ORDER

1. This petition coming on for hearing, upon perusing the petitions and the orders of this court dated 9th April 1985 and made in Crl. M.P. No. 2465/85 and 2468/85 and upon hearing the arguments of Mr. S. Sundar for M/s. Aiyer and Dolia, Advocate for the petitioner and of Mr. A. R. Nagarajan, Additional Central Government Standing Counsel on behalf of the respondent, and having stood over for consideration till this day, the court made the following Order :

The petitioner, against whom the respondent has filed a complaint under Section 29 of the Payment of Bonus Act, 1965 (hereinafter referred to as 'the Act') for an offence under Section 19(b) of the Act pending before the Sub Divisional Judicial Magistrate, Thanjavur in S.T.C. No. 80 of 1985, invokes the inherent powers of this Court under Section 422 Cr.P.C. to quash the above proceedings.

2. The complaint has been filed on the allegation, that the Bank of Thanjavur of which the petitioner is the Chairman and Chief Executive Officer, is a company within the definition of Section 2(8) of the Act and the petitioner is an employer within the definition of Section 2(14) of the Act, responsible for the compliance of the provisions of the Act, and the Labour Enforcement Officer (Central), Tiruchi, having jurisdiction over the establishment of the petitioner, inspected the Bank on 3rd February 1984 at 11 a.m. and found from the records maintained in the Bank that the petitioner has failed to pay the bonus to the part-time employee, Saraswathi, for the accounting year 1st January 1982 to 31st December 1982, as required under Section 19(b) of the Act and that, therefore, the petitioner was liable to be punished under Section 28 of the Act. The above complaint is sought to be quashed.

3. Mr. S. Sundar, learned counsel for the petitioner, urged the following contentions in support of his prayer :-

(i) the Bank is not liable to pay bonus to the above employee, since the above employee is only a sweeper, who sweeps the building for 15 minutes or deputes some one else to do the work and that, this contention had been made clear to the respondent, even in the reply to the show cause notice and that this was an industrial dispute within the definition of Section 2(k) of the Industrial Disputes Act, 1947 and since 'bonus' is covered in item 5 of Schedule III to that Act, such a dispute has only to be referred to the Industrial Tribunal and no prosecution can be launched unless and until the liability to pay bonus to Saraswathi is determined by the Tribunal :

(ii) Saraswathi is not entitled for bonus since the work of sweeping the premises need not necessarily be done by Saraswathi herself, but she could depute any one else to do the work and that, therefore she is not an employee as defined in Section 2(13) of the Act;

(iii) the Bank has not been made an accused in the case and the prosecution therefore has to fail.

4. Per contra, Thiru A. R. Nagarajan, Additional Central Government Standing Counsel for the respondent, contended :

(i) the liability to pay bonus is created under the Act and the failure to pay is made penal. The prosecution is launched by the Officers appointed to enforce the Act for violation of the provision of the Act. This is not an industrial dispute between an employer and employee.

(ii) the definition of 'employee' in Section 2(13) of the Act is very wide and will include part-time sweeper as well.

(iii) even if the Bank is to be made an accused, the present prosecution against the petitioner, who is also equally liable to enforce the provisions of the Act, cannot fail.

5. The question that arises for consideration, is whether the proceedings have to be quashed on any one of the above three contentions of the learned counsel for the petitioner ?

6. The term "industrial dispute" has been defined in Section 2(k) of the Industrial Disputes Act. 1947 as follows :

"industrial dispute" means any dispute or difference between employers and employers of between employers and workmen, or between workmen and workmen, which is connected with the employment or nonemployment or the terms of employment or with the conditions of labour, of any person."

7. Section 22 of the Act dealing with disputes relating to bonus could also be usefully extracted :

"Where any dispute arises between an employer and his employees with respect to the bonus payable under this Act or with respect to the application of this Act to an establishment in public sector, then such dispute shall be deemed to be an industrial dispute within the meaning of the Industrial Disputes Act, 1947 (14 of 1947) or of any corresponding law relating to investigation and settlement of industrial disputes in force in a State and provisions of that Act, or as the case may be, such law, shall, save as otherwise expressly provided, apply accordingly."

