The Provident Fund Inspector, Anantapur vs The Andhra Co-operative Spinning Mills Ltd. and Others

All these criminal appeals are preferred by the Provident Fund Inspector, Anantapur, who is the complainant before the trial court, challenging the order of acquittal dated 22-2-1991 passed by the Judicial First Class Magistrate, Guntakal, in S.T.C. Nos. 1 to 6 and 8 to 13 of 1987, on his file.

The complainant-Provident Fund Inspector, Anantapur, filed a complaint against the accused for the offence under S. 14(1A), 14A(1) and 14A(2) of the Employees'' Provident Funds and Miscellaneous Provisions Act, 1952, as the accused have failed to remit the employer''s share of provident fund.

The lower court held that the offence alleged to have been committed by the accused relate to the months of July, August and September, 1984, and the complaint, having been filed on 19-9-1985, is definitely barred by limitation according to S. 468, Cr.P.C. The learned Magistrate has also relied upon the decision reported in E.P.F. Organisation v. M/s. Shalimar Biscuits, (1979) 1 APLJ 173 to come to the above conclusion. It was observed in that decision as follows :-

"The Employees Provident Fund Act does not provide special procedure to be followed in respect of the prosecution launched under para 76(a) read with Sections 14, 14A and 14AA of the Employees Provident Fund Act. Hence, the Code of Criminal Procedure applies. If Criminal Procedure Code is applicable even in respect of prosecutions launched under para 76(a) read with Sections 14, 14A and 14AA of the Employees Provident Fund Act, the prosecutions have to be launched within the time prescribed u/s 468, I.P.C. If Section 468, Cr.P.C. is followed for the purpose of limitation within which prosecution has to be launched the prosecution in these cases are evidently barred by limitation."

But subsequently the Supreme Court in Bhagirath Kanoria and Others Vs. State of M. P., , while dealing with an offence of non-payment of contribution by employer to Provident Fund came to consider the question of limitation and it was observed as follows (at p. 1692 of AIR) :-

"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 S. 468 cannot have any application. The offence will be governed by S. 472 according to which a fresh period of limitation begins to run at every moment of the time during which the offence continues."

So, in view of the Supreme Court''s judgment, the lower court''s view is not correct and has to be set aside.

Regarding the sanction for prosecution also, it is evident that the sanction order was filed along with the complaint and the case was taken on file on the strength of the said order. As regards the third point with regard to the relief on merits also the lower court has not discussed at length. The lower court has not discussed whether the provisions of A.P. Relief Undertakings (Special Provisions) Act, 1971 has any bearing on the collection of provident fund contributions.

On all the three points the view taken by the lower court is not correct. The matters are therefore remitted back to the trial court for fresh disposal according to law in the light of the observations made in this judgment, on merits, after issuing notice to both parties and after giving them opportunity of being heard. In that view of the matter the judgments of the trial court are set aside and the criminal appeals are accordingly allowed.

Appeals allowed.