Judgment Mahaswaran, J. “The Premier Studs” represented by its partners are the revision petitioners. They were prosecuted for offences under sections 14(1-A) and 14-A(1) of the Employees' Provident Funds and Family Pension Fund Act, 1952 read with section 76(b) of the Employees' Provident Fund Scheme, 1952, as they failed to submit returns in Form Nos. 5, 10 and 12 for certain months. 2. Two contentions were raised by the petitioners when a complaint was filed by the Provident Fund Inspector representing the State against the revision petitioners and they are: (1) that the complaint is barred by the law of limitation; and (2) that the revision petitioners have filed an appeal to the Central Government under section 19-A of the Employees' Provident Funds and Family Pension Fund Act with regard to the applicability of the Act to the establishment of the revision petitioner-firm and therefore the Provident Fund Inspector cannot file a complaint before a Magistrate during the pendency of the appeal before the Central Government. The learned × Metropolitan Magistrate tried this batch of cases and came to the conclusion that the offence is a continuing offence and therefore no question of bar of limitation arises and overruled that objection. As regards the other contention, he held that the pendency of an appeal before the Central Government is not a bar for filing of the complaint by the Provident Fund Inspector. In the end, he found the revision petitioners guilty of the offences with which they are charged and convicted and sentenced them to pay a fine of Rs. 5 under each of the three counts. The revision petitioners are aggrieved and have filed these revisions. 3. It is now contended before me that the offences are punishable with fine or imprisonment not exceeding six months and therefore under section 468 (2) (b) of the Code of Criminal Procedure, the complaint ought to have been filed within a year and the complaints, except in Crl. R.C. No. 117 of 1977 not having been filed within a year from the date of offence, are barred by limitation. The second contention is that as an appeal filed by the revision petitioners is pending before the Central Government under section 19-A of the Employees' Provident Fund and Family Pension Fund Act, the respondent Provident Fund Inspector cannot file a complaint before the Magistrate. 4. The second contention is that as an appeal filed by the revision petitioners is pending before the Central Government under section 19-A of the Employees' Provident Fund and Family Pension Fund Act, the respondent Provident Fund Inspector cannot file a complaint before the Magistrate. 4. It is not disputed that all the complaints covered by these revision petitioners, except the complaint in Crl. R.C. No. 117 of 1977 and a part of the claim in Crl. R.C. No. 116 of 1977, are filed a year after the commencement of the offence. The Magistrate held that the offence is a continuing offence. He observed: “The non-payment of the administrative charges or the Provident Fund contribution or Family Pension Fund contribution is an offence till the amount is actually paid.” The learned Counsel appearing for the revision petitioner relying on the ruling in Pankaja Mills Ltd. v. N. Sivaramakrishna Iyer contended that the non-payment of contribution and administrative charges becomes complete when the amounts are not remitted on the due date or dates. Natarajan, J., was of the view that the offences of non-payment of contribution and administrative charges are not continuing offences. The learned Judge observed that there is nothing in the Act or in the Schemes to show that the non-payment continued to be a recurring offence with each passing day and if the Legislature had intended that defaults committee by employers would be continuing offences then that would have been indicated in the Act or the Schemes. Krishnan, J., of the Madhya Pradesh High Court held in Md. Hussain Bhai v. State as follows: “The creation of the Employees' Provident Fund and the fixing of the contributions of the employee and of the employer was for the purpose of the welfare of the employees. The mere fact that the 15th of the month next after the one for which the contributions were due expired, has not, in any manner, terminated the duty of the employer to pay in the contributions to the fund and send the return to the Commissioner. It is a duty created by the statute and continues day after day till, of course, the payment is made and the returns are submitted. It is a duty created by the statute and continues day after day till, of course, the payment is made and the returns are submitted. It is, therefore, obvious that the failure to pay up contributions and to submit the returns was a continuing wrong which, even on the view propounded by the learned Magistrate, become a penal offence under paragraphs 76 (a) and (c) on the day in October, 1953, when the notification was made amending paragraphs 3(b) (v) of the Scheme.” Natarajan, J., was of the view that in view of the pronouncement of the Supreme Court in State of Bihar v. Deokaran Nenshi the view expressed by Krishnan, J., cannot be accepted. What the Supreme Court observed is that in the case of a continuing offence, there is the ingredient of continuance of the offence which is absent in the case of an offence which takes place when the act or omission is committed, once and for all. The expression “continuing offence” has been defined in the following terms by a Division Bench of Bombay High Court in State v. Bhiwandiwallah. “The expression ‘continuing offence’ though not a very happy expression, has acquired a well recognised meaning in criminal law. If an act committed by an accused person constitutes an offence and if that act continues from day to day, then from day to day a fresh offence is committed by the accused so long as the act continues. Normally and in the ordinary course an offence is committed only once. But there may be offences which can be committed from day to day and it is offence falling in this later category that are described as continuing offences. In every case of a continuing offence it may be possible to describe the default as amounting to an omission or to a positive act on the part of the defaulter.” In my view, so long as the employer continues to fail to comply with the duty created by the statute, he continues to offend and therefore in my view that the failure to pay up contributions will amount to a continuing offence. I therefore most respectfully differ from the view taken by the learned Judge in Pankaja Mills Ltd. v. N. Sivammakrishna Iyer. 5. The employees are, statutorily bound to make contributions under the Act and the Scheme. I therefore most respectfully differ from the view taken by the learned Judge in Pankaja Mills Ltd. v. N. Sivammakrishna Iyer. 5. The employees are, statutorily bound to make contributions under the Act and the Scheme. Non-compliance of the requirements in the statute will entail penalties and the employer is also liable to be prosecuted for contravention of the provisions of the Act. But, if any doubt is felt either by the employer or by the Provident Fund Commissioner about the applicability or otherwise of the provisions of the Act to any particular establishment, it is open to either party to move the Central Government for clarification and removal of doubts. Such an application is pending in this case. The question now is whether this pendency of the application under section 19-A of the Act will bar the Provident Fund Commissioner from enforcing the Act till that application is disposed of by the Central Government. In Regional Provident Fund Commissioner v. K.R. Subbaier Tape Factory a Bench of this Court extracted certain observations of Mukharji, J., in Aluminium Corporation of India Ltd. v. Regional Provident Fund Commissioner and others. Those observations are: “An employer cannot make a default when there is a difficulty or doubt and when the Central Government has to remove that difficulty or doubt by an express order. It is only from the date of the order removing such difficulty or doubt that the default can operate. In other words, there can be no retrospective or constructive default in the present context of facts and law.” The Bench observes that each case must be examined carefully with respect to its own facts for an inference about default. What the learned Counsel for the revision petitioners contends is that there can be no default so long as the application before the Central Government is pending. The question whether a complaint can be preferred by the Provident Fund. Inspector during the pendency of an application before the Central Government under section 19-A, has not been answered by that ruling. The other ruling on which reliance was placed by the learned Counsel for the revision petitioners is Union of India and others v. Ogale Glass Works That ruling does not touch the question as to whether irrespective of a reference under section 19-A, the criminal trial can go on. The other ruling on which reliance was placed by the learned Counsel for the revision petitioners is Union of India and others v. Ogale Glass Works That ruling does not touch the question as to whether irrespective of a reference under section 19-A, the criminal trial can go on. What has been held in Union of India v. Ogale Class Worksin that the employer can resort to the remedy under section 19-A in case of doubt such as to the inplementation of the Act. Bridge & Roof