JUDGMENT : 1. This revision is directed against the order dated 29-02-2014 passed in C.R. Case No. 1c/2014, whereby learned Judicial Magistrate took cognizance and issued process against the petitioner. 2. The facts leading to the present revision may briefly be stated thus-On 26-03-2013 the complaint, a labour enforcement officer, inspected the Punjab National Bank, Dibrugarh Branch. During inspection of the bank, the respondent/complainant found that the petitioner did not maintain up-to-date register in form ‘D’ as per requirement of Rule 6 relating to female workers employed, and thereby committed breach of Section 10 of the Equal Remuneration (ER) Act, 1976 and Rule 6 of the Equal Remuneration Rules. Accordingly the respondent lodged a complaint u/s 10 of the Equal Remuneration Act. For better appreciation, the complaint filed by the respondent is reproduced below :- “IN THE COURT OF THE CHIEF JUDICIAL MAGISTRATE, DIBRUGARH, (ASSAM) State represented by – Labour Enforcement Officer (Central), Dibrugarh & Inspector under the Equal Remuneration Act, 1976 ..........Complainant. -VS- Sri P.K. Mahanty (Chief Manager), Punjab National Bank, Thana Chariali, Dibrugarh. Complaint under Section of the Equal Remuneration (ER) Act, 1976 1. That the name and address of the accused person for the purpose of service of summons and processes are as mentioned above. 2. That the complainant is the inspector appointed under Sec. 9 vide Notification No. SO 443 (E) dated 13.05.1998 of Govt. of India, Ministry of Labour, New Delhi of Equal Remuneration Act, 1976 hereinafter referred to the said Act. 3. That the accused person is a Bank Chief Manager of Punjab National Bank, Dibrugarh and executing work for Banking Business” numbering 18 nos. of employees. 4. That the establishment of the accused persons was inspected by the complainant on 26.03.2013 at Punjab National Bank, Dibrugarh and observed that :- (a) Employer has not maintained up-to-date register relating to the female workers employed by him permitted in form ‘D’ at the place of work site under rule 6.” 3. On the basis of the above complaint, learned Judicial Magistrate took cognizance and issued process by the following order-- “29.02.2014 Case record received. Issue summons to the accused. Fix 31-03-2014 for appearance.” 4. Aggrieved by the order of the learned Magistrate taking cognizance, the petition filed the present revision petition. 5. Learned counsel for the petitioner, Mr. A. Ganguly and Mr. S.K. Ghosh, learned counsel for the respondent were heard. 6. Issue summons to the accused. Fix 31-03-2014 for appearance.” 4. Aggrieved by the order of the learned Magistrate taking cognizance, the petition filed the present revision petition. 5. Learned counsel for the petitioner, Mr. A. Ganguly and Mr. S.K. Ghosh, learned counsel for the respondent were heard. 6. Learned counsel for the petitioner, Mr. A. Ganguly submits that the learned Magistrate took cognizance mechanically, without applying judicial mind, inasmuch as, the petitioner was the Chief Manager of the Branch of Punjab National Bank and not the employer as defined in Section 2 (c) of the Equal Remuneration (ER) Act, 1976. Mr. Ganguly contends that the bank being a company was the employer, which committed the offence if any, and not the petitioner and the complaint did not disclose anything, as to show that the petitioner, who was the Manager of a Branch, was responsible to the company for conduct of the business of the company. Learned counsel for the petitioner further submits that the Punjab National Bank, being the employer, has not been arrayed as an accused in the complaint, and as such, the complaint was not maintainable. Further contention of the learned counsel is that it was not necessary for the employer to maintain the register in form ‘D’ at every branch. It is suffice to keep such register at the administrative head office of the bank, submits Mr. Ganguly. In support of his submission, the learned counsel placed reliance on a decision of the Kerala High Court in Lord Krishna Bank and Anr. -VS- Labour Enforcement Officer and Anr., Crl.M.C.2538/97, Hon’ble Kerala High Court, in Lord Krishna Bank and Ors.-VS- Labour Enforcement Officer (supra) dealing with the definition of employer/worker and also the expression “places where the workers are employed”, observed as under :- 7. “The concept of employment involves three ingredients (1) employer, (2) employee and (3) the contract of employment. The employee is one who employs, i.e. one who engages the services of other persons. The employee is one who works for another for hire. The employment is the contract of service between the employer and the employee whereunder the employee agrees to serve the employer subject to his control and supervision : see the decision reported in Chintaman Rao and Anr.-Vs-The State of Madhya Pradesh. 8. Appointment of the employees of the Bank is made by the Head office. The employment is the contract of service between the employer and the employee whereunder the employee agrees to serve the employer subject to his control and supervision : see the decision reported in Chintaman Rao and Anr.-Vs-The State of Madhya Pradesh. 