JUDGMENT S. Thangaraj, J.

1. The petitioners, who are accused in C.C. No. 10403 of 1995 on the file of the Second Metropolitan Magistrate, Egmore, Madras, have filed this petition under Section 482 Cr. P.C. to quash the said case.

2. The petitioners herein arc the Directors of Addisoris Paints and Chemicals, Ltd., Chcnnai. Addison Paints and Chemicals Ltd., Assistants' Association represented by its Secretary have filed I.D. No. 83 of 1984 on the file of Industrial Tribunal and the parties have entered into a settlement under Section 12(3) of the Industrial Disputes Act and on the basis of the settlement, the Industrial Tribunal passed an award on December 31, 1992 to pay dcarness allowance, house rent allowance and other reliefs for its employees. The award was published in Government Gazette of Tamil Nadu. The award was not carried out. The management has failed to carry out the award and therefore the Government of Tamil Nadu represented by Inspector of Labour, III Circle. Chcnnai 35. has filed a complaint under Section 200 Cr.P.C. before Second Metropolitan Magistrate, Egmore, Madras, and the learned Magistrate, has taken on file the complaint and issued summons for 'the appearance of the petitioners herein. The petitioners who are Directors of Addisons Paints and Chemicals Ltd., have filed this petition to quash the said proceedings.

3. The main contention of the petitioners herein is that if the management of Addisons Paints and Chemicals Ltd., is liable to pay the amount, the company should have been added as an accused and without the company, the criminal case filed against the Directors of the company is not maintainable. In this regard, the petitioners had relied on Sections 29 and 32 of the Industrial Disputes Act. Section 29 of Industrial Disputes Act deals with penalty for breach of settlement or award, and Section 32 of Industrial Disputes Act is the relevant section, which is as follows:

"Offence by companies etc. - Where a person committing an offence under this Act is a company, or other body corporate, or an association of persons (whether incorporated or not), every Director, Manager, Secretary, agent other officer or person concerned with the management thereof shall, unless he proves that the offence was committed without his knowledge or consent, be deemed to be guilty of such offence."

A mere reading of Section 32 would go to show that every Director, Manager, Secretary, agent or other officer or person concerned with the management of the company, etc. shall be deemed to be guilty for the offences committed by the company and they should prove that the offence was committed without their knowledge or consent.

4. Learned senior counsel appearing for the petitioners has pointed out various decisions for and against, and contended that since the petitioners are not personally liable for the claim made in the award, and it is only the management of the company which is answerable to the said claim, the petitioners cannot be made liable without adding the company as an accused in the complaint before the learned Magistrate.

5. This Court in Doraisamy v. Archana Enterprises 1995 Crl. LJ.2306 (decided by this Court on January 13, 1995) wherein it was held that the company as well as the persons incharge and responsible to the company for the conduct of the business of the company are liable for punishment and however, such officer can escape from his liability only if he proves that the offence was committed without his knowledge or that he had used all due diligence to prevent the commission of such an offence. It was further held in the said decision, the prosecution proceedings, against the persons-in-charge of and responsible to the company for its conduct of business or the persons with whose consent or connivance, of or an act attributed to are maintainable irrespective of whether the company is prosecuted or not. In the abovesaid decision, the relevant view expressed by this Court is that whether the company is prosecuted or not, the prosecution can be launched against the persons who were incharge of and responsible to the company for its conduct of business.

6. Before quoting other decisions it is better to see the relevant section for better appreciation. Section 141 Negotiable Instruments Act says:

"Offences by companies - (1) If the person committing an offence under Section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

Provided that nothing contained in this subsection shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in Sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any Director, Manager, Secretary or other officer of the company such Director, Manager, Secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly."

7. In Manimekalai v. Chapaldas Kalyanji Sanghvi, it was held that partners who are responsible for the company for its day-to-day business can be prosecuted even without impleading the firm as accused. This decision is also based on Section 141 of Negotiable Instruments Act. Learned Judge has relied on a decision of the Supreme Court in Sheoratan Aganval v. State of Madhya Pradesh , wherein their Lordships of the Supreme Court while considering the provisions of Sections 3 and 10 of Essential Commodities Act, 1955, held:

"If the contravention of the order made under Section 3 is by a company, the persons who may be held guilty and punished are:

(1) the company itself;

