M.H. Beg, J. - (1.) THIS is a complainant's appeal against the acquittal of the Hind Housing and Constructions Ltd. and its seven Directors for alleged offences punishable Under Section 35 read with Sections 33 and 34 of the UP Shops and Commercial Establishments Act (Act No. XXVI) of 1962 (hereinafter referred to as 'the Act'). Section 34 of the Act makes a company as well as every person incharge of and responsible to the company for the conduct of its business at the time of the commission of the offence guilty and liable to be proceeded against and punished under the Act. There is however, a proviso which exempts from criminal liability a person who proved that the offence was committed without his knowledge or that he exercised due diligence to prevent the commission of the offence. Section 33 of the Act which lays down: Any person, who contravenes, or fails to comply with, any of the provisions of this Act, or of the rules made thereunder, other than those of Sub -section (1) of Section 20, shall be guilty of an offence under this Act.
(2.) THE contravention of the Act alleged by the complainant was said to be covered by the provisions of Sections 10 Sub -section (7) and 13 and 19 and 20 of the Act. Section 10 Sub -section (7) lays down the liability of the employer to pay wages for the number of days for which earned leave is due to an employee whose services have been terminated either by the employer or by the employee. Section 13 of the Act provides for the fixation of the wage period and the time when it becomes payable. Section 20 of the Act relates to termination of the employment by the employee himself and therefore, it has no application to the instant case; and it is admitted by the learned Counsel for the complainant that Section 20 was wrongly mentioned in the complaint. The correct section, however according to the Appellant's case, is Section 19 of the Act which provides that no employer will discharge an employee unless the post held by the employee has been retrenched or the employee is unfit to perform his duties because of his physical infirmity or continued ill -health. It also enacts that the discharge will not take place without serving a notice in writing, containing the grounds for the discharge, which should be served not less than 30 days before the discharge unless it is accompanied by payment of wages for shortage in the period of notice. Section 19, however, lays down that its provisions have no application to a case of dismissal for misconduct. There is no provision in the Act itself for the circumstances in which the dismissal for misconduct may take place, but Section 40 of the Act mentions that dismissal may be provided for by rules made under the Act. Rule 15, made under the Act, gives all the cases of misconduct which, being a ground of punishment, can only be held to have been made out after the person against whom misconduct is alleged has been given a reasonable opportunity of showing cause to meet the allegations made against him. The complainant did not allege any wrongful dismissal for misconduct. The accused also have not taken up the case that they intended to take any action against the complainant for any misconduct, although it has been suggested that losses had been incurred by the company, which has its Head office at Lalbagh Circus in Lucknow and a branch at Allahabad, due to the negligence of the Appellant who was incharge of the Allahabad branch. The case set up by the Respondents accused was that they had actually closed down the branch at Allahabad due to the losses incurred, but had subsequently decided to engage Abdul Khaliq, DW 1, again, on an application made by him, only to collect instalments due from customers at Allahabad. It appears that the business of the company was to construct houses for customers and to collect the charges made for construction of houses by instalments.
(3.) THERE is a letter dated 2 -3 -1967, written by Ram Chandra Gurnani, the Director Incharge of the company, from Lucknow, to the Post Master, GPO, Allahabad, showing that the branch office at Allahabad was actually closed down so that the Post Box No. 58 in the Post Office, of which the key was returned, was relinquished. There is another letter, dated 28 -9 -1966, from the landlord of the premises in which the business of the company was carried on showing that the premises had been vacated after the rent of the premises had been fully paid up by the company. There is, therefore, no reason to doubt that the branch office of the company was actually closed at Allahabad in the month of August, 1966, for reasons stated by it, so as to occasion the termination of services of the Appellant by retrenchment.;