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2000 DIGILAW 54 (PAT)

Bisheshwar Prasad Sharma v. State Of Bihar

2000-01-13

D.P.S.CHOUDHARY

body2000
Judgment D.P.S.Choudhary, J. 1. This revision is directed against the judgment and order dated 22.7.1997, passed by the 3rd Additional Sessions judge, Munger, in Cr. Appeal No. 27/95, confirming the judgment and order of conviction passed by the Judicial Magistrate, 1st Class, Munger, dated 8.5.1995, in Tr. No. 160/95, convicting the petitioners under Section 28(a)(b) of the Payment of Bonus Act, 1965 (hereinafter referred to as the Act), and sentencing them to undergo simple imprisonment of six months. The appellate Court reduced the sentence to three months simple imprisonment each. 2. The prosecution case, in brief, is that the Complainant, Umesh Chandra Prasad, Assistant Labour Commissioner-cum-Inspector, PW 3, filed a complaint in the Court of the C.J.M. on 17.2.1991, alleging therein that on 10.7.1990, he inspected the factory of M/s. Jauhri and Sons and found 17 persons working there. The employer-partner, namely, Petitioner No. 1, Bisheshwar Pd. Sharma, was present there, from whom the complainant demanded records of accounting years 1986-87 and onwards and other papers, but he did not produce any one. It is further alleged that show- cause notice was issued through the office peon, PW 2, Brahmdeo Prasad, but the employer-partner refused to accept the same. Thereafter, it was sent through registered post. After cognizance trial proceeded in the Court below. 3. In support of its case, prosecution examined three witnesses, out of them, PW 1, is the Stenographer of the Complainant, PW 2 is the orderly peon who has been tendered and PW 3 is the Complainant. Both the courts have come to the finding that the petitioners were the partners of the firm and managing its affairs and more than 20 labourers on permanent basis were employed in the factory and on the date of inspection 17 of them were found working in the factory on monthly wages. On these findings, the trial Court convicted the petitioners and sentenced them accordingly, which has been upheld by the appellate Court as mentioned above. 4. Learned counsel for the petitioners submitted that the prosecution has neither alleged nor proved that on the date of inspection, 20 or more persons were employed. The evidence of PWs 1 and 3 is that on the date of inspection, 17 persons were found working in the factory. 4. Learned counsel for the petitioners submitted that the prosecution has neither alleged nor proved that on the date of inspection, 20 or more persons were employed. The evidence of PWs 1 and 3 is that on the date of inspection, 17 persons were found working in the factory. It is the mandatory provision under Section 1(3)(b) of the Act that this Act shall be extended only to those establishments which has employed 20 or more persons on monthly wages. PW 3 in his evidence, vide Annexure 3, stated that at the time of inspection, he found only 17 workers working in the factory. He further admitted that in this gun-factory, two types of labourers work; some are employed on monthly basis and others are on contract basis. In view of this evidence, the prosecution has failed to prove that on the relevant date, the firm was employing minimum 20 workers on monthly wages. Thus, the conviction of the petitioners is not maintainable. In support of this contention, learned counsel for the petitioners relied on the case of Bakridah Bibi and others V/s. State of Bihar, 1973 Cr LJ 1328. 5. The another point raised by the counsel for the petitioners is that neither in the prosecution report, Ext. I nor in the evidence of the complainant, it is alleged that the petitioners were managing the affairs of the factory or they were either partners or Directors or in any way concerned with the affairs of the factory. No evidence has been adduced on behalf of the prosecution to the effect that these petitioners, at the time of the alleged offence, were incharge of and were responsible to the company for the conduct of its business. In absence of any such evidence none of the petitioners can be prosecuted for the offence alleged against them and their conviction is not sustainable in law. In support of this contention, learned counsel placed reliance on the same case law, i.e. 1973 Cr LJ 1328 (supra). 6. In the last, learned counsel submitted that earlier to this prosecution, the same complainant had instituted a case against the same firm, in which also the petitioners were made accused for the offence under Section 28(a) of the Act. The matter ultimately came up before the High Court and vide Cr. Rev. 6. In the last, learned counsel submitted that earlier to this prosecution, the same complainant had instituted a case against the same firm, in which also the petitioners were made accused for the offence under Section 28(a) of the Act. The matter ultimately came up before the High Court and vide Cr. Rev. No. 430/78, it was held that the prosecution has failed to prove that the Payment of Bonus Act was applicable with the firm and also failed to prove that the firm had employed 20 or more workers on the alleged date of occurrence and that the petitioners were incharge of the management of the company. Again alledging the same facts and under the same circumstances, the same complainant has filed this complaint against the petitioners with a mala fide intention. 7. As per the provisions of Section 29 of the Act, if the person committing the offence under this Act is a Company, every person who at the time of the offence, was incharge of and was responsible to the Company for the conduct of the business of the Company as well as the Company shall be deemed to be guilty of the offence and shall be liable to be prosecuted against and punished accordingly. Admittedly, in this case, the Company, Jauhri and Sons has not been made accused along with the petitioners which is a lacuna in the prosecution case. There is substance in this contention that the prosecution has neither alleged nor brought on record any evidence to the effect that any or all the petitioners were incharge of and were responsible to the Company for the conduct of its business. Not a word has been whispered in the evidence of PWs 1 and 3 to this effect. This was a serious omission on the part of the prosecution and on this ground alone the prosecution case is not sustainable in the eye of law. I also find substance in this submission of the counsel for the petitioners that the provisions of the Act are applicable only where 20 or more persons are employed on monthly basis in a factory. The case of the prosecution is that on the date of inspection only 17 persons were found working on monthly wages. The complainant has not stated that besides these 17 persons others were also employed in the said factory on monthly wages. The case of the prosecution is that on the date of inspection only 17 persons were found working on monthly wages. The complainant has not stated that besides these 17 persons others were also employed in the said factory on monthly wages. This fact has also not been alleged in the prosecution report in absence of any such averment made by the prosecution, provisions of Section 1(3)(b) of the Act are not applicable and accordingly, the conviction of the petitioners under Section 28 of the Act is fit to be set aside. 8. In the result, this revision is allowed and the order of conviction and sentence passed against the petitioners is set aside.