Provident Fund Inspector vs Harjit Singh and Another

Harmohinder Kaur Sandhu, J.—The facts giving rise to this appeal are that New Midh Bhabra Company (Private) Ltd., Group A Batala, was an establishment within the meaning of the Employees'' Provident Funds and Miscellaneous Provisions Act, 1952. The respondents were persons in charge of that establishment and were responsible for the conduct of its business. They were required to comply with all the provisions of this Act and the scheme and the family pension scheme in respect of the said establishment. Under Para 38 of the Employees'' Provident Funds Scheme, 1952, they were required to pay the administrative charges for every month within 15 days of the close of that month but in spite of several requests they failed to pay the administrative charges from February 1977 to April 1977, and thus committed offences under Para 38 of the Employees'' Provident Funds Scheme, 1952 read with Sections 14AA and 14A of the Employees'' Provident Fund and Miscellaneous Provisions Act. 1952. Respondent, Harjit Singh, was incharge of the establishment and responsible for the conduct of its business. On these allegations, the Provident Fund Inspector, Batala, filed complaint against the respondents. The respondents were tried for non compliance of the provisions and vide judgment, dated 19th March 1982, recorded by Sri N.S. Mundra, Judicial Magistrate, First Class, Batala, Harjit Singh, respondent, was convicted and sentenced to undergo rigorous imprisonment for two months and to pay a fine of Rs. 500, in default of payment of fine he was to further undergo rigorous imprisonment for two months. Against this judgment recording conviction the respondents filed an appeal which was accepted by Sri T.S. Cheema, the learned Sessions Judge, Gurdaspur, vide judgment, dated 17 August 1982. The conviction and sentence awarded to Harjit Singh, respondent were held without jurisdiction and were set a ide. Dissatisfied with this judgment, the Provident Fund Inspector, Batala, filed the present appeal.

We have heard Sri S.K. Saxena, advocate for the appellant, and Sri R.L. Gupta, advocate for the respondents, and have perused the record.

The only allegation against Harjit Singh, respondent was that he was in charge of the establishment and was responsible for the conduct of its business but he had not deposited the administrative charges for the months of February 1977 to April 1977. The complaint against the respondents was filed on 7 January 1981, i.e., about four years after the alleged commission of offence. The learned lower Appellate Court had accepted the appeal on the ground that the Trial Court had wrongly assumed jurisdiction of the complaint and illegally held the trial as the complaint was filed after the expiry of the period of limitation. The period of limitation commenced from the date of the offence. The learned counsel for the appellant contended before us that the offence of not depositing the administrative charges within the prescribed time was a continuing offence and the complaint could be filed at any time. He contended that the complaint was not barred by limitation and the findings of the learned lower Appellate Court were opposed to the ratio or the judgment of the Hon''ble Supreme Court in State of Bihar Vs. Deokaran Nenshi and Another, . We find that the submission of the learned counsel for the appellant is well merited and conviction of the respondents could not be set aside on the short ground that the complaint was filed beyond the period of limitation. The lower Appellate Court had placed reliance on Deokaran case (vide supra). But this case was referred in a latter case Bhagirath Kanoria and Ors. v. State of Madhya Pradesh with Bahadur Singh v. Provident Fund Inspector II 1984 LLR 731, and it was observed that the decision of the Court in Deokaran case (vide supra), to the effect that failure to furnish returns before the due date is not a continuing offence must be, confined to cases of failure to furnish returns. It cannot be extended to cases like those before us in which, the contravention is not of a procedural or formal nature and goes against the very gain of the statute under consideration. In this later authority it was further held in Para 21, at Page 136:

"...Non-payment of the employer''s contribution to the provident fund before the due date, is a continuing offence and, therefore, the period of limitation prescribed by Section 468 of the Code cannot nave any application. The offence which is alleged against the appellants will be governed by Section 472 of the Code, according to which a fresh period of limitation begins to run at every moment of the time during which the offence continues".

It is thus evident that the failure to pay the employer''s contribution or administrative charges before the due date is an offence of continuous nature and, therefore, the period of limitation prescribed u/s 468 of the Code of Criminal Procedure cannot have any application. The offence which is alleged against the respondent will be covered by Section 472 of the Code according to which a fresh period of limitation begins to run at every moment of the time during which the offence continues.

Even if the complaint was not barred by time the present appeal is to fail on the ground that it has not been proved on record that respondent 1 was the person incharge of, and was responsible for the conduct of the business of the establishment when the alleged offence was committed.

It was the contention of the appellant that Harjit Singh respondent was the secretary or the establishment known as New Midh Bhabra Transport Company (Private) Ltd., Group A Batala. This fact was, however, denied by the respondent when examined u/s 313 of the Code of Criminal Procedure. He pleaded that he was not the Managing Director of the Company and as such was not liable to deposit any administrative charges. Before the respondent could be held liable for non compliance of any provisions of law, it was necessary for the appellant to establish on record that he was the person incharge of the establishment and was conducting the business but there was no evidence to prove this fact. Reliance was placed on the document exhibit PD which was a return filed by the establishment on 29 October, 1976. In this document name of Harjit Singh respondent was entered in column (14) and he was described as secretary incharge and responsible for the conduct of the business. This document, however, was not shown to be relating to the establishment which is alleged to have committed the default. In exhibit PD the name of the establishment as New Midh Bhabra Transport Company (Private) Ltd., G.T. Road, Batala, but in the complaint the name of the establishment reads as New Midh Bhabra Transport Company (Private) Ltd., Group A Batala. These two concerns are separate and different entities and on the basis of exhibit PD it could not be said that Harjit Singh was the person who was conducting the business of respondent 2. Besides exhibit PD there was no other evidence on the file proving that he was incharge of the establishment and responsible to conduct its business. The learned lower Appellate Court, therefore, rightly held that Harjit Singh respondent could not be fastened with the liability of non- compliance of any provision of law.

Another infirmity in the case of the complaint was that evidence on record was lacking to the effect that Dev Raj Batra was the Provident Fund Inspector and was competent to file the complaint. Mere allegation to that effect in the complaint did not constitute legal evidence. He did not state that his appointment as Provident Fund Inspector had been notified in the Official Gazette. No copy of the notification vide which he was appointed as Provident Fund Inspector and was authorised to exercise jurisdiction over Batala was placed on record. It was obligatory for the prosecution to produce notification appointing him as Provident Fund Inspector u/s 18(1) of the Act and he was also to prove that he had been accorded sanction for launching the prosecution. In the absence of evidence to that effect, it could not be said that the complaint had been filed by a person competent to launch the prosecution. The impugned order was, thus, justifiable and required no interference especially when during the pendency of the proceedings compliance with all "the requirements of law had been made by the respondents.

As a result, the appeal is dismissed as being without merit.