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2009 DIGILAW 883 (CAL)

Deepak Puri v. STATE OF WEST BENGAL

2009-12-07

PARTHA SAKHA DATTA

body2009
Judgment :- (1.) By this order four revisional applications being C.R.R. No. 2103 of 2006, C.R.R. No. 2104 of 2006, C.R.R. No. 2105 of 2006 and C.R.R. No. 2105 of 2006 arising out of Case No.C-2401 of 1989, 2402 of 1989, 2403 of 1989 and 2404 of 1989 respectively all pending before the learned Chief Judicial Magistrate, South 24-Parganas at Alipore are being disposed of. (2.) In Case No.C-2401 of 1989 prosecution has been launched against the petitioner under Section 14(1B) read with Section 14A(1) and 14A(2) of the Act on the allegation of non-payment of administrative charges of Rs. 199.05 paise during the period from July 1986 to September 1986. (3.) In Case No.C-2402 of 1989 prosecution has been launched against the petitioner under the same sections of the Act for non-deposit of deposit linked insurance fund contribution for the period from July 1986 to September 1986. (4.) In Case No.C-2403 of 1989 prosecution has been launched against the petitioner again under the same sections of the Act for non-deposit of deposit linked insurance fund contribution for the period from October 1986 to December 1986. (5.) Lastly, in Case No.C-2404 of 1989 the same petitioner faces prosecution for non-deposit of administrative charges for the period from October 1986 to December 1986 punishable under the aforesaid sections of the law. (6.) Mr. Bhaskar Sen, learned Advocate appearing for the petitioner in all the cases principally raises the point that all the four complaints are barred by limitation because the prosecution has been launched about three years after the date when payment was due. According to Mr. Sen, offences were committed in the year of 1986 but complaints were filed only in December 1989. Under Section 14 (1B) an employer who contravenes or makes default in complying with the provisions of Section 6-C or Clause 9(a) of subsection (3A) of Section 17 in so far as it relates to the payment of inspection charges, shall be punishable with imprisonment for a term which may extend to one year but which shall not be less than six months and shall also be liable to fine which may extend to Rs. 5,000. 5,000. Therefore, in terms of Section 468 cognizance was to have been taken within a year from the date of accrual of the cause of action; this having not been done the prosecutions in all the four cases are liable to be terminated. This invites a question whether the offences alleged were continuing offences or not. Mr. Sen argues with reference to a Division Bench decision of this Court in M/s. Wire Machinery Manufacturing Corporation Ltd. v. The State and Anr., reported in 1978 Cri LJ 839 that no provision of the Act or scheme lays down that if an employer makes a default in making the payment to the Fund within stipulated time as required by Paragraph-38 of the scheme and carries on business he would be guilty of an offence or that the offence Would continue till the default is made good. Once the defaults were made the offences were committed once and for all and became complete on the close of the due date. This decision followed Deokaran Nenshi, reported in AIR 1973 SC 908 . (7.) Mr. J. Rakshit, learned Advocate for the Provident Fund Organisation disputes this submission saying that so long as deposit is not made offence is a continuing one and he distinguishes the decision in M/s. Wire Machinery (supra) from the factualities of the cases at hand. He relied on Bhagirath Kanoria, reported in AIR 1984 SC 1688 and M/s. Meenakshi Industrial, Singanallur, reported in 1992 Cri LJ 2115. (8.) Following the Calcutta case the Karnataka High Court in the decision in Provident Fund Inspector v. N.S. Dayanand, reported in 1980 Cri LJ 161 held the same view, According to Mr. Sen, applying the test laid down in Deokaran Nenshi (supra) payment of administrative charges and deposit linked insurance fund contribution to be made monthly is not a continuing offence as the offence is complete when payment is not made on the scheduled day. Mr. Sen distinguished Deokaran Nenshi from the decision in Bhagirath Kanoria and Ors. v. State of Madhya Pradesh, reported in AIR 1984 SC 1688 in this that Bhagirath Kanoria was a case pertaining to withholding employers contribution and money withdrawal by the employers was in fact due and payable to the employees. Mr. Mr. Sen distinguished Deokaran Nenshi from the decision in Bhagirath Kanoria and Ors. v. State of Madhya Pradesh, reported in AIR 1984 SC 1688 in this that Bhagirath Kanoria was a case pertaining to withholding employers contribution and money withdrawal by the employers was in fact due and payable to the employees. Mr. Sen further submitted that the decision in M/s. Meenakshi Industrial Singanallur, Coimbatore v. G. Guruswamy, reported in 1992 Cri LJ 2115 which has been relied on by the learned Advocate for the Provident Fund Organisation is not applicable here because the point of limitation was not pressed in the said decision rendered by a learned Single Judge of Madras High Court. It is submitted by Mr. Sen that amounts in