Co. (India) Ltd. v. Union of India on which reliance was placed also does not answer the question. It only states that the Central Government in case of reference under section 19-A may make such provision or give such direction not inconsistent with the provisions of the Act as appears to it to be necessary or expedient for the removal of doubt or difficulty and the order of the Central Government in such cases shall be final. No one disputes that. But the question whether a criminal Court can or cannot proceed with the case when the matter is pending reference under section 19-A has not been answered. In Annamalai Mudaliar & Brothers v. Regional Provident Fund Commissioner Rajagopalan, J., was of the view that theprovisions of the Act should not apply to a factory in the event of dispute till a decision under section 19-A is given to settle the dispute. But that was a case where the petitioner therein who was the managing partner for the firm, raised an objection that the Act was not applicable on the ground that the number of employees employed in the business does not come to the minimum of 50 as required by the Act and the petitioner contended that the workers were not employees as defined under the Act. The Commissioner however treated the establishment as on within the Act, As I earlier pointed out, Rajagopalan, J., held that the competent authority to decide that question was not the Commissioner, but only the Central Government and unless and until such decision is rendered by the Government, the Act cannot be put into operation. 6. The Commissioner however treated the establishment as on within the Act, As I earlier pointed out, Rajagopalan, J., held that the competent authority to decide that question was not the Commissioner, but only the Central Government and unless and until such decision is rendered by the Government, the Act cannot be put into operation. 6. In Provident Fund Inspector, Eranakulam v. Auto Transport Union a Bench of the Kerala High Court held that criminal Court trying an offence punishable under the Act has jurisdiction to proceed with the trial of the case where the accused has taken the plea which could be decided by the Central Government under the provisions of section 19-A of the Employees' Provident Fund. But, it should be noted that there was no application under section 19-A of the Act 7. In T.R. Raghava Iyengar & Company v. Regional Provident Fund CommissionerJagadesan, J., observes: “The Act is ill-drafted and imperfect in its terms and causes disappointment by the absence of a machinery for settling controversial and disputed questions of fact. The power of the Central Government under section 19-A to pronounce its opinion for removal of doubts or defects cannot be said to be quite adequate, effective or satisfactory, to obviate the necessity of any special tribunal or to dispense with such a tribunal altogether.” In the end Jagadesan, J., observed: “As it is, there is some machinery provided under the Act, satisfactory or unsatisfactory, which can resolve the disputed questions of fact between the subject and the State, and that is the machinery enacted under section 19-A of the Act. Till the dispute is decided by that appropriate authority, it cannot be said that the Act can be legitimately put into operation despite the protests of the petitioners.” Except the ruling of Jagadesan, J., in T. R. Raghava Iyengar & Company v. Regional Provident Fund Commissionerwhich lays down that the Act cannot be legitimately put into operation unless the dispute is decided by the appropriate authority, there is no other reported authority of our High Court which holds that the Provident Fund Inspector cannot enforce the provisions of the Act till the application under section 19-A before the Central Government is disposed of and decided one way or the other. I have been referred to two decisions, one of Natarajan, J., in Crl. M.P. No. 7972 of 1976. I have been referred to two decisions, one of Natarajan, J., in Crl. M.P. No. 7972 of 1976. After consideration of certain facts cited before him, the learned Judge stayed the trial of the case before the criminal Court till the reference under section 19-A is disposed of by the Central Government. The learned Judge issued directions to the second Metropolitan Magistrate, before whom the case was pending, to stay the trial till such time the reference under section 19-A is disposed of. The learned Judge was of the view that the continuance of the trial before the trial Court for contravention of the Act is certainly premature. In W.P. No. 6378 of 1975, Mohan, J., passed the following short order on a petition to issue a writ of mandamus forbearing the Regional Provident Fund Commissioner, Tamil Nadu and Pondicherry from enforcing the provisions of the Employees' Provident Fund and Family Pension Fund Act: “Admittedly a petition under section 19-A of the Employees' Provident Fund and Family Pension Fund Act, 1952 is pending before the Central Government. This Court has repeatedly taken the view that till final orders are passed on an application of that kind, no action should be taken. Accordingly, this writ petition will stand allowed. No costs.” But a Full Bench of Gujarat High Court in J.C. Thermameter v. Union of India has observed that if the mischief which the Legislature had in mind and whichit sought to remedy by enactment of section 19-A is to be kept in mind, it is obvious that section 19-A could never be interpreted so that until the question is decided by the Central Government under section 19-A, the Act ceased to be applicable. With respect, I adopt these observations of the learned Judges of the High Court, Gujarat. 8. Under section 19-A, the Central Government could not give inconsistent directions contrary to the terms of the statute that even when the Act applied after the infancy period by force of section 1(3) (a). the provident fund shall not be introduced under section 5 by making eligible persons members of the fund and that no contribution shall be made under section 6. In fact the Central Government's powers are restricted as section 19-A requires the Government to pass only such direction which would not be inconsistent with the Act. It should be borne in mind that the Central Government. In fact the Central Government's powers are restricted as section 19-A requires the Government to pass only such direction which would not be inconsistent with the Act. It should be borne in mind that the Central Government. is delegated not with any legislative function but only with quasi-judicial function by giving finality to its decision. The decision of the Central Government would only operate as final adjudication of a statutory question and that decision is made final under the Act. In my view, the Central Government is entrusted with the statutory function of resolving doubts and difficulties particularly with reference to statutory issues under section 19-A so that the delay which may be caused by the parties by going to the civil Courts could be avoided. It is more with the view to expeditiously implement the Act. There is nothing compelling in this context to impute an intention to the Parliament that it was making a radical alteration in law, when it was providing this remedy for resolving such a doubt or difficulty. Such a construction would defeat the intention of the Parliament by making the statute a dead-letter during the period that this quasijudicial machinery under section 19-A was invoked. I therefore respectfully differ from the view taken by Jagadisan, J., in T. R. Raghava Iyengar & Company v. Regional Provident Fund CommissionerI direct that the papers may be placed before my Lord the Chief Justice for being posted before a Bench for adjudication on the questions: (1) whether failure to pay up contributions and submit returns is a continuing offence; and (2) whether the provisions of the Employees' Provident Funds and Family Pension Fund Act could be enforced pending decision on a reference under section 19-A of the Act. The order of the Court was made by Paul, J.-These cases have been heard by us on the orders of the Honourable the Chief Justice for adjudication on the following questions: (1) whether failure to pay up contributions and submit returns under the Employees Provident Funds and Family Pension Fund Act and the Employees' Provident Funds Scheme is a continuing offence ? and (2) whether the provisions of the Employees' Provident Funds and Family Pension Fund Act could be enforced pending decision on a reference under section 19-A of the Act? and (2) whether the provisions of the Employees' Provident Funds and Family Pension Fund Act could be enforced pending decision on a reference under section 19-A of the Act? since Maheswaran, J., differed from the view taken by Natarajan, J., in Pankaja Mills Ltd. v. N. Sivaramakrishna Iyer and the view taken by Jagadisan J., in T.R. Raghava Iyengar & Co. v. Regional Provident Fund Commissioner. 