction be punishable with fine which may extend to fifty rupees.” 10. Therefore, I sentence the accused-respondent herein to pay a fine of Rs.10/-under each of the two counts with which he has been found guilty, within one month from to-day before the lower Court.