IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 26TH FEBRUARY 2008 / 7TH PHALGUNA 1929 Crl.MC.No. 347 of 2002 ST.876/2000 of JUDL. MAGISTRATE OF FIRST CLASS, PEERUMEDU .................... PETITIONERS: ACCUSED: 1. SRI. S.RAMAKRISHNA SHARMA, DIRECTOR, THE TRAVANCORE RUBBER & TEA CO.LTD., PLANTATION HOUSE, PATTOM PALACE P.O., THIRUVANANTHAPURAM - 695 004. 2. SRI. N.BOOTHALINGAM, DIRECTOR, THE TRAVANCORE RUBBER & TEA CO. LTD., PLANTATION HOUSE, PATTOM PALACE P.O., THIRUVANANTHAPURAM - 695 004. 3. SRI. N.SIVATHANU PILLAI, DIRECTOR, THE TRAVANCORE RUBBER & TEA CO. LTD., PLANTATION HOUSE, PATTOM PALACE P.O., THIRUVANANTHAPURAM - 695 004. 4. SMT. S.KANTHIMATHI, DIRECTOR, THE TRAVANCORE RUBBER & TEA CO. LTD., PLANTATION HOUSE, PATTOM PALACE P.O., THIRUVANANTHAPURAM - 695 004. 5. SMT. LAKSHMI, DIRECTOR, THE TRAVANCORE RUBBER & TEA CO. LTD., PLANTATION HOUSE, PATTOM PALACE P.O., THIRUVANANTHAPURAM - 695 004. 6. SMT. MEENAKSHI AMMAL, DIRECTOR, THE TRAVANCORE RUBBER & TEA CO. LTD., PLANTATION HOUSE, PATTOM PALACE P.O., THIRUVANANTHAPURAM - 695 004. 7. SMT. GANGA AMMAL, DIRECTOR, THE TRAVANCORE RUBBER & TEA CO. LTD., PLANTATION HOUSE, PATTOM PALACE P.O., THIRUVANANTHAPURAM - 695 004. Crl.MC.No. 347 of 2002 :: 2 :: 8. SRI. N.K.A. NAMBIAR, SENIOR SUPERINTENDENT, KUPPAKKAYAM ESTATE, THE TRAVANCORE RUBBER & TEA CO. LTD., KUPPAKKAYAM, MUNDAKAYAM P.O. BY ADV. SRI.JOSEPH MARKOSE SRI.JOSEPH KODIANTHARA RESPONDENTS/COMPLAINANT: 1. INSPECTOR OF PLANTATIONS, PEERMADE. 2. CHIIEF INSPECTOR OF PLANTATIONS, KOTTAYAM. 3. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26/02/2008, ALONG WITH CRL.M.C.NO.350 OF 2002 AND CRL.M.C. NO.351 OF 2002, THE COURT ON 26/02/2008 PASSED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.Nos.347, 350 & 351 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of February 2008 ORDER Petitioners 1 to 7 in these three cases filed under Section 482 of the Code of Criminal Procedure, are stated to be the Directors of Travancore Rubber and Tea Company Limited, Thiruvananthapuram. The company owns three estates namely, Kuppakayam Estate, Owkaden Estate and Manickel Estate. Superintendents of these three Estates are the 8th petitioner in these three cases. 2. Petitioners seek to quash the proceedings in S.T.No.876/00, S.T.No.875/00 and S.T.No.852/00 pending on the file of the Judicial Magistrate of First Class at Peermade. The above three complaints have been filed by the Inspector of Plantations, Peermade under Section 36 of the Plantation Labour Act, 1951 (for short 'the Act') and Kerala Plantation Labour Rules, 1959 alleging violation of certain provisions of the Act and other allied Rules thereunder. In the nature of the contentions raised by the petitioners, it is not necessary at this stage to refer Crl.M.C.Nos.347, 350 & 351 OF 2002 :: 2 :: to the various statutory violations which have been allegedly committed by the petitioners. However, the inspection orders cum show cause notices annexed to the complaint would show that petitioners had failed to provide adequate electric lighting in the houses provided for the workers; they had also failed to carry out repairs of the houses from time to time; they had failed to provide housing accommodation for the workers in the dormitory and also that they had failed to appoint atleast one Welfare Officer exclusively for the plantation. In short, the complainant alleged that the petitioners were liable to be prosecuted under Section 36 of the Act for the violation of various provisions in the Act and the Rules. The complaints were filed after obtaining sanction from the competent authority, it was alleged. Large number of documents had been produced along with the complaints. 3. Petitioners have primarily raised two contentions. (a) Petitioners 1 to 7 who are the Directors of the company would not come within the definition of 'employer' in Section 2(e) of the Crl.M.C.Nos.347, 350 & 351 OF 2002 :: 3 :: Act and therefore, they are not liable to be prosecuted. (b) Since the employees of the three plantations do not come within the purview of “worker” as defined in Section 2(K)(ii) in as much as their monthly wages exceed Rs.750/- per mensem, the entire prosecution is illegal and vitiated. 