In re: Gaitonde

Maheswaran, J.—These two revisions, Crl. R.C. No. 1026 of 1976 and Crl. R.C. No. 1027 of 1976 arise out of the judgments in C.C. Nos. 26803 of 1976 and C.C. No, 26804 of 1976 respectively on the file of the Second Metropolitan Magistrate, Egmore, Madras.

The facts are:- The revision petitioner, Gaitonde is an employer of an establishment known as Coramandel Leather Private Limited situate at No. 39, Perianna Maistry Street, Madras-3. The Assistant Inspector of Labour, 21st Circle, inspected the establishment on 29th June, 1976 at 3.15 P.M. and found that the revision petitioner has failed to exhibit Form J. notice at the time of inspection and has also failed to produce the inspection book when demanded at the time of inspection, and therefore has contravened Rr.16(4)and 16(11) of the Shops and Establishments Rules and is liable to be punished under R. 18. A complaint was preferred by the Assistant Inspector of Labour after obtaining the necessary permission before the Second Metropolitan Magistrate who found the revision petitioner guilty of the offence with which he was charged and convicted and sentenced him to a fine of Rs. 50 under each count. Aggrieved by the decision, the revision petitioner has filed Crl. R.C. No. 1026 of 1976.

In C.C. No. 26804 of 1976, the revision petitioner was found guilty for contravention of Rr.16(l), 11(5) read with R. 16B and K. 16(9) read with R. 16B and was sentenced to a fine of Rs. 50 under each count. The allegation was that the revision petitioner failed to produce the register of employment in Form F for inspection when the Assistant Inspector of Labour inspected his establishment at 39, Perianna Maistry Street, Madras, styled as Coromandel Leather Private Company on 29th June, 1976 at about 3.15.p.m. and that he has also failed to produce the register of wages in Form M and also the register of leave in Form K. Against the decision in C.C. No. 26804 of 1976, the revision petitioner has preferred Crl. R.C. No. 1027 of 1976.

The inspection by the Assistant Labour Inspector, P.W. I of the Establishment of the revision petitioner is not disputed. The accusation is that the revision petitioner failed to exhibit Form J notice and failed to produce the visit book and that he also failed to produce the register of employment in Form F, and register of wages in Form M for inspection and register of leave in Form K. The evidence of P.W. I is that the revision petitioner has not produced the registers and the defence was that the premises inspected by the Assistant Labour Inspector, P.W. I at 39, Perianna Maistry Street, is only a godown and that those registers were kept at the registered office of the company which is only "three buildings away" from the godown and that the Act or the Rules do not contemplate the maintenance of two sets of registers, namely, one at the godown and the other at the registered office.

It is not disputed that the registers and records were not produced before the Assistant Labour Inspector. I also pointed out that the defence was that they need not maintain them in the godown inspected by the Assistant Labour Inspector, because they maintain them at the registered office of the company which is situate at No. 10B, Vepery High Road. The revision petitioner says that the premises No. 39, Perianna Maistry Street is a godown and therefore, he need not keep these registers and notices and Forms in the godown. But, the definition of the word "shop" in S. 2(16) of the Tamil Nadu Shops and Establishments Act, 1947 shows that "shop" means any premises where any trade or business is carried on or where services are rendered to customers and includes offices, store-rooms, godowns and warehouses whether in the same premises or otherwise, used in connection with such business but. does not include a restaurant, eating-house or commercial establishment. It is therefore patent that a "godown" will be a "shop "as defined in S. 2(16) of the Tamil Nadu Shops and Establishments Act. The provisions of R. 16-B shows that the register, records and notices maintained or exhibited under the Tamil Nadu Shops and Establishments Act shall always be available in the establishment and shall be produced or caused to be produced at all reasonable hours for inspection by the Inspector having jurisdiction. The notice in Form J was not exhibited and the register, namely the visit book, was not produced at the time of inspection and the register of employment in Form F was also not produced as also the register of wages in Form M and the register of leave in Form K was also not produced. The petitioner has therefore, violated the said rules, namely R. 16 (1) read with R. 16 B, R. 11(5) read with R. 16 B, R.I6 (9) read with R. 16-Band R.16 (4) and R. 16 (1).

But, it was contended for the revision petitioner by his Learned Counsel that the revision petitioner should not be found guilty of the offences with which he is charged unless he has got a guilty mind and that unless the statute either clearly or by necessary implication rules out mens rea as a constituent part of the crime, he has to be acquitted. Per contra, the learned Public Prosecutor contended that mens rea is not the essence of the offences with which the revision petitioner is charged as the offences were minor and quasi-criminal in character.

