IMPORTANT POINTS
The respondent/accused is the proprietress or the owner of the establishment, the prosecution is not maintainable under Section 21(2) of the Maternity Act, 1961, unless the prosecution is able to establish that the proprietress will come within the definition of employer as per Section 3 (d)(iii) of the Act-The prosecution miserable failed to prove the same.

JUDGMENT :

The above appeal is filed by the State of Kerala challenging the judgment dated 30.4.2004 in C.C.No.297/2002 on the file of the Judicial First Class Magistrate Court, Devikulam. It was a prosecution initiated by the Assistant Labour Officer, Munnar, against the respondent herein alleging offence punishable under Section 21(2) of the Maternity benefits Act 1961. (For brevity Act)

2. According to the prosecution, the accused failed to exhibit an abstract of the above Act and Rules in Form K and has not produced the same at the time of inspection by the officers. The accused also failed to maintain the up-to-date muster roll in Form A and failed to produce the same at the time of inspection. Hence, it is alleged that the accused committed the said offence.

3. To substantiate the case, two witnesses were examined by the prosecution. Exts.P1 to P7 are the exhibits marked on the side of the prosecution. After going through the evidence and documents, the trial court found that the accused is not guilty, and he was acquitted under Section 255 (1) Cr.P.C. Aggrieved by the same state of Kerala filed this appeal.

4. Heard. The point for consideration in this appeal is whether the accused committed the offence under section 21(1) of the Act.

5. The trial court acquitted the accused mainly because the prosecution was not able to prove that the accused is an employer, as defined in Section 3 (d) of the Maternity Benefit Act. The trial court discussed the case in detail in paragraph 7 of the impugned judgment. Paragraph 7 of the impugned judgment is extracted hereunder.

“The learned counsel for the defence argued that the alleged establishment is exempted from maintaining registers by the Act named as LABOUR LAWS (EXEMPTION FROM FURNISHING RETURNS AND MAINTAINING REGISTERS BY CERTAIN ESTABLISHMENTS) ACT 1988. He further argued that this establishment will come under the purview of the definition of small establishment as per this Act. But I find no merit in this argument because the above said Act is applicable only to the Acts mentioned in the schedule of the above said Act. In the schedule of the above said Act, Maternity Benefit Act is not included. So the argument of the counsel is only to be rejected. Ext.P13 would show that a woman is working in this establishment. PW2 would say that she had been working in the institution. Hence the Maternity Benefit Act is applicable to this institution. Ext.P1 would show that PW1 inspected the establishment on 18.8.02. PW2 identified her signature in Ext.P1. So the case of the PW1 that he inspected the institution on 18.8.02 is only to be accepted. According to PW1 the accused violated the provisions of Sec.19 and Sec.20 of the Maternity Benefit Act. As per Se.21(2) of the Act if any employer contravenes the provisions of the said act is liable to be prosecuted. Admittedly the accused is the proprietress of Misha Holiday Home. In Cross-examination PW1 deposed that under the provisions of the Act Manager is the employer. The Ext.P3 is the show cause notice issued to Misha Holiday Home. It is accepted by the Manager of the institution. Ext.P3 would clearly show that there was a manager working in the institution though it was seen issued to the accused. In this context, it is to be examined whether the proprietress or manager is to be prosecuted as per the provisions of the Maternity Benefit Act. Sec.3(d)(iii) deals with the definition of the employer. As per this clause, the person who, or the authority which has ultimate control over the affairs of the establishments and where the said affairs are entrusted to any other person whether called a manager, a managing director, managing agent, or by any other name, such person" is the employer. So as per the definition clause a person cannot be held liable only for the reason that she is the proprietress or the owner of an establishment. If that person is having ultimate control over the affairs of the establishment, he can be prosecuted. Here, the