9. On complaints laid by the Provident Fund Inspector representing the State, the revision petitioners have been prosecuted for offences under sections 14 (1-A) and 14-A (1) of the Employees' Provident Funds and Family Pension Fund Act, 1952 read with section 76 (b) of the Employees' Provident Fund Scheme, 1952 for having failed to submit the returns in Form Nos. 5, 10 and 12 in respect of certain months and in one case for failure to pay the Administrative Charges. The revision petitioners contended firstly that the complaint was barred by limitation and secondly that they have failed an appeal to the Central Government under section 19-A of the Employees' Provident Funds and Family Pension Fund Act with regard to the applicability of the Act to the establishment of the revision petitioners, firm and therefore during the pendency of that appeal, the Provident Fund Inspector cannot lay a complaint before the Magistrate for the aforesaid offences. The learned × Metropolitan Magistrate who tried thesecases came to the conclusion that there was no bar of limitation inasmuch as of the offences complained of were continuing offences and that the pendency of an appeal before the Central Government would not be a bar for the filing of a complaint in the criminal Court by the Provident Fund Inspector in regard to these offences. In that view he convicted the revision petitioners of the offences of which they have been charged and sentenced them each to fine under each count. Hence the revision petitioners came up in revision. 10. Under section 468(2)(b) of the Code of Criminal Procedure, the period of limitation fixed in regard to offences punishable with fine or imprisonment not exceeding six months is one year. Admittedly, except the complaint in the case of Crl. R.C. No. 117 of 1977 and part of the complaint in Crl R.C. No. 116 of 1977, the rest of the complaints had been filed after the said period of one year. Admittedly, except the complaint in the case of Crl. R.C. No. 117 of 1977 and part of the complaint in Crl R.C. No. 116 of 1977, the rest of the complaints had been filed after the said period of one year. Of course, under section 472, Criminal Procedure Code, in the case of a continuing offence, a fresh period of limitation shall begin to run at every moment of the time during which the offence continues. Therefore, the first question that arises for consideration by us is whether the offences complained of in these cases are continuing offences. In Pankaja Mills Ltd. v. N. Sivaramakrishna IyerNatarajan, J., was of the view that the offences of non-payment of Provident Fund contributions and administrative charges are not continuing offences. He observed that there was nothing in the Employees' Provident Funds and Family Pension Fund Act or in the Employees' Provident Fund Scheme to show that the non-payment continued to be a recurring offence with each passing day and if the Legislature had intended that such defaults committed by employees would be continuing offences then that would have been clearly indicated in the Act or the Scheme. As against this, there is the decision in Md. Hussain Bhali v. State in which a single Judge of the Madhya Pradesh High Court (Krishnan, J.) observed as follows: “The Creation of the Employees' Provident Fund and the fixing of the contributions of the employee and of the employer was for the purpose of the welfare of the employees. The mere fact that the 15th of the month next after the one for which the contributions were due expired, has not, in any manner, terminated the duty of the employer to pay in the contributions to the fund and send the return to the Commissioner. It is a duty created by the statute and continues day after day till, of course, the payment is made and the returns are submitted. It is therefore, obvious that the failure to pay up contributions and to submit the returns was a continuing wrong which becomes a penal offence under paragraphs 76(a) and (c) on the day in October, 1953,when the notification was made amending para. 3(b)(v) of the Scheme.” 11. It is therefore, obvious that the failure to pay up contributions and to submit the returns was a continuing wrong which becomes a penal offence under paragraphs 76(a) and (c) on the day in October, 1953,when the notification was made amending para. 3(b)(v) of the Scheme.” 11. This decision was obviously brought to the notice of Natarajan, J., in Pankaja Mills Ltd. v. N. Sivaramakrishna IyerBut Natarajan, J., would not accept the view propounded by Krishnan, J., of the Madhya Pradesh High Court in view of the decision in State of Bihar v. Deokaran Menshi 12. In all these cases, the revision petitioner have been convicted of offences under section 14 (1-A) and section 14-A (1) of the Employees' Provident Funds and Family Pension Fund Act. Section 14 (1-A) states that “an employer who contravenes, or makes default in complying with, the provisions of section 6 or clause (a) of sub- section (3) of section 17 in so far as it relates to the-payment of inspection charges, or paragraph 38 of the scheme is so far as it relates to the payment of administrative charges, shall be punishable with imprisonment for a term which may extent to six months…”. Section 5 of the Act empowers the Central Government to frame a scheme to be called the Employees' Provident Fund Scheme for the establishment of provident funds under this Act for employees or for any class of employees and to specify the establishments or class or establishments to which the said scheme shall apply and there shall be established, as soon as may be after the framing of the scheme, a Fund in accordance with the provisions of the Act and the Scheme. Such a scheme has been framed by the Central Government. Section 6 of the Act says: “The contribution which shall be paid by the employer to the Fund shall be six and aquarter per cent, of the basic wages, clearness allowance and retaining allowance, if any, for the time being payable to each of the employees whether employed by him directly or by or through a contractor, and the employees' contribution shall be equal to the contribution payable by the employer in respect of him and may, if any employee so desires and if the Scheme makes provision therefor, be an amount not exceeding eight and one-third per cent. of his basic wages, dearness allowance and retaining allowance, if any.” The first proviso to this sections says: “Provided that in its application to any establishment or class of establishments which the Central Government, after making such enquiry as it deems fit, may be notification in the Official Gazette specify, this section shall be subject to the modification that for the words ‘six and a quarter per cent.’, the words ‘eight per cent’, shall be substituted.” The other parts of the section are not germane to the consideration of the question before us. 13. Section 6-A of the Act empowers the Central Government to frame a similar scheme to be called Employees' Family Pension Scheme for the purpose of providing family pension and life assurance benefits to the employees of any establishment or class of establishments to which this Act applies. Sub section (2) states that there shall be established, as soon as may be after the framing of the Family Pension Scheme, a Family Pension Fund into which shall be paid from time to time in respect of every such employee: (a) such portion, not exceeding one-fourth, of the amount payable under section 6 as contribution by the employer as well as the employee as may be specified in the Family Pension Scheme; (b) such sums as are payable by the employer of an exempted establishment under sub- section (6) of section 17; and (c) such sums, being not less than the amount payable in pursuance of clause (a) out of the employer's contribution under section 6, as the Central Government may, after due appropriation made by Parliament by law in this behalf, specify. The remaining part of the section are not relevant for the consideration of the issues before us. 14. The remaining part of the section are not relevant for the consideration of the issues before us. 14. Paragraph 76 of the Employees' Provident Funds Scheme states as follows: “If any person- (a) fails to pay any contribution which he is liable to pay under this scheme, or (b) deducts or attempt to deduct from the wages or other remuneration of a member the whole or any part of the employer's contribution, or (c) fails or refuses to submit any returns, statement or other document required by this Scheme or submit a false return, statement or other document, or makes a false declaration, of (d) obstructs any Inspector or other Official appointed under the Act or this scheme in the discharge of his duties or fails to produce any record for inspection by such Inspector or other official, or (e) is guilty of contravention of or noncompliance with any other requirement of this Scheme, he shall be punishable with imprisonment which may extend to six months or with fine which may extend to one thousand rupees, or with both. 15. Paragraph 36 deals with the duties of the employers. Sub-paragraph (1) of paragraph 36 enjoins the employer to send to the Commissioner, within fifteen days of the commencement of this scheme, a consolidated return in such form as the Commissioner may specify of the employees required or entitled to become members of the Fund showing the basic wage, retaining allowance (if any) and dearness allowance including the cash value of any food concession paid to each of such employees. Sub-paragraph (2) with which we are concerned says that every employer shall send to the Commissioner within fifteen days of the close of each month a return: (a) in Form 5 of the employee qualifying to become members of the Fund for the first time during the preceding month together with the declarations, in Form 2 furnished by such qualifying employees; and (6) in such form as the Commissioner may specify, of the employees leaving service of the employer during the preceding month. 