R.K. Poddar vs State

N.C. Talukdar, J.—This Rule is at the instance of the two accused Petitioners R.K. Poddar and P. Rohatgi directed against an order dated August 20, 1973, passed by Sri R.P. Samajdar, Presidency Magistrate, Third Court, Calcutta, in case No. C2581/72 convicting the two accused Petitioners u/s 30(1)(c) of the Apprentices Act, 1961 and sentencing them to suffer simple imprisonment for three months each.

The facts leading on to the case are short and simple. On or about September 1, 1972, the complainant opposite party No. 1 M.N. Roy, State Apprentice Adviser, Government of West Bengal, filed a petition of complaint before the learned Chief Presidency Magistrate, Calcutta, for issue of summon against the accused Petitioners for having committed offence under Sections 30(1)(c), 30(2)(a)(ii) and 30(2)(b) of the Apprentices Act, 1961. The prosecution case, inter alia, as made out in the petition of complaint is that the complainant is the Additional Director of Industries (Training) and Ex-Officio State Apprenticeship Adviser, Government of West Bengal and the accused Petitioners were the Managing Director and the Administrative Officer respectively of Poddar Automobiles Limited, carrying on business at 113 Park Street, Calcutta-16, having its registered office at 36 Jawaharlal Nehru Road, Calcutta; that the accused persons are under the statutory obligation to engage 14 apprentices to undergo apprenticeship training in the said company as per notice served on the company u/s 8(5) of the Apprentices Act, 1961, by the State Apprenticeship Adviser; that statutory notice bearing No. 2484(1) dated June 26, 1970, was served under Sub-section (3) of Section 8 of the Apprentices Act, 1961, on the aforesaid company for engagement of 14 apprentices in different designated trade by the State Apprenticeship Adviser, West Bengal; that thereafter the aforesaid establishment was repeatedly asked to comply with its statutory obligation, but the company remained totally indifferent and totally failed to comply with the requirement of the statute on various pretexts of financial difficulties and labour unrest etc.; that the complaint through press notice on February 13, 1972, directed all industrial establishments to comply with their statutory obligations under the Apprentices Act, 1961 and the said company was also requested to manage the required number of apprentices and submit contracts of apprenticeship for registration on or before April 4, 1972, but the said company again put forward various pretexts and prayed for more time for requirement of apprentices: and that by doing so the said establishment violated the provisions of Section 8(3) of the Apprentices Act, 1961, which is punishable u/s 30(1)(c) of the said Act. That on the aforesaid allegations the accused were placed on their trial before Sri R.P. Samajdar, Presidency Magistrate, Third Court, Calcutta and in course of the trial, the complainant confined his case to the offence u/s 30(1)(c) of the Apprentices Act, 1961, for a contravention of Section 8(3) of the Apprentices Act, 1961. The pettiness pleaded not guilty submitting, inter alia, that the prosecution case against the accused persons was not maintainable since no notice was served upon them and since the company had not been made a party; that as per the provisions contained in Section 32 of the Apprentices Act, 1961, the company should have been made a party to the case, more so, as the offence is alleged to have been committed by the establishment, viz. the company and as such non-joinder has affected the very basis of the case; that the case is bad also for non-joinder of other directors of the company; and that on merits also the case is not maintainable because of the absence of any mens rea and because the accused persons expressed bona fide their difficulties in appointing the required number of apprentices due to labour unrest. Two witnesses were examined on behalf of the prosecution and several exhibits were proved. Defence examined one witness. As a result of the trial, the learned Magistrate by his order dated August 20, 1973, convicted and sentenced the accused Petitioners as mentioned above. The said order has been impugned and forms the subject, matter of the present Rule.

Mr. S.D. Banerjee, Senior Advocate, with Messrs N.C. Banerjee, Senior Advocate and Arun Kumar Mukherjee and Monoj Kumar Mukherjee, Advocates appearing in support of the Rule on behalf of the two accused Petitioners, made a submission of four dimensions. Firstly, that the case is not maintainable since no notice was served upon the accused. Secondly, that the company having not been made a party, there has been a non-conformance to Section 32 of the Apprentices Act, 1961 and the resultant non-joinder vitiated the trial; thirdly, that the case is also bad for non-joinder of the other directors of the company; and lastly, on merits inasmuch as the requirements could not be conformed to in any event because of the labour unrest and the bona fide expression of their difficulty while acknowledging receipt of the statutory notice by the letter dated August 7, 1970, as sent by the company (Ex. 4). Mr. Promode Ranjan Roy, Junior Government Advocate appearing on behalf of the State, joined issue and submitted that the objections taken are merely technical ones and that on ultimate analysis these are not maintainable.