default have been paid already though beyond time and the decision in Adoni Cotton Mills Ltd. v. R.P.F. Commissioner and Ors., reported in 1995 Supp. (4) SCC 580 is applicable. Mr. Sen further argues that the prosecution was initiated 15 years ago and in view of the decision in Adoni Cotton (supra) the instant prosecution should be nipped in the bud. (9.) Paragraph-38 of the Employees Provident Fund Scheme, 1952 deals with mode of payment of provident fund contributions fund after deducting the employees contribution from his wages within 15 days of the close of every month. The Division Bench in M/s. Wire Machinery had no occasion to consider the judgment of the Supreme Court in Bhagirath Kanoria (supra) because the latter case was decided on 24th August, 1984. In Bhagirath Kanoria it was held in unambiguous words, "offence of nonpayment of contribution by employer to provident fund is a continuing offence." It was a case of non-deposit of employers contribution under the Employees Provident Fund and Family Pension Fund Act. Here also Their Lordships of the Supreme Court referred to Paragraph-38 of the Employees Provident Fund Scheme, 1952 and after mentioning the said paragraph of the scheme it was held that so long payment was not made offence would be a continuing one. Now what is the continuing offence has been said in Deokarans case in the following words:-"A continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. Now what is the continuing offence has been said in Deokarans case in the following words:-"A continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It is one of those offences which arises out of a failure to obey or comply with a rule or its requirement and which involved a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience or non-compliance occurs and recurs, there is the offence committed. The distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act of omission which continues and, therefore, constitutes a fresh offence every time or occasion on which it continues. In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all" In Bhagirath Kanoria there is also a reference to Deokaran Nenshi, Their Lordships of the Supreme Court in Bhagirath Kanoria clarified that the decision in Deokaran Nenshi was to the effect that failure to furnish return before the due date is not a continuing offence and the said decision cannot be extended to cases where contravention is not of a procedural or formal nature and goes against the very grain of the statute under consideration. Their Lordships held as follows:- "The question whether a particular offence is a continuing offence must necessarily depend upon the languages of the statute which creates that offence, the nature of the offence and, above all, the purpose which is intended to be achieved by constituting the particular act as an offence. Turning to the matters before us, the offence of which the appellants are charged Is the failure to pay the employers contribution before the due date. Considering the object and purpose of this provision which is to ensure the welfare of workers, we find it impossible to hold that the offence is not of a continuing nature. Turning to the matters before us, the offence of which the appellants are charged Is the failure to pay the employers contribution before the due date. Considering the object and purpose of this provision which is to ensure the welfare of workers, we find it impossible to hold that the offence is not of a continuing nature. The appellants were unquestionably liable to pay their contribution to the Provident Fund before the due date and it was within their power to pay it, as soon as after the due date had expired as they willed. The late payment could not have absolved them of their original guilt, but it would have snapped the recurrence. Each day that they failed to comply with the obligation to pay their contribution to the Fund, they committed a fresh offence. It is putting an incredible premium on lack of concern for the welfare of workers to hold that the employer who has not paid his contribution of the employees, to the Provident Fund can successfully evade the penal consequences of his act by pleading the law of limitation. Such offences must be regarded as continuing offences, to which the law of limitation cannot apply." (10.) Further, Deokaran Nenshis case was one relating to a prosecution under Section 66 of the Mines Act and in that case, as noted above, there was failure to furnish return. Therefore in view of the law laid down in Bhagirath Kanoria, Deokaran Nenshi which a Division Bench of our High Court relied on in M/s. Wire Machinery cannot be relied on in case of failure of the employer to deposit the provident fund contribution. In M/s. Meenakshi Industries, it was held by a learned Single Judge of Madras High Court that offence of non-payment of employees deposit linked insurance contribution and administrative charges by employer is a continuing offence. The learned-Judge followed Bhagirath Kanoria in support of his proposition. (11.) If non-payment of or withholding payment of employees contribution to the provident fund is a continuing offence as has been held by the Supreme Court in Bhagirath Kanoria the question would be whether non-payment of the employers contribution in the deposit linked insurance fund contribution would be similarly a continuing offence or not. (11.) If non-payment of or withholding payment of employees contribution to the provident fund is a continuing offence as has been held by the Supreme Court in Bhagirath Kanoria the question would be whether non-payment of the employers contribution in the deposit linked insurance fund contribution would be similarly a continuing offence or not. Paragraph-8 of the employees deposit linked insurance Scheme, 1976 deals with mode of payment of contribution and the same is reproduced below:- "Mode of payment of contribution .