Judgment : S. Siri Jagan, J. 1. In these two appeals common questions of law arise for decision of this Court. The parties in these two appeals are also the same. The appellant issued show cause notices to the respondent to show cause, why criminal prosecution should not be initiated against him for non-payment of contributions under the Employees State Insurance Act for different periods in respect of the employees of the Co-operative Society of which the respondent was the then President. The respondent challenged the show cause notices before the Employees Insurance Court, Alappuzha, which was adjudicated by the Employees Insurance Court as IC Nos. 6 and 7 of 2004. In the I.Cs, the respondent sought a declaration that the proposal to initiate criminal prosecution against the respondent as per the show cause notice is unsustainable on the ground that the liability is only on the Co-operative Society of which he was the President at the relevant time and the respondent has no personal liability to pay the same. The E.I court, relying on the decision of the Division Bench of this Court in Suseelan v. State of Kerala reported in 2002 (1) KLT 226 , held that insofar as the respondent is only the president of a Co-operative Society, he is not personally liable for the default of the society in payment of contributions under the E.S.I Act and declared that the proposal for prosecution of the respondent for the default as per the show cause notices is unsustainable. The appellant is challenging the judgments of the E.I.Court. 2. The appellant raises two contentions. The first is that, initiation of prosecution proceedings is not one of the subject matters enumerated in Section 75 of the Employees State Insurance Act, in respect of which only a person can approach the E.I court under that Section. The second is that, what was issued to the respondent was not a demand for payment of contributions, for which only Suseelan's case applies, but a show cause notice directing him to show cause, why criminal prosecution should not be initiated against him for non-payment of contributions by the society, since he was a person in charge of the affairs of the Society at the relevant time, as contemplated in Section 86A of the Employees State Insurance Act. According to the appellant, the reliance by the E.I. court on the decision in Suseelan's Case is misplaced. It is submitted that, the issue in Suseelan's case was as to whether, the secretary of a Cooperative Society is personally liable to pay contributions payable by the society under the Toddy Worker's Welfare Fund Act 1969. In that decision, while holding that the secretary of the society has no personal liability for payment of contributions under the Act, the Division Bench has specifically observed that, the question will be different in the case of the prosecution, for which under Section 15 of Toddy Worker's Welfare Fund Act 1969, separate provision is made, making every officer of the Co-operative Society personally liable for punishment along with the society. The E.I.Court lost sight of that part of the decision, even after quoting that part also in the judgment, insofar as the ratio of that part of the decision would be squarely applicable to the facts of this case in view of Section 85 read with Section 86A of the E.S.I. Act, is the contention raised by the appellant. 3. In answer, the counsel for the respondent would contend that his applications are maintainable under Section 75 of the Employees State Insurance Act. He relies on Sub Section (d) of Section 75 (1) of the Employees State Insurance Act, in support of that contention, which according to him, gives powers to the the E.I.Court to deal with the question or dispute as to the person who is or was the principal employer in respect of any employee. According to the counsel for the respondent, for initiating prosecution against the respondent, certainly the question as to, whether he is the principal employer would arise insofar as only the principal employer is liable to pay contributions under the Act. Therefore, the prosecution can also be initiated only against the principal employer. The respondent's application contending that he is not the principal employer of the society, can certainly be decided by the E.I.Court under Section 75, is the contention. He also contends that, insofar as he is only the President of the Society, he has no personal liability in respect of the contributions payable by the society under the Employees State Insurance Act and therefore no prosecution would also lie against him for non- payment of contributions under the E.S.I. Act. 4. He also contends that, insofar as he is only the President of the Society, he has no personal liability in respect of the contributions payable by the society under the Employees State Insurance Act and therefore no prosecution would also lie against him for non- payment of contributions under the E.S.I. Act. 4. After hearing elaborate arguments on both sides, we are inclined to agree with the appellant on all points. First of all, we are of opinion that the Employees' Insurance Court should not have entertained the application at all, insofar as, what were under challenge were only show cause notices proposing to initiate criminal prosecution against the respondent and not orders of any kind from which any question or dispute for adjudication by the E.I Court under Section 75 of the E.S.I. Act would arise. The respondent was free to file reply to the show cause notice, which the appellants may or may not accept. Only when the appellant does not accept the explanation of the respondent, a question or dispute would arise, which would require adjudication by the E.I Court, even assuming that the E.I Court had jurisdiction to entertain such a dispute or question relating to criminal prosecution, in exercise of powers under Section 75 of the E.S.I Act. Therefore, it was inappropriate on the part of the Employees Insurance Court to interfere with a show cause notice even assuming that the E.I.Court had jurisdiction to deal with the subject matter, under Section 75. 