( 1 ) THE hearing stems from an application filed by the petitioner praying for quashing the proceeding being Case No. C-3006 of 2002 under Section 10 (1) (a) of the Equal Remuneration Act, 1976 read with Rule 6 of the Equal remuneration Rules, 1976 and for setting aside the orders dated 04. 06. 2003 to 05. 04. 2004 passed therein, pending in the Court of learned Metropolitan magistrate, 5th Court, Calcutta.

( 2 ) THE circumstances leading to the above application are that O. P. No. 1 lodged a complaint under Section 10 (1) (a) of the Equal Remuneration act, 1976 read with Rule 6 of the said Rules inter alia alleging that the accused persons failed to maintain register in Form 'd' at their work-spot at 19, Synagogue street, City Centre, Calcutta - 700 001 in violation of the provisions of Section 10 (1 ) (a) of the said Act read with Rule 6 which is not at all correct. The concerned branch Manager who was the head of the Branch and has control over the affairs of the establishment in his letter dated 20. 06. 2002 mentioned the said fact of maintenance of register in Form 'd' at all times in reply to the inspection report dated 06. 06. 2002. In terms of the banking practice each branch is being treated as separate entity and the concerned Branch Manager and/or in-charge of the respective branch is entrusted with the day to day affairs of such branch and is being treated as an employer as defined in Section 2 (c) of the Equal remuneration Act, 1976, and as such the petitioner has unnecessarily been implicated in the case. There is no actus reus nor mens rea in so far as the petitioner is concerned who cannot also be held vicariously liable. Accordingly, the initiation of instant proceeding and its continuation and the orders dated 04. 06. 2003 to 05. 04. 2004 and subsequent orders are liable to be quashed.

( 3 ) AS none appeared for O. P. No. 1, the matter was heard ex parte.

( 4 ) MR. Mitra, learned Counsel for the petitioner, on taking me through the definition of 'employer' in Section 2 (c) of the Equal Remuneration Act, 1976 and then to Section 2 (f) of the Payment of Gratuity Act, 1972 which is a legislation by referable incorporation contended that the present case is governed not by sub-clause (i) or sub-clause (ii) but by sub-clause (iii) of Clause (f) of Section 2 of the Payment of Gratuity Act, 1972, and as there is a Branch Manager in every branch of the bank who has the ultimate control over the affairs of the establishment, the need for attracting the remaining portion of said sub-clause (iii) does not arise, and as such the petitioner who is the Managing Director of icici Bank cannot be held to be 'employer' in the present case. So, Mr. Mitra submitted, continuation of the above proceeding against the petitioner is an abuse of the process of the Court and accordingly the proceeding should be quashed.

( 5 ) QUASHING of proceeding to prevent abuse of the process of the Court or otherwise to secure the ends of Justice may be done where: (1) it appears that there is a legal bar against the institution or continuance of criminal proceeding in respect of the offence alleged e. g. absence of requisite sanction, or (2) the allegation in the F. I. R. or the complaint even if they are taken at their face value and accepted in their entirety do not constitute the offence alleged, or (3) the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or j the evidence adduced clearly or manifestly fails to prove the charge. That apart, I the power to quash a criminal proceeding by this Court can be exercised very \ sparingly and with circumspection and that too in the rarest of the rare cases. In | this connection, reference may be made to the cases of R. P. Kapur v. State of j punjab, reported in AIR 1960 SC 866, State of Haryana v. Bhajan Lal, reported in AIR 1992 SC 604 and M. Narayandas v. State of Karnataka, reported in 2004 scc (Cr.

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