AI Structured Summary
Not yet generated for this judgment
Judgment
S.M. Sidickk, J.—The appellant is the complainant and the respondent is the accused before the lower Court. This appeal is preferred by the Appellant/Complainant to set aside the order of acquittal dated 31-5-1989 passed by the 2nd Metropolitan Magistrate, Egmore, Madras in C.C. No. 10389 of 1987.
The Appellant/Complainant filed the complaint before the lower Court for the offence u/s 85(e) of E.S.I. Act of 1948 punishable u/s 85(ii) of E.S.I. Act of 1948, raising the following contentions:-
The factory known as M/s. Mohan Metals, situated at Plot No. 94, SIDCO Industrial Estate, Hosur 635 126 is covered under the said Act. A distinctive Code No. 51-45081 was allotted to the said Factory. The accused being the Managing Director is the Principal employer of the said Factory as per the provisions of the said Act. The principal employer is required to submit to the said Corporation a return in respect of the employees employed in the said factory in Form No. 6 known as the Return of Contribution within the time limit specified under Regulation 26 of the E.S.I. (General) Regulations, 1950. The accused failed to submit the said Return of Contribution in Form No. 6 in respect of his employees for the contribution period ended on 31-3-1987 which Return should have been submitted by him on or before 30-4-1987. Thus by his failure to submit the said Return to the said Corporation on or before 30-4-1987, the accused has committed an offence u/s 85(e) of E.S.I. Act of 1948. The above accused has already been convicted for having committed similar offence of non-submission of Return in Form No. 6 for the contribution period ended 30-9-1985 and fined Rs. 60/- in all by the. 2nd Metropolitan Magistrate, Egmore, in C.C. No. 3632 of 1986 on 18-8-1986. He is liable to be punished u/s 85-A of E.S.I. Act of 1948 also for the period ended 31-3-1987 and the complaint is filed in time in accordance with the provisions of Section 86(3) of the E.S.I. Act of 1948. The Regional Director has accorded sanction on 26-7-1987 for prosecution of the accused for the above said offence as required u/s 86(1) of E.S.I. Act of 1948.
A copy of the complaint was furnished to the Respondent/Accused. The particulars of accusation were read over to the accused who denied the same. In proof of the charges the complainant examined P.Ws.1 to 3 and filed the documents marked as Exs. Pl to P3.
When questioned u/s 313 of Cr. P.C. the Respondent/Accused denied the incriminating circumstances available in the evidence of the complaint. He did not choose to examine any witness on his side.
On consideration of the materials placed, the learned 2nd Metropolitan Magistrate at Egmore found that the Respondent/Accused was not guilty of the offence u/s 85(e) of E.S.I. Act and consequently be acquitted the Respondent/Accused u/s 255(1) of Cr. P.C. Aggrieved against the order of acquittal dated 31.5.1989 in C.C. No. 10389 of 1987 the Appellant/Complainant has preferred this appeal.
After hearing the learned counsel for the Appellant/Complainant and the counsel for Respondent/Accused the point that arises for determination is as to whether the prosecution has proved its case beyond all reasonable doubt and as to whether the Respondent/Accused is guilty of the offence u/s 85(c) of E.S.I. Act and if so what is the sentence.
Point :- It is the case of the prosecution that the Respondent/Accused is covered under the E.S.I. Act and he was allotted distinctive code number and he was bound to submit the Return of Contribution in Form No. 6 specified under Regulation 26 of the E.S.I. Regulations of 1950, and the accused did not submit the return in respect of his employees for the contribution period ending on 31-3-1987, and the said return for the abovesaid period ought to have been filed on or before 30-4-1987 and so the Respondent/Accused had committed the offence u/s 85(e) of E.S.I. Act for his failure to submit the Return of Contribution for the period ending 31-4-1987. In support of the above version the Inspector of E.S.I. Corporation by name Ramanujam was examined as P.W. 1 and he has stated about the code number allotted to the accused and further deposed that the accused is bound to file the Return of Contribution for the period ending 31-3-1987 on or before 30-4-1987, and he failed to submit the same and on an earlier occasion the accused convicted of the same offence for not filing the return of contribution for the period ending 30-9-1985 in C.C. No. 3632 of 1986. P.W.I Ramanujam had also spoken to the Sanction Order marked as Ex.P.2 passed by the Regional Director of E.S.I. Corporation on 26-7-1987 to prosecute the Respondent/Accused for his failure to submit the Return of Contribution in Form No. 6 for the contribution period ending 31-3-1987. The only question that was asked during the cross examination of P.W.I Ramanujam was to the effect as to whether the respondent/accused has paid the contribution amount and P.W.I Ramanujam has stated that he did not know about the same. Therefore the testimony of P.W. I Ramanujam about the aspects of not filing the Return of Contribution for the period ending 31-3-1987 and previous conviction for the same nature of offence and the Sanction Order issued by the Regional Director of E.S.I. Corporation to file this case were not at all controverted and therefore the evidence of P.W. 1 Ramanujam will prove that the Respondent/Accused failed to submit the return of contribution for the period ending 31.3.1987 as required under Regulation 26 of the E.S.I. Regulations of 1950.
