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TMI Blog1985 (8) TMI 275X X X X Extracts X X X X X X X X Extracts X X X X ..... Sulurpet, for offences punishable under sections 28 and 26 read with rule 4( c ) and section 27(2) of the Payment of Bonus Act. The charge was that for the accounting years 1980-81 and 1981-82, the petitioners failed to maintain a register in Form "C" and produce the same on demand by the Inspector. In S.T.C. No. 3366/84, the charge was that the petitioner failed to maintain registers in Forms 'A' and 'B' for the accounting years 1980-81 and 1981-82 and produce the same on demand by the Inspector, as required under the provisions of the Payment of Bonus Act, 1965. Section 26 of the Payment of Bonus Act deals with maintenance of registers. It requires every employer to prepare and maintain such registers in such form and in such manner as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and where a person has been named as a manager of the factory under clause ( f ) of sub-section (1) of section 7 of the Factories Act, 1948 (63 of 1948), the person so named; and ( ii )in relation to any other establishment... In the instant case, the facts admitted are that Abirami Cotton Mills Limited, Sulurpet, is a private limited company registered under the Indian Companies Act. It is a factory within the meaning of the Factories Act. An employer is defined under section 2(14) of the Payment of Bonus Act to mean the owner or occupier of the factory. In the present case, it is the company that is the owner of the factory and under section 26, the liability is cast upon the employer to maintain the registers. It is, therefore, cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in the absence of prosecution against the company, the persons who come within the categories of the persons described in the relevant sections cannot be prosecuted. The learned judge was dealing with a case under the Essential Commodities Act which is in pari materia with section 29 of the Payment of Bonus Act. The learned Judge further held that in the absence of an allegation that a partner or a director was in charge of and responsible to the company or the firm for the conduct of the business, the complaint is not maintainable. In State of Madras v. C. V. Parekh, AIR 1971 SC 447, it was held that conviction cannot be fastened on the directors as the liability of persons in charge can arise under that section only when cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legation is correct or not. But even without an allegation that the person was in charge of and was responsible for the conduct of business of the company, the complaint cannot be maintained. These are all criminal proceedings and every technical violation should go in favour of the accused. I am unable to accept the contention of the learned Public Prosecutor that this is a matter which has to be considered at the time of trial having regard to the evidence to be adduced. That is so if an allegation is there to that effect in the complaint. But without there being a foundation and without there being a pleading, there cannot be a proof. In the case of offences by companies, in order to fasten a liability on a director, it must be clearly a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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