The definition of 'employer' under the Kerala Shops and Commercial Establishments Act allows for prosecution of individuals in management roles.

JUDGMENT

This Original Petition has been filed challenging Ext.P4 complaint filed by the 1st respondent against the 3rd respondent before the Judicial First Class Magistrate Court-I, Kannur and Ext.P7 summons issued by the learned Magistrate.

2. The petitioner is a telecommunication service provider. It is alleged in the Original Petition that the 3^rd respondent is an executive of the petitioner company. The petitioner is aggrieved by the prosecution initiated by the 1^st respondent against the 3^rd respondent under the Kerala Shops and Commercial Establishments Act, 1960 (for short ‘the Act’). The 1^st respondent inspected M/s. Vodafone Cellular Limited, Building No.159/ABC, Caltex Tower, Opposite Civil Station, Kannur 2 at 1.30 pm on 02.03.2015. During the inspection, it is noticed that 5 persons were employed therein as workman. It was found that the employer failed to exhibit Registration Certificate in the establishment and failed to maintain Service Record and Register of Complaint and thus contravened Sections 5C and 30 of the Act read with Rules 10(1) and 10(1A) of the Kerala Shops and Commercial Establishments Rules which are punishable under Sections 29(1)(a), 29(1)(b) and 29(2) of the Act. Hence, after issuing the show cause notice, Ext.P4 complaint was filed. The learned Magistrate took the complaint on file and issued Ext.P7 summons to the 3rd respondent.

3. I have heard the learned counsel for the petitioner and the learned Public Prosecutor.

4. The learned counsel for the petitioner submitted that the petitioner is the employer and the 3^rd respondent is only working as an executive under the petitioner and hence, the prosecution lodged against the employee will not lie. The learned counsel further submitted that the offences under Sections 29(1)(a), 29(1)(b) and 29(2) of the Act would lie only against the employer. It is true that the prosecution can be lodged only against the employer. However, the crucial question is whether the 3^rd respondent would fall within the definition of the employer under the Act. The term “employer” has been defined under Section 2(7) of the Act. It says that, “employer” means a person owning, or having ultimate control over the affairs of, an establishment and includes the manager, agent or other person acting in the general management or control of an establishment. Thus, manager, agent or any other person acting in general management or control of an establishment would also falls within the definition of the employer. It is an admitted case that the 3^rd respondent is an executive under the petitioner. The question whether he is in general management or control of the establishment is a matter of evidence.

5. The learned counsel for the petitioner invited my attention to Ext.P3 registration certificate wherein the employer’s name has been shown as Senior Vice President / Chief Operating OfÏcer. However, inasmuch as the definition of the employer takes in any other person who is in management and control of an establishment, there is nothing wrong in proceeding against such a person. Therefore, I am of the view that the prosecution cannot be quashed. Accordingly, the Original Petition is dismissed.

Sd/-

DR. KAUSER EDAPPAGATH JUDGE BR APPENDIX OF OP(CRL.) 146/2016 PETITIONER’S EXHIBITS EXT.P1: TRUE COPY OF THE RELEVANT EXTRACT OF THE LICENSE ISSUED TO THE PETITIONER BY THE CENTRAL GOVERNMENT OF INDIA EXT.P2: TRUE COPY OF THE WAGE SLIP OF THE 3RD RESPONDENT EXT.P3: TRUE COPY OF THE CERTIFICATE OF REGISTRATION ISSUED UNDER THE KERALA SHOPS AND COMMERCIAL ESTABLISHMENT ACT

1960 EXT.P4: TRUE COPY OF THE COMPLAINT FILED BY THE

1ST RESPONDENT BEFORE JUDICIAL FIRST CLASS MAGISTRATE 1 KANNUR DATED

16.05.2015 EXT.P5: TRUE COPY OF THE INSPECTION REPORT DATED

2.3.2015 EXT.P6: TRUE COPY OF THE SHOW CAUSE NOTICE EXT.P7: TRUE COPY OF THE SUMMONS ISSUED BY THE JUDICIAL FIRST CLASS MAGISTRATE 1 KANNUR EXT.P8: TRUE COPY OF THE COMPLIANCE CERTIFICATE ISSUED BY THE 1ST RESPONDENT EXT.P9: TRUE COPY OF THE COMPLI