5. Apart from the same, we are of opinion that the initiation of prosecution is not a matter falling within the purview of Section 75 of the Employees State Insurance Act. 5. Apart from the same, we are of opinion that the initiation of prosecution is not a matter falling within the purview of Section 75 of the Employees State Insurance Act. Section 75 reads thus: "Matters to be decided by Employees' Insurance Court-(1) If any question or dispute arises as to- (a) whether any person is an employee within the meaning of this Act or whether he is liable to pay the employee's contribution, or (b) the rate or wages or average daily wages of an employee for the purposes of this Act, or (c) the rate of contribution payable by a principal employer in respect of any employee, or (d) the person who is or was the principal employer in respect of any employee, or (e) the right of any person to any benefit and as to the amount and duration thereof, or (ee) any direction issued by the corporation under section 55A on a review of any payment of dependants' benefit, or] (g) any other matter which is in dispute between a principal employer and the Corporation, or between a principal employer and an immediate employer or between an employee and a principal or immediate employer, in respect of any contribution or benefit or other dues payable or recoverable under this Act, [or any other matter required to be or which may be decided by the employees' Insurance Court under this Act] such question or dispute [subject to the provisions of sub-section (2A] shall be decided by the employees' Insurance Court in accordance with the provisions of this Act. (2) [Subject to the provisions of sub-section (2A), the following claims] shall be decided by the Employees' Insurance Court, namely:- (a) claim for the recovery of contributions from the principal employer (b) claim by a principal employer to recover contributions from any immediate employer; **** (d) claim against a principal employer under section 68; (e) claim under section 70 for the recovery of the value or amount of the benefits received by a person when he is not lawfully entitled thereto; and (f) any claim for the recovery of any benefit admissible under this Act. [(2A) If in any proceedings before the Employee' Insurance Court a disablement question arises and the decision of a medical board or a medical appeal tribunal has not been obtained on the same and the decision of such question is necessary for the determination of the claim or question before the employee' Insurance Court, that Court shall direct the corporation to have the question decided by this Act and shall thereafter proceed with the determination of the claim or question before it in accordance with the decision of the medical board or the medical appeal tribunal, as the case may be, except where an appeal has been filed before the employee's Insurance Court under sub-section(2) of section 54 A in which case the Employees' Insurance court may itself determine all the issues arising before it] (2B) No matter which is in dispute between a principal employer and the Corporation in respect of any contribution or any other dues shall be raised by the principal employer in the Employees' Insurance Court unless he has deposited with the Court fifty per cent of the amount due from him as claimed by the Corporation: Provided that the court may, for reasons to be recorded in writing, waive or reduce the amount to be deposited under this sub-section] (3) no Civil Court shall have jurisdiction to decide or deal with any question or dispute as aforesaid or to adjudicate on any liability which by or under this Act is to be decided by [a medical board, or by a medical appeal tribunal or by the Employees' Insurance Court.]" What is contemplated under Section 75 (1) (d) is not in respect of prosecution proceedings. The same relates to the question as to whether a person is a principal employer in respect of any employee. In an establishment there is only an employer. The question of a principal employer arises in contra-distinction to an immediate employer. Therefore only when an establishment engages an immediate employer for the purpose of the activities of the establishment, the question of deciding whether a person is the principal employer in relation to an employee employed through the immediate employer arises, which is what is contemplated by Section 75(1)(d). The question involved in this case is not whether the respondent is a principal employer in respect of any employee. 6. In respect of payment of contributions there arise two liabilities. The question involved in this case is not whether the respondent is a principal employer in respect of any employee. 6. In respect of payment of contributions there arise two liabilities. One is the liability to pay contributions on due dates. It is the duty of the employer to deduct employees' share of the contributions from the wages of the employees and to pay the same along with the employer's contributions on due dates to the E.S.I. Corporation. The second is the liability to be prosecuted for non-payment of contributions under Section 85. If the defaulter in payment of contributions is a Co-operative Society, certainly there is no personal liability on the President of the Society to pay the contributions and he cannot be proceeded against, personally, for recovery of the contributions. But, under Section 86A r/w Section 85 of the E.S.I Act, every person who, at the time the offence was committed, was in charge of and was responsible to the company for the conduct of the business of the company, along with the company, is liable to be prosecuted. Therefore, in the case of prosecution for non-payment of contributions, it is unnecessary to decide as to who is the principal employer. Apart from that, the liability to pay contributions is on the employer. The necessity to decide the question as to who is the principal employer arises as against an immediate employer through whom the principal employer gets the work of the establishment done, in which case also the primary liability to pay contributions in respect of the employees of the immediate employer also is on the principal employer, although the principal employer can recover the contributions so paid in respect of the employees employed by the immediate employer from the immediate employer (see Sections 40, 68 and 75 (a), 75(b) and 75(d) of the E.S.I Act). It is in that context that it becomes necessary to decide a question or dispute as to the person who is or was the principal