-(1) The contribution by the employer shall be remitted by him together with administrative charges at such rate as the Central Government may fix from time to time under sub-section (4) of Section 6C of the Act, to the Insurance Fund within fifteen days of the close of every month by a separate bank draft or cheque or by remittance in cash in such manner as may be specified in this behalf by the Commissioner. The cost of remittance, if any, shall be borne by the employer. (2) It shall be the responsibility of the employer to pay the contribution payable by himself in respect of the employees directly employed by him and also in respect of the employees employed by or through a contractor. (3) The Central Government shall credit its contribution to the Insurance Fund as soon as possible after the close of every financial year. (4) The Commissioner shall deposit the bank draft or cheque received from the employers in the State Bank of India or any Bank specified in the First Schedule to the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970)." (12.) Unless in terms of Paragraph-8 of the Scheme, 1976 if the employers contribution is not remitted then obviously the employee in case of an accident will not be eligible to insurance coverage. The gravity of the offence in case of non-deposit of deposit linked insurance fund appears to be more severe than non-deposit of employers contribution to the provident fund scheme. The gravity of the offence in case of non-deposit of deposit linked insurance fund appears to be more severe than non-deposit of employers contribution to the provident fund scheme. If non-payment of the provident fund dues is a continuing offence till payments are made, so also non-payment of employers contribution to the employees deposit linked insurance scheme is also a continuing offence until payment is made and the mode of payment in Paragraph-38 of the Employees Provident Fund Scheme, 1952 and mode of payment as provided in Paragraph-8 in the employees deposit linked insurance Scheme, 1976 cannot be distinct at all in any way; therefore, it is impossible to agree to the submission of the learned Counsel for the petitioner that non-payment of the employers contribution to the deposit linked insurance scheme with administrative charges is not a continuing offence. It is not the case of the petitioner that the payments were made before the cases were filed. (13.) The question is whether delayed payment would be a circumstance to quash a proceeding. Mr. Sen referred to Adonis case; it was a case where the Honble Supreme Court quashed the proceeding holding that subsequent to the launching of the prosecution payments were made. Clearly speaking, the Honble Supreme Court exercised its power under Article 142 of the Constitution which is not available to the High Court. This point was exhaustively considered in the decision in Hotel Dock Place and Anr. v. State of West Bengal and Anr., reported in 2007 (1) CHN 930 where it was held that subsequent payments are necessarily a circumstance that should not miss the attention of the trial Court if and when the trial Court proceeds to award punishment only when guilty is established, but subsequent payments cannot be a circumstance to quash the proceeding because the moment default is committed offence is committed and to quash a proceeding on the ground of delayed payment would be to re-write the law. In the Hotel Dock Place plethora of decisions of this Court and the Supreme Court were considered and this Court held that subsequent payment does not wipe out the offence. With regard to the submission of Mr. Sen that prosecution has been continuing for a long long years is not impressive because it is the petitioner who has been kept the revisional application pending since long. With regard to the submission of Mr. Sen that prosecution has been continuing for a long long years is not impressive because it is the petitioner who has been kept the revisional application pending since long. The mere fact that the amounts were very small is also of no consequence. (14.) In the circumstance, I dismiss the applications. All interim orders are vacated. Trial be expedited. (15.) A copy of this judgment shall be sent to the learned Chief Judicial Magistrate of South 24-Parganas at Alipore for information and necessary action. Urgent xerox certified copies of this order, if applied for, be given to the parties as expeditiously as possible.