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2005 DIGILAW 2613 (RAJ)

Noor Mohd. v. E. S. E. C. Jaipur

2005-09-29

RAJESH BALIA

body2005
Judgment Rajesh Balia, J.-Heard the learned Counsel for the petitioner as well as the learned Public Prosecutor. 2. Petitioner Noor Mohammed and two other partners viz. Sarvashri Immamudin and Mohd. Shafi of M/s United Felt Manufacturers, Amer Road, Jaipur were prosecuted under Section 85 (a) (e) and (g) of the Employees State Insurance Act, 1948. Shri Immamudin died during the pendency of the trial and the trial against him has abated. 3. The petitioner No. 1, Shri Noor Mohd. is also stated to have died during the pendency of the revision, and therefore, the proceedings initiated against him have also abated. The petition now survives to be considered only on behalf of Mohd. Shafi. 4. The complaint was filed in the Court of Chief Judicial Magistrate, Jaipur City, Jaipur on 07.03.1979 against the aforesaid three partners of M/s United Felt Manufacturers alleging that factory of the aforesaid firm was covered under the Act of 1948 and regulations of 1950 framed thereunder. Under Section 40 (1) of the ESI Act, 1948 and Regulations 26 and 31 of ESI (General) Regulations, 1950 every principal employer of a factory is required to pay contribution within 21 days of the last date of the wage period in which the contribution falls due and also to submit contribution cards duly affixed with contribution stamps in Set A, B and C accompanied with return of contribution cards in Form 6 within 42 days at the end of contribution periods at the Regional Office of the Rajasthan Region of the Employees State Insurance Corporation. On this premise it was alleged that inspite of repeated reminders issued by this office, the accused have not made the statutory compliance within the statutory time limit. Similarly, contribution cards of set B for the contribution period ended on 30.09.1978 which should have been submitted latest by 11.1978 have not been submitted by the accused. Consequently, the principal employers were alleged to have committed breach of Section 40 of the ESI Act and Regulation 28 of the General Regulation, 1950 which made the partners punishable under Section 85 (a), (e) and (g) of the Act of 1948. 5. Consequently, the principal employers were alleged to have committed breach of Section 40 of the ESI Act and Regulation 28 of the General Regulation, 1950 which made the partners punishable under Section 85 (a), (e) and (g) of the Act of 1948. 5. It appears from the Judgment under appeal as well as of the trial Court that the defence taken by the principal employers was that coverage of the factory under the Act of 1950 having not in dispute long time before the alleged breaches and during the period in question the factory was closed, and therefore, no contribution were required to be deposited with the Corporation for that period and secondly the relevant record in respect of the evidence for the period in question was washed away during the floods of 1981. The accused also took the plea of lack of requisite show cause notice before alleged complaint had not been served on them. 6. On behalf of the ESI Corporation, the Deputy General Manager, Lekraj was produced as witness. Exhibits P/2, P/3 and P/4 were also produced. 7. The learned trial Court found that no evidence in respect of defence plea was produced by the accused persons nor any information about the closure of the factory was sent to the Corporation and that the notices were duly served is apparent from Exhibit P/2, P/3 and P/4. In view of the aforesaid findings, the offence against accused persons was found to have been proved and all the accused persons before the learned trial Court were convicted under Section 85 (a), (e) and (g) of the ESI Act, 1948. Under Section 85 (a) each one was sentenced to one months Simple imprisonment with a fine of Rs. 1,000/-and in default of payment of fine to further undergo one month S.I. For the offence under Section 8 (e) and (g) each of the accused was sentenced for one month S.I. with a fine of Rs. 500/-each and in default of payment of fine to further undergo S.I. of 15 days each. 8. On appeal, by its order dated 05.01.1994, the learned Additional Sessions Judge and Special Judge, (Essential Commodities Act), Jaipur dismissed the appeal agreeing with the reasoning given by the trial Judge. Hence, this petition. 9. 500/-each and in default of payment of fine to further undergo S.I. of 15 days each. 8. On appeal, by its order dated 05.01.1994, the learned Additional Sessions Judge and Special Judge, (Essential Commodities Act), Jaipur dismissed the appeal agreeing with the reasoning given by the trial Judge. Hence, this petition. 