In Re: M/s. Premier Studs and Chaplels Co.

Maheswaran, J.—""The Premier Studs"" represented by its partners are the revision petitioners. They were prosecuted for offences under S.

14(1-A) and 14A(1) of the Employees'' Provident Funds and Family Pension Fund Act, 1952 read with S. 76(b) of the Employees'' Provident

Fund Scheme, 1952, as they have failed to submit returns in Form Nos.5,10 and 12 for certain months.

Two contentions were raised by the petitioners when a complaint was filed by the Provident Fund Inspector representing the State against the

revision petitioners and they are:(l) that the complaint is barred by the law of limitation; and (2) that the revision petitioners have filed an appeal to

the Central Government under S. 19-A of the Employees Provident Funds and Family Pension Fund Act with regard to the applicability of the Act

to the establishment of the revision petitioner-firm and therefore, the Provident Fund Inspector cannot file a complaint before a magistrate during

the pendency of the appeal before the Central Government. The learned X Metropolitan Magistrate tried this batch of cases and came to the

conclusion that the offence is a continuing offence and therefore, no question of bar of limitation arises and overruled that objection. As regards the

other contention, he held that the pendency of an appeal before the Central Government is not a bar for filing of the complaint by the Provident

Fund Inspector. In the end, he found the revision petitioners guilty of the offences with which they are charged and convicted and sentenced them

to pay a fine of Rs. 5/- under each of the three counts. The Revision Petitioners are aggrieved and have filed these revisions.

It is now contended before me that the offences are punishable with fine or imprisonment not exceeding six months and therefore, under S.

468(2)(b) of the Code of Criminal Procedure, the complaint ought to have been filed within a year and the complaints, except in Crl. R.C. No.

117 of 1977 not having been filed within a year from the date of offence, are barred by limitation. The second contention is that as an appeal filed

by the revision petitioners is pending before the Central Government under S. 19-A of the Employees'' Provident Fund and Family Pension Fund

Act, the respondent Provident Fund Inspector cannot file a complaint before the Magistrate.

It is not disputed that all the complaints covered by these revision petitioners, except the complaint in Crl. R.C. No. 117 of 1977 and a part of

the claim in Crl. R.C. No. 116 of 1977, are filed a year after the commencement of the offence. The Magistrate held that the offence is a

continuing offence. He observed :

The non-payment of the administrative Charges or the Provident Fund contribution or Family Pension Fund contribution is an offence till the

amount is actually paid.

The learned counsel appearing for the, ''revision petitioner relying on the ruling Pankaja Mills Ltd. v. N. Sivaramakrishna Iyer 1977 L.W.Crl. 119

contended that the non-payment of not contribution and administrative charges becomes complete when the amounts are remitted on the due date

or dates. Natarajan, J., was of the view that the offences of nonpayment of contribution and administrative charges are not continuing offences. The

learned Judge observed that there is nothing in the Act or in the Schemes to show that the non-payment continued to be a recurring offence with

each passing day and if the Legislature had intended that defaults committed by employers would be continuing offences then that would have been

indicated in the Act or the Schemes. Krishnan, J., of the Madhya Pradesh High Court held in Md. Hussain Bhai v. State (1960-61) IFJ 171 as

follows :

The creation of the Employees'' Provident Fund and the fixing of the contributions of the employee and of the employer was for the purpose of the

welfare of the employees. The mere fact that the 15th of the month next after the one for which the contributions were due expired, has not, in any

manner, '' terminated the duty of the employer to pay in the contributions to the fund and send the return to the Commissioner. It is a duty created

by the statute and continues day after day till, of course, the payment Is made and the returns are submitted. It is, therefore, obvious that the failure

to pay up contributions and to submit the returns was a continuing wrong which- even on the view propounded by the learned Magistrate; became

a penal offence under paragraphs 76(a) and (c) on the day in October, 1953, when the notification was made amending paragraphs 3 (b) (v) of

the Scheme.

Natarajan, J., was of the view that in view of the pronouncement of the Supreme Court in State of Bihar v. Deokaran Menshi 1973 S.C.C Cri.

1141 the view expressed by Krishnan, J., cannot be accepted. What the Supreme Court observed is that in the case of a continuing offence, there

is the ingredient of continuance of the offence which is absent in the case of an offence which takes place when the act or omission is committed,

once and for all. The expression ""continuing offence"" has been defined in the following terms by a Division Bench of Bombay High Court in State

Vs. A.H. Bhiwandiwalla,

The expression ''Continuing offence'' though not a very happy expression, has acquired a well recognised meaning in criminal law. If an act

committed by an accused person constitutes an offence and if that act continues from day to day, then from day to day a fresh offence is

committed by the accused so long as the act continues. Normally and in the ordinary course an offence is committed only once. But there may be

offences which can be committed from day to day and it is offences falling in this later category that are described as continuing offences. In every

case of a continuing offence it may be possible to describe the default as amounting to an omission or to a positive act on the part of the defaulter.

In my view, so long as the employer continues to fail to comply with the duty created, by the statute, he continues to offend and therefore, in my

view that the failure to pay up contributions will amount to a continuing offence. I therefore, most respectfully differ from the view taken by the

learned Judge in Pankaja Mills Ltd. v. N. Sivaramakrishna Iyer.

The employees are statutorily bound to make contributions under the Act and the Scheme. Non-Compliance of the requirements in the statute

will entail penalties and the employer is also liable to be prosecuted for contravention of the provisions of the Act. But, if any doubt is felt either by

the employer or by the Provident Fund Commissioner about the applicability or otherwise of the provisions of the Act to any particular

establishment, it is open to either party to move the Central Government for clarification and removal of doubts. Such an application is pending in

this case. The question now is whether this pendency of the application under S. 19-A of the Act will bar the Provident Fund Commissioner from

enforcing the Act till that applications disposed of by the Central Government. In Regional Provident Fund Commissioner, Madras Vs. K.R.

Subbaier Tape Factory, Tiruchirapalli, a Bench of this Court extracted certain observations of Mukharji. J. in Aluminium Corporation of India Ltd.

v. Regional Provident Fund Commissioner and Others 1959 1 L.L.J. 249. Those observations are.:

An employer cannot make a default when there is a difficulty or doubt and when the Central Government has to remove that difficulty or doubt by

an express order. It is only from the date of the order removing such difficulty or doubt that the default can operate. In other words, there can be

no retrospective or constructive default in the present context of facts and law.