16. The gravamen of the charge against the revision petitioners in all these cases except one is that they failed to submit the returns in Form Nos. 5, 10 and 12 as required under sub-paragraph (b) of paragraph 76 of the Employees' Provident Funds Scheme for various months. 16. The gravamen of the charge against the revision petitioners in all these cases except one is that they failed to submit the returns in Form Nos. 5, 10 and 12 as required under sub-paragraph (b) of paragraph 76 of the Employees' Provident Funds Scheme for various months. The question is whether such an offence is a continuing offence. Unfortunately, the Act itself does not define what a continuing offence is. But the expression ‘continuing offence’ has however acquired a well-recognised meaning in criminal law and as has been observed in State v. Bhiwandiwallaif an act committed by an accused person constituted an offence and if that act continued from day to day, then from day to day a fresh offence is committed by the accused so long as the act continues. Normally and in the ordinary course an offence is committed only once. But there may be offences which can be committed from day to day and it is offences falling in this latter category that are described as continuing offences. In every case of a continuing offence it may be possible to describe the default as amounting to an omission or to a positive act on the part of the defaulter. Hence the distinction between a default which consists in failure to comply with a direction to do a positive act may not be very helpful in determining the character of a continuing offence.” In that case the offences complained of were failure to apply for the registration of a factory and for grant of licence and failure to give a notice of occupation under Factories Act read with the Bombay Factories Rules. It was held that the failure to apply for the registration of the factory and to give a notice of occupation was not a continuing offence but that the conduct of the accused in using the premises as a factory without obtaining a licence constituted a continuing offence and as such no bar of limitation under section 106 of the Factories Act could be pleaded in respect of that charge. The learned Judges of the Bombay High Court have referred to the decision in Bhchartas v. Emperor where it was held that the failure to remove a building in respect of which a person has been convicted under section 123 (7) or section 118 (4) of the Bombay City Municipalities Act was not a continuing contravention and in dealing with the question of limitation the Bench took the view that limitation for the prosecution for a continuing offence runs from the time when the offence is first committed, or, where the offence consists in failure to remove the building after conviction from the date of the conviction which view, however, was dissented from in Emperor v. Karasandas Govindji where it was held that the establishing of a factory without permission is an offence committed once and for all when the factory is established, but that the working of a factory without permission is an offence which arises on every day on which the factory is so worked and hence section 514 of the City of Bombay Municipal Act, can be no bar to a charge in respect of working the factory without permission. The decision in State v. Babu Gulah Mahamed and the decision in State of Bombay v. Devaraj Tulsihave also been considered by the Division Bench in State v. Bhiwandiwalla. The Division Bench however would not subscribe to the view expressed by Bhagawati, J., in State of Bombay v. Devaraj Tulsi. That view as expressed by Bhagwati, J., was as follows: “….it is a misnomer to say that fresh offences, are committed at each period of time when particularly the non-compliance of the order which constitutes the offence is the omission to do an act which has been ordered to be done.” Bhagwati, J., was of the view that where a positive act is ordered to be done, a case or cases may arise where by reason of the breach of the terms of the order you might have commission of a series of offences from day to day. The Division Bench in State v. Bhiwandiwallahowever commenting on that view has observed as follows: “With respect, the distinction which these observations seems to bring out between a default which consists of an omission to do an act and a default which consists in failure to comply with a direction to do a positive act may not be very helpful in determining the character of a continuing offence.” We are in respectful agreement with this view of the Devision Bench. 17. The Division Bench further referred to the decision in public Prosecutor v. Veerabhadrappa where it was held that failure to complywith the provisions of section 14 of the Factories Act is a continuing offence and agreed with the view therein. 18. In Md. Hussain Bhai & another v. State Krishnan, J., of the Madhya Pradesh High Court held that the failure to pay up the contributions and to submit returns, for which the punishment is laid down in paragraph 76 (a) and (c) of the Scheme, is a continuing wrong. He further observed that while fixing of a date may mean that the employer should pay into the fund and send to the Commissioner the returns by that date, it does not mean that once the date is passed, the employer is relieved of his duty and there is nothing more to be done, and, therefore, even if the provisions penalising the default were supposed to come into force after the date so fixed for payment into the fund or for sending in the return, the offence being continuous would fall within the scope of the penal provisions. In that case the accused persons had failed to comply with paragraph. 38 of the Scheme and thereby committed an offence punishable under paragraph 76 (a) and (c) of the Scheme. In that case the accused persons had failed to comply with paragraph. 38 of the Scheme and thereby committed an offence punishable under paragraph 76 (a) and (c) of the Scheme. Krishnan, J., referred to the decision in G.B. Dhattar v. State where it was observed as follows: “The question whether an illegal omission is a continuing offence or not, can hardly be answered in a summary manner without considering the nature of the duty imposed, and the object which the legislature had in view in imposing the duty… The pithead baths and the mines creches are amenities required by the legislature, the first for the sanitation and health of the minors and the second for the proper care of the children of female minors… without these, the minors could not be expected to preserve their health, and children of the female minors could not be properly looked after. The mere fact, therefore, that the specified date within which the baths and the creches were required under the rules to be constructed expired, cannot possibly mean that the duty of the owner ended with the expiry of the date. That duty still remains. It continues till the pithead baths and the creaches are constructed as required by the rules. A continuing wrong or a continuing offence is, after all, a continuing breach of a duty which itself is continuing. If a duty continues from day to day, the nonperformance of that duty from day to day is a continuing wrong.” With great respect, we are of the view that this definition of a continuing wrong or a continuing offence lays down the proper test which should be adopted in determining the question as to whether a particular wrong or an offence is a continuing one. Krishnan, J., then went on to observe as follows: “The creation of the Employees' Provident Fund and the fixing of the contributions of the employees and the employer was for the purpose of the welfare of the employees. The mere fact that the 15th of the month next after the one for which the contributions were due, expired, has not, in any manner, terminated the duty of the employer to pay in the contributions to the fund and send the return to the Commissioner. The mere fact that the 15th of the month next after the one for which the contributions were due, expired, has not, in any manner, terminated the duty of the employer to pay in the contributions to the fund and send the return to the Commissioner. It is a duty created by the statute and continues day after day till, of course, the payment is made and the returns are the mitted. It is, therefore, obvious that sub failure to pay up contributions and to submit the returns was a continuing wrong.” 19. In Pankaja Mills Lta. v. N. Sivaramakrishna Iyer Natarajan, J., while referring to the said observations of Krishnan, J., has merely observed that he was unable to agree with the contentions of the Public Prosecutor who relied on the aforesaid decision, and he observed as follows: “It is very difficult to hold that the offences complained of against the petitioners in the several cases can be held as continuing offences. Since the contributions and charges had to be paid under the Act or the Schemes on the 15th of the month next after the one for which, the contributions or charges were due to the offences become completed as soon as the contributions or charges were not remitted within the stipulated time. There is nothing in the Act or the Schemes to show that the non-payment continued to be a recurring offence with each passing day. If the Legislature had intended that defaults committed byemployees would be continuing offences then that would have been clearly indicated in the Act or the schemes.” Judgment Mahaswaran, J. “The Premier Studs” represented by its partners are the revision petitioners. They were prosecuted for offences under sections 14(1-A) and 14-A(1) of the Employees' Provident Funds and Family Pension Fund Act, 1952 read with section 76(b) of the Employees' Provident Fund Scheme, 1952, as they failed to submit returns in Form Nos. 5, 10 and 12 for certain months. 