8. Appointment of the employees of the Bank is made by the Head office. Contract of employment is issued by the head office. The Branch Manager has no power or authority to make appointments or to issue order of appointment. In such circumstances, it cannot be said that the employer in relation to the workers working in a particular branch of the bank is the Branch Manager Employer can only be the Bank represented by the first petitioner. 10. It is seen from the statements of objects and reasons that the Act is enacted to provide for payment of equal remuneration to men and woman workers for the same work or work of a similar nature and for prevention of discrimination in payment on the ground of sex. The object will not in any way be defeated if Form “D’ prescribed as per Rule 6 of the Rules is maintained in the Head Officer of the Bank. Only due to up to date register in relation to the workers employed by him in Form ‘D’ at the place where the workers are employed, it cannot be said that registers are to be maintained in each branch of the bank. The words “the place where the workers are employed” cannot be independently read divorced from the words “employer” and the “workers employed by him”. As already stated, employer is the bank and not the Branch Manager. Workers are not employed by the Branch Manager, but by the Bank. At the branch level, there is no employer. So, if a harmonious construction is given to the words contained in Rule 6 of the Rules bearing in mind the provisions in the Act and also the aims and reasons for enacting such provisions, the only conclusion that can be arrived at is that the registers are to be maintained at the Head Office and not at each branch of the Bank. It is not a case where such registers are not maintained at the Head Office of the bank. It is not a case where such registers are not maintained at the Head Office of the bank. In the circumstances, the insistence on the part of the first respondent that such registers are to be maintained at the branch level cannot be upheld. Such insistence on the part of the first respondent is uncalled for and opposed to the provisions contained in the Act and the Rules. Complaint is filed with the sole allegation that registers are not maintained at the branch. Taking cognizance of the complaint on the basis of such allegation and prosecuting the petitioners will amount to abuse of the process of the court.” 7. The above decision of the Kerala High Court was also followed by the High Court of Punjab and Haryana in Dr. V.A. Joseph –VS- State of Punjab and Anr., Crl. Misc. No. M-45123/2007. 8. Section 8 of the Equal Remuneration (ER) Act, 1976 provides that every employer shall maintain such register and other document in relation to workers employed by him as may be prescribed. The term “employer” has been defined in Section 2 (c) of the Equal Remuneration (ER) Act, 1976 as under :- “employer has the meaning assigned to it in clause (f) of Section 2 of the Payment of Gratuity Act, 1972 (39 of 1972)”. 9. Section 2 (f) of the Payment Gratuity Act defines the term “employer” as follows :- “‘Employer’ means, in relation to any establishment, factory, mine, oilfield, plantation, port, Railway Company or shop- (i) belonging to, or under the control of the Central Government or a State Government, a person or authority appointed by the appropriate Government for the supervision and control of employees, or where no person or authority has been so appointed, the head of the Ministry or the Department concerned. (ii) belonging to, or under the control of, any local authority, the person appointed by such authority for the supervision and control of employees, or where no person has been so appointed, the chief executive officer of the local authority. (iii) in any other case, the person who, or the authority which, has the ultimate control over the affairs of the establishment, factory, mine, oilfield, plantation, port, railway company or shop, and where the said affairs are entrusted to any other person, whether called a manager, managing director or by any other name, such person.” 10. (iii) in any other case, the person who, or the authority which, has the ultimate control over the affairs of the establishment, factory, mine, oilfield, plantation, port, railway company or shop, and where the said affairs are entrusted to any other person, whether called a manager, managing director or by any other name, such person.” 10. Rule 6 of the Equal Remuneration Act provides that “every employer shall maintain up-to-date register in relation to workers employed by him in form ‘D’ at the place where the workers are employed. 11. Section 11 of the Equal Remuneration (ER) Act, 1976 reads as under :- “Offences by companies – (1) Where an offence under this Act has been committed by a company, every person, who at the time the offence was committed, was in charge 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 proceeded against and punished accordingly : Provided that nothing contained in this sub-section shall render any such person liable to any punishment, if he proves that the offence was committed without his know ledge or that he had exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.” 12. It is admitted position, that the Equal Remuneration Act applies to banks, insurance companies and financial institutions. Clause (a) of Section 10 (1) of the Equal Remuneration Act provides that if any employer being required by or under the Act to do so, omits or fails to maintain any register or other document in relation to workers employed by him, shall be punishable with simple imprisonment for a term, which may extend to one month or with fine, which may extend to Rs. 10,000/-(Rupees tend thousand) or with both. 13. 