The Bench observes that each case must be examined carefully with respect to its own facts for an inference about default, What the learned

counsel for the revision petitioners contends is that there can be no default so long as the application before the Central Government is pending.

The question whether a complaint can be preferred by the Provident Fund Inspector during the pendency of an application before the Central

Government under S. 19-A, has not been answered by that ruling. The other ruling on which reliance was placed by the learned counsel for the

revision petitioners is Union of India and others v. Ogale Glass Works. 1971 L.L.J. 513 That ruling does not touch the question as to whether

irrespective of a reference under S. 19-A, the criminal trial can go on. What has been held in Bridge and Roof Co. (India) Ltd. Vs. Union of India

(UOI), is that the employer can resort to the remedy under S. 19-A, in case of doubt such as to the implementation of the Act. Bridge and Roof

Co., (India) Ltd. Union of India 1953 1 L.L.J. 674 : AIR 1953 Mad 117 on which reliance was placed also does not answer the question. It only

states that the Central Government in case of reference under S. 19-A may make such provision or give such direction not inconsistent with the

provisions of the Act as appears to it to be necessary or expedient for the removal of doubt or difficulty and the order of the Central Government

in such cases shall be final. No one disputes that. But, the question whether a criminal court can or cannot proceed with the case when the matter is

pending reference under S. 19-A has not been answered. In Annamalai Mudaliar Brothers v. Regional Provident Fund Commissioner S.

Rajagopalan, J. was of the view that the provisions of the Act should not apply to a factory in the event of dispute till a decision under S. 19-A is

given to settle the dispute. But, that was a case where the petitioner therein who was the managing partner for the firm, raised an objection that the

Act was not applicable on the ground that the number of employees employed in the business does not come to the minimum of 50 as required by

the Act and the petitioner contended that the workers were not employees as defined under the Act. The Commissioner, however, treated the

establishment as one within the Act. As I earlier pointed out, Rajagopalan, J., held that the competent authority to decide that question was not the

Commissioner, but only the Central Government and unless and until such decision is rendered by the Government the Act cannot be put into

operation.

In Provident Fund Inspector, Ernakulam v. Auto Transport Union 1964 I L.L.J. 562 a Bench of the Kerala High Court held that criminal court

trying an offence punishable under the Act has jurisdiction to proceed with the trial of the case where the accused has taken the plea which could

be decided by the Central Government under the provisions of S. 19-A of the Employees'' Provident Fund. But, it should be noted that there was

no application under S. 19-A of the Act.

In T.R. Raghava Iyengar and Co. Vs. The Regional Provident Fund Commissioner, Jagadisan, J., observes:

The Act is ill-drafted and imperfect in its terms and causes disappointment by the absence of a machinery for sealing controversial and disputed

questions of fact. The power of the Central Government under S. 19-A to pronounce its opinion for removal of doubts or defects cannot be said

to be quite adequate, effective or-satisfactory, to obviate the necessity of any special tribunal or to dispense with such a tribunal altogether.

In the end Jagadisan, J., observed :

As it is, there is some machinery provided under the Act, satisfactory or unsatisfactory, which can resolve the disputed questions of fact between

the subject and the State, and that is the machinery enacted under S. 19-A of the Act. Till the dispute is decided by that appropriate authority, it

cannot be said that the Act can be legitimately put into operation despite the protests of the petitioners.

Except the ruling of Jagadisan, J., in T.R. Raghava Iyengar and Co. Vs. The Regional Provident Fund Commissioner, which lays down that the Act

cannot be legitimately put into operation unless the dispute is decided by the appropriate authority, there is no other reported authority of our High

Court which holds that the Provident Fund Inspector cannot enforce the provisions of the Act till the application under S. 19-A before the Central

Government is disposed of and decided one way or the other. I have been referred to two decisions, one, of Natarajan, J,, in Crl.M.P. No. 7972

of 1976, After consideration of certain facts cited before him, the learned Judge stayed the trial of the case before the Criminal Court till the

reference under S. 19-A is disposed of by the Central Government, The learned Judge issued directions to the second Metropolitan Magistrate,

before whom the case was pending, to stay the trial till such time the reference under S. 19''A is disposed of The learned Judge was of the view

that the continuance of the trial before the trial Court for contravention of the Act is certainly premature. In W.P. No. 6378 of 1975, Mohan, J.,

passed the following short order on a petition to issue a writ of mandamus forbearing the Regional Provident Fund Commissioner, Tamil Nadu and

Pondicherry from enforcing the provisions of the Employees'' Provident Fund and Family Pension Fund Act :

Admittedly, a petition under S. 19-A of the Employees'' Provident Fund and Family Pension Fund Act, 1952 is pending before the Central

Government. This Court has repeatedly taken the view that till final orders are passed on an application of that kind, no action should be taken.

Accordingly, this writ petition will stand allowed. No costs.

But, a Full Bench of Gujarat High Court in Jintan Clinical Thermometer Co. (India) Pvt. Ltd. Vs. Union of India and Another, has observed that if

the mischief which the Legislature had in mind and which it sought to remedy by enactment of S. 19-A is to be kept in mind, it is obvious that S.

19-A could never be interpreted so that until the question is decided by the Central Government under S. 19-A, the Act ceased to be applicable.

With respect, I adopt these observations of the learned Judges of the High Court, Gujarat.

