- (1.) LABOUR Officer, Govt. of West Bengal, Siliguri authorised by the Chief Inspector of Plantations of the Govt. filed a complaint on 27. 7. 72 against the opposite parties and one k. B. Majumdar, with the sanction of the Chief Inspector Plantations under section 39 of the Plantations Labour act of 1951, to be hereafter called 'the act', for their prosecution under 'section 36 of the Act for contravention of '. Rules 48 and 49 of the! West Bengal plantations Labour1 Rules, 1956 to be hereafter called 'the Rules'. The learraed Magistrate took cognisance of the offence on his complaint and summoned all the eight persons under section 36 of the Act, wrongly written section 39 in the first order of the magistrate. As process could not be served or executed against accused No. 8, namely, B. Majumdar, said to be and described as the Superintendent manager of Sahabad Tea Estate, the case was filed against him. These 7 opposite parties, who appeared before the Magistrate, filed a petition praying for their discharge stating that tie prosecution was barred as against them by law of limitation. The learned magistrate by his order dated 9. 6. 73 has upheld that objection and has dismissed the petition of complaint and discharged the opposite parties from bail bond. The State of West Bengal through its Superintendent and Remembran of Legal Affairs, has taken out this Rule under section 439 of the Code of Criminal Procedure. Whoever contravenes any of the provisions of tike act or of any Rules made thereunder, for which no other penalty is elsewhere provided by or under the Act, is punishable with imprisonment for a term which may extend to three months or with fine which may extend to rs. 500/ - or with both. The complaint in this case is that these opposite parties have contravened Rules 48 and 49 of the Rules and that they are liable to be punished under section 36 as 110 other penalty for such contravention of these Rules is provided by or under the act. The Inspector visited the Tea estate, of which the opposite parties are the Directors, on 31. 1. 72, noticed violation of Rules 48 and 49, served a written order made under Rule 3 (vii)of the Rules upon the Manager, accused no. 8, B. Majumdar requiring him to remove the said violation within one month and to report compliance. The complaint further is that no report of compliance as required by that order has been sent. Section 40 of the Act prescribes the period of limitation for prosecution under the Act. It lays down that no court shall take cognizance of an offence punishable under the Act unless complaint thereof has. been made or is made within three months from the date on which the alleged commission of the offence comes to the knowledge of the Inspector. The complaint in this case, it is seen, has been made beyond three months from the date of the inspection on 31. 1. 72. Limitation bars the prosecution. The State seeks the aid of proviso to section 40 which is as follows : - "provided that where the offence consists of disobeying a written order made by an Inspector, complaint there of may be made within six months of the date on which the offence is alleged to have been committed". The complaint in this case is within six months of the date of detection of the alleged violation of Rules 48 and 49 by the Inspector. The prosecution has to satisfy the court that either the act or the Rules have prescribed an offence consisting in disobedience of a written order made by the Inspector. Neither the Act nor the Rules mentions any such offence Mr. Sanyal, appearing for the State submits that the Inspector is empowered to give orders for removal of defects or irregularities observed by him under Rule 3 (vii) of the Rules and if any such order is not complied with by any person, to whom that order is given, he shall be deemed to have contravened the Rule. I am unable to give effect to this contention. There is no Rule that lays down that a person willfully or otherwise disobeying any order, lawfully given by the Inspector, will commit an offence or will contravene any Rule. Without a specific Rule to that effect it cannot be said that there is any offence which consists in disobeying a written order given by an Inspector under this Act. It will be appropriate if I refer to the provisions of section 188 of the Indian Penal Code, section 500 (1) (b) of the Bengal Municipal Act, 1932 and of section, 32 of the Motor Transport Workers act, 1961 which clearly lay down that whoever willfully disobeys any direction lawfully given by any person or authority empowered under this Act to give such direction for which no other penalty is elsewhere provided by or under the Act, shall be punishable with imprisonment or fine. Proviso to section 36 of that Act prescribes only an extended period of limitation for prosecution for such offence. The language of the proviso to section 40 of the Plantations Labour Act "is the same as that of section 36 of the Motor Trans port. Workers Act 1961-, without the: corresponding, provision, as in section 32 of the latter Act, in section 36 of the plantations Labour Act. The first contention of the State Advocate is, therefore, not tenable and is rejected
(2.) THERE is another short ground on which the learned Magistrate's order will be upheld. Extended period of limitation in the proviso to section 40 of the Act may be availed of only against the person who is given a written order by the Inspector None of the petitioners admittedly was given any written order by the Inspector. As against them the period of limitation, in the main section 40, is applicable. They have, therefore, been rightly discharged on the ground that institution of the case against them is time barred.
(3.) MR. Mukherji, learned Advocate appearing for the opposite parties Nos. 1, 3, 4, 6 and 7 has made two other submissions in support of the order made by the learned Magistrate. He firstly, submits that the opposite parties axe not "employers" within the meaning of the word "employer" defined in section 2 (e) of the Act. The complaint is that the contravention complained of is by the "employer". We have to see whether the opposite parties are the "employers" within the definition in section 2 (e ). 'employer' when used to relation to plantation mentis a person who has ultimate control over the affairs of the plantation and where the affairs of any plantation are entrusted to any other person (whether any Managing agent, Manager, Superintendent or by any other name), such other person shall be deemed to be the employer in relation to that plantation. In the instant ' case, opposite party No. 8 is stated to be the Superintending Manager of Sahabad Tea Estate, a company. The (submission is that where the affairs of any plantation are entrusted to a Manager, he alone is the employer in relation to that plantation. Mr. Sanyal, appearing for the State, joins issue and submits that by the definition, of the word 'employer' in section 2 (e) the manager to whom the affairs of the plantation are entrusted as also the persons who have ultimate control over the affairs of the plantation, are the employers. He lays stress on the word 'and' in the definition joining the two parts namely, the persons who have ultimate control over the affairs and the person to whom the affairs of the plantation are entrusted. On opposite parties' side reference in this connection has been made to the definition of the word 'employer' in section 2 (e) of the Motor Transport Workers Act, 1961, to the definition of the word 'owner' in section 2 (1) of the Mines, Act 1952, to the definition of the word 'owner' in section 2 (f) of the Industries (Development and Regulation)Act 1951, to the definition' of 'occupier' in section 2 (n) of the Factories Act 1948 and to the definition of the word 'employer' in section 2 (1") of the Apprentice Act 1961. In the Apprentice Act, a person entrusted with supervision and control by the definition is included in the word 'employer' without any deeming provision, In the Factories Act, the industries (Development and Regulation) Act, the person entrusted with the control has been made the employer by the deeming provision. But in the Motor Transport Workers Act, 1961, the person entrusted with the affairs of the Company has been made the employer by the definition itself without any deeming provision. In the mines Act where a person who carries on the business of the Mines has been made the employer under the definition with a clear recital that the owner will not be exempt from liability because of such inclusion of the person carrying on the business of it. An examination of these various provisions, with different provisions and difference in language clearly shows that where a person has been made the employer by a deeming provision he excludes persons, who have ultimate control over the affairs of the plantation, for the purpose of duties and liabilities required to be performed by the employer under the Act or the rules. In that view of the matter, the opposite parties Nos. 1 to 7 cannot be said to be 'employers' under the definition in sec. 2 (e) as Manager entrusted with the affairs of the company is there. The opposite parties are not, therefore, liable to be prosecuted under section 36 of the Act.;