8. 'Industrial dispute' as the definition itself in the Industrial Disputes Act clearly indicates should be a dispute between an employer and an employee. If the dispute is between an employer and an employee and is relatable to bonus, then, as rightly contended by the learned counsel for the petitioner, it would be an industrial dispute within the definition of Section 2(k) of the Industrial Disputes Act and by virtue of Section 22 of the Act would be deemed to be an industrial dispute and will have to be referred to the Authorities constituted under the Industrial Disputes Act for settlement or reconciliation, as the case may be. However, in the instant case, the present prosecution cannot be described as an industrial dispute between an employer and an employee. The employee Saraswathi has no dispute with the employer Bank. In fact, she has not claimed any bonus; nor has she instituted any proceedings claiming bonus. The dispute is not between an employer and an employee. On the contrary, the respondent, who is one of the Authorities lawfully constituted under Section 27 of the Act, for ascertaining whether the provisions of the Act are being complied with, and authorised to file complaints for violations thereof, on finding from his personal inspection that bonus has not been paid to one who under the Act is entitled for bonus and finding there is a violation of the Act has launched the prosecution for violation of one of the provisions of the Act. The contention of the learned counsel for the petitioner that Saraswathi is not an employee and is not entitled for bonus is a defence which he puts forward as an answer to the charge. Putting forward a defence in answer to the prosecution launched by the law enforcing authorities without the employee in any way coming into the picture, though it may have the effect of questioning his liability to pay bonus, will not raise an industrial dispute between an employer and an employee. On the contrary, as already stated earlier, it is a prosecution lawfully launched by the enforcing authorities for alleged violation of a provision of the Act. Such a prosecution, even by virtue of Section 22 of the Act, will not become an industrial dispute since the fundamental requirement of such a dispute as being one between an employer and employee, is lacking in this case. To accept the contention of the learned counsel for the petitioner, that in every case where an accused in the prosecution under the Act, does not plead guilty but puts forward any defence, an industrial dispute is raised and the matter has only to be referred to reconciliation or settlement to the authorities under the Industrial Disputes Act, would be to stultify all penal provisions under the Act. That could never have been the intent of the legislature, while penalising breach of certain provisions of the Act. I am, therefore, unable to accept the first contention of the learned counsel for the petitioner.

9. The second contention that Saraswathi need not personally attend to the work of sweeping and that it is only a part time for which she could depute anybody and that, therefore, she is not an "employee" as defined in Section 2(13) of the Act would be a mixed question of fact and law, which the trial Court alone could determine. Learned counsel for the respondent contended that, the said Saraswathi is shown in the muster roll of the Bank and also in the acquittance register, that the definition of 'employer' in Section 2(14) of the Act is very wide and would include workers in the category of sweeper like Saraswathi, and that, therefore, the petitioner is liable to pay bonus to Saraswathi as well. This Court, in these proceedings, cannot go into those questions of fact on the basis of which the legal issue as to whether such persons would be within the definition of 'employees' under the Act, has to be determined. It will be for the trial Court to decide the issue on the evidence placed before it.

10. The final contention that the Bank also is a necessary party to the prosecution, cannot be brushed aside. However, the present prosecution need not fail merely because the Bank also is not prosecuted along with the petitioner. It is not denied that the petitioner is the Chairman and Chief Executive Officer of the Bank and is, therefore, responsible for the affairs of the Bank. The Bank also is a necessary party to the criminal prosecution. The Supreme Court in U.P. Pollution Control Board v. Modi Distillery (1987) 3 S.C.C. 604), in a prosecution under the Water (Prevention and Control of Pollution) Act, 1974, while holding that the prosecution should have been launched against the company as well, and instead had been launched only against the Chairman, Managing Director and Members of the Board of Directors of an industrial unit owned by the Company, further held that the prosecution need not necessarily fail on this technical flaw and that the defect was a curable one. In the present case also it would be open to the respondent to make the necessary application before the trial Court to have the Bank also arrayed as an accused. Learned counsel for the petitioner, however, contended that such a course is not permissible in the instant case, since even for adding a new accused, law of limitation would apply and that the Bank cannot now be added as an accused since the period of limitation for prosecution has expired. Inspection had been made on 3rd February 1984 and the complaint had been launched on 1st February 1985. It is seen that, on this petition being admitted in this court, all further proceedings in the case had been stayed till the disposal of this petition. The respondent, therefore, could not have taken any steps during this period of stay, before the trial Court to add the Bank also as an accused. This period, therefore, has to be excluded. Since this defect is a curable one and the Supreme Court in the above decision has in very strong terms indicated that it would be a travesty of justice to allow a big business house to defeat the prosecution launched and avoid facing the trial on a technical flaw, which is not incurable, in the instant case also, I do feel that the prosecution should not be allowed to fail on this technical flaw. The proceedings cannot be quashed on this ground also.

11. In the result, the petition is dismissed.