Judgment :- 1. Accused No.1 to 6 in C.C.No.382 of 1989 on the file of Judicial Magistrate No.VI, Tirunelveli, have filed this petition under Sec.482, Crl.P.C, praying to call for the records in the aforesaid case and quash the same. 2. The respondent has filed the complainant against the petitioners, arraying them as accused 1 to 6 for offence under Sec.85(a) punishable under Sec.85(1) of the Employees State Insurance Act, 1948. The allegations in it are briefly as follows: M/s.Industrial Chemicals and Monomers Ltd., is situated at No.145, Madurai Road, Sankar Nagar, Tirunelveli. Accused 1 to 5 are the Directors and Accused No.6 is the General Manager of the same. The employers contribution payable to the Corporation for the month of September, 1988 was not paid within the time limit laid down under Regulations 31 of the Regulations. Consequently prosecution was launched after complying with the requisite formalities. 3. The learned counse, appearing for the petitioners, would contend that Kasi Viswanathan, Executive Director who has been named as the ‘occupier’ of the factory alone will be liable ‘to be proceeded with and the petitioners herein cannot be proceeded with. Per contra, Mr.P.Rajamanickam, the learned Public Prosecutor appearing for the respondent, would contend that, on the allegations made in the complaint, offences against the petitioners, as alleged, are made out and as such, the complaint cannot be quashed. 4. The learned counsel for the petitioners stated that in Crl.M.P. No.9148 of 1988, in respect of the very same M/s.Industrial Chemicals and Monomers Ltd., the very same respondent has filed complaint in C.C.No.199 of 1988 in the trial Court for the very same offences viz., under Sec.85(a) of the Employees’ State Insurance Act, 1948 for nonpayment of employers contribution for the month of March, 1988 and it was quashed by this Court on the ground that Kasi Viswanathan, the Executive Director, has been shown as the person in whose favour licence is to be renewed was having ultimate control over the affairs of the factory for the year 1988 and that as ‘Occupier’ he alone can be proceeded with and not other Directors who cannot at all be construed to fall within the definition of ‘principal employer’. In the case before me, in para 5 of the complaint, it is alleged as follows: “That the above named accused No.1 to 5 being the Directors and No.6 being the General Manager are the Principal Employers of the said Establishment as per provisions of the Act.” The above would show that accused 1 to 5 are termed as ‘Principal employers since they happened to be Directors and accused No.6 is considered as a ‘Principal Employer’ since he is the General Manager. In the typed set, filed along with the petition, the copy of application for renewal of licence for the year 1988 and notice of occupation specified in Secs.6 and 7 is filed. In column 4 against the heading “Particulars of the Occupier of the factory who has ultimate control over the affairs of the factory and in whose name the licence is to be issued.” the name of Sri K.S.Kasi Viswanathan is given, Evidently only this has been referred to by my Learned Brother Justice Janarthanam in Crl.M.P.No.9148 of 1988 while he has stated as follows: “An application for the renewal of licence and notice of occupation specified in Sec.6 and 7 of the said Act, is to be filed in the form prescribed. There is no dispute at all that such an application had been filed for the year 1988 by the said company in which Sri Kasi Viswanathan, the Executive Director (accused-2) had been shown as the person, in whose favour licence is to be renewed, as having ultimate control over the affairs of the factory.” The non-payment of the Employers contribution in this complaint is for September, 1988 which is also in the year 1988. On the strength of the above application for the earlier period, viz., March, 1988, since only Sri Kasi Viswanathan had been shown as the person having ultimate control over the affairs of the factory, the prosecution against the other Directors was quashed on the same reasoning, prosecution against the petitioners herein is also liable to be quashed. On the strength of the above application for the earlier period, viz., March, 1988, since only Sri Kasi Viswanathan had been shown as the person having ultimate control over the affairs of the factory, the prosecution against the other Directors was quashed on the same reasoning, prosecution against the petitioners herein is also liable to be quashed. Justice Janarthanam was also referred to the decision of the Supreme Court in E.S.I. Corporation, Chandigarh v. Gurdial Singh Corporation, 1991 Lab.I.C. 52 wherein a question, similar to the one that is now posed in the instant case, came up for consideration and their Lordships took the view that excepting the person named as ‘Occupier’ of the factory the other Directors cannot at all be construed to fall within the definition of ‘Principal Employers’ and on such view, it was held the penal consequences under Sec.35(a) of E.S.I. Act, cannot be directed against the other Directors. Mr.P.Rajamanickam would rely on the ruling in Dhanalakshmi v. Prasanna Kumar, A.I.R. 1990 S.C. 494 wherein it was held that if specific allegations were made in the complaint, disclosing ingredients of an offence quashing of proceedings is illegal. But in a case, if the very foundation of the prosecution is shaken because of the wrong application of the Act against certain persons, that can always be quashed at the outset. In G.Ramaswamy Moopanar v. Employees State Insurance Corporation, 1990 L.W. (Crl.) 414 my learned brother Arunachalam has formulated the common question arising in those cases as follows: “Where the Director of a company or the partner of a firm be prosecuted as a ‘principal employer’ falling within the fold of Sec.2(17) of the Act.” After referring to the decisions of various High Courts, the learned Judge has answered the question formulated, as follows: “The Director of a Company ora Partner of a firm, by virtue of being a Director or a partner, is not a principal employer, contemplated by ec.2(17) of the Employees’ Slate Insurance Act. He is not personally liable to pay the employers contribution under the Act. The Act contemplates as immediate employer’ and the ‘principal employer’ but when the definition ‘principal employer’ refers to the ‘owner’ or ‘occupier’ of a factory, it is apparent that the principal employer can either be the owner or the occupier, depending upon the facts of each case. He is not personally liable to pay the employers contribution under the Act. The Act contemplates as immediate employer’ and the ‘principal employer’ but when the definition ‘principal employer’ refers to the ‘owner’ or ‘occupier’ of a factory, it is apparent that the principal employer can either be the owner or the occupier, depending upon the facts of each case. The word, ‘or’ must be read disjunctively and cannot be read as ‘and’, because such a reading is bound to introduce an uncertainty, in fastening the obligation, to deduct and pay the employers contribution as well as the employees’ contribution. The concept appears to be, that the person liable is one, who has ultimate control over the affairs, of the factory”. I respectfully agree with the above view. Hence this petition deserves to be allowed. 5. In the result, the petition is allowed and the proceedings against the petitioners in C.C.No.382 of 1989 on the file of Judicial Magistrate No. VI, Tirunelveli, are hereby quashed.