Satish Chandra, J. - (1.) (for self and for K. B. Asthana, C. J.) :-The question of law that requires consideration in these references is whether under Section 100 of the Factories Act, 1948, can only, one or more than one of the Directors of a Company be prosecuted for an offence for which the occupier of a factory is punishable under that Act.
(2.) IN R. C. Sharma v. State of U. P., AIR 1956 All. 4 a learned Single Judge held that all the partners are liable to be prosecuted. On the other hand in Hari Krishna v. State, AIR 1959 All. 794 another learned Single Judge held that only one of the partners could be prosecuted even though the Company had not nominated any Director or partner as the occupier of the factory. Faced with this conflict of opinion a learned Single Judge has referred these cases to a Division Bench. That is how these references have been laid before this Bench. Chapter X of the Factories Act deals with Penalties and Procedure. Section 92 provides that for any contravention of any provision of this Act or of any rule made thereunder or of any order in writing given thereunder, the occupier and manager of the factory shall each be guilty of an offence and punishable. Section 100 provides for a case where the occupier of a factory is a firm or a company. Sub-Section (1) deals with a firm or other association of individuals, while sub-Section (2) refers to a company. The provisions are identical. The present is a case of a company, so sub-Section (2) is material. It provides- "100 (1)............ (2) where the ocoupier of a factory is a company, any one of the directors thereof, or in the case of a private company, any one of the shareholders, thereof, may be prosecuted and punished under this Chapter for any offence for which the occupier of the factory is punishable. Provided that the company may give notice to the Inspector that it has nominated a director, or in the case of a private company, a shareholder, who is resident in either case within India, to be the occupier of the factory for the purposes of this Chapter and such director or shareholder as the case may be, shall so long as he is so resident, be deemed to be the occupier of the factory for the purposes of this Chapter until further notice cancelling his nomination is received by the Inspector or until he ceases to be a director or shareholder."
(3.) SUB-Section (2) clearly and specifically provides that any one of the directors of the company may be prosecuted and punished. There is no room for any doubt that it precludes prosecution of more than one director. If a director has been nominated under the Proviso, that director alone is liable to prosecution as the occupier of the factory. In such case the prosecuting agency has no choice to proceed against other directors. But if the company has not made the nomination under the Proviso, the main provision comes into play, under which the prosecuting agency has a choice to proceed against any one of the directors of the company. SUB-Section (2) clearly precludes more than one Director from being roped in. Hari Krishna's case was of a firm covered by sub-section (1) of Section 100, but since the provisions are identical the decision is helpful in respect of a company as well. It was held that under Section 100 "any one" of the partners could be prosecuted and punished that is, either one or the other could be prosecuted and punished, but not both. "Anyone" means any single individual ; the expression does not include more than one individual. It was also observed that if the Legislature had intended that more than one partner could be prosecuted and punished, it would have used the words "any one or more" instead of the words "any one." When the Legislature used the word "one", it was not necessary to use the word "only" ; the word cannot mean any thing but "only one". The word "any" was used along with "one" to show that the prosecution had the choice of selecting one of the partners to be prosecuted and punished. The Legislature having intended that one of the partners was to be prosecuted and punished, the question arose "which one", and the reply given by the Legislature was "any one" meaning thereby that the prosecutor had the right of selecting any one of the partners for prosecution. The prosecution of both the partners of the firm was, therefore, illegal.;