Sheoshankar Kanodia vs State of Bihar

Shivanugrah Narain, J.—The sole petitioner, Sheoshankar Kanodia, has been convicted u/s 18A of the Workmen''s Compensation Act, 1923 (hereinafter called ''the Act'') and sentenced to pay a fine of Rs. 100/- and in default to suffer simple imprisonment for one month.

The prosecution case, shortly stated, is that by notification No. 6869, dated the 16th October, 1968, issued u/s 16 of the Act, the State Government directed along with other this petitioner, who was proprietor of a small scale industry situated at Banu Chhapra in the town of Bettiah, to file a return referred to in Section 16 of the Act by the 15th January, 1969 but the petitioner failed to comply with that direction and thereby made himself liable to be punished u/s 18A of the Act.

The principal defence of the petitioner as appears from his statement u/s 342 of the Code of Criminal Procedure was that the petitioner never had a small scale industry at Banu Chhapra.

The Learned Magistrate held that prosecution case to be proved and convicted and sentenced the petitioner as stated above. The appeal preferred by the petitioner having been dismissed by the learned 1st Additional Sessions Judge, Motihari, the petitioner has come upto this court in revision.

In my opinion, this application must succeed on the short ground that the prosecution has failed to prove beyond doubt that the petitioner was a person required to make a return u/s 16 of the Act. Section 18A so far as is relevant runs this:

18-A. Penalties-(1) Whoever.

(a) xx xx xx xx(b) xx xx xx xx(c) xx xx xx xx (d) fails to make a return which he is required to make u/s 16,

shall be punishable with fine which may extend to five hundred rupees.

Before a person can be convicted and sentenced u/s 18A of the Act, it must therefore, be proved beyond doubt that he is a person required to make the return u/s 16. Section 16 of the Act runs thus:

Returns as to compensation--The State Government may, by notification in the official Gazette, direct that every person employing workmen, or that any specified class of persons, shall send at such time and in such form and to such authority, as may be specified in the notification, a correct return specifying the number of injuries in respect of which compensation has been paid by the employer during the previous year and the amount of such compensation, together with such other particulars to the compensation as the State Government may direct.

It is clear from the provisions of Section 16 that the liability to submit a return u/s 16 is confined to a person employing workmen or any specified class of such persons i. e. a specified class of persons employing workmen. In order to establish that there is a liability to make a return u/s 16, the prosecution must, therefore, establish that the accused was a person employing workmen, ''workmen'' is defined by Section 2(n) as follows :--

Workman'''' means any person other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer''s truce or business, who is:

(i) xx xx xx xx (ii) employed on monthly wages not exceeding five hundred rupees, in any such capacity as is specified in schedule II,

whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing, but does not include any person working in the capacity of a member of the Armed Forces of the Union, and any reference to a workman who has been injured shall, where the workman is dead, include a reference to his dependants or any of them.

The only evidence adduced by the prosecution was in the shape of an oral testimony of a witness P. W.I. a Head Assistant in the general administration section of Motihari Collectorate, who stated in his examination-in-chief merely that there was a small industry in Banu Chhapra of which the proprietor was Sheoshankar Kanodia, namely, the accused. The appellate court has not placed much reliance on this testimony in coming to the conclusion that there was small scale industry at Banu Chhapra and that the accused was the owner of that. He has relied upon what is termed an admission by the accused to that effect. In the examination u/s 342 of the Code of Criminal Procedure as I have already stated, the petitioner specifically denied that there was any such small scale industry of which he was the proprietor in Banu Chhapra, Bettiah. The so-called admission is supposed to be founded in the suggestion in cross examination that the accused had submitted a return for failure to file which he was being prosecuted. According to the accused, the suggestion was with- respect to the another return and regarding filing of which he examined witnesses and which, according to him, related to another enterprise, Majhaulia Enterprises with which he has no concern. Be that as it may, this suggestion has to be taken in conjunction with the other suggestion also given to P. W. 1 that there was no small scale industry in Banu Chhapra. Taken in conjunction with that suggestion,- the aforesaid suggestion cannot amount to an admission that there was such a small scale industry of Banu Chhapra of which the petitioner was the proprietor. It is open to the accused person to raise an inconsistant alternative plea. Even if the return regarding which the suggestion was made was in respect of this industry, that suggestion does not amount to an admission regarding the existence of that industry or the petitioner being the proprietor of that industry.

Learned Counsel appearing for the State candidly admitted and, in my opinion rightly, that if there was no such admission by the accused, it cannot be held that the prosecution has discharged the onus of proving that the petitioner was a person required to make a return u/s 16 of the Act. I may further state that even if the statement of P. W. 1 that the petitioner was the proprietor of a small scale industry is taken at its face value, it would not be sufficient for holding that the petitioner was a person required to make the return u/s 16 within the meaning of the expression as used in Section 18A of the Act inasmuch as there was no evidence that he employed persons on monthly wages not exceeding Rs. 500/- and the persons were employed in a capacity specified in schedule II to the Act and were thus ''workmen'' within the meaning of the expression as defined in Section 2(n) of the Act. It must, therefore, be held that the prosecution has failed to prove its case.

I would, accordingly, allow the application, set aside the order of conviction and acquit the petitioner. Fine if paid must be refunded.