The Learned Counsel for the revision petitioner referred to the ruling in Nathulal Vs. State of Madhya Pradesh, . In that case the Supreme Court had to deal with the case of a dealer who had been convicted for an offence under S. 7 of the Essential Commodities Act, as he had been found to be carrying on business in food-grams without a proper license, and although it had been found that he had made an application for license under the Madhya Pradesh Foodgrains Dealers Licensing Order, 1958, and had also deposited the requisite license fee no intimation to him was sent that his application was rejected, Under the impression that license had been granted to him, he purchased foodgrains from time to time and submitted returns to the Licensing Authority. His godowns were also checked. In that situation, it was held by the Supreme Court that although no license had been granted to the accused concerned, mens rea, which is an essential ingredient, had not been proved and on that finding the accused was acquitted holding that he was not guilty.

The next case to which my attention is invited is Ravula Hariprasada Rao Vs. The State, I hat was a case where the employees of a licensee of a petrol filling station supplied petrol to a car owner without taking coupons and thus acted in contravention of C1.22 read with CI.5 of the Motor Spirit Rationing Order, 1941 read with the Defence of India Rules, 1939. It was found that the said clause read with C1.5 of the Motor Spirit Rationing Order promulgated under R. 8l(2) of the Defence of India Rules, does not rule out the necessity of mens rea. Under those circumstances, it was held that the licensee who was not present when the wrongful act was done had no knowledge of it and should not be convicted for contravention of the said clause under R. 8I (4) of the Defence of India Rules, 1939. but their Lordships of the Supreme Court were of the view that C1.27 of the said Order is differently worded and imposed a duty on the supplier to endorse or cause to be endorsed the registration or other identifying mark of the vehicle to which petrol is furnished and if those particulars are not endorsed by his employees on the petrol coupons against which the petrol is supplied, the supplier would be liable even if he had no knowledge of the wrongful act of the employees.

Before deciding the question as to how far mens rea is material to conviction for offences with which the revision petitioner is charged, it is necessary to refer to the rules contravened and to R. 18 which provides for penalty for contravention of the provisions of the Rules. R. 16 (4) runs thus:

Every employer shall exhibit in his establishment a notice in Form J specifying the day or days of the week on which the persons employed by him shall be given a holiday. The notice shall be exhibited before the persons to whom it relates cease work on the Saturday immediately preceding the first week during which it is to have effect.

R. 16 (11) reads thus:

Every employer shall maintain a visit book in which an Inspector visiting the establishment may record his remarks regarding any defects that may come to light at the time of his inspection and shall produce it whenever required to do so by any Inspector having jurisdiction.

R. 16(l) runs as follows;

Every employer shall maintain a register of employment in Form E: provided that where the opening and closing hours are ordinarily uniform, the employer may maintain such register in Form F.

R. 11 (5) is to the following effect.''

Every employer shall maintain a register of wages in Form M in his establishment.

R. 16 (9) is to the effect that every employer shall maintain a register in Form K for the holidays and leave granted under S. 25 to persons employed in his establishment. R. 16B says that the registers, records and notices maintained or exhibited under the provisions of these rules shall always be available in the establishment and shall be'' produced or caused to be produced for inspection at all reasonable hours by any Inspector having jurisdiction. R. 18 reads thus:

Any person who contravenes any of the provisions of these rules shall on conviction be punishable with fine which may extend to fifty rupees.

The maximum fine that could be imposed under R. 18 is only Rs. 50. It will be therefore, seen that the rules contravened are regulatory in nature and that the offences with which the revision petitioner is charged are minor and quasi-criminal in character.

In State of Gujarat and Another Vs. Acharya D. Pandey and Others, etc., the Supreme Court observed thus:

The question whether a crime can be said to have been committed without the necessary mens rea has led to considerable controversy. The broad principles accepted by courts in this country as well as in England are: Where an offence is created by a statute, however comprehensive and unqualified the language of the statute, it is usually understood as silently requiring that the element of mens rea should be imported into the definition of the crime, unless a contrary intention is expressed or implied. In other words, the plain words of the statute are read subject to a presumption, which may be rebutted, that the general rule of law that no crime can be committed unless there is mens rea has not been ousted by the particular enactment. The mens rea means some blameworthy mental condition whether constituted by knowledge or intention or otherwise. But, this rule has several exceptions, as observed by Lord Evershed in Lint Chin Aik v. The Queen 1963 A.C. 160 :

Where the subject-matter of the statute is the regulation for the public welfare of a particular activity-statutes regulating the sale of food and drink are to be found among the earlier examples it can be and frequently has been inferred that the legislature intended that such activities should be carried out under conditions of strict liability. The presumption is that the statute or statutory instrument can be effectively enforced only if those in charge of the relevant activities are made responsible for seeking that they are complied with. When such a presumption is to be inferred, it displaces the ordinary presumption of mens rea.

