Judgment:
ORDER
1. This petition is directed against taking cognizance of an offence under Section 10(1) of the Equal Remuneration Act, 1976 in C.C. No. 115 of 1997 on the file of the Judicial Magistrate, First Class, II Court, Hassan.
2. The petitioners are respectively the General Manager and Senior Branch Manager of Vijaya Bank, Bangalore and the Hassan Branch at Hassan. The petitioners seek to contend that the taking of cognizance by the Magistrate in the circumstances is a mechanical act and does not conform to the spirit of Section 190 of the Code of Criminal Procedure (hereinafter called the 'Code'). The invalidity of the complaint for noncompliance with Section 204(2) of the Code is also sought to be pressed into service. It is also contended that the complainant has to show that he is competent to file the complaint under Section 9 of the Act. The infraction that is alleged in the complaint is no infraction at all inasmuch as there is no instance at all of any discrimination on the ground of sex amongst the employees to be prosecuted with a charge of thisnature. It is contended that the petitioners are not shown to be employees' as defined under the Act and cannot therefore be prosecuted.
3. On behalf of the respondent, the claims of the petitioner is refuted and it is contended that the prosecution is in accordance with law.
4. The first contention that has been urged for the petitioner is that the Magistrate has used a typed proforma, wherein the blanks are filled up and even the words 'cognizance is taken' under Section 190 of the Code is also typed. Whatever is not apparently inapplicable in the typed proforma is scored off and the Court has directed the issue of summons to the accused. The Counsel for the petitioner has relied upon a decision of this Court in S. Ramesh v State of Karnataka by Hebbal Police Station and the order dated 12th March, 1999 in Criminal Petition No. 129 of 1997 wherein this Court has deprecated the use of printed forms for taking cognizance and use of a stereotyped form respectively in the two cases referred to above. Taking of cognizance by a Court essentially constitutes a reading of the complaint and coming to a conclusion that the complaint does disclose an offence which is required to be tried. Apparently use of typed forms or printed forms which also include a statement that cognizance is taken really does not inspire confidence that the Magistrate has really perused the complaint and has arrived at a conclusion that the offence alleged is disclosed. When a challenge is raised as to the invalidity of the order taking cognizance, the matter would have to be examined by the Court with reference to the complaint itself and if an offence is in fact disclosed, omission to use the expression 'cognizance is taken' by the Court, would not be of any value having regard to the decision of the Supreme Court in A.R. Antulay v R..S. Nayak, which is to the effect that when the Court issues process it means, the Court has taken cognizance of the offence and it is the visible manifestation of the act of taking cognizance. But in cases of this nature, where the Magistrate mechanically signs a filled up form, it may be difficult to arrive at a conclusion that the process of 'taking of cognizance' has actually been complied with. In the circumstances of the case, it appears to me that the taking of cognizance by the Court appears to be mechanical and cannot be sustained.
5. A complaint that has been filed by a party like the one in question must disclose prima facie that the complainant has been empowered to lodge the complaint in accordance with the provisions of the Act. Section 9 of the Act specifies who are investigators and who could lodge the complaint. The Labour Enforcement Officer (Central I, Bangalore) must have disclosed in the complaint that he has jurisdiction under the Act to inspect and lodge a complaint against the accused. It is essential that the complaint must disclose the competence of the complainant to pre-sent the complaint and prosecute the accused.
6. Under Section 10 of the Act, an employer is the one who is liable to maintain the register in Form No. D, the non-maintenance of which is made an offence under Section 10(1) of the Act. It is needless to state that the complainant must first ascertain who is the 'employer' as defined under the Act and call upon the 'employer' to produce the Register and only the employer becomes liable under the Act for the offence under Section 10(1) of the Act. Admittedly the second petitioner's establishment was inspected by the Labour Enforcement Officer, Central I on 29-11-1996 and one S. Janaradhan was the employer's representative present on that day and the irregularity noticed was the register in Form No. D as required in Rule 6 had not been maintained. Thereafter notices have been issued to the petitioners 1 and 2 on 29-11-1996 and it is purported to have been dispatched on 16th December, 1996. Nothing is found in the notice to indicate as to who received the observation memo as all the columns in the notice relating to the persons who were present at the time of the inspection and the names of witnesses, are left blank. It is not even shown in the complaint as to how the petitioners could be regarded as 'employers' answerable for the defect noticed. The learned Counsel for the petitioner submitted that under Section 2(c) of the Act, an employer is defined with reference to Section 2(f) of the Payment of Gratuity Act and that who has been named as the employer under Section 2(f) of the Act is not specified in the complaint and in the absence of any allegation of that nature in the complaint, the complaint against the petitioners is incompetent. This submission, in my opinion would have to be accepted as the liability under Section 10(1) of the Act is that of the employer and it is responsibility of the complainant to identify the employer as defined under the Act and thereafter prosecute the employer. A mere assertion that the petitioners are the employers under Section 2(c) of the Act cannot satisfy the requirement of law by the complainant identifying the employer for purpose of prosecution. In the circumstances, the allegation in the complaint itself being vague as to the status of the petitioners as employers under the Act, it has to be held that the complaint suffers from vagueness and cannot be pursued.
7. The other contention on behalf of the petitioners that under Section 197 of the Code sanction to prosecute the petitioners is necessary and that no such sanction having been obtained, need not be examined as the complaint has to fail for the other reasons stated above.
8. The taking of cognizance of the complaint in the circumstances should be quashed. The question of directing the Magistrate to take cognizance afresh need not be examined, having regard to the nature of the complaint. It would be an exercise in futility to let the Magistrate to go through the process again and take action in accordance with law. In the circumstances, the proceedings in C.C. No. 115 of 1997 are quashed.