Under S. 19-A. the Central Government could not give inconsistent directions contrary to the terms of the statute that even when the Act

applied after the infancy period by force of S. l(3) (a), the provident fund shall not be introduced under S. 5 by making eligible persons members of

the fund and that no contribution shall be made under S. 6. In fact the Central Government''s powers are restricted as S. 19-A requires the

Government to pass only such direction which would not be inconsistent with the Act. It should be borne in mind that the Central Government is

delegated not with any legislative function but only with quasi-judicial function by giving finality to its decision. The decision of the Central

Government would only operate as final adjudication of a statutory question and that decision is made final under the Act. In my view, the Central

Government is entrusted with the statutory function of resolving doubts and difficulties particularly with reference to statutory issues under S. 19-A

so that the delay which may be caused by the parties by going to the Civil Courts could be avoided. It is more with the view to expeditiously

implement the Act. There is nothing compelling in this context to impute an intention to the Parliament that it was making a radical alteration in law,

when it was providing this remedy for resolving such a doubt or difficulty. Such a construction would defeat the intention of the Parliament by

making the statute a dead-letter during the period that this quasi-judicial machinery under S. 19-A was invoked. I therefore, respectfully differ from

the view taken by Jagadisan, J., in T.R. Raghava Iyengar and Co. Vs. The Regional Provident Fund Commissioner, . I direct that the papers may

be placed before my Lord the Chief Justice for being posted before a Bench for adjudication on the questions: (1) whether failure to pay up

contributions and submit returns is a continuing offence; and (2) whether the provisions of the Employees'' Provident Funds and Family Pension

Fund Act could be enforced pending decision on a reference under S. 19-A of the Act.

Pursuant to the aforesaid order, dated 22nd December, 1978, these case* coming on for hearing, and these cases having stood over for

consideration till this day, the Court made the following Order :

JUDGMENT

Paul, J.

These cases have been heard by us on the orders of the Honorable the Chief Justice or adjudication on the following questions :-

Whether failure to pay up contributions and submit returns under the Employees'' Provident Funds and Family Pension Fund Act and the

Employer''s Provident Funds Scheme is a continuing offence? and

Whether the provident of the Employees'' Provident Funds and Family Pension Fund Act could be enforced pending decision on a reference

under S. 19-A of the Act?

since Maheswaran, J., differed from the view taken by Natarajan, J. in Pankaja Mills Ltd., v. N. Sivaramakrishna Iyer 1977 L.W. Cri. 119 and

the view taken by Jagadisan, J. in J.R. Raghava Iyengar & Co. v. Regional Provident Fund Commissioner. 1963 1 L.L.J. 32

On complaints laid by the Provident Fund Inspector representing the State, the revision petitioners have been prosecuted for offences under

Ss. 14(IA) and 14-A(1) of the Employees'' Provident Funds and Family Pension Fund Act, 1952 read with S. 76(b) of the Employees'' Provident

Fund Scheme, 1952 for having failed to submit the returns in Form Nos. 5, 10 and 12 in respect of certain months and in one case for failure to

pay the Administrative Charges. The revision petitioners contended firstly that the complaint was barred by limitation, and secondly that they have

filed an appeal to the Central Government under S. 19-A of the Employees'' Provident Funds and Family Pension Fund Act with regard to the

applicability of the Act to the establishment of the revision petitioners'' firm and therefore during the pendency of that appeal, the Provident Fund

Inspector cannot lay a complaint before the Magistrate for the aforesaid offences. The learned X Metropolitan Magistrate who tried these cases

came to the conclusion that there was no bar of limitation inasmuch as the offences complained of were continuing offences and that the pendency

of an appeal before the Central Government would not be a bar for the filing of a complaint in the Criminal Court by the Provident Fund Inspector

in regard to these offences. In that view he convicted the revision petitioners of the offences of which they have been charged, and sentenced them

each to fine under each court. Hence, the revision petitioners came up in revision.

Under S. 468(2X(b) of the Crl. P. C. the period of - limitation fixed in regard to offences punishable with fine or imprisonment not exceeding

six months is one year. Admittedly, except the complaint in the case of Crl. R.C. 117/77 and part of the complaint in Crl. R C. 116/77 the rest of

the complaints had been filed after the said period of one year. Of course, u/s 472, Crl P. C."" in the case of a continuing offence, a fresh period of

limitation shall begin to run at every moment of the time during which the offence continues. Therefore, the first question that arises for

consideration by us is whether the offences complained of in these cases are continuing offences. In Pankaja Mills Ltd v. N. Sivaramakrishna Iyer.

1977 L.W. Cri. 119 Natarajan, J., was of the view that the offences of non-payment of Provident Fund contributions and administrative charges

are not continuing offences. He observed that there was nothing in the Employees'' Provident Funds and Family Pension Fund Act or in the

Employees'' Provident Fund Scheme to show that the non-payment continued to be a recurring offence with each passing day and if the legislature

had intended that such defaults committed by employees would be continuing offences then that would have been clearly indicated in the Act or the

Scheme. As against this there is the decision in Md. Hussian Bhai v. State 1960-61 IFJ 171 in which a single Judge of the Madhya Pradesh High

Court (Krishnan, J.) observed as follows :

The Creation of the Employees'' Provident Fund and the fixing of the contributions of the employee and of the employer was for the purpose of the

welfare of the employees The mere fact that the 15th of the month next after the one for which the contributions were due expired, has not, in any

manner, terminated the duty of the employer to pay in the contributions to the fund and send the return to the Commissioner. It is a duty created by

the statute and continues day after day till, of course, the payment Is made and the returns are submitted. It is therefore, obvious that the failure to

pay up contributions and to submit the returns was a continuing wrong which becomes a penal offence under paragraphs 76 (a) and (c) on the day

In October, 1953 when the notification was made amending Para (3) (b) (v) of the Scheme.

This decision was obviously brought to the notice of Natarajan, J. in Pankaja Mills Ltd. v. N. Sivaramakrishna Iyer 1977 L.W.Crl. 119. But

Natarajan, J., would not accept the view propounded by Krishnan, J., of the Madhya Pradesh High Court in view of the decision in State of Bihar

v. Deokaran Menshi 1973 L.W. Crl. 129

In all these cases the revision petitioners have been convicted of offences under S. 14(1A) and S.I4-A(1) of the Employees'' Provident Funds

and Family Pension Fund Act. S. 14(1A) states that ""an employer who contravenes, or makes default in complying with, the provisions of S. 6 or

clause (a) of Sub-s. (3) of S. 17 in so far as it relates to the payment of inspection charges, or paragraph 38 of the Scheme in so far as it relates to

the payment of administrative charges, shall be punishable with imprisonment for a term which may extend to six months....

