JUDGMENT
A.K. Nayak, J.
1. Tills revision application under Section 397 and 401 read with Section 482 Cr. P.C. is directed against an order dated July 10, 1981, passed by learned Chief Metropolitan Magistrate, Calcutta, in case No. C/2088/81 taking cognizance of the offence under Section 85(a) and (g) of the E.S.I. Act against the accused-opposite party No. 3 and also under the said section read with Section 85-A of the said Act, against the present petitioner and accused-opposite party No. 4, thereon issuing process against them.
2. Undisputedly, a complaint case as appearing from the petition of complaint Annexure ‘A’ was filed before the learned Chief Metropolitan Magistrate, Calcutta, by the complainant-opposite party No. 1, Employees’ State Insurance Corporation against accused persons, being described as the Managing Director and Directors of M/s. Metro Engineering Works (P) Ltd., which is factory, alleging that these accused-persons, being the principal employers as defined in Clause 17 of Section 2 of the E.S.I. Act failed to submit contribution cards for the period expiring November 11, 1980, which should have been submitted within the grace period on or before January 10, 1981 as required under Section 40 Regulation 26 of the E.S.I. Regulation, 1950. As already stated the learned Chief Metropolitan Magistrate issued process on taking cognizance against the petitioner and accused-opposite party Nos. 2 and 3.
3. It has been contended on behalf of the petitioner Smt. Adhikary described as a Director of the said factory in the petition of complaint that such proceeding is not maintainable against the petitioner as she is not the principal employer as defined in Section 2(17) of the B.S.I Act and further that being a lady, she was not in ultimate control over the affairs of the factory at the relevant time and had no knowledge about the alleged offence. As such it had been contended that the pending proceeding is liable to be quashed against her.
4. It has not been seriously disputed on behalf of the petitioner that she was a Director of the factory, M/s. Metro Engineering Works (P) Ltd. at the material time. What has been seriously disputed is that she, being not the principal employer, cannot be said to have committed the offence alleged. The question is whether the petitioner simply because of her position as a Director of the factory can be said to have committed the offence alleged.
5. It is the undisputed position of law that under Section 85(g) read with Section 40 of the E.S.I. Act, a person who can be prosecuted for failure to submit the contribution cards as required under Section 40 with Regulation 26 is the principal employer as defined in Section 2(17) of the Act under Regulation 2(g). Employer means the principal employer as defined in the Act. A reference to the definition will show that in a factory the “principal employer” means the owner or occupier of the factory and includes the managing agent of such owner or occupier, the legal representative of a deceased owner or occupier, and where a person has been named as the manager of the factory under the Factories Act, 1948, the person so named. An ‘occupier’ of a factory as defined in Section 2(15) of the E.S.I. Act is to have the same meaning assigned to it in the Factories Act, 1948. Occupier of a factory under Section 2(n) of the Factories Act, means the person who had the ultimate control over the affairs of the factory and where the said affairs are entrusted to managing agent, such agent shall be deemed to be the occupier of the factory. The proviso (ii) to Clause (n) of Section 2 of the Factories Act lays down that in case of a company any one of the Directors shall be deemed to be the occupier, particularly that Director who has ultimate control over the affairs of the factory.
6. In the instant case, accused-opposite party No. 3 Ashutosh Adhikary has been described in the petition of complaint itself annexure ‘A’ as the Managing Director and the other accused namely the accused-petitioner Smt. Ghouri Adhikary and her husband accused-opposite party No. 4 are simply described as Directors of the factory, though they have been described also as principal employers. It is no doubt true as held by the Bench decision of this Court as reported in CHN page 444 Bidyut Kumar Sett and Anr. v. Satyesh Chandra Bagchi and Ors. that a Director of a company can be brought within the meaning of the word ‘occupier’ as mentioned in Section 2(17) of the Act as according to Section 2(n) of the Factories Act, occupier is a person who like a Director has ultimate control over the affairs of the factory. This is more so where no managing agent had been appointed or any manager has been named. As the law stands now after the recent amendment of Section 2(n) of the Factories Act, not all the directors but any one of the directors who was in ultimate control over the affairs of the factory at the relevant time would be treated to be the principal employer for the purpose of this Act. As we find from the petition of complaint itself that accused opposite party No. 3 Shri Ashutosh Adhikary was the Managing Director at the relevant time he can be said to be the principal employer as in ultimate control over the affairs of the factory at the relevant time. The petitioner, therefore, being a lady and no averment having been there in petition of complaint that she was in ultimate control over the affairs of the factory can be said to be liable in any way for the commission of the offence as alleged. Proceeding therefore is not maintainable against her and the same is liable to be quashed. This reasoning also holds good so far as accused-opposite party No. 4 is concerned for the particular offence under Section 85(a) and (g) of the E.S.I. Act, But he is not a petitioner before us and no prayer has been made on his behalf. The pending proceeding therefore is quashed against the present petitioner Smt.Ghouri Adhikary.
The result is the petition is allowed. Rule is made absolute.