Inder Sen Israni, J.
1. This is S.B. Criminal Leave to Appeal under Section 378, Cr. P.C. against the judgment dated 27-6-86 passed by the learned Chief Judicial Magistrate,Jaipur in Criminal Case No.24/75, whereby the accused non-petitioners were acquitted from the offence under Section 85(a) & (b) of the Employees, State Insurance Act, 1948 (hereinafter called as 'the Act').
2. Briefly the facts of this case are that the Employees' State Insurance Corporation filed a complaint against the accused non-petitioners and Shri B.S. Rathore, Manager, Man Industrial Corporation (P) Ltd., alleging that it is a factory as defined under Subsection (12) of Section 2 of the Act. The non-petitioner Nos. 1 and 2 of the case are the Chairman and Managing Director, respectively, and B.S. Rathore is Manager of the said Corporation. It is contended that they are principal employers of the aforesaid factory as defined in Sub-section (17) of Section 2 of the Act. Therefore, under Section 40 of the Act read with Regulation 26 of E.S.I. (General) Regulations, 1950, every principal employer of a covered factory under the Act in Rajasthan is required to submit contribution card duly affixed with contribution stamps in Set 'A 'B', 'C' accompanied with return of contribution cards in Form 6 within 42 days in the end of contribution period at the Regional Head Quarter of the E.S.I. Corporation. It was further submitted that notwithstanding of statutory provision referred to above and in spite of repeated reminders issued by the E.S.I. Corporation, the accused non-petitioners did not comply with the provisions stated above within the statutory time. Learned Chief Judicial Magistrate, after recording evidence, held in his impugned order that the non-petitioners Nos. 1 and 2 are Chairman and Managing Director and do not fall within the definition of 'Principal Employer' and were, therefore, acquitted from the offences. Shri Rathore was convicted for the offence under Section 85(a) & (g) of the Act and was sentenced to pay a fine of Rs. 500/- and in default of payment of fine to undergo imprisonment for a period of 1 1/2 months.
3. Mr. Ajeet Bhandari learned counsel for the petitioner has contended that the learned trial court has erred in holding that the non-petitioners were not covered by the definition of 'principal employer' as per the provisions of the Act and has wrongly relied upon the authority of this court 'n M.C. Golcha and Anr. v. State 1985 (1) W.L.N. 296, in which it was held that the Managing Director is not the 'principal employer and cannot be prosecuted for violation of section 40 and Regulation 26. Shri Bhandari contends that Shri K.M. Roongta, non-petitioner No. 2 even though Managing Director had signed the letter, Ex P.3 dated 11-3-1974, which was sent on behalf of Man Industrial Corporation. Apart from this it is also stated that the non-petitioner Shri K.M. Roongta has his seat in the factory premises itself. It is, therefore, urged by the learned counsel that he is also covered by the definition of 'principal employer'.
4. I do not find any force in the above contention of the learned counsel for the petitioner. The question involved is whether the Chairman and the Managing Director are the 'principal employers ' as defined under Sub-clause (17) of Section 2 of the Act. Learned lower court held that Shri B.S. Rathore was the Manager of Man Industrial Corporation and was the 'principal employer' as per the provisions of the Act it imposed a fine of Rs.500/- over him for non-compliance of the mandatory provisions of the Act. In case of non-payment of fine, he had to undergo imprisonment for a period of 1 1/2 months. Merely because the Managing Director signs a letter on behalf of his Corporation or has seat to sit in the factory premises cannot be considered to mean that he was also 'principal employer' as defined under the provisions of the Act. For bringing him under the definition of 'principal employer', it is necessary that it should be proved that he was in possession of the contribution cards and also responsible for sending the contribution cards according to the provisions of the Act and the Regulations. No such evidence has been produced by the petitioner. As far the non-petitioner No. 1 is concerned, he is Chairman and there is no allegation whatsoever against him, on the basis of which it may be held that he comes within the definition of 'principal employer'. The Chairman and the Managing Director of a particular factory or Corporation are usually responsible for laying down the policy and the implementation of the same is left in the hands of Manager or such other persons who are made responsible. The same view was taken in the case Sardar Gurdayal Singh and Ors. v. Regional Director, E.S.I., and Anr., A.I.R. 1974 P & H. 33 and Suresh Tulshidas v. Collector of Bombay 1984 LIC. 1614.
I am, therefore, of the considered opinion that the learned trial court has rightly interpreted and applied the principles laid down in the case of M.C. Golcha (supra).
5. In the result, the Leave petition has no force and is, therefore, dismissed in limine.