2. They were prosecuted for offences under sections 14(1-A) and 14-A(1) of the Employees' Provident Funds and Family Pension Fund Act, 1952 read with section 76(b) of the Employees' Provident Fund Scheme, 1952, as they failed to submit returns in Form Nos. 5, 10 and 12 for certain months. 2. Two contentions were raised by the petitioners when a complaint was filed by the Provident Fund Inspector representing the State against the revision petitioners and they are: (1) that the complaint is barred by the law of limitation; and (2) that the revision petitioners have filed an appeal to the Central Government under section 19-A of the Employees' Provident Funds and Family Pension Fund Act with regard to the applicability of the Act to the establishment of the revision petitioner-firm and therefore the Provident Fund Inspector cannot file a complaint before a Magistrate during the pendency of the appeal before the Central Government. The learned × Metropolitan Magistrate tried this batch of cases and came to the conclusion that the offence is a continuing offence and therefore no question of bar of limitation arises and overruled that objection. As regards the other contention, he held that the pendency of an appeal before the Central Government is not a bar for filing of the complaint by the Provident Fund Inspector. In the end, he found the revision petitioners guilty of the offences with which they are charged and convicted and sentenced them to pay a fine of Rs. 5 under each of the three counts. The revision petitioners are aggrieved and have filed these revisions. 3. It is now contended before me that the offences are punishable with fine or imprisonment not exceeding six months and therefore under section 468 (2) (b) of the Code of Criminal Procedure, the complaint ought to have been filed within a year and the complaints, except in Crl. R.C. No. 117 of 1977 not having been filed within a year from the date of offence, are barred by limitation. The second contention is that as an appeal filed by the revision petitioners is pending before the Central Government under section 19-A of the Employees' Provident Fund and Family Pension Fund Act, the respondent Provident Fund Inspector cannot file a complaint before the Magistrate. 4. It is not disputed that all the complaints covered by these revision petitioners, except the complaint in Crl. 4. It is not disputed that all the complaints covered by these revision petitioners, except the complaint in Crl. R.C. No. 117 of 1977 and a part of the claim in Crl. R.C. No. 116 of 1977, are filed a year after the commencement of the offence. The Magistrate held that the offence is a continuing offence. He observed: “The non-payment of the administrative charges or the Provident Fund contribution or Family Pension Fund contribution is an offence till the amount is actually paid.” The learned Counsel appearing for the revision petitioner relying on the ruling in Pankaja Mills Ltd. v. N. Sivaramakrishna Iyer contended that the non-payment of contribution and administrative charges becomes complete when the amounts are not remitted on the due date or dates. Natarajan, J., was of the view that the offences of non-payment of contribution and administrative charges are not continuing offences. The learned Judge observed that there is nothing in the Act or in the Schemes to show that the non-payment continued to be a recurring offence with each passing day and if the Legislature had intended that defaults committee by employers would be continuing offences then that would have been indicated in the Act or the Schemes. Krishnan, J., of the Madhya Pradesh High Court held in Md. Hussain Bhai v. State as follows: “The creation of the Employees' Provident Fund and the fixing of the contributions of the employee and of the employer was for the purpose of the welfare of the employees. The mere fact that the 15th of the month next after the one for which the contributions were due expired, has not, in any manner, terminated the duty of the employer to pay in the contributions to the fund and send the return to the Commissioner. It is a duty created by the statute and continues day after day till, of course, the payment is made and the returns are submitted. It is a duty created by the statute and continues day after day till, of course, the payment is made and the returns are submitted. It is, therefore, obvious that the failure to pay up contributions and to submit the returns was a continuing wrong which, even on the view propounded by the learned Magistrate, become a penal offence under paragraphs 76 (a) and (c) on the day in October, 1953, when the notification was made amending paragraphs 3(b) (v) of the Scheme.” Natarajan, J., was of the view that in view of the pronouncement of the Supreme Court in State of Bihar v. Deokaran Nenshi the view expressed by Krishnan, J., cannot be accepted. What the Supreme Court observed is that in the case of a continuing offence, there is the ingredient of continuance of the offence which is absent in the case of an offence which takes place when the act or omission is committed, once and for all. The expression “continuing offence” has been defined in the following terms by a Division Bench of Bombay High Court in State v. Bhiwandiwallah. “The expression ‘continuing offence’ though not a very happy expression, has acquired a well recognised meaning in criminal law. If an act committed by an accused person constitutes an offence and if that act continues from day to day, then from day to day a fresh offence is committed by the accused so long as the act continues. Normally and in the ordinary course an offence is committed only once. But there may be offences which can be committed from day to day and it is offence falling in this later category that are described as continuing offences. In every case of a continuing offence it may be possible to describe the default as amounting to an omission or to a positive act on the part of the defaulter.” In my view, so long as the employer continues to fail to comply with the duty created by the statute, he continues to offend and therefore in my view that the failure to pay up contributions will amount to a continuing offence. I therefore most respectfully differ from the view taken by the learned Judge in Pankaja Mills Ltd. v. N. Sivammakrishna Iyer. 5. The employees are, statutorily bound to make contributions under the Act and the Scheme. I therefore most respectfully differ from the view taken by the learned Judge in Pankaja Mills Ltd. v. N. Sivammakrishna Iyer. 5. The employees are, statutorily bound to make contributions under the Act and the Scheme. Non-compliance of the requirements in the statute will entail penalties and the employer is also liable to be prosecuted for contravention of the provisions of the Act. But, if any doubt is felt either by the employer or by the Provident Fund Commissioner about the applicability or otherwise of the provisions of the Act to any particular establishment, it is open to either party to move the Central Government for clarification and removal of doubts. Such an application is pending in this case. The question now is whether this pendency of the application under section 19-A of the Act will bar the Provident Fund Commissioner from enforcing the Act till that application is disposed of by the Central Government. In Regional Provident Fund Commissioner v. K.R. Subbaier Tape Factory a Bench of this Court extracted certain observations of Mukharji, J., in Aluminium Corporation of India Ltd. v. Regional Provident Fund Commissioner and others. Those observations are: “An employer cannot make a default when there is a difficulty or doubt and when the Central Government has to remove that difficulty or doubt by an express order. It is only from the date of the order removing such difficulty or doubt that the default can operate. In other words, there can be no retrospective or constructive default in the present context of facts and law.” The Bench observes that each case must be examined carefully with respect to its own facts for an inference about default. What the learned Counsel for the revision petitioners contends is that there can be no default so long as the application before the Central Government is pending. The question whether a complaint can be preferred by the Provident Fund. Inspector during the pendency of an application before the Central Government under section 19-A, has not been answered by that ruling. The other ruling on which reliance was placed by the learned Counsel for the revision petitioners is Union of India and others v. Ogale Glass Works That ruling does not touch the question as to whether irrespective of a reference under section 19-A, the criminal trial can go on. The other ruling on which reliance was placed by the learned Counsel for the revision petitioners is Union of India and others v. Ogale Glass Works That ruling does not touch the question as to whether irrespective of a reference under section 19-A, the criminal trial can go on. What has been held in Union of India v. Ogale Class Worksin that the employer can resort to the remedy under section 19-A in case of doubt