S. 5 of the Act empowers the Central Government to frame a scheme to be called the Employees'' Provident Fund Scheme for the establishment

of provident funds under this Act for employees or for any class of employees and to specify the establishments or class of establishments to which

the said scheme shall apply and there shall be established, as soon as may be after the framing of the scheme, a Fund in accordance with the

provisions of the Act and the scheme. Such a scheme has been framed by the Central Government.

S. 6 of the Act says:

The contribution which shall be paid by the employer to the Fund shall be six and a quarter per cent. Of the basic wages, defames allowance and

retaining allowance, if any, for the time being payable to each of the employees whether employed by him directly or by or through a contractor,

and the employees'' contribution shall be equal to the contribution payable by the employer in respect of him and may, if any employee so desires

and if the Scheme makes provision therefore, be an amount not exceeding eight and one-third per cent of his basic wages dearness allowance and

retaining allowance if any.

The first proviso to this section says:

Provided that in its application to any establishment or class of establishments which the Central Government, after making such enquiry as it

deems fit may by notification in the Official Gazette specify, this section shall be subject to the modification that, for the words -''six and a quarter

per cent"", the words ""eight per cent"" shall be substituted.

The other parts of the section are not germane to the consideration of the question before us.

S. 6A of the Act empowers the Central Government to frame a similar scheme to be called Employees'' Family Pension Scheme for the

purpose of providing family pension and life assurance benefits to the employees of any establishment or class of establishments to which this Act

applies. Sub-S. (2) states that there shall be established, as soon as may be after the framing of the Family Pension Scheme, a Family Pension

Fund into which shall be paid from time to time in respect of every such employee (a) such portion, not exceeding one-fourth, of the amount

payable under S.O as contribution by the employer as well as the employee as may be specified in the Family Pension Scheme, (b) such sums as

are payable by the employer of an exempted establishment under Sub-s. (6) of S. 17 and (c) such sums, being not less than the amount payable in

pursuance of clause (a) out of the employer''s contribution under S. 6, as the Central Government may, after due appropriation made by

Parliament by law in this behalf, specify. The remaining parts of the section are not relevant for the consideration of the issues before us.

Paragraph 76 of the Employees'' Provident Funds scheme states as follows;

If any person

(a) fails to pay any contribution which he is liable to pay under this scheme, or,

(b) deducts or attempts to deduct from the wages or other remuneration of a member the whole or any part of the employer''s contribution, or

(c) fails or refuses to submit any returns, statement or other document required by this Scheme or submits a false return,, statement or other

document, or makes a false declaration, or

(d) obstructs any Inspector or other Official appointed under the Act or this scheme In the discharge of his duties or fails to produce any record for

inspection by such Inspector other official, or.

(e) is guilty of contravention of or non-compliance with any other requirement of this Scheme, he shall be punishable with imprisonment which may

extend to six months or with fine which may extend to one thousand rupees, or with both.

Paragraph 36 deals with the duties of the employers. Sub-paragraph (1) of paragraph 36 enjoins the employer to send to the Commissioner, within

fifteen days of the commencement of this Scheme, a consolidated return in such form as the commissioner may specify of the employees required

or entitled to become members of the Fund showing the basic wage, retaining allowance (if any) and dearness allowance including the cash value

of any food concession paid to each of such employees. Sub-paragraph (2) with which we are concerned says that every employer shall send to

the Commissioner within fifteen days of the close of each month a return (a) in Form 5 of the employees qualifying to become members of the

Fund for the first time during the preceding month together with the declarations, in Form 2 furnished by such qualifying employees and (b) in such

form as the Commissioner may specify, of the employees leaving service of the employer during the preceding month.

The government of the change against the revision petitioners in all these cases except one is that they failed to submit the returns in Form Nos.

5, 10 and 12 as required under sub-paragraph (b) of paragraph 76 of the Employees'' Provident Funds Scheme for various months. The question

is whether such an offence is a continuing offence. Unfortunately, the Act itself does not define what a continuing offence is. But the expression

''continuing offence'' has however acquired a well recognised meaning in criminal law and M has been observed in Malvan Co-operative Urban

Bank Ltd. Vs. Kamalakar Narayan Zantye and Others, :

if an act committed by an accused person constituted an offence and if that act continued from day to day, then from day to day a fresh offence is

committed by the accused so long as the act continues. Normally; and in the ordinary course an offence is committed only once. But there may be

offences which can be committed from day to day and it is offences falling is this latter category that are described as continuing offences. In every

case of a continuing offence it may be possible to describe the default as amounting to an omission or to a positive act on the part of the defaulter.

Hence the distinction between a default which consists in failure to comply with a direction to do a positive act may not be very helpful in

determining the character of a continuing offence.

In that case the offences complained of were failure to apply for the registration of a factory and for grant of license and failure to give a'' notice of

occupation under the Factories Act read with the Bombay Factories Rules. It was held that the failure to apply for the registration of the factory

and to give a notice of occupation was not a continuing offence but that the conduct of the accused in using the premises as a factory without

obtaining a license constituted a continuing offence and as such no bar of limitation under S. 106 of the Factories Act could be pleaded in respect

of that charge. The learned Judges of the Bombay High Court have referred to the decision in Bhchartas v. Emperor AIR 1930 Bom. 340 where it

was held that the failure to remove a building in respect of which a person has been convicted under S. 123(7) or S. 118,4) of the Bombay City

Municipalities Act was not a continuing contravention and in dealing with the question of limitation the Bench took the view that limitation for the

prosecution for a continuing offence runs from the time when the offence is first committed, or, where the offence consists in failure to remove the

building after conviction, from the date of the conviction which view, however, was dissented from in Emperor Vs. Karsandas Govindji Ved,

where it was held that the establishing of a factory without permission is an offence committed once and for all when the factory is established, but

that the working of factory without permission is an offence which arises on every day on which the factory is so worked and hence S. 514 of the

City of Bombay Municipal Act, can be no bar to a charge in respect of working the factory without permission. The decision in State v. Babu

Gulah Mahomed Crl. Rev. Appln. No. 114 of 1951 of the Bombay High Court and the decision in State of Bombay v. Devaraj Tulsi AIR 1932

Bern. 146 have also been considered by the Division Bench in State v. Bhiwandiwalia. The Division Bench however would not subscribe to the

view expressed by Bhagawati, J., in State of Bombay Vs. Devraj Tulsi and Others, That view, as expressed by Bhagwati, J., was as follows :

...it is a misnomer to say that fresh offences are committed at each period of time when particularly the non compliance of the order which

constitutes the offence is the omission to do an act which has been ordered to be done.

