38. Exemption of employer from liability in certain cases.- Where an employer charged with an offence under this Act, alleges that another person is the actual offender, he shall be entitled upon complaint made by him in this behalf, to have, on giving to the prosecutor in this behalf three clear days notice in writing of his intention so to do, that other person brought before the court on the day appointed for the hearing of the case and if, after the commission of the offence has been proved, the employer proves to the satisfaction of the court that- (a) he has used due diligence to enforce the execution of the relevant provisions of this Act; and (b) that the other person committed the offence in question without his knowledge, consent or connivance: the said other person shall be convicted of the offence and shall be liable to the like punishment as if he were the employer and the employer shall be acquitted: Provided that--- (a) the employer may be examined on oath his evidence and that of any witness whom he calls in his support shall be subject to cross-examination on behalf of the person he charges to be the actual offender and by the prosecutor, and (b) if, in spite of due diligence, the person alleged as the actual offender cannot be brought before the court on the day appointed for the hearing of the case, the court shall adjourn the hearing thereof from time to time so, however, that the total period of such adjournment does not exceed three months, and if, by the end of the said period, the person alleged as the actual offender cannot still be brought before the court, the court shall proceed to hear the case against the employer.
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