As regards the first contention raised, the learned Presidency Magistrate himself found that I must say that in all fairness the notice should have been served upon the company itself but ultimately explained away the same on the purported ground that non-service of the notice upon the company or the accused persons does not take away the liability of the accused persons since it appeared that according to Section 8(3) of the Act the service of notice in writing is discretionary and not mandatory. He came finally to his conclusion that the provisions of the Act have been substantially complied with. The ultimate conclusion does not appear to us to be proper. This is a special legislation and when there is a designated trade within the meaning of Section 2(e) of the Apprentices Act, 1961, the Apprenticeship Adviser under Sub-section 3 to Section 8 may by notice in writing require an employer to engage such number of apprentices within the ratio determined by the Central Government for such trade. Mr. Banerjee contended that "may" here means "must". Without entering into the question as to whether the use of the word "may" is directory or mandatory, the question ultimately involved is also one of natural justice. The Court of fact having found that in all fairness such a notice should have been served upon the company itself, should not have subsequently explained it away by hypothesis and assumptions not warranted by the record. The first point, therefore, raised by Mr. S.D. Banerjee succeeds on the ground of natural justice.

The second contention also raised on behalf of the accused Petitioners is a material point having an important impact on the case. The position in law is by now quite clear and the decision of the Supreme Court on the point has set any possible controversy at rest. A reference in this context may be made to the case of State of Madras Vs. C.V. Parekh and Another, . Mr. Justice Bhargava delivering the judgment of the Court observed in the facts of that case wherein the company was not a party, that the liability of the persons in charge of the company only arises when the contravention is by the company itself. Since in this case there is no evidence and no finding that the company contravened Clause 5 of the Iron and Steel Control (Order) the Respondents could not be held responsible. We respectfully agree with the said observations and applying the same to the facts of the present case, we hold that the company should have been made a party along with others and the failure to do so has vitiated the trial and the ultimate order of conviction and sentence passed. The learned Presidency Magistrate has proceeded upon unwarranted hypothesis in explaining away the legal position and on the purported ground that the non-joinder of the company itself took away the liability of the accused persons because the section in question contemplates joint and several liabilities of the company and every person who is in charge of or responsible to the company. The said finding is dehors the observations made by the Supreme Court as referred to above and is bad and repugnant. We, accordingly, uphold the second facet of Mr. Banerjee's contention.

This brings us to a consideration of the third point raised by Mr. Banerjee relating to the non-joinder of other directors of the company. The learned Presidency Magistrate again has come to a rather curious finding though he observed "It is true that the complaint petition has been very badly drafted", but again explained the same away on the purported difference between joint and several liabilities and holding ultimately that the purported non-joinder has not affected the terms. The learned Presidency Magistrate has in fact begged the question and the answer to the point has already been given. There is, accordingly, quite a considerable force behind the third branch of Mr. Banerjee's contention.

The fourth and the last dimension of Mr. Banerjee's contention is based on merits. The evidence on record makes it clear that Messrs Poddar Automobiles by their letter dated August 7, 1970, (Ex. 4) acknowledged receipt of the statutory notice (Ex. 3) but expressed their difficulty to appoint the required number of apprentices on the ground of labour unrest. The defence had in fact taken a consistent and categorical plea that the accused could not employ the apprentices due to labour unrest. The learned Presidency Magistrate proceeded on the footing that in the absence of and proof, he would not proceed on the basis of the defence version. The point at issue ultimately is not whether the defence could prove it but as to whether the offence alleged requires any mens rea or blameworthy mind on the part of the purported delinquent. In view of the evidence on record and in view of the specific provisions of Section 30(1)(c) it is difficult for us to come to any ultimate decision. As we have already observed that the prosecution in the first flush was a many-splendoured one, not only u/s 30(1)(c) but also under Sections 30(2)(a)(ii) and 30(2)(b) of the Apprentices Act, 1961. The other two provisions require clearly a blameworthy mind because there is a reference to knowledge or belief or of wilful neglect, but those two offences were given up during the trial leaving only the present one u/s 30(1)(c). In view of the language of the provisions enjoined by the statute and in view of the materials on record, it is difficult for us to come to a definite conclusion. The fourth facet of the arguments of Mr. Banerjee is disposed of accordingly.

In the result, we make the Rule absolute; set aside the order of conviction passed on the accused Petitioners u/s 30(1)(c) of the Apprentices Act, 1961 and the sentence to undergo simple imprisonment for three months each and we direct that the accused Petitioner be discharged from their bail-bonds.

The records are to go down as early as possible.

A.N. Banerjee, J.

I agree.