Pioneer Kothalapallam Estate Thadikarankonam, Nagercoil and 2 Others vs State by the Provident Fund Inspector Grade I, Nagercoil

M.N. Moorthy, J.—Out of the four accused who faced a trial in S.T.C. No. 260 of 1977 before the Chief Judicial Magistrate,

Kanyakurnari at Nagercoil, Accused 1,3 and 4 were convicted under S. 14(IA) of the Employees'' Provident Funds and Miscellaneous Provisions

Act, (four counts), and sentenced to suffer imprisonment till rising of Court, and to pay a fine of Rs. 250 on each of the counts, in default, to

undergo simple imprisonment for eight weeks.

Against the conviction and sentence an appeal was preferred in Crl. Appeal No. 164 of 1977 before the learned Sessions Judge, Kanyakurnari

at Nagercoil. The conviction and sentence were confirmed in appeal.

The present revision is preferred against the order of the lower appellate Court. The case against the petitioner in brief is as follows : A.1 is the

Pioneer Kothalapallam Estate, Thadikarankonam, Nagercoil, and its head office is at Tower Junction, Nagercoil. A2 who was acquitted by the

trial Court itself, A3 and A4 are partners of Al estate. A3 represents Al and states that the accused have to deposit contributions for each month in

the State Bank of India, Nagercoil, under the Employees'' Provident Funds and Miscellaneous Provisions Act, 1952, (Act 19 of 1952 as amended

by Act 99 of 1976) (herein after referred to as the Act). A3 sent Ex. Bl return in Form No. 12 for August, 1976 showing the collection of the

Provident Funds amount of Rs.1,340.75 but the amount was not deposited in the Bank. Ex. P2 return in Form No. l2 is for the month of

September, 1976 showing the amount due. This amount had also not been deposited in Bank. Exs.Pl and P2 had been sent on behalf of Al estate.

The Regional Provident Fund Commissioner sent Ex. P3, d. 27th January, 1977 fixing the amount payable by the accused. The accused had not

paid the administrative charges and the contributions on due dates. P.W. I, the Provident Fund Inspector, Nagercoil, after getting the necessary

sanction, laid the complaint.

A3 stated that they deposited the amount collected from the employees, but they had not deposited the amount due from them and they have

not deposited the insurance amount separately. A4, while accepting he was one of the partners, stated that the amount had been deposited in the

Bank. The accused had examined one defence witness. According to D.W.I, he is working in Al estate and he is in charge of the accounts under

the Act. He used to deposit the contribution amounts in the Bank and for the amounts due for August and September, 1976 he had obtained a

draft from the Bank and sent it to the Madras Office as per Ex. Pl. He stated he had not received any notice from the Provident Fund Office.

Accused 3 and 4 and one Subramaniam are the sons of A2, and Al estate belongs to them. Accused 2 to 4 and Subramaniam are the directors

of A1 estate and A3 is the person managing the affairs of the estate. The trial Court, as stated supra, had acquitted A2.

That the Act applies to Al estate is not in dispute. The accused are under an obligation under the schemes framed thereunder to deposit the

administrative charges and contributions for every month by 15th of the following month. The evidence of the prosecution and also the admission of

D.W. 1 prove beyond reasonable doubt that the accused had not deposited the said administrative charges and contributions for the months of

August and September, 1976 on the dates due.

Mr. S. Cheliaswamy, Learned Counsel appearing for the petitioners, stressed only one point for consideration, namely, under S. 7A(i) and (2)

of the Act the enquiry is to be conducted by the Central Provident Fund Commissioner, any Deputy Provident Fund Commissioner or any

Regional Provident Fund Commissioner, to determine the amount due from any employer under any provision of this Act or the Schema framed

thereunder. S. 7A(3) of the Act reads as under:

No order determining the amount due from any employer shall be made under Sub-s.(i) unless the employer is given a reasonable opportunity of

representing his case.

In this case Ex. P3, dt. 27th January, 1977 under S. 7A of the Act was issued to A1 and on the same day sanction under Ex. P5 for failure to pay

the contributions and administrative charges has been given. Learned Counsel contended that the accused had not been given an opportunity to

represent their case during the enquiry within the meaning of S. 7A of the Act. This contention has no force as we see that A3 had sent Exs.Pl and

P2 return''s with the amount due mentioned therein. This amount has not been disputed by the Department either and the accused had remitted the

amount due for, earlier months, so much so, there is no controversy -regarding the amount due from the accused. There is no scope for any

enquiry under S. 7A of the Act when there is no apparent dispute over the determination of the amount due. Even D.W.1 has not questioned the

amount due from the accused. Hence, it can be safely accepted that the amount mentioned in Exs.Pl and P2 had been accepted by both sides. Ex.

P3 is a notice sent by the Department which was superfluous. Hence, the contention raised by the Learned Counsel for the petitioners fails. No

other point of law was raised before me. The conviction of the petitioners under S. 14(1A) of the Act is correct and is confirmed.

Mr. Cheliaswamy pleaded that this is not a case where a sentence of imprisonment is called for. He submitted that because of some dispute

among the partners, there was some delay in complying with the provisions of the Act but, long before the complaint was filed against the accused,

all the amounts due had been paid to the Department. In these circumstances, I am inclined to agree with the Learned Counsel and I set aside the

lower court''s order of sentence of imprisonment till rising of Court, while confirming the sentence of fine with its default clause.

In the result, with the modification in the sentence alone, the revision petition stands dismissed.