VELAYUDHAN Vs. E.S.I. CORPORATION

JUDGEMENT

(1.) Petitioner, who faces two prosecution proceedings for offences under S.85 of the Employees' State Insurance Act 1948 (for short 'the Act' or 'E.S.I, Act' as the context requires) raised a preliminary objection that prosecutions are barred by limitation under S.86(3) of the Act. The trial Magistrate overruled the preliminary objection by the impugned order against which the present revisions are filed by the petitioner.

(2.) For failure to pay employer's contribution towards Employees' State Insurance Scheme in respect of the period between 1st April 1986 and 30th June 1986 a complaint was filed in the Trial Court on 8th January 1988 for prosecuting the petitioner. Another complaint was filed against him on 24th May 1988 for failure to pay his contribution in respect of the next period ending with 31st May 1987. The Chief Judicial Magistrate, before whom the prosecutions are pending, took the view that the offence under S.85 of the Act is a continuing one and hence the bar envisaged in S.86(3) cannot operate merely for the reason of the expiry of six months from the last date of the period during which it was payable. The correctness of the view is assailed in these revisions.

(3.) Section 85(a) of the E.S.I. Act makes failure to pay any contribution due under the Act as an offence. S.86(1) of the Act says that no prosecution under the Act shall be instituted except by or with the previous sanction of the Insurance Commissioner or of such other officer of the Corporation as may be authorised in this behalf by the Director General of the Corporation. Sub-section (2) only deals with the forum in which the trial is to be held. The crucial provision is sub-section (3) which reads thus :