High Court Kerala High Court

Jacob Thomas vs Assistant Labour Officer on 8 April, 2010

Kerala High Court
Jacob Thomas vs Assistant Labour Officer on 8 April, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 1080 of 2010()


1. JACOB THOMAS, MANAGING DIRECTOR,
                      ...  Petitioner

                        Vs



1. ASSISTANT LABOUR OFFICER,
                       ...       Respondent

2. STATE OF KERALA,

                For Petitioner  :SRI.V.PHILIP MATHEW

                For Respondent  : No Appearance

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :08/04/2010

 O R D E R
            M.SASIDHARAN NAMBIAR,J.
            ---------------------------------------------
              CRL.M.C.NO.1080 OF 2010
            ---------------------------------------------
                Dated 8th           April 2010

                           O R D E R

Petitioner is the accused in

S.T.559/2008 on the file of Judicial First

Class Magistrate, Ramankary taken cognizance

for the offence under Section 21(2) of

Maternity Benefit Act. Petitioner was earlier

permitted to appear through the counsel under

Section 205 of Code of Criminal Procedure. But

later when the counsel was not available even

for recording the plea, learned Magistrate

directed the petitioner to be present on

28/1/2010. As the petitioner was absent and his

counsel was also absent, learned Magistrate

dismissed the petition filed under Section 205

of Code of Criminal Procedure by Annexure 3

order and issued non bailable warrant. This

petition is filed under Section 482 of Code of

Crmc 1080/10
2

Criminal Procedure to quash the proceedings

pending before the learned Magistrate, as well

as Annexure 3 order and the non bailable

warrant.

2. Learned counsel appearing for the

petitioner and learned Public Prosecutor were

heard.

3. Learned counsel argued that the

alleged establishment of the petitioner is not

a shop coming under Kerala Shops and Commercial

Establishment Act and in any case, the

provisions of Maternity Benefit Act will not

apply as the number of employees are less than

ten as which is less than the minimum provided

under Section 2(1)(b) of Maternity Benefit Act.

Learned Public Prosecutor submitted that a

notification has been issued by the State

Government whereunder all shops are included

Crmc 1080/10
3

within the ambit of Maternity Benefit Act and

therefore, petitioner is not entitled to get

the case quashed.

4. Question whether the establishment

of the petitioner is a shop coming within the

ambit of Kerala Shops and Commercial

Establishment Act and whether Maternity Benefit

Act is applicable to the establishment, are all

matters to be decided by the Magistrate.

Petitioner is at liberty to raise all the

contentions before the learned Magistrate.

Learned counsel appearing for the petitioner

also contended that there is no such

establishment as alleged by the complainant.

That this is also a matter to be considered by

the learned Magistrate.

5. Learned counsel appearing for the

petitioner then submitted that as a non

Crmc 1080/10
4

bailable warrant is issued and the sentence

provided for that offence is only fine,

learned Magistrate is not justified in

insisting for the personal presence of the

petitioner. Annexure 4 order sheet shows that

learned Magistrate has permitted the petitioner

to appear through the counsel. But in spite of

posting for several months, the counsel failed

to appear to record his plea. In such

circumstances, learned Magistrate was justified

in dismissing the petition filed under Section

205 as his counsel who has to appear, on

behalf of the petitioner, failed to appear in

spite of repeated postings. If the petitioner

surrenders and files an application for bail,

the Magistrate is expected to pass orders in

the application without bail. I find no reason

to believe that the Magistrate is unaware of

Crmc 1080/10
5

the provisions of law or the decisions of this

court or the Apex court or that the Magistrate

will not act in accordance with law. In such

circumstances, no direction is warranted. If

the petitioner surrenders, Magistrate can

record his plea on the same day. As sentence

provided for an offence under Section 21(2) of

Maternity Benefit Act is imprisonment which

may extent to one year or fine which may

extent to five thousand rupees, if petitioner

gives sufficient assurance that his counsel

will henceforth appear, without fail, learned

Magistrate need not insist for the personal

presence of the petitioner.

Petition is disposed.

M.SASIDHARAN NAMBIAR,
JUDGE.

uj.