4. Employer is defined in Section 2(e) of the Act which is extracted hereunder: “Employer” when used in relation to a plantation, means the person who has the ultimate control over the affairs of the plantation, and where the affairs of any plantation are entrusted to any other person (whether called managing agent, manager, superintendent or by any other name) such other person shall be deemed to be employer in relation to that plantation” 5. It is contended by petitioners that the Superintendents of the three plantations concerned, are the registered employers. As far as the Kuppakayam Estate is concerned, the registering authority, (Chief Inspector of Plantations, Kottayam) had issued certificate of registration in the name of the Superintendent of Crl.M.C.Nos.347, 350 & 351 OF 2002 :: 4 :: the said Estate in November 1990. A photocopy of the said certificate is on record as Annexure H in Crl.M.C.347/02. It is submitted by the learned counsel that as far as the other two Estates are concerned, applications had been filed by the petitioners for issuance of certificate of registration in the name of the respective superintendents. Those applications have been produced in the other two cases. In other words, petitioners did not have a case that the registering authority had issued certificates of registration in the names of the Superintendents of those two Estates as yet. But still it is contended by the petitioners that it is the respective Superintendent of the Estate concerned who is the “employer”, and not petitioners 1 to 7 who are the directors of the company. It is the case of the petitioners that the Superintendents of the Estates concerned are in charge of the affairs of the plantation and therefore they are responsible for the management of the day today affairs of the three Estates. The Directors do not have any control over the affairs of the estates, it is contended by the learned counsel. Crl.M.C.Nos.347, 350 & 351 OF 2002 :: 5 :: 6. The above contention, in my view, is totally preposterous and untenable, to say the least. A perusal of the definition extracted above particularly, the former part thereof, will undoubtedly show that employer is the person who has ultimate control over the affairs of the plantation. It is true that in the latter part of the definition, by a deeming provision, the person in charge of the affairs of the plantation like Managing Agent, Manager, Superintendent or any person known by any other name shall also be treated as an employer in relation to that plantation. Petitioners have no case that they do not have the ultimate control over the affairs of the plantation. But what they attempt to project is that the Superintendent is in charge of the day today affairs of the plantation and therefore, he alone can be prosecuted for violations, if any, of the provisions of the Act and the Rules thereunder. Reference has been made to the above contention only to be repelled. I do so for the obvious reason that if the above contention is accepted, this court will be doing violation to the statutory definition of employer. Crl.M.C.Nos.347, 350 & 351 OF 2002 :: 6 :: 7. Learned counsel for the petitioners has invited my attention to Annexure-G order passed by a learned Single Judge of this court in a case relating to prosecution under Section 39 of the Act. It is seen from the order that the learned Single Judge had accepted the above contention raised by the petitioners relying on the certificate of registration issued in the name of the Superintendent. But in the said order this court had not referred to the definition given under Section 2(e) though in passing it was observed that the Superintendent in whose name the Estate had been registered has to be treated as the employer and he is the person answerable, and not the directors. 8. The above decision was followed by another learned single Judge in Crl.M.C.179/99. Yet again, the learned Judge in that case had not made any reference to the definition in Section 2(e). But recently in Crl.M.C.5254/03 and 5255/03 another learned Judge of this court had elaborately dealt with the above question and held that Directors would also be liable to be prosecuted for violation of the provisions of the Act and the Crl.M.C.Nos.347, 350 & 351 OF 2002 :: 7 :: Rules. I am in respectful agreement with the latter view. 9. The other contention raised by the petitioner is that the employees of the three Estates draw more than Rs.750 per mensem and therefore they would not fall within the definition of worker given under Section 2(K)(ii) of the Act. Petitioners have to necessarily raise this contention before the court below when the case is taken up for trial. I do not propose to entertain the said contention at this stage while exercising the power of this Court under Section 482 of the Code. There is no merit in any of the contentions raised by the petitioners. Crl.M.C.s are dismissed. (A.K.BASHEER, JUDGE) jes Crl.M.C.Nos.347, 350 & 351 OF 2002 :: 8 :: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.Nos.347, 350 & 351 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - - - ORDER Dated 26th Feb. 2008