Amendment status not verified — confirm the current text below against the official source.
Penalty whether the employer is a firm or company.—If the person contravening any provision of this Act or a rule or order made thereunder is a company or a partnership firm every director, partner, manager or secretary thereof shall, unless he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention, be deemed to be guilty of such contravention. Comments & Case-law [No vicarious liability can be fastened upon any employer including the manager, secretary or any other person, unless the company or the partnership firm itself has been made accused. V. Poddar vs. State of Bihar, 1978 BBCJ 498. In offences by firms or companies separate prosecution of person-in-charge or officer of company without prosecuting the company or firm is permissible. Sheoratan Agarwal vs. State of M.P., AIR 1984 SC 1824. Director, Chairman or General Manager of a company or Partner of a firm is vicariously liable for the offence committed by the company or firm unless he or they establish their innocence. Mahmood Ali vs. State of Bihar, 1986 PLJR 123 (FB) : AIR 1986 Pat. 133. The administration of criminal law is more a matter of substance than of form and should not be allowed to be obscured by pettifogging technicality. ibid. See also Badri Prasad Gupta vs. State of Bihar, 1986 PLJR 246 (FB) : 1986 BRLJ 63 : AIR 1986 Pat. 186. —Section 35—every Director, Partner, Manager or Secretary of a company or partnership firm shall be liable for prosecution for contravening any provisions of Act or rule unless they prove that they exercised due diligence to prevent such contravention— specific pleading in complaint that office hearers had ultimate control over affairs of company is not required rather burden of proof lies on them to prove that offence took place without their knowledge or they exercised due diligence to prevent the same. Ramanand Singh vs. State of Bihar, 1997 (I) PLJR 379. Section 35 does not require that the company or partnership firm must be arraigned simultaneously thereof for prosecution for contravention of provisions of the Act. Badri Prasad Gupta vs. State of Bihar, 1986 PLJR 246 (FB) : 1986 BRLJ 63 : AIR 1986 Pat. 186. If basic liability for an offence under the Act is alleged or established against the company or partnership firm as such then by a fiction or law every Director, Partner and manager thereof is deemed as much guilty of the offence as the primal offender company or firm. Burden is on them to wriggle out of this vicarious liability. ibid. Persons made vicariously liable by section 35 can be arraigned as accused even if they are not in charge of affairs of the company or firm, but materials indicating that the accused persons actually held the posts on the date of occurrence, has to be brought on records by the prosecution. ibid.] 1[36. Cognizance of offences.—(1) No court shall take cognizance of any offence punishable under this Act or any rule or order made thereunder except on a complaint in writing of the facts constituting such offence made by Inspecting Officer or any person authorised in this behalf by the State Government within six months of the date on which the offence is alleged to have been committed: Provided that the court may by reasons to be recorded in writing take cognizance of the offences for the breach of the provisions of sections 16, 16A, 26 and 28 after the expiry of the said period of six months, if it is satisfied that the complainant was prevented by sufficient cause from filling the complaint within the said period. (2) No court inferior to that of a Magistrate of the first class shall take cognizance or try an offence punishable under the Act.] Comments & Case-law [Non-registration and non-maintenance of registers are continuing offences. State of Bihar v. J.P. Singh, 1964 BRLJ 1 : 1963 BLJR 782. The complaint must be filed within six months of the commission of the offence if the offence is under sections 12, 37 and 33 (2). But where the offence falls under sections 16, 26, 28 the delay can be condoned if the Court is satisfied that there was sufficient cause for the delay. Smt. Bachi Devi v. State of Bihar, 1979 BRLJ 113 : 1979 BBCJ 191. See also Sita Ram v. State of Bihar, 1977 BBCJ 694.] CHAPTER VII Miscellaneous.