- (1.) THIS is S. B. Criminal Leave to Appeal under Section 378, Cr. P. C. against the judgment dated 27-6-86 passed by the learned Chief Judicial Magistrate, Jaipur in Criminal Case No. 24/75, whereby the accused non-petitioners were acquitted from the offence under Section 85 (a) and (b) of the Employees, State Insurance Act, 1948 (hereinafter called as "the Act" ).
(2.) BRIEFLY the facts of this case are that the Employees' State Insurance Corporation filed a complaint against the accused non-petitioners and Shri B. S. Rathore, Manager, Man Industrial Corporation (P) Ltd. , alleging that it is a factory as defined under Subsection (12) of Section 2 of the Act. The non-petitioner Nos. 1 and 2 of the case are the Chairman and Managing Director, respectively, and B. S. Rathore is Manager of the said Corporation. It is contended that they are principal employers of the aforesaid factory as defined in Sub-section (17) of Section 2 of the Act. Therefore, under Section 40 of the Act read with Regulation 26 of E. S. I. (General) Regulations, 1950, every principal employer of a covered factory under the Act in Rajasthan is required to submit contribution card duly affixed with contribution stamps in Set 'a 'b', 'c' accompanied with return of contribution cards in Form 6 within 42 days in the end of contribution period at the Regional Head Quarter of the E. S. I. Corporation. It was further submitted that notwithstanding of statutory provision referred to above and in spite of repeated reminders issued by the E. S. I. Corporation, the accused non-petitioners did not comply with the provisions stated above within the statutory time. Learned Chief Judicial Magistrate, after recording evidence, held in his impugned order that the non-petitioners Nos. 1 and 2 are Chairman and Managing Director and do not fall within the definition of "principal Employer" and were, therefore, acquitted from the offences. Shri Rathore was convicted for the offence under Section 85 (a) and (g) of the Act and was sentenced to pay a fine of Rs. 500/and in default of payment of fine to undergo imprisonment for a period of 1 1/2 months.
(3.) MR. Ajeet Bhandari learned counsel for the petitioner has contended that the learned trial court has erred in holding that the non-petitioners were not covered by the definition of "principal employer" as per the provisions of the Act and has wrongly relied upon the authority of this court 'n M. C. Golcha and Anr. v. State 1985 (1) W. L. N. 296, in which it was held that the Managing Director is not the "principal employer and cannot be prosecuted for violation of section 40 and Regulation 26. Shri Bhandari contends that Shri K. M. Roongta, non-petitioner No. 2 even though Managing Director had signed the letter, Ex P. 3 dated 11-3-1974, which was sent on behalf of Man Industrial Corporation. Apart from this it is also stated that the non-petitioner Shri K. M. Roongta has his seat in the factory premises itself. It is, therefore, urged by the learned counsel that he is also covered by the definition of "principal employer". ;