Provident Fund Inspector, Ludhiana vs Harjinder Singh Director, Incharge National Transport and General Co.(Pvt.) Ltd.

M.M. Punchhi, J.

The accusedrespondents being the Director Incharge of a Private Limited Company and the Company itself, were convicted under section 14(1)(A) of the Employees Provident Fund and Miscellaneous Provisions Act, 1952, (for short the Act) Shri P.K. Garg, Additional Chief Judicial Magistrate, Ludhiana, the trial Judge, did not impose on the accused the minimum sentence required under the law. He sentenced the accused to pay the fine of Rs. 1000/, out of which he ordered a sum of Rs. 800/ to be paid to the complainant.

Aggrieved against the said order the Provident Fund Inspector, Ludhiana, has filed this revision petition complaining that the Court has exceeded its jurisdiction in awarding a lesser sentence. There is no dispute at the bar that on account of the fault committed by the accusedrespondents penalty under section 14 (1A)(b) of the Act is attracted which prescribes that the term of imprisonment for the offence shall not be less than one month. The trial Judge made use of the proviso there to which is in the following terms :

Provided that the Court may, for any adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a lesser term or of fine only in lieu of imprisonment.

On behalf of the accused it was urged before the trial Magistrate that the recent trend in penology was to afford an opportunity to the accused to prove to be a better citizen by granting benefits of section 360 of the Code of Criminal Procedure even in serious type of offences. Alternatively it was urged before the trial Magistrate that since the Provident Fund contributions had itself been deposited during the trial then only some fine be imposed. The trial Magistrate found force in the contention of the defence and took the view that the sole purpose of the provisions of the Provident Fund Act is that the employer should continue making contributions within time. And merely because there had been delay in making contributions it did not justify that sentence of imprisonment need be imposed. It is in this view of the matter that the fine was imposed.

Shri C.D. Dewan, learned counsel for the petitioner, has placed reliance on Meet Singh v. State of Punjab, 1980 C.L.J. (Criminal) 126, a decision rendered by the Supreme Court to contend that "special reasons" in the context of the aforequoted proviso could only mean special to the accusedrespondents in the case on whom sentence had been imposed by the trial Magistrate, who had exceeded his jurisdiction by indulging in general tries, and applying them to the accused. Meet Singh''s case (supra) arose in special Leave from an appellate order of this Court and in the context of the prevention of Corruption Act, 1947. In that statute an analogous proviso is there in section 5 permitting the Court to impose the sentence of imprisonment less that one year for any special reasons recorded in writing. It is in that context that the Supreme Court observed as follows :

"The words `special reasons'' in the context in which they are used could only mean special to the accused on whom sentence is being imposed. The court has to weigh reasons advanced in respect of each individual accused whose case is taken up for awarding sentence. The word `special'' has to be understood in contradistinction to word `general'' or `ordinary''. Now what does term `special'' connote ? "Special" means distinguished by some unusual quality; out of the ordinary ...........

Thus anything which is common to a large class governed by the same statute cannot be said to be special to each of them. It would thus unquestionably appear that "special reasons" in the context of sentencing process must be special to the accused in the case or special to the facts and circumstances of the case in which the sentence is being awarded." (emphasis supplied by me).

The decision of Jagdish Prasad v. West Bengal, (1972) 2 S.C.R., was noticed in Meet Singh''s case (supra). That was a case under the Prevention of Food Adulteration Act, 1954. Section 16 of the Act bears an analogous proviso permitting the Court to impose a sentence of imprisonment for a term which is not less than a particular period and a fine which is not less than a particular amount and for any "adequate and special reasons" mentioned in the judgment. The Court in that context said;

"Offences under the Act being antisocial crimes affecting the health and wellbeing of our people, the Legislature having regard to the trend of courts to impose in most cases only fines or where a sentence was awarded even in case where a severe sentence was called for a, a more drastic step was taken by it in prescribing a minimum sentence of and a minimum fine to be imposed even for a first offence."

It is on the aforesaid precedents that Mr. Dewan has vehemently argued that the Court has no option but to sentence the accused for an imprisonment which could not be less than one month.

The expression "adequate and special reasons" is often employed by the Legislature now, where it steps in to circumscribe or fetter the discretion of the Court in the matter of sentence. The Court is then left with some discretion but within the limited sphere kept open by the Legislature but the extent of the limited sphere to my mind cannot, be uniform. In every statute, in which the aforesaid expression comes to be employed, it takes colour from the scheme of the Act, the purpose which is sought to be rectified. For instance, the Prevention of Corruption Act is an Act for the more effective prevention of bribery and corruption as the preamble puts it. Similarly the Prevention of Food Adulteration Act is an Act to make provisions for prevention of adulteration in food as put by its preamble. These stutus are preventive in nature and deal with the curbing of the misdeeds of corruption and food adulteration. Parallel is the objects sought to be achieved in both the statutes, one to keep the public service, clean and the other to keep edible food clean and wholesome; both essential for a healthy society. However, the Act which is presently being dealt with is an Act to provide for the institution of provident fund for employees in factories and other establishments. As its preamble goes there is nothing preventive about it. But rather there is a positive direction to fulfil timely obligations at the pain of suffering ass penalties provided in section 14 and other sections. In other words the present Act says; "do this thing", whereas the other statutes aforedealt with say "do not do this". The approach of one is positive whereas that of the other is negative. This is one of the reasons which weighs with me to come to hold the view, as it presently advises, that the expression "adequate and special reasons" in the context of the present Act may not be singular to the accused and the facts and circumstances of the case may also be not singular. Contradistinctive the words "adequate and special reasons" in the context, as it seems to me, would rest some where between total singularity and total generality, and of course their outcome would rest somewhere between total singularity and total generality, and of course their outcome would be special to the facts and circumstances of the case.

Reverting back to the facts of the present case, the Court not only took into account that the provident fund had been paid, though belatedly, but the accused had even not produced any evidence when he offered to do so and had even not contested the case on merits. In the facts and circumstances of the case a little plea bargaining emerges at its forefront. And if the Court, on the fair stand adopted by the accused opts for giving him a lenient treatment then obviously it tends to be special and adequate to the accused of the particular case. Viewed from a broad conspectus, in the context of the concept of provident fund maintenance, I do not think that the trial Magistrate in passing the sentence of fine only, in any way exceeded his jurisdiction or that there was nothing special about this case or the accused which did not warrant a lesser punishment. Thus, I hold that the order of the learned Magistrate does not require any interference in revision.

For the foreboding reasons, this petition fails and is hereby dismissed.