SPENCER AND COMPANY LIMITED Vs. STATE OF WEST BENGAL & ORS.
LAWS(CAL)-1983-9-35
HIGH COURT OF CALCUTTA
Decided on September 01,1983

SPENCER AND COMPANY LIMITED Appellant
VERSUS
STATE OF WEST BENGAL AND ORS. Respondents

JUDGEMENT

Manoj Kumar Mukherjee, J. - (1.) For alleged violation of certain provisions of the West Bengal Shops & Establishments Act, 1963 ('Act' for short) and the rules framed thereunder by Messrs. Spencer & Co. Ltd., a prosecution was launched against eight accused person, who were all connected with the affairs of the company in one capacity or the other, under section 21 of the Act. As three of them died since (ben the five accused petitioners have filed this revisions application for quashing of the said prosecution on the ground that none of them is an 'employer' within the meaning of section 2(4) of the Act.
(2.) The five petitioners are the Chief Accountant, the Chairman, the Vice-chairman and two Directors of the company respectively and in the complaint all the eight accused persons have been described only as Administrative Managers and Directors of the company. Considering the definition of 'employer' in the Act, I am unable to hold that by their such description only, they can be made liable for prosecution as 'employer'.
(3.) 'Employer' has been defined in the Act to mean a person owning or having charge of an establishment and includes an agent or a manager of and any other person acting on behalf of such person in the general management or control of such establishment. The petitioners cannot answer to the description of 'owner' of the establishment and the do as the 'owner' in the instant case is Spencer Sc Company Limited, a company incorporated under the Companies Act. To bring them within the mischief of the other part of the definition, it was required to be alleged in the complaint that the petitioners, or anyone of them, were in charge of the establishment either as agent or manager or its any other capacity, or that they or any one of them were acting, on behalf of the owner or ora behalf of the person having charge of the establishment, in the general management or control of the establishment. Such allegation was all the mere necessary us, as many as eight persons were arraigned as 'employer'. In absence of any averment whatsoever in the complaint to bring them within any part of the definition 'employer', the learned Magistrate was not justified in issuing process against them to stand trial for an offence under section 21 of the Act. The application is therefore allowed and the Rule is made absolute. The impugned proceeding is, therefore, quashed.;


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