Karnataka High Court
The State Of Karnataka vs R. Nanda Gopal on 15 December, 1986
Equivalent citations: ILR1987KAR562
JUDGMENT Desai, J.
1. The respondent was the accused in C.C. No. 14251/80 on the file of the Metropolitan Magistrate, Traffic Court I, Bangalore. He was the Manager of Headquarters, Karnataka Sub-Area Canteen, Cubbon Road, Bangalore. On 26-10-79 at 12 noon Shanmugam (P.W. 1) who was the Labour Inspector, Vth Circle, Bangalore, then, visited the said establishment. The accused was the manager of the canteen. He had not displayed the registration certificate as required under S. 4(2) of the Karnataka Shops and Commercial Establishments Act, 1961 (for short the 'Act'). The accused also failed to produce the registers and records for inspection and thereby contravened S. 29 of the Act. After obtaining the sanction from the Assistant Labour Commissioner, Bangalore, as per Ex.P. 9, P.W. 1 filed a complaint in the Court below against the accused for the said offences.
2. As the accused denied the commission of the offences, P.W. 1 was examined and Exs.P. 1 to P. 10 were produced on behalf of the complainant. Sri B. Krishna Murthy was examined as D.W. 1 and Exs.D. 1 to D. 3 were produced on behalf of the accused.
3. The defence of the accused was that the Act is not applicable to the establishment in question.
4. The learned Magistrate on the evidence on record held that the Act is applicable to the said establishment but, acquitted the accused on the ground that the sanction (Ex.P. 9) was not in accordance with law. Hence this appeal by the State.
5. Mr. Nanjundaiah, learned Additional State Public Prosecutor, urged that the view taken by the learned Magistrate that sanction is not legal cannot be sustained as it was only the approval that was required under R. 21A of the Karnataka Shops and Commercial Establishments Rules, 1963 (for short the 'Rules') and not sanction as required by Section 197, Cr.P.C. or section 6 of the Prevention of Corruption Act. He also urged that S. 3(1)(h) of the Act will not include a person who is the manager and he brought to the notice of the Court Form No. A prescribed under S. 4(2) of the Act and Rule 3 of the Rules.
6. The first question that arises for determination in this appeal is whether the Act is applicable to the Headquarters Karnataka Sub-area Canteen. The Act will be applicable to it if it is a commercial establishment within the meaning of S. 2(e) of the Act. According to S. 2(e) of the Act, "commercial establishment" means a commercial or trading or banking or insurance establishment, an establishment or administrative service in which persons employed or mainly engaged in office work, a hotel, restaurant, boarding or eating house, a cafe or any other refreshment house, a theatre or any other place of public amusement or entertainment and includes such establishments as the State Government may by notification declare to be a commercial establishment for the purposes of this Act. The accused in his written statement has admitted that the articles supplied through the Canteen Stores Department of the Government of India are sold on subsidised rates fixed by the Government rate structure and not for profit motive. From this it is clear that it was a "commercial establishment". According to Section 3(1)(a), nothing in this Act shall apply to offices of or under the Central or State Governments or local authorities, except commercial undertakings. As this was a commercial establishment the said exemption clause does not apply to it although it may be a Government of India canteen. According to S. 3(2)(k), nothing contained in Section 11 or sub-section (1) of S. 12 shall apply to shops in regimental institutes, garrison shops and troop canteens in cantonments. From this it is clear that except Sections 11 and 12(1) of the Act, other provisions of the Act will be applicable to the establishment in question.
7. The next question is whether the accused was the 'employer' of the said establishment. According to S. 2(h) of the Act, "employer" means a person having charge of or owning or having ultimate control over the affairs of an establishment and includes members of the family of an employer, a manager, agent or other person acting in the general management or control of an establishment. D.W. 1 has admitted that the accused was the Manager of the said establishment. Therefore, he will be the "employer" within the meaning of S. 2(h) of the Act. According to R. 21A of the Rules, an Inspector shall obtain the prior approval of the Chief Inspector before making a complaint in respect of an offence punishable under the Act, rules or orders made thereunder. Thus, it is clear that it is only the approval that it is required to be taken and not the sanction as it is generally required under S. 197, Cr.P.C. or S. 6 of the Prevention of Corruption Act. In Ex.P. 9, no doubt, it is stated that sanction is accorded. But, that alone, would not make it a sanction as it is only the approval that is required according to S. 21A of the Rules. According to the Notification No. SWL 3 LSC 75 dt. 19-2-1977 which came into force with effect from 24-2-1977, the Commissioner of Labour, had authorised the Assistant Commissioner of Labour, Bangalore to accord approval for prosecution under R. 21A of the Rules. So, the approval granted by the Assistant Labour Commissioner, Bangalore, as per Ex.P. 9 is in accordance with R. 21A of the Rules. The approval need not fulfil the requirement of the sanction as required under S. 197, Cr.P.C. or S. 6 of the Prevention of Corruption Act. Therefore, we are clearly of the view that the learned Magistrate erred in holding that Ex.P. 9 was not legal and valid.
8. P.W. 1 has stated that the Registration certificate had not been displayed by the accused as required by Section 4(2) of the Act and that he failed to produce the registers for inspection as required by section 29 of the Act. The contention of the accused is not that he did not contravene the said provisions but that the Act itself was not applicable to the establishment in question. Therefore, accepting the evidence of P.W. 1, we hold that the accused contravened both Sections 4(2) and 29 of the Act.
9. The next question is whether the accused is exempted under S. 3(1)(h) of the Act. According to S. 3(1)(h), nothing in the Act shall apply to persons occupying positions of management in any establishment. In G. S. Joshi v. State of Mysore (1971) 40 FJR 29 : (1972 Cri LJ 1663) (Mys), this Court has held that the manager of a branch of a bank, though he may claim exemption from the provisions of the Act under S. 3(1)(h) thereof, as a person occupying a position of management in the establishment is also an "employer" as defined in S. 2(h) of the Act, and will be liable as an "employer" for punishment for contravention of the Rules framed under the Act.
10. In Form-A prescribed under R. (3) in column No. 6, the name of the manager is to be stated. In column No. 11, names of other persons occupying positions of management or employees engaged in confidential capacity are to be mentioned. This shows that the Legislature intended to include under Clause (h), persons occupying position of management other than the manager. Therefore, we hold that the exemption under S. 3(1)(h) is not applicable to the accused in this case.
11. This brings to the question of sentence. The accused was working as manager in the Government establishment. He must have been under the bona fide belief that the provisions of the Act are not applicable to the establishment in question while not complying with the said provisions. Under the circumstances, we are of the view that a fine of Rs. 50/- on each count would meet the ends of justice.
12. In the result, the appeal is allowed and the order of acquittal passed by the lower court is set aside. The respondent-accused is convicted under S. 30 of the Act for contravention of Sections 4(2) and 29 of the Act, and sentenced him to pay a fine of Rs. 50/- on each count, i.e., Rs. 100/- in all. In default of payment of fine, he shall undergo simple imprisonment for one week.
13. Appeal allowed.