Bhagwati, J., was of the view that where a positive act is ordered to be done, a case or cases may arise where by reason of the breach of the

terms of the order you might have commission of a series of offences from day to day. The Division Bench in State v. Bhiwandiwalla AI.R. 1935

Bom. 161, however, commenting on that view has observed as follows :

With respect, the distinction which these observations seems to bring out between a default which consists of an omission to do an act and a

default which consists in failure to comply with a default which consists in failure to comply with a direction to do a positive act may not be very

helpful in determining the character of a continue offence.

We are in respectful agreement with this view of the Division Bench.

The Division Bench further referred to the decision in Public Prosecutor v. Veerabadrappu AIR 1953 Mad 204 where it was held that failure

to comply with the provisions of S. 14 of the Factories Act is a continuing offence and agreed with the view therein.

In Md. Hussain Bhai and Another v. State 19 F.J.R. 171 Krishnan, J., of the Madhya Pradesh High Court held that the failure to pay up the

contributions and to submit returns, for which the punishment is laid down in Paragraph 76 (a) and (c) of the Scheme, is a continuing wrong. He

further observed that while fixing of a date may mean that the employer should pay into the fund and send to the Commissioner the returns by that

date, it does not mean that once the date is passed, the employer is relieved of his duty and there is nothing more to be done, and, therefore, even

if the provisions penalizing the default were supposed to come into force after the date so fixed for payment into the fund or for sending in the

return, the offence being continuous would fall within the scope of the penal provisions. In that case the accused persons had failed to comply with

paragraph 38 of the Scheme and thereby committed an offence punishable under paragraph 76 (a) and (c) of the Scheme. Krishnan, J., referred to

the decision in G.D. Bhattar and Others Vs. The State, where it was observed as follows :

The question whether an illegal omission is a continuing offence or not, can hardly be answered in a summary manner without considering the

nature of the duty imposed, and the object which the legislature had in view in imposing the duty.... The pithead baths and the mines cr�ches are

amenities required by the legislature, the first for the sanitation an health of the minors and the second for the proper care of the children of female

miners...without these, the miners could not be expected to preserve their health, and children of the female minors could not be properly looked

after. The mere fact, therefore, that the specified date within which the baths and the cr�ches were required under the rules to be constructed

expired, cannot possibly mean that the duty of the owner ended with the expiry of the date. That duty still remains. It continues till the pithead baths

and the cr�ches are constructed as required by the rules. A continuing wrong or a continuing offence is, after all, a continuing breach of a duty

which itself is continuing. If a duty continues from day to day the non-performance of that duty from day to day is a continuing wrong.

With great respect we are of the view that his definition of a continuing wrong or a con-that tuning offence lays down the proper test that should be

adopted in determining the question as to whether a particular wrong or an offense is a continuing one. Krishnan, J"" then went on to observe as

follows:

The creation of the Employees'' Provident Fund and the fixing of the contributions of the employees and the employer was for the purpose of the

welfare, of the employees. The mere fact that the 15th of the month next alter the one for which the contributions were due, expired, has not, in any

manner, terminated the duty of the employer to pay in the contributions to the fund and send the return to the Commissioner. It is a duty created by

the statute and continues day after day till, of course the payment is made and the returns are submitted. It is, therefore, obvious that the tailor to

pay up contributions and to submit the returns was a continuing wrong.

In Pankaja Mills Ltd. v. N. Siratamakrishna Iyer Natarajan, J., while referring to the said observations of Krishnan, J., has merely observed

that be was unable to agree with the contentions of the Public Prosecutor who relied on the aforesaid decision, and he observed as follows:-

It very difficult to hold that the offences complained of against the petitioners in the several cases can be held as continuing offences. Since the

contributions and charges had to be paid under the Act or the Scheme on the 15th of the month next after the one for which the contributions or

charges were due the offences become completed as soon as the contributions on charges were not remitted within the stipulated time. There is

nothing In the Act or the Scheme to show that the non-payment continued to be a recurring offence with each passing day. If the Legislature bad

intended that defaults committed by employees would be continuing offences then that would have been clearly indicated in the Act or the Scheme.

Natarajan, J., it must be observed, was dealing with a prosecution for non-payment of Provident Fund contributions and/or administrative charges,

statutorily payable under the Employees'' Provident Funds and Family Pension Fund Act and the Employees'' Provident Fund Scheme and the

Employees'' Family Pension Fund Scheme. With great respect, we are unable to subscribe to this view expressed by Natarajan, J., for, it is not in

accordance with the definition of a continuing wrong as given by the Supreme Court in State of Bihar v. Deokawn Menshi 1973 L.W. Crl. 129

where it was observed by the Supreme Court as follows :

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 requirements and which involves 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 or 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.

The statute creates a duty on the part of the employers to pay a contribution as laid down by Ss. 6 and 6-A of the Act and paragraph 76 (a) of

the Scheme penalizes the failure to pay such contribution and paragraph 76 (b) penalizes the deduction or attempting to deduct from the wages or

other remuneration of a member the whole or any part of the employer''s contribution and paragraph 76 (c) penalizes the failure or refusal to

submit any return, statement or other document required under the Scheme. The failure to pay any such contribution or to submit any return or

statement continues from day to day; a fresh offence is committed by the accused so long as he continues in his failure to pay the contribution or to

submit the return or statement. It is not mere failure to obey an order or to comply with a direction. It is not as if once he fails to pay the

contribution or to submit the return on the due date, the employer it relieved of his duty and there is nothing more to be done. The duty to pay the

contribution or to submit the return still remains and continues till the contributions are made or the returns submitted. Therefore, a failure to pay the

contribution or to submit the return is a continuing breach of a duty which continues till it is performed and the non-performance of such a duty

from day to day is a continuing wrong. We are unable to agree with Natarajan, J''s observation that since the contributions and charges have to be

paid under the Act or the Schemes on the 15th of the month next after the one for which the contributions or charges were due the offences

become completed as soon as the contributions or charges were not remitted within the stipulated time. A failure to pay the contributions or to

submit the returns is an offence which is susceptible of continuance and is certainly distinguishable from the one which is committed once and for all

and it is a liability which continues until the contribution is made or the return submitted and as such the offence complained of against the revision

petitioners in our opinion, comes clearly within the definition of a continuing offence as contained in the decision of the Supreme Court in State of

