Arun Kumar Bhattacharya, J.
1. The hearing stems from an application filed by the petitioner praying for quashing the proceeding being Case No. C-3006 of 2002 under Section 10(1)(a) of the Equal Remuneration Act, 1976 read with Rule 6 of the Equal Remuneration Rules, 1976 and for setting aside the orders dated 04.06.2003 to 05.04.2004 passed therein, pending in the Court of learned Metropolitan Magistrate, 5th Court, Calcutta.
2. The circumstances leading to the above application are that O.P. No. 1 lodged a complaint under Section 10(1)(a) of the Equal Remuneration Act, 1976 read with Rule 6 of the said rules inter alia alleging that the accused persons failed to maintain register in Form 'D' at their work-spot at 19, Synagogue Street, City Centre, Calcutta - 700 001 in violation of the provisions of Section 10(1)(a) of the said Act read with Rule 6 which is not at all correct. The concerned Branch Manager who was the head of the Branch and has control over the affairs of the establishment in his letter dated 20.06.2002 mentioned the said fact of maintenance of register in Form 'D' at all times in reply to the inspection report dated 06.06.2002. In terms of the banking practice each branch is being treated as separate entity and the concerned Branch Manager and/or incharge of the respective branch is entrusted with the day-to-day affairs of such branch and is being treated as an employer as defined in Section 2(c) of the Equal Remuneration Act, 1976, and as such the petitioner has unnecessarily been implicated in the case. There is no actuaries nor mens rea insofar as the petitioner is concerned who cannot also be held vicariously liable. Accordingly, the initiation of instant proceeding and its continuation and the orders dated 04.06.2003 to 05.04.2004 and subsequent orders are liable to be quashed.
3. As none appeared for O.P. No. 1, the matter was heard ex parte.
4. Mr. Mitra, learned Counsel for the petitioner, on taking me through the definition of 'Employer' in Section 2(c) of the Equal Remuneration Act, 1976 and then to Section 2(f) of the Payment of Gratuity Act, 1972 which is a legislation by referable incorporation contended that the present case is governed not by Sub-clause (i) or Sub-clause (ii) but by Sub-clause (iii) of Clause (f) of Section 2 of the Payment of Gratuity Act, 1972, and as there is a Branch Manager in every branch of the Bank who has the ultimate control over the affairs of the establishment, the need for attracting the remaining portion of said Sub-clause (iii) does not arise, and as such the petitioner who is the Managing Director of ICICI Bank cannot be held to be 'Employer' in the present case. So, Mr. Mitra submitted, continuation of the above proceeding against the petitioner is an abuse of the process of the Court and accordingly the proceeding should be quashed.
5. Quashing of proceeding to prevent abuse of the process of the Court or otherwise to secure the ends of Justice may be done where: (1) it appears that there is a legal bar against the institution or continuance of criminal proceeding in respect of the offence alleged e.g. absence of requisite sanction, or (2) the allegation in the FIR or the complaint even if they are taken at their face value and accepted in their entirety do not constitute the offence alleged, or (3) the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge. That apart, the power to quash a criminal proceeding by this Court can be exercised very sparingly and with circumspection and that too in the rarest of the rare cases. In this connection, reference may be made to the cases of R.P. Kapur v. State of Punjab, , State of Haryana v. Bhajan Lal, and M. Narayandas v. State of Karnataka, reported in 2004 SCC (Cri) 118.
6. The present petitioner is being prosecuted under Section 10(1)(a) of the Equal Remuneration Act, 1976 read with Rule 6 of the Equal Remuneration Rules, 1976.
7. Under Rule 6 of the said rules, every employer is under an obligation to maintain up-to-date register in relation to the workers employed by him, in Form 'D', at the place where workers are employed. Section 10(1)(a) provides for punishment upto one month simple imprisonment or with fine if any employer omits or fails to maintain any register or other document in relation to workers employed by him.
8. 'Employer' as defined in Clause (c) of Section 2 of the Equal Remuneration Act, 1976 has the meaning assigned to it in Clause (f) of Section 2 of the Payment of Gratuity Act, 1972 which runs as follows: "Employer": means, in relation to any establishment, factory, mine, oilfield, plantation, port, railway company or shop:
(i) belonging to, or under the control of, the Central Government or a State Government, a person or authority appointed by the appropriate Government for the supervision and control of employees, or where no person or authority has been so appointed, the head of the Ministry or the Department concerned;
(ii) belonging to, or under the control of, any local authority, the person appointed by such authority for the supervision and control of employees or where no person has been so appointed, the Chief Executive Officer of the local authority;
(iii) in any other case, the person, who, or the authority which, has the ultimate control over the affairs of the establishment, factory, mine, oilfield, plantation, port, railway company or shop, and where the said affairs are entrusted to any other person, whether called a Manager, Managing Director or by any other name, such person.
9. In order to understand the full significance of the definition it would be proper to compare the above definition of employer in Section 2(f) with that under another enactment.
10. The "employer" as defined in Sub-clause (ii) of Clause (e) of Section 2 of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 which relates to any other establishment, means the person who, or the authority which, has the ultimate control over the affairs of the establishment, and where the said affairs are entrusted to a Manager, Managing Director or managing agent, such Manager, Managing Director or managing agent.
11. The term "establishment" has not been defined in the Act. The dictionary meaning of the word is "the place in which one is permanently fixed for business with necessary equipment, any office or place of business" (Webster). "An establishment" means an organization, employing persons between whom and the establishment the relationship of employer and employee comes to exist, as was held in the case of Srivarada Rajaswami Transport Pvt. Ltd. v. Regional Provident Fund Commissioner, .
12. A glance to the above definition will reveal that the definition of 'employer', particularly in sub-clause (iii) of Clause (f) of Section 2 of the Payment of Gratuity Act, 1972 is almost in same terms as in Sub-clause (ii) of Clause (e) of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952.
13. Nevertheless, there cannot be any doubt that the aforesaid Sub-clause (i) or (ii) of Clause (f) of Section 2 of the Payment of Gratuity Act is not applicable, and the present case is regulated under the residuary sub-clause (iii) which speaks that in relation to any other establishment, the person who or the authority which has the ultimate control over the affairs of the establishment shall be treated as the employer, and further where the said affairs are entrusted to any other person, whether Manager, Managing Director or called by any other name, such Manager, Managing Director or such designated person shall be treated as the employer. In other words, in the absence of any entrustment to other person, called Manager or Managing Director etc., the person who or authority which has ultimate control over the affairs of the establishment will be treated as employer. In the present case, there is nothing to suggest in the petition of complaint that other person, such as Manager or Managing Director etc. was entrusted with the affairs of the establishment so as to attract latter part of said Sub-clause (iii). Accordingly, since there is a Branch Manager in the concerned branch who has ultimate control over the affairs of the establishment of that branch, the said Branch Manager will be the employer and not any other person.
14. In the light of the above discussion, when the present petitioner does not come under the purview of employer in the present facts and circumstances, continuation of the above proceeding against him amounts to an abuse of the process of the Court.
15. As such, the application be allowed exparte. The aforesaid proceeding be quashed against the petitioner only.
16. Let a copy of this order be sent down at once to the learned Court below.
17. Urgent xerox certified copy of this order, if applied for, be supplied to the parties as early as possible.