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Calcutta High Court · body

1985 DIGILAW 257 (CAL)

Kalika Press v. State

1985-06-26

GOBINDA CHANDRA CHATTERJEE, N.G.CHAUDHURI

body1985
ORDER These four cases namely Criminal Revision Cases No 852, 853 884 and 885 of 1981 have arisen out of similar petitions under Ss 397, 401 and 482 of the Criminal Procedure Code, 1973 (hereinafter to be referred to as the Code) filed by the same set of petitioners; and they are directed against orders dated 20.4.81 passed in Criminal Appeals No. 34, 33, 32 and 31 of 1980 respectively by the learned Chief Judge, City Sessions Court, Calcutta affirming the judgment of conviction and sentence rendered against the petitioner in Cases No C 2362, 2363, 2364 and 2365 of 1977, respectively. by the lea rood Metropolitan Magistrate and Court, Calcutta. The aforesaid Cases arose out of four petitions of complaint filed on 263.77 by an Inspector under the Employees Provident Funds and Family Pension funds Act, 1952, (hereinafter to be referred to as the Act) In the complaints allegations of commission of offences by the petitioners under S 14(2), Ss. 14A(1) and 14A(2) of the Act read with paragraph 76(b) of the Scheme framed under the Act by non-performance of their statutory and obligatory duties for 'he months of September, October, November and December, 1976, were made The complainant alleged previous conviction of the petitioners for the same offence in Cases No. 527 and 528 of 1975 and preyed for enhanced punishment under S. 14AA of the Act in the event of the petitioner conviction. The courts below have found concurrently that the petitioners committed offences as alleged and they were previously convicted of the same offence. Each of the petitioners including petitioner No.1 Kalika Press (p) Ltd.; and artificial person, has been sentenced of three months S.I and fine of Rs. 250, in default to S.I for one month in each case. In view of a single trial for the same offence in four cases and of Ss. 31 and 427 of the Code, the courts below should have clarified if the sentences were to run concurrently or consecutively. But that has not been done. For reason of convenience we have heard the four cases together. 2. Mr. Pradip Ghosh the learned advocate for the petitioners contended that the conviction was illegal and was bases on insufficient evidence. His further contention was that previous conviction “for the same offence” for which the present persecutions were instituted was not proved. Mr. Amjad Ali, the learned advocate for the respondent. 2. Mr. Pradip Ghosh the learned advocate for the petitioners contended that the conviction was illegal and was bases on insufficient evidence. His further contention was that previous conviction “for the same offence” for which the present persecutions were instituted was not proved. Mr. Amjad Ali, the learned advocate for the respondent. However, supported the concurrent findings of the two courts valiantly. 3. For proper understanding of the allegations made against the petitioners and capacity in which they committed the offence we looked into the petitions of complaint major portions of which is printed. We note with regret that portions of the complaint which had no relevance or applicability to the fact and circumstances under consideration were not scored out. According to S.1 sub-s. (3) the Act applies to establishment which are factories (Clause (4) and to other establishment Clause (b). The classification of establishment in two categories in important because under S. 2(e) of the term “Employer” in relation to two different kinds establishment will main two different sets of persons. For correct determination as to who were the employers a statement in the petition of complaint is necessary as to which kind of establishment petitioner No.1 belonged to. Such a statement has not been made. The point has neither been clarified in course of the deposition by prosecution witnesses. In the revision petitions it has been admitted that petitioner No.1 is a factory. Even then the employers in relation to the said factory were required to be mentioned in the complaints. Employers are required to submit under paragraph 36A of the EPF Scheme, 1952 particulars of ownership in Form 5A. We do not know if such form was obtained in respect of petitioner No.1 or anybody interested in the prosecution, cared to go through the above form. Our point is that is spite of material available the complainant did not state in the complaint who were employers in relation to petitioner No.1. 4. “Employer” has a very important role to play under the Act and connected scheme. In para 4 of the complaint reference to S.6 of the Act has been made which requires “employer” to pay contributions. Similarly reference to paragraphs 36 and 38 of the Scheme of 1952 has been made which impose duties exclusively on “employers”. 4. “Employer” has a very important role to play under the Act and connected scheme. In para 4 of the complaint reference to S.6 of the Act has been made which requires “employer” to pay contributions. Similarly reference to paragraphs 36 and 38 of the Scheme of 1952 has been made which impose duties exclusively on “employers”. In para 5 of the complaint reference has been made to paragraphs 9, 10 and 39 of the Scheme of 1971 and those paragraphs indicate that they relate exclusively to “employer” Default on the part of employer has been pleaded in paragraph 6 of the complaint and his relate to non-discharge of duties case on “employer” under the Act and the Schemes. In paragraph 7 of the complaint reference has been made to para 76(b) of the Scheme of 1952 which is attracted in cases of non-discharge of duties case upon the employer under paragraph 36. 5. Reference has also been made to the penal section of the Act, namely S. 14(1A) and 14(2) ; Section 14(1A) defines offences for “employer” and S.14(2) read with paragraphs 76(b) and 38 aforesaid relate to “employer” only. Further reference has been made to S.14A(1) of the Act which applies to an offending Company and every person in charge of and responsible to the company for the conduct of its business at the time the offence under consideration was committed. For attracting S.14A(1) of the Act it was necessary to allege in the complaint that a company as defined in Explanation 1 to S. 14A(2) of the Act had committed an offence and also the manner of such commission but in the complaints no such statement has been made although in para 3 of the complaint with reference to petitioner No.2 and 3 the words used in S.14A(1) have applied. 