such as to the inplementation of the Act. Bridge & Roof Co. (India) Ltd. v. Union of India on which reliance was placed also does not answer the question. It only states that the Central Government in case of reference under section 19-A may make such provision or give such direction not inconsistent with the provisions of the Act as appears to it to be necessary or expedient for the removal of doubt or difficulty and the order of the Central Government in such cases shall be final. No one disputes that. But the question whether a criminal Court can or cannot proceed with the case when the matter is pending reference under section 19-A has not been answered. In Annamalai Mudaliar & Brothers v. Regional Provident Fund Commissioner Rajagopalan, J., was of the view that theprovisions of the Act should not apply to a factory in the event of dispute till a decision under section 19-A is given to settle the dispute. But that was a case where the petitioner therein who was the managing partner for the firm, raised an objection that the Act was not applicable on the ground that the number of employees employed in the business does not come to the minimum of 50 as required by the Act and the petitioner contended that the workers were not employees as defined under the Act. The Commissioner however treated the establishment as on within the Act, As I earlier pointed out, Rajagopalan, J., held that the competent authority to decide that question was not the Commissioner, but only the Central Government and unless and until such decision is rendered by the Government, the Act cannot be put into operation. 6. The Commissioner however treated the establishment as on within the Act, As I earlier pointed out, Rajagopalan, J., held that the competent authority to decide that question was not the Commissioner, but only the Central Government and unless and until such decision is rendered by the Government, the Act cannot be put into operation. 6. In Provident Fund Inspector, Eranakulam v. Auto Transport Union a Bench of the Kerala High Court held that criminal Court trying an offence punishable under the Act has jurisdiction to proceed with the trial of the case where the accused has taken the plea which could be decided by the Central Government under the provisions of section 19-A of the Employees' Provident Fund. But, it should be noted that there was no application under section 19-A of the Act 7. In T.R. Raghava Iyengar & Company v. Regional Provident Fund CommissionerJagadesan, J., observes: “The Act is ill-drafted and imperfect in its terms and causes disappointment by the absence of a machinery for settling controversial and disputed questions of fact. The power of the Central Government under section 19-A to pronounce its opinion for removal of doubts or defects cannot be said to be quite adequate, effective or satisfactory, to obviate the necessity of any special tribunal or to dispense with such a tribunal altogether.” In the end Jagadesan, J., observed: “As it is, there is some machinery provided under the Act, satisfactory or unsatisfactory, which can resolve the disputed questions of fact between the subject and the State, and that is the machinery enacted under section 19-A of the Act. Till the dispute is decided by that appropriate authority, it cannot be said that the Act can be legitimately put into operation despite the protests of the petitioners.” Except the ruling of Jagadesan, J., in T. R. Raghava Iyengar & Company v. Regional Provident Fund Commissionerwhich lays down that the Act cannot be legitimately put into operation unless the dispute is decided by the appropriate authority, there is no other reported authority of our High Court which holds that the Provident Fund Inspector cannot enforce the provisions of the Act till the application under section 19-A before the Central Government is disposed of and decided one way or the other. I have been referred to two decisions, one of Natarajan, J., in Crl. M.P. No. 7972 of 1976. I have been referred to two decisions, one of Natarajan, J., in Crl. M.P. No. 7972 of 1976. After consideration of certain facts cited before him, the learned Judge stayed the trial of the case before the criminal Court till the reference under section 19-A is disposed of by the Central Government. The learned Judge issued directions to the second Metropolitan Magistrate, before whom the case was pending, to stay the trial till such time the reference under section 19-A is disposed of. The learned Judge was of the view that the continuance of the trial before the trial Court for contravention of the Act is certainly premature. In W.P. No. 6378 of 1975, Mohan, J., passed the following short order on a petition to issue a writ of mandamus forbearing the Regional Provident Fund Commissioner, Tamil Nadu and Pondicherry from enforcing the provisions of the Employees' Provident Fund and Family Pension Fund Act: “Admittedly a petition under section 19-A of the Employees' Provident Fund and Family Pension Fund Act, 1952 is pending before the Central Government. This Court has repeatedly taken the view that till final orders are passed on an application of that kind, no action should be taken. Accordingly, this writ petition will stand allowed. No costs.” But a Full Bench of Gujarat High Court in J.C. Thermameter v. Union of India has observed that if the mischief which the Legislature had in mind and whichit sought to remedy by enactment of section 19-A is to be kept in mind, it is obvious that section 19-A could never be interpreted so that until the question is decided by the Central Government under section 19-A, the Act ceased to be applicable. With respect, I adopt these observations of the learned Judges of the High Court, Gujarat. 8. Under section 19-A, the Central Government could not give inconsistent directions contrary to the terms of the statute that even when the Act applied after the infancy period by force of section 1(3) (a). the provident fund shall not be introduced under section 5 by making eligible persons members of the fund and that no contribution shall be made under section 6. In fact the Central Government's powers are restricted as section 19-A requires the Government to pass only such direction which would not be inconsistent with the Act. It should be borne in mind that the Central Government. In fact the Central Government's powers are restricted as section 19-A requires the Government to pass only such direction which would not be inconsistent with the Act. It should be borne in mind that the Central Government. is delegated not with any legislative function but only with quasi-judicial function by giving finality to its decision. The decision of the Central Government would only operate as final adjudication of a statutory question and that decision is made final under the Act. In my view, the Central Government is entrusted with the statutory function of resolving doubts and difficulties particularly with reference to statutory issues under section 19-A so that the delay which may be caused by the parties by going to the civil Courts could be avoided. It is more with the view to expeditiously implement the Act. There is nothing compelling in this context to impute an intention to the Parliament that it was making a radical alteration in law, when it was providing this remedy for resolving such a doubt or difficulty. Such a construction would defeat the intention of the Parliament by making the statute a dead-letter during the period that this quasijudicial machinery under section 19-A was invoked. I therefore respectfully differ from the view taken by Jagadisan, J., in T. R. Raghava Iyengar & Company v. Regional Provident Fund CommissionerI direct that the papers may be placed before my Lord the Chief Justice for being posted before a Bench for adjudication on the questions: (1) whether failure to pay up contributions and submit returns is a continuing offence; and (2) whether the provisions of the Employees' Provident Funds and Family Pension Fund Act could be enforced pending decision on a reference under section 19-A of the Act. The order of the Court was made by Paul, J.-These cases have been heard by us on the orders of the Honourable the Chief Justice for adjudication on the following questions: (1) whether failure to pay up contributions and submit returns under the Employees Provident Funds and Family Pension Fund Act and the Employees' Provident Funds Scheme is a continuing offence ? and (2) whether the provisions of the Employees' Provident Funds and Family Pension Fund Act could be enforced pending decision on a reference under section 19-A of the Act? and (2) whether the provisions of the Employees' Provident Funds and Family Pension Fund Act could be enforced pending decision on a reference under section 19-A of the Act? since Maheswaran, J., differed from the view taken by Natarajan, J., in Pankaja Mills Ltd. v. N. Sivaramakrishna Iyer and the view taken by Jagadisan J., in T.R. Raghava Iyengar & Co. v. Regional Provident Fund Commissioner. 