Their Lordships of the Supreme Court referred to the observations of Wright, J., in Sherras v. De Rutzen. 1895 1 Q.B. 918 The observations are:

They is a presumption that mens rea, an evil intention, or knowledge of the wrongfulness of the act, is an essential ingredient in every offence ; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals, and both must be considered.

After extracting the observations, their Lordships pointed out that it was further observed therein that the principal classes of exceptions may perhaps be reduced to three, one is a class of acts which are not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty, and another class comprehends some, and perhaps all, the public nuisances and lastly, there may. be cases in which, although the proceeding is criminal in form, it is really only a summary mode of enforcing a civil right, but except in such cases as these, there must in general be guilty knowledge on the part of the defendant or someone whom he has put in his place to act for him, generally or in the particular matter, in order to constitute an offence.

My attention was then drawn to Srinivasa Mall v. Emperor AIR 1947 P.C. 135: 60 L.W. 634. That was a case where the appellants before the Privy Council were convicted under the Defence of India Rules relating to the control of prices and sentenced to terms of imprisonment. The first appellant was acting as salt agent for part of the district of Darbhanga. He had been appointed to this office by the District Magistrate and it was his duty to sell to licensed retail dealers the supplies of salt which were allocated by the Central Government to his part of Dharbanga district. The second appellant was employed by the first appellant and has been entrusted with the duly of allotting the appropriate quantity of salt to each retail dealer and noting on the buyer''s license the quantity which he had brought and received. The appellants were jointly charged for having sold salt on three days in July, 1943 to three named traders, in each case at a price exceeding the maximum price which had been fixed by the order of the District Magistrate. The first appellant was also separately charged in respect of the same for having abetted the contravention of the order. The trial Magistrate acquitted the first appellant of the substantive offences, but convicted him under three charges of abetting. The Sessions Judge and the High Court in revision confirmed the convictions The Privy Council ultimately upheld the conviction of the appellants on the merits, but dissented from the view taken by the High Court that even if the first appellant was nor proved to have known of the unlawful acts of the second appellant, he was liable on the ground that where there is an absolute prohibition and no question of mens rea arises, the master is criminally liable for the acts of the servant. Their Lordships of the Judicial Committee observed that they see no ground for saying that the offences against those of the Defence of India Rules in question are within the limited and exceptional classes of offences which can be held to be committed without a guilty mind.

In Hilbbury''s Laws of England, Vol. IX at page 10 in Para 3 the ordinary law, namely, that it is generally necessary that there should be a wrongful intention or some other blameworthy condition of the mind (mens rea) which can be imputed to the accused before he can be held guilty of an offence, is stated. Then at page 11, the exception is set out thus :

In a limited class of offence, mens rea is not an essential element. This class consists, for the most part, of statutory offences of a minor and only quasi-criminal character and, in order to determine whether mens rea is an essential element of an offence, it is necessary to look at the object and terms of the statute which creates it.

The object of the Act can be gathered from the Preamble to the Act. The preamble to the Tamil Nadu Shops and Establishments Act runs thus :

Whereas it is expedient to provide for the regulation of conditions of work in Shops, commercial establishments, restaurants, theatres and other establishments and for certain other purposes, it is hereby enacted as follows.

The object therefore, is regulation of condition of work of employees in shops, commercial undertakings and restaurants. A reading of the Act shows that the Act enables the Government to fix the opening and closing hours for shops, commercial firms, restaurants, etc., and also to fix the limits relating to daily and weekly hours of work, intervals for rest and spread over of periods of work. Provision has also been made for weekly holidays. It also prohibits employment of children and also contains provisions to secure the health and safety of the staff. There are also provisions to ensure prompt payment of wages and prohibit unauthorized deductions from wages. Looking at the object of the Act, it appears to me that it is enacted with a view to regulate the conditions of work and to safeguard the interest of the employees. The rules contravened in this case are regulatory provisions. I have already referred to R. 18. For the contravention of the rules, only a fine can be imposed. The language of the rules contravened appear to make the contravention an absolute liability. From the language of the rules and the scope and object of the Act, it could safely be inferred that mens rea is not an essential ingredient of the offences with which the revision petitioner is charged. For the foregoing reasons, the convictions are correct and confirmed. The sentences are also confirmed. The revisions fail and are dismissed.