6. The substance of the prosecution case, as far we understand, was that duties case to employers by the under the Act and the Schemes framed thereunder were not strictly discharged and as such the petitioners having committed offence were prosecuted. We note, however, that the nexus between the non-performance of duties by the employer and prosecution of the petitioners has not been clearly spelt out Neither in the complaints nor in evidence it has been explained how the petitioners come within the category of “employers” to deserve punishment under the Act. We note, however, that the nexus between the non-performance of duties by the employer and prosecution of the petitioners has not been clearly spelt out Neither in the complaints nor in evidence it has been explained how the petitioners come within the category of “employers” to deserve punishment under the Act. The learned Magistrate has observed that there was no dispute that petitioner No.2 was the Managing Director and petitioner No.3 was the Director of petitioner No.1 and this was admitted in course of their examination under S. 313 of the Code. From the above the concluded that they were “employers” as provided in S. 2(e)(ii) of the Act. To our mind the conclusion is untenable. Section 2(e)(ii) applies to establishments other than factories whereas in the present case we have materials to permit an inference that the offending establishment was a factory attracting S.2(e)(i) Further in the complaint and in Course of the deposition of the prosecution witnesses the words "has the ultimate control over the affairs of the establishment” have not been applied to the petitioner No.2 and 3 The expressions used, with reference to petitioner No.2 and 3 in the complaint have been quoted from S 14A(1) of the Act, which are some what different from those used in S 2(e)(ii). 7. For the reasons discussed above we conclude that for bringing the offences home to the petitioners it was incumbent on the pert of the complainant to allege and prove that petitioner No. 1 as a company was employer under S.2(e)(i) of the Act and having failed to discharge its statutory duties the company committed offences as alleged; and in consequence three petitioners No. 2 and 3 became culpable under the provisions of S 14A(1) of the Act. The complainant did not do that. So we arrive at the conclusion that the conviction of the petitioners is untenable. 8. The view of our as noted above may appear technical leading to frustration of the aims and objects of a labour welfare legislation. So we note that the complainant himself was very technical. Admittedly defaults were made in the months of September, October, November and December, 1976 From the evidence of P.W.2 in case No. 2365/77 it transpires that the payments were made by petitioner No.1 on 11.3.77. Even then the complaints were filed on 26.3.77. 9. So we note that the complainant himself was very technical. Admittedly defaults were made in the months of September, October, November and December, 1976 From the evidence of P.W.2 in case No. 2365/77 it transpires that the payments were made by petitioner No.1 on 11.3.77. Even then the complaints were filed on 26.3.77. 9. In view of our finding that the conviction in the present case is untenable and incorrect we are not called upon to consider the question of previous conviction of the petitioners and its bearing on the prosecution under consideration. Still entering into the question we notice that S. 14AA of the Act provides for imposition of enhanced punishment if the person prosecuted was convicted previously of the “same offence” We have discussed the nature of offences alleged against the petitioners. We will only highlight that there was no allegation that the petitioners committed any offence under S.14 (2A) of the Act. To satisfy himself as to the petitioners previous conviction the learned Magistrate referred to the order passed in case No. C527/30 of 1975, 6th Court of Metropolitan Magistrate, Calcutta as shown by Ext, 4 in his judgment. Reference to the above cases has been made in paragraph 10 of the petition of the complaint. Looking into Ext. 4, however, we find that the cases as explained to the accused petitioner prior to their examination under S. 251 of the Code was one under S. 14(2)(a) of the Act. The said section is repeated again in the order portion where the learned Magistrate noted “each of the accused persons is found guilty under S.14 (2)(a) of the Act and they are convicted thereunder”. The previous conviction was, therefore, under S. 14(2)(A) of the Act for which there was no prosecution in cases under our consideration. We add that we have interpreted the word “same offence” used in S.14 (AA) of the Act to mean the same kind of offence; although the said expression means generally the identical offence in point of time and place, in which sense it has been used in S. 300 of the code. The conclusion therefore is inescapable that the present persecution of the petitioners was not for the “same offence” for which they were convicted previously and in the result S. 14(AA) of the Act was not attracted. 10. The conclusion therefore is inescapable that the present persecution of the petitioners was not for the “same offence” for which they were convicted previously and in the result S. 14(AA) of the Act was not attracted. 10. We conclude accordingly that the courts below acted illegally in interpreting the petitions of complaint and in considering the evidence in support thereof and in consequence the courts arrived at illegal and untenable conclusion and passed wrong orders of conviction and sentence. We, therefore allow the revision applications make the Rules issued absolute, set aside the orders of conviction and sentences passed against the petitioners and quash the proceedings altogether. This order will govern all the four Criminal Gobindra Chandra Chatterjee, J : I agree. Rule made absolute.