9. On complaints laid by the Provident Fund Inspector representing the State, the revision petitioners have been prosecuted for offences under sections 14 (1-A) and 14-A (1) of the Employees' Provident Funds and Family Pension Fund Act, 1952 read with section 76 (b) of the Employees' Provident Fund Scheme, 1952 for having failed to submit the returns in Form Nos. 5, 10 and 12 in respect of certain months and in one case for failure to pay the Administrative Charges. The revision petitioners contended firstly that the complaint was barred by limitation and secondly that they have failed an appeal to the Central Government under section 19-A of the Employees' Provident Funds and Family Pension Fund Act with regard to the applicability of the Act to the establishment of the revision petitioners, firm and therefore during the pendency of that appeal, the Provident Fund Inspector cannot lay a complaint before the Magistrate for the aforesaid offences. The learned × Metropolitan Magistrate who tried thesecases came to the conclusion that there was no bar of limitation inasmuch as of the offences complained of were continuing offences and that the pendency of an appeal before the Central Government would not be a bar for the filing of a complaint in the criminal Court by the Provident Fund Inspector in regard to these offences. In that view he convicted the revision petitioners of the offences of which they have been charged and sentenced them each to fine under each count. Hence the revision petitioners came up in revision. 10. Under section 468(2)(b) of the Code of Criminal Procedure, the period of limitation fixed in regard to offences punishable with fine or imprisonment not exceeding six months is one year. Admittedly, except the complaint in the case of Crl. R.C. No. 117 of 1977 and part of the complaint in Crl R.C. No. 116 of 1977, the rest of the complaints had been filed after the said period of one year. Admittedly, except the complaint in the case of Crl. R.C. No. 117 of 1977 and part of the complaint in Crl R.C. No. 116 of 1977, the rest of the complaints had been filed after the said period of one year. Of course, under section 472, Criminal Procedure Code, in the case of a continuing offence, a fresh period of limitation shall begin to run at every moment of the time during which the offence continues. Therefore, the first question that arises for consideration by us is whether the offences complained of in these cases are continuing offences. In Pankaja Mills Ltd. v. N. Sivaramakrishna IyerNatarajan, J., was of the view that the offences of non-payment of Provident Fund contributions and administrative charges are not continuing offences. He observed that there was nothing in the Employees' Provident Funds and Family Pension Fund Act or in the Employees' Provident Fund Scheme to show that the non-payment continued to be a recurring offence with each passing day and if the Legislature had intended that such defaults committed by employees would be continuing offences then that would have been clearly indicated in the Act or the Scheme. As against this, there is the decision in Md. Hussain Bhali v. State in which a single Judge of the Madhya Pradesh High Court (Krishnan, J.) observed as follows: “The Creation of the Employees' Provident Fund and the fixing of the contributions of the employee and of the employer was for the purpose of the welfare of the employees. The mere fact that the 15th of the month next after the one for which the contributions were due expired, has not, in any manner, terminated the duty of the employer to pay in the contributions to the fund and send the return to the Commissioner. It is a duty created by the statute and continues day after day till, of course, the payment is made and the returns are submitted. It is therefore, obvious that the failure to pay up contributions and to submit the returns was a continuing wrong which becomes a penal offence under paragraphs 76(a) and (c) on the day in October, 1953,when the notification was made amending para. 3(b)(v) of the Scheme.” 11. It is therefore, obvious that the failure to pay up contributions and to submit the returns was a continuing wrong which becomes a penal offence under paragraphs 76(a) and (c) on the day in October, 1953,when the notification was made amending para. 3(b)(v) of the Scheme.” 11. This decision was obviously brought to the notice of Natarajan, J., in Pankaja Mills Ltd. v. N. Sivaramakrishna IyerBut Natarajan, J., would not accept the view propounded by Krishnan, J., of the Madhya Pradesh High Court in view of the decision in State of Bihar v. Deokaran Menshi 12. In all these cases, the revision petitioner have been convicted of offences under section 14 (1-A) and section 14-A (1) of the Employees' Provident Funds and Family Pension Fund Act. Section 14 (1-A) states that “an employer who contravenes, or makes default in complying with, the provisions of section 6 or clause (a) of sub- section (3) of section 17 in so far as it relates to the-payment of inspection charges, or paragraph 38 of the scheme is so far as it relates to the payment of administrative charges, shall be punishable with imprisonment for a term which may extent to six months…”. Section 5 of the Act empowers the Central Government to frame a scheme to be called the Employees' Provident Fund Scheme for the establishment of provident funds under this Act for employees or for any class of employees and to specify the establishments or class or establishments to which the said scheme shall apply and there shall be established, as soon as may be after the framing of the scheme, a Fund in accordance with the provisions of the Act and the Scheme. Such a scheme has been framed by the Central Government. Section 6 of the Act says: “The contribution which shall be paid by the employer to the Fund shall be six and aquarter per cent, of the basic wages, clearness allowance and retaining allowance, if any, for the time being payable to each of the employees whether employed by him directly or by or through a contractor, and the employees' contribution shall be equal to the contribution payable by the employer in respect of him and may, if any employee so desires and if the Scheme makes provision therefor, be an amount not exceeding eight and one-third per cent. of his basic wages, dearness allowance and retaining allowance, if any.” The first proviso to this sections says: “Provided that in its application to any establishment or class of establishments which the Central Government, after making such enquiry as it deems fit, may be notification in the Official Gazette specify, this section shall be subject to the modification that for the words ‘six and a quarter per cent.’, the words ‘eight per cent’, shall be substituted.” The other parts of the section are not germane to the consideration of the question before us. 13. Section 6-A of the Act empowers the Central Government to frame a similar scheme to be called Employees' Family Pension Scheme for the purpose of providing family pension and life assurance benefits to the employees of any establishment or class of establishments to which this Act applies. Sub section (2) states that there shall be established, as soon as may be after the framing of the Family Pension Scheme, a Family Pension Fund into which shall be paid from time to time in respect of every such employee: (a) such portion, not exceeding one-fourth, of the amount payable under section 6 as contribution by the employer as well as the employee as may be specified in the Family Pension Scheme; (b) such sums as are payable by the employer of an exempted establishment under sub- section (6) of section 17; and (c) such sums, being not less than the amount payable in pursuance of clause (a) out of the employer's contribution under section 6, as the Central Government may, after due appropriation made by Parliament by law in this behalf, specify. The remaining part of the section are not relevant for the consideration of the issues before us. 14. The remaining part of the section are not relevant for the consideration of the issues before us. 14. Paragraph 76 of the Employees' Provident Funds Scheme states as follows: “If any person- (a) fails to pay any contribution which he is liable to pay under this scheme, or (b) deducts or attempt to deduct from the wages or other remuneration of a member the whole or any part of the employer's contribution, or (c) fails or refuses to submit any returns, statement or other document required by this Scheme or submit a false return, statement or other document, or makes a false declaration, of (d) obstructs any Inspector or other Official appointed under the Act or this scheme in the discharge of his duties or fails to produce any record for inspection by such Inspector or other official, or (e) is guilty of contravention of or noncompliance with any other requirement of this Scheme, he shall be punishable with imprisonment which may extend to six months or with fine which may extend to one thousand rupees, or with both. 15. Paragraph 36 deals with the duties of the employers. Sub-paragraph (1) of paragraph 36 enjoins the employer to send to the Commissioner, within fifteen days of the commencement of this scheme, a consolidated return in such form as the Commissioner may specify of the employees required or entitled to become members of the Fund showing the basic wage, retaining allowance (if any) and dearness allowance including the cash value of any food concession paid to each of such employees. Sub-paragraph (2) with which we are concerned says that every employer shall send to the Commissioner within fifteen days of the close of each month a return: (a) in Form 5 of the employee qualifying to become members of the Fund for the first time during the preceding month together with the declarations, in Form 2 furnished by such qualifying employees; and (6) in such form as the Commissioner may specify, of the employees leaving service of the employer during the preceding month. 