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Patna High Court
P.K. Bahal vs State Of Bihar And Ors. on 24 August, 2000
Equivalent citations: 2001 CriLJ 1085, (2001) IILLJ 938 Pat
Author: P K Sinha
Bench: P K Sinha


JUDGMENT

Prabhat Kumar Sinha, J.

1. This is an application under Section 482 of the Code of Criminal Procedure preferred by P.K. Banal, the then Senior Divisional Manager, Life Insurance Corporation of India (‘Corporation’, in short) at Patna for quashing order dated July 3, 1995 recorded by the Chief Judicial Magistrate, Patna in Complaint Case No. 666/M/95 whereby and whereunder cognizance of offence was taken under Section 10 of the Equal Remuneration Act, 1976 (” 1976 Act”, in short) as also to quash the entire complaint case.

2. The facts, in brief, are that vide Annexure-1 the Labour Enforcement Officer, (Central), Patna forwarded complaint under Section 10 of the 1976 Act stating therein that the 1976 Act and Rules made thereunder were applicable to the accused and his establishment, but on inspection held on July 4, 1994 it was found that the petitioner had failed to maintain the Register in Form-D in contravention of Section 8 of the 1976 Act read with Rule 6 of the Rules made thereunder.

3. The main point, as argued the learned counsel for the petitioner which has come up for decision of this Court is whether the petitioner being the Senior Divisional Manager, could have been made accused in this case, he not being an ’employer’ within meaning of Section 10 of the 1976 Act. Another argument was that the complainant the Labour Enforcement Officer (Central) was not authorized to file the complaint within the meaning of Section 12 of 1976 Act but this argument was not subsequently pressed in view of the Notification issued by the Government of India in the Ministry of Labour dated December 26, 1989 bearing S.O. No. 143 under which the Labour Enforcement Officers (Central) were authorized to file complaint in the Courts in respect of offence under Section 10 of the 1976 Act.

4. In support of main point urged, learned counsel has relied upon a decision in the case of P.M. John v. .Divisional Manager, Life Insurance Corporation of India and Ors. AIR 1960 Kerala 251. In that case preliminary objection was raised about maintainability of the writ application in which the Divisional Manager, Assistant Divisional Manager and the Branch Manager were made respondents and their Lordships of Kerala High Court held that there was no provision under the Life Insurance Corporation Act, 1956 (‘The 1956 Act’, in short) or Rules or Regulations authorizing a Divisional Manager to represent the Corporation in any Court within the division over which he exercised administrative control. It was also held that, therefore, the Corporation was not represented in that petition.

5. In this connection it was pointed out that under Section 10 of the 1976 Act it was the “employer” who could be punished with a term of imprisonment or with fine, as mentioned therein, if he had omitted or failed to maintain any register or other document in relation to workers employed by him, having been required to do so under 1976 Act, as also for such other acts and omissions as mentioned in the Section.

6. Section 2(1) defines “employer” as having the meaning assigned to it in Clause (1) of Section 2 of the Payment of Gratuity Act,
1972. Section 2 (f) of the Payment of Gratuity Act, 1972, defines “employer” in following terms:

“2(f). ‘Employer’ means, in relation to any establishment, Factory, mine, oilfield, plantation, port, railway company or shop-

(i) belonging to, or under control of the Central Government or 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 chief executive officers 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, railways 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.”

In so far as Section 2 (f) (ii) and (iii) under the Payment of Gratuity Act, as aforesaid are concerned, they are, obviously not applicable In this case. The letter would be applicable only if the case is covered under Section 2 (f) (i) or (ii) under the aforesaid Act but, as will be seen, the instant case is covered under the definition of “employer” as defined under Section 2(f) (i) of the Payment of Gratuity Act. Section 2(f) (ii) of the Act relates to an establishment which belongs to, or is under control of any local authority but, obviously, the Corporation cannot be said to be a local authority.

