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1986 DIGILAW 290 (CAL)

S. K. GHOSH v. STATE

1986-07-10

L.M.GHOSH

body1986
LILAMOY GHOSH, J. ( 1 ) A complaint was filed before the learned Magistrate, for violations of the provisions of the Employees State Insurance Act and some of regulations there under. Shortly speaking the allegation in the petition of complaint was that the accused Nos. 1 and 2 were offenders for no submitting C and A sets of cards within the statutory period. The accused No. 1, who is the petitioner No. 1 here, filed an application for dismissal of the complaint on certain grouilds. The learned Magistrate, 1st Court. Sealdah, dismissed that application of the accused No. 1 for dismissal of the petition of complaint. Against that order of the learned Magistrate dated 7. 8. 80, the petitioner No. 1 has filed this revisional application. It may be noted that petitioner No. 1 who was the accused No. 1, has only moved this court. The accused No. 2 has not come up before this Court. ( 2 ) MR. Mrinmoy Bagchi, the learned advocate appearing for the petitioner has submitted that the complaint cannot lie against the petitioner No. 1, as he is not an employer within the meaning of Regulation 2 (g) and section 2 (17) of the E. S. I. Act. His second point has been that the calculation of the periods for submission of the sets of cards, is also entirely misconceived. His third submission has been that a part of the case is barred by limitation. Mr. Tapas Midya, the learned advocate appearing for the State has submitted that this revisional application cannot itself be entertained, as the E. S. I. being a corporation, has not been impleaded as a party. ( 3 ) THE preliminary point as to whether the revisional application itself is competent is to be disposed of first. It appears that this contention of Mr. Midya for the State cannot be upheld. In the revisional application the State of West Bengal has been made a party. The E. S. I. is under the State of West Bengal Therefore, the State of West Bengal itself can represent all concerned. Moreover, in a revisional application, the court can suo motu look into the record and quash a proceeding, if some patent illegality is found. Last of all, by reason of section 403 of the Cr. P. C. , the revisional court is not obliged to give a party right of hearing. Moreover, in a revisional application, the court can suo motu look into the record and quash a proceeding, if some patent illegality is found. Last of all, by reason of section 403 of the Cr. P. C. , the revisional court is not obliged to give a party right of hearing. For al these reasons, I find that the revisional application itself cannot fail. There fore, it is now necessary to turn to the points raised by the learned advocate for the petitioner ( 4 ) THE first point for, the petitioner has been that under Regulation 26 of the Employees State insurance Regulations, an employer being in possession of a contribution card in respect of any person shall send it by registered post or messenger, together with a return in duplicate inform 6 to the appropriate office within a certain period. So the obligation is on the employer to send the respective contribution cards. Now under Regulation 2 (g), employer means the principal employer as defined in the Act. Principal employer has been defined in section 2 (17) of the Act. Under that provision, principal employer means any factory, the owner or occupier of the factory and where a person has been named as the Manager of the factory under the Factories Act, 1948, the person so named. Now in the petition of complaint (Annexure A), the accused No. 2, Shri A. Mitra, has been described as the factory manager. So the accused No. 1, who is the petitioner before me cannot be the principal employer, and, for that matter, the employer liable to return the cards. No case against him, therefore, lies. The Revisional application should succeed on that ground alone. ( 5 ) BUT there are yet other grounds. It appears that the calculation of the periods, in respect of which the relevant cards are to be submitted, is itself wrong. Regulation 4 sets out the contribution period. It appears that for A sets the periods are January to July and July to January. For C sets, the period is Mat to November and November to May. The periods set-forth in paragraph 6 of the petition of complaint are 31-3-75 and 26-7-75. The word respectively is absent, but not minding this grammatical omission it can be taken that 31-3-75 relates to C sets and 26-7-75 relates to A sets. For C sets, the period is Mat to November and November to May. The periods set-forth in paragraph 6 of the petition of complaint are 31-3-75 and 26-7-75. The word respectively is absent, but not minding this grammatical omission it can be taken that 31-3-75 relates to C sets and 26-7-75 relates to A sets. That can never be, as demonstrated by the table of Regulation 4. The complaint against the petitioner cannot lie. ( 6 ) IT also appears that a part of the petition of complaint is barred by limitation. Under section 86 (3) of the E. S. I. Act, complaint h to be filed within six months from the date on which the offence is alleged to have been committed. The petition of complaint was filed on 23/12/1975. According to paragraph 6 of the petition of complaint, one period expired on 31/3/1975. Adding 42 days thereto it is found that the complaint was filed after the expiry of six months. ( 7 ) FOR all these reasons the order of the learned Magistrate cannot be sustained. The revisional application is allowed. The order of the learned Magistrate dated 7/8/1980, refusing to dismiss the petition of complaint so far as the petitioner as concerned is quashed. The rule is made absolute. Revision allowed.