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1998 DIGILAW 100 (HP)

VIJAY GUPTA v. STATE OF HIMACHAL PRADESH

1998-07-01

R.L.KHURANA

body1998
JUDGMENT R.L. KHURANA, J.—By virtue of the present petition preferred under Sections 397 and 401, read with Section 482, Code of Criminal Procedure, the petitioners have approached this Court assailing the order dated 6.9.1997 of the learned Additional Chief Judicial Magistrate, Dehra, whereby they have been summoned to face trial for the offence under Section 20 (7) of the Himachal Pradesh Shops and Commercial Establishments Act, 1969 (hereinafter referred to as the Act1). 2. As per the version of the prosecution, the two petitioners are the Directors of Messrs. Saptloki Hotels (P) Limited. The said company is running a Hotel under the name of Hotel Mateshree at Jawalamukhi. The Hotel premises were inspected by the Inspector, Shops and Commercial Establishment, Dehra, on 31.3.1997 at about 4 p.m. During the course of such inspection, it was found that the petitioners with the intention to deceive the employees of the Hotel, were making/maintaining false record inasmuch as though less wages were being paid to the employees, namely, S/Shri Dalip Singh, Kanwar Singh, Shiam Singh, Des Raj, Ravi Mukhia, Chhotu Ram (I) and Chhotu Ram (II), a higher wage has been shown and entered as having been paid to such employees, The petitioners are having full knowledge of such false record. Since there was a contravention of Section 20 (7) of the Act, which is punishable under Section 25 of the Act, a complaint for the prosecution of the two petitioners was presented before the learned Magistrate on 9.6.1997. 3. The learned Magistrate took cognizance of the offence on 10.7.1997 and directed the summoning of the two petitioners for prosecution for the offence punishable under Section 25 of the Act. 4. At the very outset, the learned Counsel for the petitioners has contended that the petitioners cannot be proceeded against under the Act, inasmuch as the provisions of the Act are not applicable to Jawalamukhi area of District Kangra. 5. Under Section 1 (4), the Act was initially made applicable to the limits of Shimla Municipal Corporation and to the Municipal areas and Cantonment limits. 6. It has been provided in the said section that the Government may by notification in the official Gazette, direct that it shall come into force in any other local area or shall apply to such establishments or class of establishments in such other areas, as may be specified in the notification. 7. 6. It has been provided in the said section that the Government may by notification in the official Gazette, direct that it shall come into force in any other local area or shall apply to such establishments or class of establishments in such other areas, as may be specified in the notification. 7. In exercise of the powers conferred by sub-section (4) of Section 1 of the Act, the Governor, Himachal Pradesh, issued a notification No. 13-10-/70-SI dated 15.11.1972 (See : page 931 of H.P. Code, Volume V), directing that the provisions of the Act shall also be applicable to Jawalamukhi area of Kangra District besides other places enumerated in the Schedule annexed to the notification. 8. Section 27 empowers the Government to exempt any establishment or class of establishments from the operation of all or any of the provisions of this Act. In exercise of these powers, vide notification No. 13-10/70-SI dated 6.7.1973, the Governor of Himachal Pradesh was pleased to exempt all the establishments at Jawalamukhi in Kangra District and at Mehatpur in Una District from the operation of all the provisions of the Act from the date of publication of the notification in the Himachal Pradesh Rajpatra. Such notification was published in the Rajpatra on 4.8.1973 (See: page 942 of the H.P. Code Volume V). 9. Therefore, on and with effect from 4.8.1973, the provisions of the Act are not applicable to all the establishments at Jawalamukhi. The petitioners, as such, could not have been proceeded against under the Act. 10. The learned Assistant Advocate General, has not been able to point out any subsequent notification making the provisions of the Act applicable to Jawalamukhi. 11. Resultantly, the present petition is allowed. The impugned order of the learned Magistrate is set aside and the proceedings pending against the petitioners before the learned Additional Chief Judicial Magistrate, Dehra, vide Criminal Case No. 224-III of 1997 are quashed. Petition allowed.