The nominated occupier, as defined by the Act and rules, is solely responsible for the lapses or alleged offences at the establishment.

The petitioners, who are A-2 and A-3 in C.C. No.269 of 2007 taken on file by the Judicial Magistrate, Coimbatore, for the offence punishable under Section-14(1) of the Child Labour (Prohibition and Regulation) Act, 1986 (in short Act), seek to quash the proceedings.

2. The case of the prosecution is that the respondent-Assistant Inspector of Labour, visited the Establishment of the accused and found two persons, below 14 years, engaged in service and since such employment is prohibited under the Act, proceedings came to be initiated before the trial court as referred to above.

3. Learned counsel for the petitioners submits that, in a given case, without application of mind, all the Directors of the firm have been mechanically arrayed as accused. According to him, there may be several Directors in the Firm and one of them would be nominated by the Board of Directors to be an occupier who shall be responsible directly for the day to day affairs of the establishment and to deal with proceedings or prosecution against the Firm. By referring to Section 2 (vi) of the Act, 1986 which defines the word occupier as follows,

"occupier in relation to an establishment or a workshop means the person who has the ultimate control over the affairs of the establishment or workshop",

learned counsel states that, admittedly, the petitioners are running the catering establishment and that in Form-I under sub-rule (1) of Rule 6 of Tamil Nadu Catering Establishment (TNCE) Rules, 1959, filed before the authorities concerned in compliance with the Rules, it has been specifically mentioned that one of the Directors viz., first accused, is the Director of the Catering Establishment ie., occupier; in such circumstances, the first accused alone can be made responsible for the alleged violation and the petitioners cannot be roped in along with the first accused. By referring to the term employer defined in Section 2 (5) of the TNCE Act, 1958,

"employer means a person owning or having charge of the business of a catering establishment and includes any person who holds a licence issued under the Madras City Municipal Corporation Act, etc.",

learned counsel further submits that column Nos.4 and 5 of Form-I prescribed under sub-rule(1) of Rule 6 of TNCE Rules, 1959 distinguishes the term Manager from a Director, for, in the event of violation of any provision of law, the Directors may escape the responsibility by pointing towards someone as the Manager and only to avoid the same, the names of the employee manager as well as Director-Manager are required to be furnished as per column Nos.4 and 5 of the Form. When it is abundantly clear that, for all purposes, one of the Directors who is nominated by the company will be the occupier, apart from that person, other Directors cannot be mechanically included as accused. To substantiate his case, learned counsel relied on a case law in J.K. Industries Ltd. v. Chief Inspector of Factories (1997 (1) LLJ 722), wherein the Apex Court ruled as follows:-

"62. ..... (1) In the case of a company, which owns a factory, it is only one of the Directors of the company who can be notified as the occupier of the factory for the purposes of the Act and the company cannot nominate any other employee to be the occupier of the factory;

(2) Where the company fails to nominate one of its Directors as the occupier of the factory, the Inspector of Factories shall be at liberty to proceed against any one of the Directors of the company, treating him as the deemed occupier of the factory, for prosecution and punishment in case of any breach or contravention of the provisions of the Act or for offences committed under the Act. "

4. Per contra, learned Additional Public Prosecutor submits that occupier means a person who has the ultimate control over the affairs of the establishment or workshop; if that be so, all the Directors are equally responsible for any violation and liable to be prosecuted for the offences alleged to have