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2025 Supreme(Online)(Ker) 47392
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Kauser Edappagath, J
T.M BASHEER – Appellant
Versus
STATE OF KERALA – Respondent
CRL.MC NO. 8423 OF 2019 | ST NO.5118 OF 2018
For the Appellants/Petitioners: SHRI.C.S.AJITH PRAKASH, SHRI.T.K.DEVARAJAN, SMT.T.N.SREEKALA, SHRI.FRANKLIN ARACKAL, SRI.M.B.SOORI, SRI.BABU M., SRI.PAUL C THOMAS
For the Respondents: SRI.SANAL P RAJ-PP
Disputed facts regarding the applicability of the Kerala Shops and Commercial Establishments Act versus the Factories Act require resolution in the trial court.
Headnote:(A) Kerala Shops and Commercial Establishments Act, 1960 - Section 29A - The petitioners, accused under the Act, sought to quash proceedings alleging their establishment did not qualify as a commercial establishment, claiming it was a factory under the Factories Act, however, the registration under the Act was valid at the time of inspection, leading to disputes of fact not suitable for a Section 482 petition. (Paras 3, 5)
(B) Legal Standards - The court emphasized the necessity of addressing disputed fact before the trial court, guiding petitioners to present contentions there. (Para 5)
Facts of the case:
The accused were running an automobile repair and service establishment that was inspected by authorities leading to prosecution under the Act.
Findings of Court:
The establishment was registered under the Kerala Shops and Commercial Establishments Act during inspection, questioning the applicability of the Act.
Issues: Whether the establishment fell under the Act or the Factories Act was determined as a disputed fact for resolution in trial court.
Ratio Decidendi: The court reiterated that matters of disputed fact should not be resolved at this stage but left for trial court determination.
Result: Crl.M.C dismissed.
| Table of Content |
|---|
| 1. accused faced prosecution under the kerala shops and commercial establishments act. (Para 1 , 2) |
| 2. petitioners claimed their establishment is a factory, seeking to quash the prosecution. (Para 3 , 4) |
| 3. disputed facts require resolution in trial court. (Para 5) |
O R D E R
The petitioners are the accused in S.T.No.5118 of 2018 on the files of the Judicial First Class Magistrate Court, Alappuzha (for short, 'the trial court'). The offences alleged against them are under Section 29A of the Kerala Shops and Commercial Establishments Act, 1960 (for short, 'the Act') and the Kerala Shops and Commercial Establishments Rules, 1961 (for short, 'the Rules').
2. The petitioner No.1 is the employer and the petitioner No.2 is the Manager of M/s.Shymas Auto Sales, Sanathanapuram. The Assistant Labour Officer, Gr. II, 2nd Circle, Alappuzha inspected the petitioners' establishment on 17.05.2018 at 12.20 p.m., and it was noticed that the petitioners had contravened Section 13(1) of the Act and Rules 2J(1), 2J(2), 10(1)A, 10(9), 12A and 6B of the Rules. Accordingly, prosecution was launched after issuance of statutory notice.
3. The petitioners have now approached this Court to quash the proceedings mainly on the ground that their establishment would not fall within the definition “commercial establishment” under the Act and therefore, the prosecution under Section 29A of the Act and the Rules would not lie.
4. I have heard Sri.C.S.Ajith Prakash, the learned counsel for the petitioners and Sri.Sanal P Raj, the learned Public Prosecutor.
5. The petitioners are engaged in the business of automobile repair and service at the establishment. Relying on serial No.29 of Annexure A4 Government Notification, the learned counsel for the petitioners submitted that the petitioners' establishment is a factory. However, the petitioners obtained registration under the Factories Act, 1948 , as evident from Annexure A5, only on 03.01.2019, i.e, after the inspection of the petitioners' premises by the Assistant Labour Officer. It is also admitted that, at that time, the petitioners' establishment was registered under the Act. According to the petitioners, the registration was wrongly made at the instance of the Labour Officer and subsequently, an application was filed to cancel the registration as well. Thus, the question whether the petitioners' establishment falls under the Kerala Shops and Commercial Establishments Act or under the Factories Act is a disputed question of fact which cannot be decided in a petition filed under Section 482 of the Cr.P.C.
Hence, this Crl.M.C is dismissed with liberty to the petitioners to take up all the contentions raised in this Crl.M.C before the trial court.