16. The gravamen of the charge against the revision petitioners in all these cases except one is that they failed to submit the returns in Form Nos. 5, 10 and 12 as required under sub-paragraph (b) of paragraph 76 of the Employees' Provident Funds Scheme for various months. 16. The gravamen of the charge against the revision petitioners in all these cases except one is that they failed to submit the returns in Form Nos. 5, 10 and 12 as required under sub-paragraph (b) of paragraph 76 of the Employees' Provident Funds Scheme for various months. The question is whether such an offence is a continuing offence. Unfortunately, the Act itself does not define what a continuing offence is. But the expression ‘continuing offence’ has however acquired a well-recognised meaning in criminal law and as has been observed in State v. Bhiwandiwallaif an act committed by an accused person constituted an offence and if that act continued from day to day, then from day to day a fresh offence is committed by the accused so long as the act continues. Normally and in the ordinary course an offence is committed only once. But there may be offences which can be committed from day to day and it is offences falling in this latter category that are described as continuing offences. In every case of a continuing offence it may be possible to describe the default as amounting to an omission or to a positive act on the part of the defaulter. Hence the distinction between a default which consists in failure to comply with a direction to do a positive act may not be very helpful in determining the character of a continuing offence.” In that case the offences complained of were failure to apply for the registration of a factory and for grant of licence and failure to give a notice of occupation under Factories Act read with the Bombay Factories Rules. It was held that the failure to apply for the registration of the factory and to give a notice of occupation was not a continuing offence but that the conduct of the accused in using the premises as a factory without obtaining a licence constituted a continuing offence and as such no bar of limitation under section 106 of the Factories Act could be pleaded in respect of that charge. The learned Judges of the Bombay High Court have referred to the decision in Bhchartas v. Emperor where it was held that the failure to remove a building in respect of which a person has been convicted under section 123 (7) or section 118 (4) of the Bombay City Municipalities Act was not a continuing contravention and in dealing with the question of limitation the Bench took the view that limitation for the prosecution for a continuing offence runs from the time when the offence is first committed, or, where the offence consists in failure to remove the building after conviction from the date of the conviction which view, however, was dissented from in Emperor v. Karasandas Govindji where it was held that the establishing of a factory without permission is an offence committed once and for all when the factory is established, but that the working of a factory without permission is an offence which arises on every day on which the factory is so worked and hence section 514 of the City of Bombay Municipal Act, can be no bar to a charge in respect of working the factory without permission. The decision in State v. Babu Gulah Mahamed and the decision in State of Bombay v. Devaraj Tulsihave also been considered by the Division Bench in State v. Bhiwandiwalla. The Division Bench however would not subscribe to the view expressed by Bhagawati, J., in State of Bombay v. Devaraj Tulsi. That view as expressed by Bhagwati, J., was as follows: “….it is a misnomer to say that fresh offences, are committed at each period of time when particularly the non-compliance of the order which constitutes the offence is the omission to do an act which has been ordered to be done.” Bhagwati, J., was of the view that where a positive act is ordered to be done, a case or cases may arise where by reason of the breach of the terms of the order you might have commission of a series of offences from day to day. The Division Bench in State v. Bhiwandiwallahowever commenting on that view has observed as follows: “With respect, the distinction which these observations seems to bring out between a default which consists of an omission to do an act and a default which consists in failure to comply with a direction to do a positive act may not be very helpful in determining the character of a continuing offence.” We are in respectful agreement with this view of the Devision Bench. 17. The Division Bench further referred to the decision in public Prosecutor v. Veerabhadrappa where it was held that failure to complywith the provisions of section 14 of the Factories Act is a continuing offence and agreed with the view therein. 18. In Md. Hussain Bhai & another v. State Krishnan, J., of the Madhya Pradesh High Court held that the failure to pay up the contributions and to submit returns, for which the punishment is laid down in paragraph 76 (a) and (c) of the Scheme, is a continuing wrong. He further observed that while fixing of a date may mean that the employer should pay into the fund and send to the Commissioner the returns by that date, it does not mean that once the date is passed, the employer is relieved of his duty and there is nothing more to be done, and, therefore, even if the provisions penalising the default were supposed to come into force after the date so fixed for payment into the fund or for sending in the return, the offence being continuous would fall within the scope of the penal provisions. In that case the accused persons had failed to comply with paragraph. 38 of the Scheme and thereby committed an offence punishable under paragraph 76 (a) and (c) of the Scheme. In that case the accused persons had failed to comply with paragraph. 38 of the Scheme and thereby committed an offence punishable under paragraph 76 (a) and (c) of the Scheme. Krishnan, J., referred to the decision in G.B. Dhattar v. State where it was observed as follows: “The question whether an illegal omission is a continuing offence or not, can hardly be answered in a summary manner without considering the nature of the duty imposed, and the object which the legislature had in view in imposing the duty… The pithead baths and the mines creches are amenities required by the legislature, the first for the sanitation and health of the minors and the second for the proper care of the children of female minors… without these, the minors could not be expected to preserve their health, and children of the female minors could not be properly looked after. The mere fact, therefore, that the specified date within which the baths and the creches were required under the rules to be constructed expired, cannot possibly mean that the duty of the owner ended with the expiry of the date. That duty still remains. It continues till the pithead baths and the creaches are constructed as required by the rules. A continuing wrong or a continuing offence is, after all, a continuing breach of a duty which itself is continuing. If a duty continues from day to day, the nonperformance of that duty from day to day is a continuing wrong.” With great respect, we are of the view that this definition of a continuing wrong or a continuing offence lays down the proper test which should be adopted in determining the question as to whether a particular wrong or an offence is a continuing one. Krishnan, J., then went on to observe as follows: “The creation of the Employees' Provident Fund and the fixing of the contributions of the employees and the employer was for the purpose of the welfare of the employees. The mere fact that the 15th of the month next after the one for which the contributions were due, expired, has not, in any manner, terminated the duty of the employer to pay in the contributions to the fund and send the return to the Commissioner. The mere fact that the 15th of the month next after the one for which the contributions were due, expired, has not, in any manner, terminated the duty of the employer to pay in the contributions to the fund and send the return to the Commissioner. It is a duty created by the statute and continues day after day till, of course, the payment is made and the returns are the mitted. It is, therefore, obvious that sub failure to pay up contributions and to submit the returns was a continuing wrong.” 19. In Pankaja Mills Lta. v. N. Sivaramakrishna Iyer Natarajan, J., while referring to the said observations of Krishnan, J., has merely observed that he was unable to agree with the contentions of the Public Prosecutor who relied on the aforesaid decision, and he observed as follows: “It is very difficult to hold that the offences complained of against the petitioners in the several cases can be held as continuing offences. Since the contributions and charges had to be paid under the Act or the Schemes on the 15th of the month next after the one for which, the contributions or charges were due to the offences become completed as soon as the contributions or charges were not remitted within the stipulated time. There is nothing in the Act or the Schemes to show that the non-payment continued to be a recurring offence with each passing day. If the Legislature had intended that defaults committed byemployees would be continuing offences then that would have been clearly indicated in the Act or the schemes.”