9. It is the case of the petitioner that burden of proving that the petitioner was guilty of committing breach of the provisions of the Act of 1948 and Regulation of 1950 was on the Prosecuting Agency and no inference could have been drawn against him simply because of non production of any evidence in defence, if the prosecution has failed to prove its case. From evidence of prosecution itself , the petitioners case his highly probabilise. Both the Courts below have seriously erred in not keeping in view the aforesaid basic principle which has not been altered by the statutory provision while conducting the criminal trial. It was contended that firstly there is no proof on record that the Exhibits P/3 and P/4, the alleged notices, found by both the Courts below to have been served on the petitioner, were ever served on them though it was a specific defence taken by the petitioner that during the period in question for which breach of provisions of Act of 1948 and Regulation 1950 are alleged, is highly probabilise by the evidence produced by the prosecution and both the Courts below have failed to notice the same. It was pointed out by the learned Counsel that the principal employer has taken the specific plea about the closure of the factory during the period in question. The alleged notices issued inviting show cause against alleged violation of Section 40 read with Regulation 26, provides for a column of the amount of contribution due, period for which the amount has not been paid and returns have not been filed in the form of returns and other documents required to be filed under Section 40 read with Regulation 26. Those documents clearly show that no amount has been shown to be due against the firm for which the required documents furnishing proof of payment of documents were needed to be filed by the applicant. Those documents clearly show that no amount has been shown to be due against the firm for which the required documents furnishing proof of payment of documents were needed to be filed by the applicant. The learned Counsel urges that prosecution has failed to prove that notices have ever been served and the alleged notices issued in a format do not disclose information required to be disclosed viz. the amount of contribution, payment of which has not been evidenced by filing the periodical returns. It shows that the factory in question was in all probability, closed, and therefore, no amount was found to be due and the oral testimony contrary to it is highly unsatisfactory. If any contributions were not required to be paid during the period factory was closed, obviously, there would be no requirement for filing the proof of payment of such contributions. Therefore, according to the learned Counsel because of not taking the proper view of the law and fact about the burden of proof as well as about probabilising the defence from the evidence of the Prosecutor itself , the orders under challenge suffer from serious illegality and cannot be sustained. 10. The learned Public Prosecutor urged that two Courts have recorded findings of fact which are not required to be interfered in revisional jurisdiction. Moreover, the case of the prosecution has been proved by the documents as well as oral evidence, having not been rebutted by the petitioner, hence no case is made out. 11. To understand the controversy, it is apposite to refer to the requisite provisions, breach of which has been alleged. Section 40 of the Act of 1948 reads as under: Principal employer to pay contributions in the first instance.-(1) The principal employer shall pay in respect of every employee, whether directly employed by him or by or through an immediate employer, both the employers contribution and the employees contribution. Section 40 of the Act of 1948 reads as under: Principal employer to pay contributions in the first instance.-(1) The principal employer shall pay in respect of every employee, whether directly employed by him or by or through an immediate employer, both the employers contribution and the employees contribution. .(2) Notwithstanding anything contained in any other enactment but subject to the provisions of this Act and the regulations, if any, made thereunder, the principal employer shall, in the case of an employee directly employed by him (not being an exempted employee), be entitled to recover from the employee the employees contribution by deduction from his wages and not otherwise: Provided that no such deduction shall be made from any wages other than such as relate to the period or part of the period in respect of which the contribution is payable, or in excess of the sum representing the employees contribution for the period. .(3) Notwithstanding any contract to the contrary, neither the principal employer nor the immediate employer shall be entitled to deduct the employers contribution from any wages payable to an employee or otherwise to recover it from him. .(4) Any sum deducted by the principal employer from wages under this Act shall be deemed to have been entrusted to him by the employee for the purpose of paying the contribution in respect of which it was deducted. .