Bihar v. Deokaran Menshi. In the aforesaid case the Supreme Court was dealing with Ss. 66 and 79 of the Mines Act and the Indian Metaliferous

Regulations, (1926) Reg.3 and the Supreme Court held that the infringement in that case occurred on January 21 of to relevant year under

Regulation 3 read With S. 66 and is complete on the owner falling to furnish the annual returns by that day. The Supreme Court further noticed that

the regulation did not lay down that the owner, manager, etc, of the mine concerned would be guilty of an offence if he continues to carry on the

mine without furnishing the returns or that the offence continued until the requirement of Reg.3 was complied with or, in other words, Reg.3 does

not render a continued disobedience or non-compliance of it an offence. It might be noted that the Supreme Court has in the aforesaid decision

referred with approval to the decision in State Vs. A.H. Bhiwandiwalla, Therefore, in our view, the offences complained of, against the revision

petitioners are continuing offences and as such under S. 472, Crl. P.C. a fresh period of limitation would begin to run at every moment of the time

during which the offence continues.

The next question which falls for determination by us is whether the provisions of the Employees'' Provident Funds and Family Pension Fund

Act could be enforced pending the decision on a reference under S. 19-A of the Act. S. 19-A of the Act reads as follows:-

If any difficulty arises in giving effect to the provisions of this Act, and in particular, if any doubt arise as to-

(i) Whether an establishment which is a factory, is engaged in any industry specified in Schedule I;

(ii) Whether any particular establishment is an establishment falling within the class of establishments to which this Act applies by virtue of a

notification under clause (b) of sub-section (3) of S.I;

(iii) the number of persons employed in an establishment; or

(iv) the number of years which have elapsed from the date on which an establishment has been set up, or

(v) Whether the total quantum of benefits to which an employee is entitled has been reduced by the employer the Central Government may, by

order, make provision, or give such direction, not inconsistent with the provisions of this Act, as appear to it to be necessary or expedient for the

removal of the doubt or difficulty; and the order of the Central Government, in such cases shall be final.

It is admitted that regarding the applicability of the Act to this firm, an appeal is pending with Central Government under S. 19-A, The question is

whether the prosecutions of the revision petitioners are barred, till that appeal under S. 19-A is disposed of The learned Magistrate repelled the

contention raised on behalf of the revision petitioners that during the pendency of such an appeal their prosecutions would be barred by observing

that the learned counsel could not point out any section in the Act or rule there-under to show that on account of the pendency of any such petition

before the Central Government such complaints would be barred. In support of this contention raised on behalf of the revision petitioners, the

learned counsel relies upon the decision of the Supreme Court in Union of India (UOI) and Another Vs. Ogale Glass Works, and on a decision of

this Court in T.R. Raghava Iyengar and Co. Vs. The Regional Provident Fund Commissioner, In the former case, the Supreme Court had to

decide whether there was already a decision of the Central Government under S. I9-A of the Act holding that the Act and the Scheme applied

only to two sections of the Ogale Glass Works, The Supreme Court after a consideration of the entire correspondence found that there had been

no final decision taken by the Central Government under S. 19-A of the Act regarding the non-applicability of the Act and the Scheme in respect

of the three sections of the Ogale Glass Works. The Supreme Court did not consider the question whether, when the matter was pending before

the Central Government under S. 19-A of the Act, contributions under the Act could be demanded or prosecutions launched for failure to pay

contributions or to submit the returns. Therefore, the revision petitioners cannot seek support from the aforesaid decision of the Supreme Court.

The Supreme Court has observed as follows:

It will be seen that the Act is essentially a measure for the welfare of the employees, and if the Act applies and scheme has been framed for an

establishment, employer is bound to make the contributions as provided for under S. 4. There is a statutory liability on an employer to pay the

contribution at the rate mentioned In S. 6. Stringent provisions have been made for noncompliance with the requirement of the statute and every

drastic powers have been given to the authorities to recover the contribution due from an employer. Though there is a hierarchy of officials-,

nevertheless, it is only the Central Government that has been given power under S. 1A to give a direction not inconsistent with the provisions of the

Act if any doubt arises regarding one or the other matters referred to in Cls. (i) to (v) and that power is to be exercised when any difficulty or

doubt arises in giving effect to the provisions of the Act.

In T.R. Raghava Iyengar & Co. v. Regional Provident Fund Commissioner l963 I L.I.J 32 Jagadisan, J. in a writ petition filed under Article

226 of the Constitution of India for the issue of a Write of Mandamus or other appropriate writ forbearing the Regional Provident Fund

Commissioner from enforcing the provisions of the Employees'' Provident Funds Act and the Scheme framed thereunder, after referring to the

decision of this Court in Annamalai Mudaliar and Bros. Vs. Regional Provident Fund Commissioner, Madras and Others, the decision of the

Calcutta High Court in Aluminium Corporation of India Ltd. 1959 1 L.L.J 249 v. Regional Provident Fund Commissioner 4 and that of the

Bambay High Court in The Nagpur Glass Works Ltd. Vs. The Regional Provident Fund Commissioner and Others, and of an unreported decision

of this Court in W.P. No. 619 of 1959 disagreed with the view expressed by the Bombay High Court and the view expressed by Veeraswami, J.

(as he then was) in W.P. No. 619 of 1959; and agreeing with the decision of Rajagopalan, J. in Annamalai Mudaliar & Bros. Madras v. Regional

Provident Fund Commissioner held that a mere demand by the commissioner compelling the petitioners to pay the contributions cannot be a

decision by a competent authority on the dispute raised by the petitioners and in that view he directed the issue of a mandamus forbearing the

Regional Provident Fund Commissioner from enforcing the demands under the Act and the Scheme till the application of the petitioners under S.

