Punjab-Haryana High Court
A.S. Dalela, Food Corporation Of India vs State Of Haryana on 13 May, 1994
Equivalent citations: [1995]82COMPCAS71(P&H), [1995(70)FLR674]
JUDGMENT Harmohinder Kaur Sandhu, J.
1. The Labour and Enforcement Officer (Central), Chandigarh, filed a complaint under Section 10B of the Equal Remuneration Act, 1976 (for short "the Act"), for breach of Section 8, read with Rule 6, of the Act. As per the averments made in the complaint Shri A.S. Dalela, petitioner, while executing the work of storage and procurement of food grains at the Food Storage Depot, Ambala Cantt., District Ambala, by employing 57 male and 6 female employees on July 30, 1990, for which the provisions of the Act were extended, committed violation of the same. He did not maintain any register in "Form D" which was required under Section 8 of the Act. A notice was served upon the petitioner to comply with the provisions of the Act and Rules within 10 days but he failed to do so within the stipulated period and made himself liable for prosecution. The petitioner has filed this petition under Section 482 of the Criminal Procedure Code, for quashing the complaint dated May 6, 1991, annexure P-1 referred above.
2. The petitioner alleged that the complaint, annexure P-1, did not contain any allegations that he was in charge of and was responsible for the conduct of the business of the company at the time of commission of the offence. There was no allegation whatsoever in the complaint that he was in charge of and responsible for the conduct and affairs of the company on July 30, 1990, and the complaint was liable to be quashed on this ground alone.
3. Notice of the petition was given to the respondent. Although many opportunities were granted to file a return yet no reply was placed on record to controvert the allegations made in the petition,
4. I have heard Mr. Hemant Kumar, advocate, learned counsel for the petitioner, and Mrs. Nirmaljit Kaur, advocate, learned counsel for the respondent, and have perused the record.
5. The solitary contention of learned counsel for the petitioner is that there are no averments in the complaint that the district manager of the Food Corporation of India, was the person in charge of and responsible to the company for the conduct of its business at the time of the commission of the offence. He urged that unless this fact was mentioned in the complaint the petitioner could not be made liable for any default committed by any of the employees of the company. He referred to Section 11 of the Act which reads as under :
"(1) Where an offence under this Act has been committed by a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company, for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly :
Provided that nothing contained in this sub-hall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence."
6. A perusal of the above section shows that prosecution of a district manager of the Food Corporation of India cannot be sustained in the absence of a statement to the effect that he had been in charge of and responsible to the company for the conduct of its business at the time of commission of the offence. In the absence of such statement Section 11 is a bar to the prosecution. Non-compliance with the provisions of Section 11 strikes at the very root of the order taking cognizance of the complaint and the complaint is liable to be quashed. In a complaint against the district manager or a director or any other officer of the company, it must be disclosed specifically as to how the offence was committed and how the particular accused was responsible. The complaint must concisely disclose all ingredients of the offence committed either by commission or omission together with the responsibility of the concerned officer and if no such specific allegation is made against the accused the process issued against him is to be quashed. The provisions of Section 33 of the Insecticides Act, 1968, are identical to the provisions of Section 11 referred above and in a case under the Insecticides Act reported as Vyapak Puri v. State of Punjab [1991] 3 RCR 501 (P & H) where prosecution was launched against a partner of a limited company without making allegations that he was in charge of or responsible to the company for the conduct of its business, it was held that the proceedings were liable to be quashed.
7. Admittedly in the complaint, annexure P-1, it was not alleged that the District Manager of the Food Corporation of India was in charge of or responsible for the conduct of the business of the company at the time of the commission of the offence nor was the company arraigned as an accused. In order to invoke the provisions of Section 11, the basic liability for the offence must be alleged against the company and only then the question of fastening any vicarious liability on the person in charge of or responsible for the conduct of the business of the company arises. All these ingredients are missing and the complaint is liable to be quashed.
8. As a result, I allow this petition and quash the complaint dated May 6, 1991, annexure P-1.