- (1.) Sri N. Das, described as Departmental Officer and Sri S. K. Bakshi Assistant Accountant of the Chartered Bank at its office at 14, Netaji Subhas Road, were prosecuted by the Inspector, Shops and Establishments, appointed under Section 19(1) of the West Bengal Shops and Establishments Act, 1963 in complaint case No 1091/71 in the Court of the Presidency Magistrate, 16th Court, Calcutta. It is stated in the complaint that Shri Das and Sri Bakshi, when the Inspector visited the Bank on 19-11 -69, could not produce before him the Attendance Registrar in Form I, Registrar of Employees in Form W., Leave Register in Form J and could not show that letters of appointment in Form X were issued to the employees and that intimation in Form T was sent to the Chief Inspector regarding overtime work and thus contravened the provisions of Section 17(1) of the West Bengal Shops and Establishments Act 1963 read with Rules 13, 52 and 21 and Section 18 of the same Act read with Rules 53 and 38.
(2.) The two accused appeared before the Magistrate and pleaded at the trial that the Bank had written to the Government mentioning the difficulties experienced by the Bank in maintaining Registers in the prescribed forms and the letters of appointment and statement of overtime work in the prescribed forms, before the visit by the Inspector to the Bank and that the Government had not sent any reply to that letter of the Bank. Their plea was that these registers etc. were being maintained through not wholly in accordance with the prescribed forms. The learned Magistrate considering the plea of the accused persons, was of the view that there had been substantial compliance with the provisions of the Act and the Rules. He acquitted the accused persons under section 245(1) of the Code of Criminal Procedure. It is against the order of acquittal that the State, through its Superintendent and Remembrance of Legal Affairs, has filed this appeal. Section 17 of the West Bengal Shops and Establishments Act 1963, to be hereafter called 'the Act', requires every shopkeeper or employer to maintain and keep registers of employees in the prescribed from and such other registers as may be prescribed. Section 18 of the Act requires every shop-keeper or employer to furnish any person employed in his shop or establishment with a letter of appointment in a prescribed from. Section 21 of the Act says that whoever contravenes any of the provisions of the Act, is liable to be convicted and fined. Rule 51 of the West Bengal Shops and Establishments Rules 1964 lays down that whoever contravenes any of the provisions of the Rules, shall be convicted and punished. The contraventions complained of in this case are contraventions of Sections 17 and 18 and Rules 13, 52, 21, 53 and 38. In these sections and Rules the person to be proceeded against is the shop-keeper or the employer. 'Employer' defined in Section 2(4) of the Act means a person owning or having charge of an establishment and includes an agent or manager, and any other person acting on behalf of such person, in the general management or control of such establishment. 'Establishment' means as defined in section 2(5), a commercial establishment or an establishment for public entertainment or amusement, 'Commercial establishment' defined in section 2(2) means 'Bank'. In order to succeed in the case, the prosecution has to prove that the two persons proceeded against, come within the definition of the word 'employer' in section 2(4). No evidence was given by the prosecution in that respect at the trial. In the petition of complaint these two persons, were described, as stated before, as Departmental officer and Assistant Accountant of the Bank. It is clear that neither the Departmental Officer nor the Assistant Accountant is a person owning or having the charge of the Bank. None of them is an agent or Manager of the Bark and is also not a person acting on behalf of the agent or manager of the Bank in the general management of it. Proof of this was necessary for a conviction. There is no evidence on the point and as such the case could not have ended in conviction. Section 2(5) of the Madras Shops and Establishment Act came up for consideration before the Supreme Court in the case of T. Prem Sagar v. M/s Standard Vacuum Oil Co., Madras and ors., reported in AIR 1965 SC 111. Section 2(5) of that Act defines 'employer' meaning a person owning or having the charge of the business of an establishment and includes the manager, agent or other person acting in the general management or control of an establishment, Gajendragadkar, J, - speaking for the Court, observed in paragraph 7 of that decision as follows:- "The control or management which is associated with persons falling under the definition of employer is the general management or control of the said establishment; it is a kind of overall management or control and not management or control of sections or departments or subsection or subdivision that function under the establishment".
(3.) Applying the same test here, it is quite clear that the Departmental officer or the Assistant Accounts Officer is not a person who may be termed as employer within the meaning of the word in section 2(4) of the Act. The prosecution therefore, could not succeed having failed to establish that the persons proceeded against are employers. The Order of acquittal shall, therefore, be maintained on this ground. It is to be noted that the learned Magistrate proceeded to acquit the respondents on merits. It is not necessary to go into the correctness or otherwise of that finding in view of the conclusion already made above. In the result, this appeal is dismissed.;