19-A of the Act before the Central Government was disposed of. In Annamalai Mudaliar & Bros. v. Regional Provident Fund Commissioner

Rajagopalan, J., held that when a dispute existed as to whether a particular factory employed fifty or more persons and where such dispute was

not decided under S. 19-A of the Act, the provisions of the Employees'' Provident Fund Act could not be applied to such factory until the dispute

under S. 19-A of the Act was decided. That decision was also on a writ petition filed under Article 226 of the Constitution for the issue of an

appropriate writ to the Regional Provident Fund Commissioner to restrain him from enforcing the provisions of the Act and the Scheme framed

thereunder against the petitioner firm and Rajagopalan, J., directed the issue of such a writ forbearing the Regional Provident Fund Commissioner

from enforcing the demands before the question at issue was decided under S. 19-A of the Act by the Central Government, This decision,

supports the revision petitioners'' contention.

In Mahaveer Metal Manufacturing Company v. Regional Provident Fund Commissioner 1970 Lab I.C 25l. a Division Bench of the Rajasthan

High Court considered the question whether till a doubt regarding the applicability of the Act was finally removed by the Central Government

under S. 19-A, it could be said that the petitioner''s establishment must be taken to be specified as the one to which the scheme will be applicable

and the Division. Bench answered the question as follows:

If any ground of uncertainty exists, it will be deemed that a particular industry has been specified only after that doubt or uncertainty has been

removed by following the procedure laid down in S. 19-A of the Act.

The Division Bench also referred to the decision in T. R. Raghava Iyengar And Co. v. Regional Provident Fund Commissioner, Madras as having

reached the tame conclusion. That decision, however, did not consider the question whether till a decision is arrived at by the Central Government

under S. 19-A, the provisions of the Act cannot be enforced against the particular firm.

In Jintan Clinical Thermometer Co. (India) Pvt. Ltd. v. Union 1975 L.L. J. 169 of India and Another. It was observed:-

There is no provision in the Provident Fund Act to defer or postpone the application of the Act to an Industry except S. 16 or to suspend its

application in a particular industry. If the application of the Act is deferred on account of pendency of a dispute it will lead to dubious and absurd

results. S. 19-A confers upon the Central Government power to remove difficulties subject to the condition that any direction It issues shall not be

inconsistent with the provisions of the Act. Reading S.I (3) (a) and S. 16 together it Is quite clear that the Act applies to an industry proprio vigore

and that its application does not depend upon any decision of the Central Government.

It was further observed that the implementation of the Act and the Scheme could not be suspended by reason of S. 19 A;...and there is a host of

authorities which have taken the view that once the Act and the Scheme began to apply these provisions, would not be suspended because of the

pendency of the proceedings under S. 19-A of the Act and the Bench proceeded to consider those decisions.

Yet another decision which has relevance is the one in Provident Fund Inspector, Emakulam v. Auto Transport Union (Private) Ltd. and

Others 1964 I L.L. J. 562 in which a Division Bench of the Kerala High Court observed as follows:

S. 19-A of the Employees'' Provident Funds Act. 1952, does empower the Central Government to remove difficulties arising in giving effect to the

provisions of the Act. Rut, there is no provision that In every ease where a plea is raised that the Act is not applicable to a particular establishment

or to a particular person, an application should be made under S. 19 A and without that the Criminal Court trying an offence punishable under the

Act would have no jurisdiction to proceed with the case and come to its own conclusions, and hence the Criminal Court trying an offence

punishable under the Act has jurisdiction to proceed with the trial of the case where the accused has taken the plea, which could be decided by the

Central Government under the provisions of S. 19-A, Employees Provident Funds Act. It is the Court''s duty to determine such questions itself to

find out whether the accused is guilty or not of the offence charged. The Court is not bound to stay further proceedings. Further in such

proceedings, the Criminal Court has got no right to ask one of the parties to approach the Central Government for a direction in the matter and

adjourn the case till that order is obtained.

It might however, be noted that in the above case no application under S. 19-A of the Act had been made by either party to the Central

Government.

In order to decide which of these two views is correct it is necessary for us to make a brief analysis of the provisions of the Act and we shall

straightway proceed to do so. The Employees'' Provident Funds and Family Pension Fund Act, 1952 provides for the institution of provident funds

and family pension fund for employees in factories and other establishments. Sub-s. 1(3) states that subject to the provisions contained in S. 16, it

applies (a) to every establishment which is a factory engaged in any industry specified in Schedule I and in which twenty or more persons are

employed, and (b) to any other establishment employing twenty or more persons or class of such establishments which the Central Government

may, by notification in the Official Gazette, specify in this behalf. The proviso to Sub-s. (3) states;

provided that the Central Government may after giving not less than two months'' notice of its intention so to do by notification in the Official

Gazette, apply the provisions of this Act to any establishment employing such number of persons less than twenty as may be specified in the

notification.

Sub-S. (4) states:

Notwithstanding anything contained in Sub-s. (3) of this section or sub-S (1) of S.16, where it appears to the Central Government, whether on an

application made to it in this behalf or otherwise, that the employer and the majority of employees in relation to any establishment have agreed that

the provisions of this Act should be made applicable to the establishment-, it may, be notification in the Official Gazette, apply the provisions of this

Act to that establishment.

Sub-s. (5) states:

An establishment to which this Act applies shall continue to be governed by this Act notwithstanding that the number of persons employed therein

at any time falls below twenty.

S. 16 to which Sub-s. (3) of SI is subject states that the Act shall not apply to certain establishments.

S. 2(g) defines a factory. Factory means any premises, including the precincts thereof, in any part of which a manufacturing process is being

carried on or is ordinarily so carried on, whether with the aid of power or without the aid of power. Therefore, the Act becomes applicable

automatically to every establishment which is a factory as defined above and which factory is engaged in any industry specified in Schedule I and in

which twenty or more persons are employed as well as to any other establishment employing 20 or more persons which the Central Government

may by notification in the Official Gazette specify in this behalf. Schedule I mentions the various industries in respect of which establishment, the

Act applies. S. 5 authorizes the Central Government, by notification in the Official Gazette to frame a scheme to be called the Employees''

Provident Fund Scheme for the establishment of provident funds under the Act for employees and also specifies the establishments to which the

said Scheme would apply and after the framing of the scheme a fund in accordance with the provisions of the Act has to be established. Similarly,

S. 6 empowers the Central Government by notification in the Official Gazette to frame a Scheme to be called the Employees'' Family Pension

Scheme for the purpose of providing family pension and life-assurance benefits to the employees of any establishment or class of establishments to

which the Act applies, and as soon as such a Scheme is framed a Family Pension Fund should be established.