The testimony of P.W. 1 Ramanujam is corroborated by the Head Clerk of the E.S.I. Corporation examined as P.W.2 Rajagopal who had sworn to the fact that there is no entry in the register for Form No. 6 to show that the Respondent/Accused has submitted the return of contribution for the period ending 31.3.1987. There is no cross examination of the evidence P.W.2 Rajagopal and so his evidence will also lend support to the prosecution case.
P.W.3 Varadarajan is another Inspector of E.S.I. Corporation who inspected the factory of the accused and he found twenty one persons working in the factory of the accused at the time of his inspection. It was elicited during his cross examination that he inspected the factory of the accused on 10.7.1984 and the present complaint is with reference to the contribution period ending 31.3.1987. It was further stated by P.W.3 Varadarajan that he was informed that more than twenty persons were working in the factory of the accused as on 10.7.1984. Not even a suggestion was thrown to P.W.3 Varadarajan that less than twenty persons were working during the relevant period for the contribution period ending 31.3.1987. It is not the case of the accused that he is not covered under the provisions of E.S.I. Act as he has employed less than twenty persons in his factory for the contribution ending 31.3.1987. In such circumstances the testimony of P.W.3 Varadarajan will also have some bearing about the coverage of the factory of the accused under the provisions of the E.S.I. Act.
The lower Court acquitted the accused mainly on the ground that the complaint for the offence u/s 85(e) of E.S.I. Act without a complaint u/s 85(a) is not maintainable in view of the decision of our Madras High Court reported in Ashok Kumar Goval v. Manager, E.S.I. Corporation, Madras (1987 L.W. (Crl.) 285).
That was a case where a complaint was filed by the E.S.I. Corporation stating that accused therein failed to submit the return of contribution cards in Form No. 6 which should have been submitted by him on or before 10th July 1982 and thus he would have become guilty of the offences under Sections 85(g) and 85(e) of E.S.I. Act. The trial Court in that case viz., the Sub Divisional Magistrate at Ponneri did not give any finding that the accused has failed to submit the return and cards referred to in the complaint, but gave a finding that the accused has failed to pay his contribution in respect of the period ending 20-5-1982 and so on the basis of that finding convicted the accused under Sections 85(g) and 85(e) of the Act and sentenced him to undergo rigorous imprisonment for three months for each count and to pay a fine of Rs. 1,000/- on each count. On appeal, the Sessions Judge at Chingleput found that since the evidence is only in respect of non-payment of contribution and since there was no evidence whatsoever in respect of non-submission of the return of contribution and contribution cards, the conviction was not sustainable and accordingly the Sessions Judge at Chingleput acquitted the accused of the offence for which he stood charged but however directed retrial of the accused allowing the respondent to adduce evidence in respect of the offence complained of u/s 85(a) of E.S.I. Act for non payment of contribution. Against the Judgment of the Sessions Judge at Chingleput the accused preferred the Revision before the Madras High Court which rendered the decision reported in 1987 L.W.(Crl.) 285 by Justice David Annoussamy. In the abovesaid Judgment reported in 1987 L.W.(Crl) 285, the learned Judge in the middle of Paragraph 4 has stated as follows:-
Thirdly, the offence of non-payment and the offence of non-submissions of records are two distinct offences, as could be seen from Sections 85 of the Act. The non-payment of contribution is punishable u/s 85(a) of the Act, whereas the failure of submission of return is punishable u/s 85(e) of the Act. Further, the punishment for the offence under Clause (a) is different from the punishment in respect of other clauses. . . Fourthly, the Legislature by providing two different offences has by itself indicated its intention that a person who has failed to pay should not be punished for not submitting the contribution cards and return.
Relying upon the last sentence viz., "Fourthly, the Legislature by providing two different offences has by itself indicated its intention that a person who has failed to pay should not be punished for not submitting the contribution cards and return", the learned counsel for the Respondent/Accused argued that the present complaint filed u/s 85(e) for the failure to submit the return of contribution cannot be maintained in law without a complaint u/s 85(a) for the failure to pay the contribution. In other words the learned counsel for the Respondent/Accused would submit that a complaint for both the offences under Sections 85(a) and 85(e) alone can be maintained and not a complaint for the single offence u/s 85(e) of E.S.I. Act.