(5) The principal employer shall bear the expenses of remitting the contributions to the Corporation. 12. Section 40 inter alia provides that the principal employer shall pay in respect of every employee, whether directly employed by him or by or through an immediate employer, both the employers contribution and the employees contribution. Regulation 26 provides for return of contributions to be sent to appropriate office in Form 6 along with copies of challans for the amounts deposited in the Bank by registered post or messenger, in respect of all employees for whom contributions were payable in a contribution period, so as to reach that office within 42 days of the termination of the contribution period to which it relates; within 21 days of the date of permanent closure of the factory or establishment as the case may be, within 7 days of the receipt of requisition in that behalf from the appropriate office. Regulation 31 of the Regulation, 1950 provides that an employer who is liable to pay contributions in respect of any employee shall pay those contributions within 21 days of the last days of the calendar month in which the contributions fall due. 13. These two provisions make out difference in period when payment of contribution becomes due and reaching of the return to the office of Regional Manager, ESI evidencing such payment. Obviously, in the complaint, there is no allegation about breach of Regulation 31 against the petitioner that he has not paid the contribution in time provided under Regulation 31. 14. Exhibit P/2 is alleged to be the show cause notice dated 30.11.1979. In the Schedule, in the last column “amount of contribution due” does not disclose any amount which is due, it merely gives the date on which the contribution period ended and two sets viz. set (C) and (A) have not been submitted until issue of notice. Exhibit P/2 is not a show cause notice against the removal of defects but a show cause notice against one of the principal employer as to why he should not be prosecuted for the said offence. Exhibit P/3 is the sanction memorandum and is not a show cause notice. Exhibits P/4 and P/5 have been alleged acknowledgment receipts either of which does not bear the signature of any of the partner Firm, Noor Mohd. or Immamuddin or Mohd. Shafi. It bears the signature of some Narain Singh. How he is related to firm and had the service of notice on accused persons have been presumed is not at all disclosed to find that said documents were even served on any of the partners or any responsible person on behalf of the firm. 15. In this connection, the statement of only witness Lakh Raj reveals that Annex. P/2 the alleged show cause notice, bears no dispatch number by any person and does not even really show whether it has actually been dispatched. Postal receipt is stated to be in the dispatch register which has not been produced. He states that in Exhibit P/2, the amount due has not been shown. 16. P/2 the alleged show cause notice, bears no dispatch number by any person and does not even really show whether it has actually been dispatched. Postal receipt is stated to be in the dispatch register which has not been produced. He states that in Exhibit P/2, the amount due has not been shown. 16. In these circumstances, the finding of the learned trial Court which has been affirmed by the learned Additional Sessions Judge that the prosecution has proved his case about the sending of the notices vide Exhibits P/2, P/4 and P/5 and no response having received, is apparently founded on no material. Curiously enough, proof of service of such notices, has not been established from the oral evidence also. It has not been proved at all for what period, the petitioner was in default and how he was in default, the PW is eloquently silent about the gravemen of charges levelled against the petitioner namely failing to submit return of the information or submission of sets of cards or C set of cards for any specified contribution period or the date on which the sets on such cards were due. If the allegations made in the complaint were to be proved, then the leading of evidence to prove the allegations is on the prosecution. 17. In view of the aforesaid state of affairs on record, I have no hesitation in coming to the conclusion that the prosecution has failed to produce evidence to sustain the charges levelled against the petitioner and the findings by the learned trial Court as well as appellate Court is founded merely on the allegations based in the complaint filed before it . The prosecution, must, therefore, fail. 18. Accordingly, the petition is allowed. The Judgment of both the Courts below are set aside. The conviction and sentenced of the petitioner is set aside. The bail bonds submitted by the petitioner shall stand discharged.