S. 5 fixes the rate of contributions to be paid by the employer to the Fund in respect of each of the employees. Likewise, S. 6-A (2) provides

for payment from time to time in respect of every employee of amounts at a particular rate as contribution by the employer as well as the

employees as specified in the family Pension Scheme. It is not disputed that such a Provident Fund Scheme and Family Pension Scheme have been

framed. If the establishment of the revision petitioners is a factory engaged in any one of the industries specified in Scheme I and in that factory 20

or more persons are employed, then automatically Ss. 6 and 6-A come into operation and contributions and payments have to be made by the

employer as laid down in those sections. As already stated, exceptions hare been made In the ten of certain establishments under S.I6 and further

under S. 17 the appropriate Governments have been empowered to exempt by means of a notification any establishment from the operation of all

or any of the provisions of the Scheme under the conditions mentioned in that section. There is no section in the Act which makes the operation of

the Act subject to any decision by an authority. S. 19- A merely states that if any difficulty arises in giving effect to the provisions of this Act, and in

particular, if any doubt arises as to (i) whether an establishment which is a factory, is engaged in any industry specified in Schedule I (it) whether

any particular establishment is an establishment failing within the class of establishments to which this Act applies by virtues of a notification under

clause (b) of Sub-s. (3) of S. 1, (iii) the number of persons employed in an establishment, or (iv) the number of years which have elapsed from the

date on which an establishment has been set up, or (v) whether the total quantum of benefits to which an employee is entitled has been reduced by

the employer, the Central Government may, by order, make such provision or give such direction, not inconsistent with the provisions of this Act,

as appear to it to be necessary or expedient for the removal of the doubt or difficulty and the order of the Central Government, in such cases shall

be final. Therefore, in our view, the applicability of the Act to any particular establishment cannot be postponed or made subject to a decision by

the Central Government under S. 19-A

We might also emphasize the fact that 19-A confers powers on the Central Govern to remove difficulties arising in giving effect to the

provisions of this Act, and in particular, if any doubt arises as to-

(i) ""whether an establishment which Is a factory is engaged in any industry specified in Schedule J.

(ii) Whether any particular establishment is an establishment falling within the class of establishments to which this Act applies by virtue of a

notification under clause (b) of sub-S-(3) of S. 1;

(iii) the number of persons employed in an establishment; or.

(iv) the number of years which have elapsed from the data on which an establishment has been out

(v) whether the total quantum of benefits to which an employee is entitled has been reduced by them employer, the Central Government may, by

order, make such provision or give such direction, not inconsistent with the provisions of this Act, as appears to it to be necessary or expedient for

the removal of the doubt or difficulty; and the order of the Central Government, in such cases, shall be final.

We may also refer to the observations of the Supreme Court in Union of India v; Ogale Glass Works 1971 11 L.LJ. 513 to the effect that

the Act is a essentially measure for the welfare of the employees, and if the Act applies and scheme has been framed for an establishment, the

employer is bound to make the contributions as provided for under S 6 Stringent provisions have been made for non-compliance with the

requirement of the statute and very-drastic powers have been given to the authorities to recover the contribution due from an employer.

We are in agreement with the observations in Jintan Clinical Thermometer Co. (India) Pvt. Ltd. v. Union of India and Another, 1975 1 L.L.J. 169

that

there is no provision in the Provident Fund Act to defer or postpone the application of the Act to an industry except S. 16 or to suspend its

application in a particular industry, If the application of the Act is deferred on account of pendency of a dispute it will lead to dubious and absurd

results.

We are also in respectful agreement with the observations in Provident Fund Inspector, Ernakulam v. Auto Transport Union (Private) Ltd. and

Others, 1964 1 L.L.J. 562 where it has been observed with reference to S. 19.A that

there is no provision that in every case where a plea is raised that the Act is not applicable to a particular establishment or to a particular person, an

application should be made under S. 19-A and without that the criminal Court trying an offence punishable under the Act would have no

jurisdiction to proceed with The case and come to its own conclusions, and hence the Criminal court trying an of fence punishable under the Act

has jurisdiction to proceed with the trial of the case where the accused has taken the pleas which could be decided by the Central Government

under the provisions of S. 19-A, Employees'' Provident Funds Act. It is the Court''s duty to determine such questions itself to find out whether the

accused is guilty or net of the offence charged. The Court is not bound to stay further proceedings.

In that case, there was no application under S. 19-A of the Act pending but in our view that does not make any difference. We may also refer to

the observations in the Regional Provident Fund Commissioner Madras v. K.R. Subbaier Tape Factory 1967 2 L.L.J. 606 where it was held that

That the main purport of the Act and the scheme framed thereunder was to bring into existence a compulsory provident fund applicable to all

industries to which the Act applied, with effect from the date when the scheme had been declared applicable to them. The principal duty was laid

upon the employer to put the scheme into operation forthwith, and to make the contributions of both the employer''s and employees'' share to the

fund then and there....

We are with great respect unable to agree with the observations in Aluminium Corporation of India Ltd. v. Regional Provident Fund Commissioner

1959 l .L.L.J. 249 to the effect that

An employer cannot make a default when there is a difficulty or doubt and when the Central Government has to remove that difficulty or doubt by

an ex-parte order. It is only from the date of the order removing such difficulty or doubt that the default can operate.

Nor are we able to agree with the observations in Annamalai Mudaliar and Bros. Madras v. Regional Provident Fund Commissioner 1955 1

L.L.J. 674 We are of the view that the provisions of the Employees'' Provident Funds and Family Pension Act could be enforced pending decision

on a reference under S. 19-A of the Act. In this view the convictions of the revision petitioners are correct and we confirm the convictions and the

sentences.