employer in respect of an employee under Section 75(1) (d) of the Act, which has no relevance in the matter of prosecutions under Section 85 r/w Section 86 A of the E.S.I. Act. It is in that context that it becomes necessary to decide a question or dispute as to the person who is or was the principal employer in respect of an employee under Section 75(1) (d) of the Act, which has no relevance in the matter of prosecutions under Section 85 r/w Section 86 A of the E.S.I. Act. Under Section 85, the liability to be prosecuted is not on the principal employer but on 'any person' meaning thereby that all persons responsible to see that contributions under the Act are paid, are liable to be prosecuted for non-payment of contributions. Read with Section 86A, in the case of a Co-operative Society, "any person" would mean every person, who at the time the offence was committed was in charge of and was responsible to the Society for the conduct of the business of the Society. Admittedly, the respondent was at the relevant time, the President of the Co-operative Society. As such he was a person in charge of and was responsible for conduct of the business of the Co-operative Society. The punishment for failure to pay contributions etc. is provided for under Section 85 which reads thus: 85. Admittedly, the respondent was at the relevant time, the President of the Co-operative Society. As such he was a person in charge of and was responsible for conduct of the business of the Co-operative Society. The punishment for failure to pay contributions etc. is provided for under Section 85 which reads thus: 85. Punishment for failure to pay contributions, etc.- If any person- (a) fails to pay any contribution which under this Act he is liable to pay, or (b) deducts or attempts to deduct from the wages of an employee the whole or any part of the employer's contribution, or (c) in contravention of section 72 reduces the wages or any privileges or benefits admissible to any employee , or (d) in contravention of section 73 or any regulation dismisses, discharges, reduces or otherwise punishes an employee, or (e) fails or refuses to submit any return required by the regulations, or makes a false return, or (f) obstructs any Inspector or other official of the Corporation in the discharge of his duties, or (g) is guilty of any contravention of or non-compliance with any of the requirements of this Act or the rules or the regulations in respect of which no special penalty is provided' [he shall be punishable- [(i) where he commits an offence under clause (a), with imprisonment for a term which may extend to three years but- (a) which shall not be less than one year, in case of failure to pay the employee's contribution which has been deducted by him from the employee's wages and shall also be liable to fine of ten thousand rupees; (b) which shall not be less than six months, in any other case and shall also be liable to fine of five thousand rupees: Provided that the court may, for any adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a lesser term; (ii) where he commits an offence under any of the clauses (b) to (g) (both inclusive), with imprisonment for a term which may extend to one year or with fine which may extend to four thousand rupees, or with both]]. Section 86 A deals with the cases where, offences under Section 85 are committed by companies. Section 86 A deals with the cases where, offences under Section 85 are committed by companies. Section 86 A reads thus: "Offences by companies-(1) If the person committing an offence under this act is a company, every person, who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly; Provided that nothing contained in this sub-section shall render any person liable to any punishment, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in sub-section(1), where an offence under this Act has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director or manager, secretary or other officer of the company, such director, manager, secretary or other officer shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly." (underlining supplied) Section 85 r/w Section with 86A would make it abundantly clear that for initiating prosecution against the officer bearer of the company or Co-operative Society or other association, the person proceeded against need not necessarily be the principal employer in relation to the Co-operative Society or a company. What is necessary is the fact that he was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, who is deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. The Section explains the expression 'company' as meaning a body corporate and includes a firm and other association of individuals. Insofar as a Co-operative Society under Cooperative Societies Act is an association of individuals, naturally a society would come within the purview of the expression 'company' under Section 86A of the Act. Therefore, the contention that what the respondent sought intervention from the E.I.Court of is, whether he is the principal employer or not, for deciding which the E.I.Court has jurisdiction, is patently incorrect. Therefore, the contention that what the respondent sought intervention from the E.I.Court of is, whether he is the principal employer or not, for deciding which the E.I.Court has jurisdiction, is patently incorrect. None of the matters enumerated in Section 75 relates to prosecution under Section 85 r/w Section 86A. Only those matters enumerated in Section 75 can be decided by the E.I.Court. Apart from that, when the jurisdiction to try offences under the Act is vested with a Metropolitan Magistrate or a Judicial Magistrate of the First Class under Section 86 of the Act, the question as to whether a person is liable to be prosecuted for any offence under the Act also vests exclusively with the Magistrate. The Act does not confer any magisterial powers on the Employees Insurance Court with regard to prosecution for offences relating to violation of the provisions of the Act. The jurisdiction of the E.I Court under Section 75 is exclusively limited to questions and disputes enumerated therein, which do not include questions or disputes involving liabilities criminal in nature. Consequently, the question as to whether the respondent as a person in-charge of the society can be prosecuted under the Act, does not come within the purview of Section 75 at all. Therefore, we hold that the E.I.Court did not have jurisdiction to deal with the applications of the respondent seeking a declaration that, the proposal for criminal prosecution of the respondent as per the show cause notice under challenge is unsustainable. 