In my view the above approach of the learned counsel for the Respondent/Accused is erroneous for the following reasons. No doubt "the learned Judge David Annoussamy, J. has observed in one portion of the Judgment about the intention of the Legislature that a person who has failed to pay should not be punished for not submitting the contribution cards and return, and by such an observation it cannot be taken to mean that a complaint for failure to submit the return of contribution u/s 85(e) is not maintainable without a complaint for failure to pay contribution u/s 85(a) of E.S.I. Act. The learned Judge David Annoussamy, J. has observed in the earlier portion of his Judgment i.e., in the middle of paragraph 4 of his Judgment candidly that the offence of non-payment of contribution and the offence of non-submission of return of contribution are two distinct offences. Having stated so he could not have meant to say that a complaint for both the offences alone is maintainable. A reading of the provisions in Section 85(a) and 85(e) of E.S.I. Act would clearly indicate that they are different and separate offences and they cannot go together. The first step is to file a return and the next step is to pay the contribution, and the failure to observe the same can only be separate and distinct. In other words the failure to pay the contribution cannot be in the first instance and the failure of submitting the return of contribution cannot be at a later stage. The failure to pay contribution cannot be interlinked or inter-connected with the failure to submit the return of contribution as required by the Regulation. In my view the above decision of Justice David Annossamy is wrongly interpreted by extracting a single sentence in his Judgment and applied the same to contend that the complaint for the single offence u/s 85(c) for non submission of the return of contribution is not maintainable without a complaint for non-payment of contribution u/s 85(a) of E.S.I. Act. Therefore in my view, the decision of the learned Judge David Annossamy, J. cannot be the basis to contend that the complaint u/s 85(e) of the E.S.I. Act without a complaint u/s 85(a) of E.S.I. Act is not maintainable under law.
The learned counsel for the Respondent/Accused further pointed out to the regulation No. 26 of the E.S.I. Act(General Regulation of 1950) in support of his claim that the contribution must be paid in the first instance and the return of contribution must be submitted later on. Regulation 26 reads as follows:-
(26)(1) Every employer shall send a return of contribution in quadruplicate in Form 6 along with receipted copies of challan for the amounts deposited in the Bank, to the appropriate office by registered post or messenger, in respect of all employees for whom contribution were payable in a contributed period, so as to reach that office -
(a) within 42 days of the termination of contribution period to which it relates;
(b) within 21 days of permanent closure of the factory or establishment, as the case may be;
(c) within 7 days of the date of receipt of requisition in that behalf from the appropriate office.
Placing reliance on the words "along with the receipted challans for the amounts deposited in the Bank", the learned counsel for the Respondent/Accused submitted that there can be a return of contribution filed along with the payment of contribution and so the complaint for failure to submit the return without a complaint for non-payment of contribution cannot be maintained and so the lower Court is justified in acquitting the accused. I am unable to uphold the above contention of the learned counsel of the Respondent/Accused for the following reasons. Nowhere in the Regulation 26 it is stated that the payment of contribution is simultaneous with the filing of the return of contribution. It states that the return of contribution along with the receipted challans can be submitted. It can be submitted without the challans or with the challans. It is not mandatory for the owner of the establishment to pay the contribution and then to file the return of contribution. It is not the case of the Respondent/Accused nor any question was put to the witnesses examined as P.Ws.1 to 3 that the E.S.I. Corporation refused to receive the return without the payment of contribution. Even there may be nil return and in such a situation there shall not be any payment of contribution and so a "nil" return of contribution can also be submitted by the owner of the establishment. In such circumstances the contention raised by the learned counsel for the Respondent/Accused placing reliance on Regulation 26 is also not entitled to any acceptance.
It is evident from the materials on record that the Respondent/Accused has failed to file the return as required u/s 85(e) of E.S.I. Act. It is proved beyond reasonable doubt by the testimony of P.Ws.1 to 3 that the Respondent/Accused has failed to submit the return of his contribution for the period ending 31-3-1987 on or before 30-4-1997. Therefore there is no difficulty to come to the conclusion ''that the prosecution has proved its case beyond all reasonable doubt and the Respondent/Accused is guilty of the offence u/s 85(e) of E.S.I. Act.
Now turning to the question of sentence the Respondent/Accused has been convicted for a similar offence for the earlier period in C.C. No. 3632 of 1986 on the file of the IInd Metropolitan Magistrate, Egmore at Madras and he was sentenced to pay a fine of Rs.60/-. Considering the conduct of the Respondent/Accused and the accusation made against him for the subsequent period I am of the view that the Respondent/Accused is convicted and sentenced to pay a fine of Rs. 150/- for the offence u/s 85(e) of E.S.I. Act for the contribution period ending 31.3.1987 and so this appeal is allowed and the order of acquittal passed by the IInd Metropolitan Magistrate, Egmore at Madras in C.C. No. 10389 of 1987 is set aside and I answer this point in favour of the Respondent/Complainant.
In the result the appeal is allowed. The order of acquittal passed by the learned IInd Metropolitan Magistrate at Madras in C.C. No. 19389 of 1987 dated 31-5-1989 is set aside. The Respondent/Accused is found guilty of the offence u/s 85(e) of E.S.I. Act for failure to submit the return of contribution for the contribution period ending 31-3-1987. The Respondent/Accused is convicted and sentenced to pay a fine of Rs. 150/- for the offence u/s 85(e) read with Section 85(H) of E.S.I. Act of 1948 and in default of payment of fine the Respondent/Accused is sentenced to undergo simple imprisonment for a period of one week. The fine amount of Rs. 150/- shall be paid by the Respondent/Accused before the trial Court i.e., before the IInd Metropolitan Magistrate''s Court, Egmore at Madras to the credit of C.C. No. 10389 of 1987 within a period of one month from the date of the receipt of a copy of this Judgment by the lower Court.