10,000/-(Rupees tend thousand) or with both. 13. A bank being a corporate body, shall be governed by Section 11 of the Equal Remuneration Act. As laid down by Section 11 of the Equal Remuneration, when an offence is committed by a company, the following three categories of persons are liable to be prosecuted for the offence :- (i) The person in charge of, and responsible to, the company for the conduct of the business of the company . (ii) the company itself. (iii) if the offence is committed for any commission or omission or in connivance of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall be deemed to be guilty for that offence. 14. When an offence is committed by the company, the company is automatically liable. So far the remaining two categories of persons are concerned, they are not automatically liable. In order to held the persons in category no. (i) and (iii) above liable, there must be specific allegation against them and the complaint must disclose the complicity of these two categories of person, accused in the commission of offence. In the present case, apparently the company, i.e., the bank has not been arrayed as an accused and the complaint was lodged against the petitioner alone. When the company has not been arrayed as an accused and only the petitioner has been arrayed as an accused, it is the duty of the complainant to disclose in the complaint that the petitioner was at the relevant time in charge of and responsible for the conduct of the business of the company or he was liable for any commission or omission as a director, manager etc. Apparently the complaint is totally silent as to how the petitioner is liable for the offence committed by the bank, which is liable to be prosecuted for the offence committed by it. 15. Apparently the petitioner is the Chief Manager of a Branch of the Punjab National Bank. Even in order to bring the petitioner within the sweep of Section 2 (c) of the Equal Remuneration Act, 1976 read with Section 2 (f) of the Payment of Gratuity Act, prosecution has to show that the petitioner was the person or authority, who had the ultimate control over the affairs of the bank or he was entrusted with the affairs of the bank. Since the petitioner was the manager of a Branch of Punjab National Bank and not the employer, as the employer is the bank itself, in order to prosecute the petitioner as employer, as per definition of Section 2 (f) of the Payment of Gratuity Act or u/s 11 of the Equal Remuneration Act, it is necessary to aver in the complaint that the petitioner was the employer or he had the ultimate control over the affairs of the bank, at best to make out a prima facie case against him. 16. As would appear from complaint that there was no averment in the complaint to show even prima facie that the petitioner was the person who was in charge of and responsible for the conduct of the business of the company, nor there was any averment to show that the petitioner was the employer as defined in Section 2 (f) of the Payment of Gratuity Act. When the employer was the bank and not the petitioner, in absence of such allegation or averment in the complaint, the complaint cannot be held to have made out prima facie any offence against the petitioner. 17. As regards the requirement of maintaining the up-to-date register in relation to the workers employed in form ‘D’, since the law does not require specifically that in all branches registers are required to be maintained, I am in respectful agreement with the view taken by the Kerala High Court, that maintenance of the register at the Head Office would suffice. There is no mention in the complaint that no such register was maintained in the head office of the bank. 18. Apparently, the complainant failed to disclose that the petitioner was the employer within the meaning of Section 2 (f) of the Payment of Gratuity Act, nor there is any averment to the effect that the petitioner was in charge of, or responsible to the conduct of the business of the company. In absence of such averment, the complaint appears to be vague and failed to make out prima facie, any offence against the petitioner. In absence of such averment, the complaint appears to be vague and failed to make out prima facie, any offence against the petitioner. The allegations made in the complaint having failed to make out prima facie, any offence, learned Magistrate ought not to have taken cognizance and issued process against the petitioner, inasmuch as, summoning a person in a criminal case as accused is a serious matter, and the court cannot afford to issue summon mechanically. 19. The Apex Court in Pepsi Food Ltd. & Anr.-VS-Special Judicial Magistrate and Ors., reported in (1998) 5 SCC 749 observed as under : “Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.” 20. In the teeth of the discussion made hereinabove, this Court is of the view that the impugned order, whereby, the learned Judicial Magistrate took cognizance and issued process cannot be sustained. Accordingly, the impugned order dated 29-02-2014, whereby the learned Judicial Magistrate took cognizance against the petitioner and the criminal proceedings in C.R. Case No. 1c/2014 is hereby quashed. 21. Send down the LCR.