IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:- 08.09.2009 Coram:- The Hon'ble Mr. Justice R.REGUPATHI Crl.O.P. No.253 of 2008 1. D.Srinivasan 2. R.Venkatesh ... Petitioners vs. The State rep. by its Asst. Inspector of Labour, Circle-VI, Coimbatore-18. ... Respondent Petition under Section 482 of the Code of Criminal Procedure for the relief as sated therein. For Petitioner : Mr.N.G.R.Prasad for M/s.Row and Reddy. For respondent : Mr.N.R.Elango, Additional Public Prosecutor. O R D E R The petitioners, who are A-2 and A-3 in C.C. No.269 of 2007 taken on file by the Judicial Magistrate, Coimbatore, for the offence punishable under Section-14(1) of the Child Labour (Prohibition and Regulation) Act, 1986 (in short 'Act'), seek to quash the proceedings. 2. The case of the prosecution is that the respondent-Assistant Inspector of Labour, visited the Establishment of the accused and found two persons, below 14 years, engaged in service and since such employment is prohibited under the Act, proceedings came to be initiated before the trial court as referred to above. 3. Learned counsel for the petitioners submits that, in a given case, without application of mind, all the Directors of the firm have been mechanically arrayed as accused. According to him, there may be several Directors in the Firm and one of them would be nominated by the Board of Directors to be an 'occupier' who shall be responsible directly for the day to day affairs of the establishment and to deal with proceedings or prosecution against the Firm. By referring to Section 2 (vi) of the Act, 1986 which defines the word 'occupier' as follows, https://hcservices.ecourts.gov.in/hcservices/ " occupier in relation to an establishment or a workshop means the person who has the ultimate control over the affairs of the establishment or workshop", learned counsel states that, admittedly, the petitioners are running the catering establishment and that in Form-I under sub- rule (1) of Rule 6 of Tamil Nadu Catering Establishment (TNCE) Rules, 1959, filed before the authorities concerned in compliance with the Rules, it has been specifically mentioned that one of the Directors viz., first accused, is the 'Director of the Catering Establishment' ie., 'occupier'; in such circumstances, the first accused alone can be made responsible for the alleged violation and the petitioners cannot be roped in along with the first accused. By referring to the term 'employer' defined in Section 2 (5) of the TNCE Act, 1958, " employer means a person owning or having charge of the business of a catering establishment and includes any person who holds a licence issued under the Madras City Municipal Corporation Act, etc.", learned counsel further submits that column Nos.4 and 5 of Form-I prescribed under sub-rule(1) of Rule 6 of TNCE Rules, 1959 distinguishes the term 'Manager' from a 'Director', for, in the event of violation of any provision of law, the Directors may escape the responsibility by pointing towards someone as the Manager and only to avoid the same, the names of the 'employee manager' as well as 'Director-Manager' are required to be furnished as per column Nos.4 and 5 of the Form. When it is abundantly clear that, for all purposes, one of the Directors who is nominated by the company will be the occupier, apart from that person, other Directors cannot be mechanically included as accused. To substantiate his case, learned counsel relied on a case law in J.K.Industries Ltd. v. Chief Inspector of Factories (1997 (1) LLJ 722), wherein the Apex Court ruled as follows:- " 62. ..... (1) In the case of a company, which owns a factory, it is only one of the Directors of the company who can be notified as the occupier of the factory for the purposes of the Act and the company cannot nominate any other employee to be the occupier of the factory; (2) Where the company fails to nominate one of its Directors as the occupier of the factory, the Inspector of Factories shall be at liberty to proceed against any one of the Directors of the company, treating him as the deemed occupier of the factory, for prosecution and punishment in case of any breach or contravention of the provisions of the Act or for offences committed under the Act. " https://hcservices.ecourts.gov.in/hcservices/ 4. Per contra, learned Additional Public Prosecutor submits that occupier means a person who has the ultimate control over the affairs of the establishment or workshop; if that be so, all the Directors are equally responsible for any violation and liable to be prosecuted for the offences alleged to have been committed. Referring to Section 14 of the Act which commences with the words 'whoever employs any child', he emphasises that the legal provision is distinctly clear to bring within its purview all the Directors of the Establishment concerned. According to him, if at all a contention is raised that the petitioners were not in charge of and responsible for the affairs of the Establishment at the time of commission of the offence, such aspect, being a pure question of fact, may have to be canvassed and proved by adducing materials before the trial court and by merely submitting that the petitioners were not holding ultimate control over the affairs of the Establishment, they cannot wriggle out from the clutches of law and seek to quash the proceedings. He relied on the following passages from the case law of the Apex Court reported in AIR 1962 SC 1351 (Donald Mackenzie v. Chief Inspector of Factories):- " The only point pressed before us on behalf of the petitioners is that the petitioner No.1 Mackenzie had the ultimate control over the affairs of the factory and, therefore, he must be regarded as the occupier as defined in S.2(n) of the Factories Act. That section defines "occupier" thus: "'occupier' of a factory means the person who has ultimate control over the affairs of the factory and where the said affairs are entrusted to a managing agent, such agent shall be deemed to be the occupier of the factory." Undoubtedly, the expression "occupier" is not to be equated with "owner". But it must be borne in mind that the ultimate control over a factory must necessarily be with an owner unless the owner has completely transferred that control to another person. Whether that was done in the present case would be a question of fact. ....." 5. I have perused the materials available on record having regard to the rival submissions made on either side. Though it has been defined in the penal provision of the Act viz., Section-14, and the same commences with the words 'whoever employs any child', sub-clause (vi) of Section-2 of the Act denotes the person who should be held responsible in such case as 'occupier' by defining him as the one who has the ultimate control over the affairs of the establishment or workshop. In the case on hand, in order to substantiate the aspect that the first accused in the case is the person who was in charge and responsible for the affairs of the Establishment at the relevant time, Form-I submitted https://hcservices.ecourts.gov.in/hcservices/ under sub-Rule (1) of the Rule-6 under the TNCE Rules, has been relied upon. Submission of such Form for the same Establishment is also not in dispute. In Column No.4 thereof, particulars of the Manager of the Catering Establishment has been sought for and in Column No.5, details of the Director other than the Manager ie., Occupier, are required to be furnished. As against clause (ii) of column-5 relating to 'Directors in case of a private limited liability establishment', the name of A1 has been mentioned; thus, the only positive conclusion is that the 'occupier' of the Establishment in question is the first accused. As held by the Hon'ble Apex Court in J.K.Industries case cited above by the counsel for the petitioner, such person who has been nominated as occupier alone can be made responsible for the lapses or alleged offence and not others. Therefore, I am of the considered view that inclusion of the petitioners herein in the case launched by the prosecution would be an abuse of process of court, hence, the proceedings against them, who are taken as A2 and A3, are directed to be quashed however the case against the first accused/occupier would proceed before the trial court which will dispose of the same in accordance with law. Criminal Original Petition is ordered accordingly. JI. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar To 1. The Asst. Inspector of Labour, Circle-VI, Coimbatore-18. 2. The Chief Judicial Magistrate, Coimbatore. 3. The Public Prosecutor High Court, Madras. + 1 cc to M/s. Row & Reddy, Advocate SR.45222. Crl.O.P. No.253 of 2008. KK(CO0 EU 15.10.2009. https://hcservices.ecourts.gov.in/hcservices/