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.
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CRL.M.C.NO.1080 OF 2010
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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
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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
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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.