7. Although, the above decision would be sufficient to dispose of the appeals by quashing the impugned orders of the E.I.Court, as one passed without jurisdiction, since arguments were advanced by both sides on the second question as well, we shall deal with the same also in this judgment. 8. We are of opinion that the E.I. Court misdirected himself in relying on the decision in Suseelan's case (supra) to hold that the respondent is not liable to be prosecuted for non- payment of contributions under the Act. Of course, the said case certainly held that a secretary of a society does not have personal liability to pay dues payable under the Toddy Worker's Welfare Fund Act 1969. But, in paragraph 5 of the judgment, the Division Bench has held as follows, as well: "In contrast, S.15 of the Act specifically provides for personal liability. Of course, the said case certainly held that a secretary of a society does not have personal liability to pay dues payable under the Toddy Worker's Welfare Fund Act 1969. But, in paragraph 5 of the judgment, the Division Bench has held as follows, as well: "In contrast, S.15 of the Act specifically provides for personal liability. It provides that if the person committing an offence under the Act is a company, every officer of the company who is in default as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Explanation (a) defines the expression' 'company' to mean any body corporate and includes a firm, a Co- operative Society or other association of individuals. Under clause (c) of the explanation 'officer' of the company includes office-bearers of a co-operative society. S.14 imposes a penalty for contravention of the provisions of the Act. A reading of these sections suggests that, where the statute intended to impose a liability on the office bearers of a co-operative society personally, it has done so by an express provision. The intention of the statute appears to be to foist only penal liability on the office- bearers whose default results in the co-operative society committing offences punishable under the Act. We do not see any provision in this Act which imposes civil liability on the office-bearers of the society, nor have we been shown any provision of any other Act, including the Co-operative Societies Act, under which such liability can be foisted on individual office-bearers. Section 15 of the Toddy Worker's Welfare Fund Act 1969 referred to in that judgment is in pari materia, regarding essential particulars, with Section 86A of the Employees State Insurance Act quoted hereinbefore. Section 15 of the Toddy Worker's Welfare Fund Act 1969 referred to in that judgment is in pari materia, regarding essential particulars, with Section 86A of the Employees State Insurance Act quoted hereinbefore. Section 15 of the Toddy Worker's Welfare Fund Act, 1969, reads thus: Offences by Companies:-(1) If the person committing an offence under this Act is a company, every officer of the company who is in default as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that in any proceeding against an officer of the company in respect of an offence under this Act it appears to the Court hearing the case that the offence is attributable to the negligence, default, breach of duty, misfeasance or breach of trust committed by the officer, but that he has acted honestly and reasonably, and that having regard to all the circumstances of the case, including those connected with his appointment, he ought fairly to be excused, the Court may relieve him either wholly or partly from his liability on such terms as it may think fit. (2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any wilful negligence, default, breach of duty, misfeasance or breach of trust on the part of any officer of the company, such officer of the company, shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Of course, the respondent is not personally liable to pay contributions and the corporation cannot initiate proceedings for recovery of the contributions payable by the Co-operative Society, from the respondent personally. But, that position of law does not apply to criminal prosecutions under the Act as is abundantly made clear in paragraph 5 of the very same decision, after referring to Section 15 of the said Act, laying down that for penal liability, office bearers of the Co-operative Society can be prosecuted individually. In view of Section 86A of the E.S.I. Act, the ratio of the said judgment is applicable to this case also. In view of Section 86A of the E.S.I. Act, the ratio of the said judgment is applicable to this case also. The learned E.I.Court completely lost sight of paragraph 5 of the judgment, which directly deals with the subject before him. Going by that decision, for prosecuting a president or a secretary of a co-operative society, what is necessary is that he should be in charge and was responsible to the society for the conduct of the business of the society, in which case, if the society fails to pay contributions under the Act, prosecution can be initiated against the president of the cooperative society also. That has been specifically explained in paragraph 5 of the judgment in Suseelan's Case (supra). As such, going by the very same decision relied on by the E.I.Court, in view of Section 86A of the E.S.I. Act, which is similar to Section 15 of the Toddy Workers' Welfare Fund Act, the E.I.Court should have repelled the contention of the respondent that, he is not liable to be prosecuted for non-payment of contributions under the E.S.I.Act. Therefore, on merits also the E.I.Court has misdirected himself in holding that the respondent had no personal liability for being prosecuted for non-payment of contributions due from the society under the Employees State Insurance Act, by the society. 9. Consequently, on all points, the impugned judgments of the E.I.Court in these two appeals are liable to be set aside and the insurance cases are liable to be dismissed. We do so. The appeals are allowed as above.