(2) every person who, at the time the contravention was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company whom for short we shall describe as the person-in-charge of the company ; and (3) any Director, Manager, Secretary or other officer of the company with whose consent or connivance or because of neglect attributable to whom the offence has been committed, whom for short we shall describe as an officer of the company. Any one or more or all of them may be prosecuted and punished. The company alone may be prosecuted. The person-in-charge only may be prosecuted. The conniving officer may individually be prosecuted. One, some or all may be prosecuted. Naturally, before the person-in-charge or an officer of the company is held guilty in that capacity must be established that there has been a contravention of the order by the company. That should be axiomatic and that is all the Court laid down in State of Madras v. C. V. Parekh , as careful reading of that case will show and not that the person-in-charge or an officer of the company must be arraigned simultaneously along with the company if he is to be found guilty and punished."

A different view was expressed by another learned single Judge of the High Court in Suryanarayanan v. Anchor Marine Service Vol. 94 Company Cases 874, wherein it was held that a person-in-charge of a company cannot be prosecuted unless the company is impleaded as accused. On that ground, the complaint was dismissed as not maintainable.

8. In Uttar Pradesh Pollution Control Board v. Modi Distillery , their Lordships while considering Section 17 of the Prevention of Food Adulteration Act and Section 47 of Water (Prevention and Control of Pollution) Act (6 of 1974), held:

"On a plain reading of Sub-section (1) of Section 47 of the Act, where an offence has been committed by a company, every person who at the time of the commission of the offence was 'incharge of and responsible to the company for the conduct, of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Proviso to Sub-section (1) however engrafts an exception in the case of any such person if he were to prove that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence."

9. In Employees' State Insurance Corporation v. Aggarwal , it was held after considering Sections 2(12) and 40 and Explanation (2) to Section 405 IPC, in 1998-II-LLJ-794 at 798.

"11. In any event, in the absence of any express provision in the Indian Penal Code incorporating the definition of 'principal employer' in Explanation 2 to Section 405, this definition cannot be held to apply to the term 'employer' in Explanation 2. As the High Court has observed, the term 'employer' in Explanation 2 must be understood as in ordinary parlance. In ordinary parlance it is the company which is the employer and not its Directors either singly or collectively."

10. As we have already seen, Section 32 Industrial Disputes Act is clear that if the person committing an offence under the said Act is a company, every Director, Manager, Secretary, agent or other officer or person concerned with the management are liable, unless the said person proves that the offence was committed without his knowledge or consent, be deemed to be guilty of such offence.

11. Above decisions arc not in cases under Section 32 of Industrial Disputes Act. When Section 32 of Industrial Disputes Act is clear that if the company has committed the offence, every Director Manager Secretary, etc. are responsible an (sic) on them to prove that the said (sic) was committed without knowledge or (sic) the provision in the said section cannot (sic) away easily by saying that the company should be a party. Further, the words "be deemed to be goilty of such offence" would (sic) show that once it is proved that the company has committed the offence, the petitioners', who arc Directors of the said company are liable and the burden is on them to prove that the said offence was committed without their knowledge till then, they'are deemed to be guilty of such offence. Therefore, while considering the words of Section 32 of Industrial Disputes Act, it cannot be said that the company should be impleaded as a party. While reading the section, the view expressed by their Lordships in Sheoratan Agarwal v. State of M.P. (Supra) is more relevant to the provisions of Section 32 of the Industrial Disputes Act.

12. Coming to the facts of the case, the Magistrate has already taken cognizance of the offence under Section 190(1)(a) Cr.P.C. The petitioners herein have not denied that the company has not committed the offence. This petition was not filed on that ground. When once they have not denied the commission of offence by the company, naturally, as Directors of the company, they arc answerable to the charge and the burden is on them to prove that the offence was committed by the company without their knowledge or consent and till then they are deemed to be guilty of such offence. As the wordings in Section 32 of Industrial Disputes Act is very clear, the provision is not analogous to the various provisions considered by their Lordships in the decisions stated supra. The prosecution proceedings cannot be quashed on the ground that without impleading the company as an accused the Directors cannot be prosecuted. Therefore, this petition is liable to be dismissed.

13. At this stage, it was represented that one of the Directors by name Arjunan, against whom the complaint has been filed, is dead. The same has to be represented before the learned Magistrate before whom C.C.No. 10403 of 1995 is pending.

14. In the result, Crl.O.P. No.     21668 of 1998 is dismissed.