7. Now coming to the definition of employer under Section 2 (f) (i) of the Act it has to be held that the Corporation functions under overall control of the Central Government. Various provisions of 1956 Act also may be referred to such as Section 21 of 1956 Act which provides that in the discharge of its functions under this Act, the Corporation shall be guided by such directions in matters of policy involving public interest as the Central Government may give to it in writing, and if any question arises whether a direction relates to a matter of policy involving public interest, the decision of the Central Government thereon shall be final

8. The establishment and incorporation of the Corporation is dealt with under Section 3 of the 1956 Act under which the Corporation was to be deemed to be established from the date from which the Central Government by notification in official gazette appointed. The Central Government, by S.R.O. 1937 dated August 30, 1956 published in the Gazette of India on the same date, had appointed September 1, 1956 to be such a date. Section 4 of the 1956 Act provides that the Corporation shall consist of such number of persons not exceeding sixteen as the Central Government may think fit to appoint thereto and one of them shall be appointed as the Chairman thereof by the Central Government. Moreover, under Section 6 of 1956 Act the functions of the Corporation are to be guided by such rules, as may be made by the Central Government in this behalf. Aforesaid provisions and several other provisions under 1956 Act coupled with the fact that the Corporation is a body corporate created by a Central legislation makes it an establishment under the control of the Central Government.

9. Under the definition of an employer, mentioned hereinbefore, employer in this case will be an authority appointed by the Central Government for the supervision and control of the employees or where no persons or authority has been so appointed, the head of the Ministry of the department concerned.

10. Nothing has been brought before me by learned Additional Public Prosecutor or the learned counsel for the opposite party No. 2 which could show that a senior Divisional Manager, workman in a division, is an authority appointed by the Central Government
for the supervision and control of the employees.

11. In this regard certain provisions of 1956 Act may be noticed. Section 4 of 1956 Act provides, as seen, for the Constitution of the Corporation which is supreme authority having control over employees of the Corporation. Then Section 19 of 1956 Act provides that the Corporation may entrust the general superintendence and directions of its affairs and business to an Executive Committee consisting of not more than five of its members and that executive committee may exercise all powers and do all such acts and things as may be delegated to it by the Corporation. Under Section 20 of the 1956 Act the Corporation may appoint one or more persons to be Managing Director or Directors of the Corporation who may exercise such powers as delegated by the Executive Committee or the Corporation. Under Section 22 of the 1956 Act the Corporation may entrust the superintendence and directions of the affairs and business of a Zonal office to a person who shall be known as Zonal Manager and shall perform such functions of the Corporation as may be delegated to him with respect to the area within its jurisdiction.

12. Under Section 23 of 1956 Act the Corporation is authorised to employ such number of persons as it thinks fit for enabling it to discharge its functions under this Act. Therefore, the employer is the Corporation having an Executive Committee with delegated powers relating to general superintendence and directions of its affairs and business and such power may also be delegated to the Managing Directors under Section 20 of the Act and to the Zonal Manager (within their jurisdiction).

13. Coming to Regulation 6 of the Life
Insurance Corporation of India (Staf0
Regulations, 1960 (hereinafter referred to as
‘the Regulations’) appointments including
promotions are to be made by the authority
specified in its behalf under Schedule I. As per
Schedule I, a Divisional Manager can make
appointment in Class II, III and IV posts. Class
II posts consist only of Development officers.

Many officers who have been specified as Class

I Officers under schedule II also work in a division of whom the Divisional Manager is not the appointing authority. Even in Class III and IV categories the superintendents are not to be appointed by the Divisional Manager. In such cases the Divisional Manager is not shown even the disciplinary authority as per Schedule I of the Regulations.

14. It may be mentioned that as per Schedule II of the Regulation the Divisional Managers and Senior Divisional Managers both are placed in the category of Class I officers. This being so, a Senior Zonal Manager will not appear to be an authority who supervises, and has control over all the employees working in a Regional Office. Neither it has been shown to this Court in course of arguments, nor it has been mentioned in the complaint petition, an Annexure to this petition, that a Senior Divisional Manager is employer and an authority appointed by the Central Government for supervision and control of all the employees even in a Regional Office, not to say of the Corporation as whole. Since only an employer under Section 10 of the 1956 Act can be punished for violation of any of its provisions, it was imperative that the complaint petition should have shown that a Senior Divisional Manager was an “employer” within the meaning of Section 2(f) of the Payment of Gratuity Act, 1972. Not even a statement to that effect has been made in the complaint petition except mentioning that the provisions of 1976 Act and Rules made thereunder are applicable to the accused as well to the Establishment. An Officer of the Corporation may be bound to observe the provisions of 1976 Act but when the question of making him criminally liable for any breach arises, it has to be shown that the accused is the employer.

15. In view of the aforesaid, I don’t find that the petitioner can be proceeded against under Section 10 of the 1976 Act.

16. This being so, this application succeeds and is allowed and the criminal prosecution against the petitioner as well as the impugned order dated July 3, 1995, aforesaid, are hereby quashed.


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