STATE OF GUJARAT Vs. INDEQUIP ENGINEERING LIMITED

JUDGEMENT

(1.) Can the Court eschew the charge of being soft and unduly lenient in the cases of affluent offenders who commit serious offences whilst on the other hand being unduly harsh in dealing with the petty offenders who indulge in minor property offences if the sentencing policy reflected in the impugned judgment and order rendered by the Metropolitan Magistrate

(2.) Court Ahmedabad is approved or confirmed ? 2 The respondent No. 2 who is said to be the managing director of respondent No. 1 public limited Company and respondent Nos. 3 and 4 who are slid to be the Secretary and Manager respectively of the said Company were charged with the offences under secs. 14 (1A) 14 (A-1) and 14-A(2) of the Employees Provident Funds Act 1952 (hereinafter referred to as the `Act) inasmuch as they had failed to pay a sum of Rs. 66 894 for October 1976 in respect of the deductions made from the wages of workers and in respect of the contributions payable by the employer under paragraphs 30 and 38 of the Employees Provident Funds Scheme 1952 (hereinafter referred to as the Scheme). The respondents pleaded guilty. The learned trial Magistrate accepted the plea of guilty and imposed an insignificant fine of Rs.100.00 against each of the respondents-accused. Thereupon the State of Gujarat has preferred the present appeal praying for enhancement of the sentence imposed by the learned trial Magistrate. Sec. 14(1-A) provides that an employer who contrivances or makes default in complying with the provisions of sec. 6 or clause (a) of sub-sec. (3) of sec. 17 or paragraph 38 of the Scheme is so far as it relates to the payment of administrative charges shall be punishable with imprisonment for a term which may extend to six months. It has been further provided by clause (a) that the term of imprisonment shall not be less than three months in case of default in payment of the employees contribution which has been deducted by the employer from the employees wages. It has also been further provided by clause (b) that it shall not be less than one month in any other case i.e. a case which does not fall within the purview of clause (a). A proviso has been added to the main section whereby a discretion has been vested unto the Court to impose a sentence of imprisonment for a lesser term or of fine in lieu of imprisonment for any adequate and special reasons to be recorded in the judgment. In the present case the charge was inter alia that the employer had committed default in payment of employers contribution as also in payment of deductions made by the employer from the wages of the employees. Upon a plea of guilty the learned trial Magistrate was bound to impose a minimum term of imprisonment of three months having regard to the Legislative mandate embodied in clause (a) of sec. 14 (1-A) of the Act. With regard to the default in respect of the payments other than the deductions made from the wages of the employees it was incumbent upon the learned trial Magistrate to impose a minimum sentence of one months imprisonment. Of course the Court had discretion to impose a lesser term of imprisonment or a sentence of fine only in view of the proviso but then the condition precedent to the exercise of the power under the proviso to impose a lesser sentence or sentence of fine only was that special and adequate reasons existed in his opinion and reasons were recorded in his judgment. Notwithstanding the Legislative mandate the learned Metropolitan Magistrate has imposed a sentence of fine of Rs. 100.00 only without giving any reasons for dispensing with the sentence of imprisonment which has been made obligatory by the Legislature. Even if the learned Magistrate was of the opinion that there were adequate and special reasons he was hound to record his reasons in the judgment. He has not recorded any reasons whatsoever. The learned trial Magistrate has dis-regarded the provisions made in sec. 14(1-A) of the Act altogether. Not only he has dis-regarded the Legislative mandate but he has also dis-regarded the following observation made by this Court in C. K. Shah Provident Fund Inspector v. Natson Manufacturing Co. Pvt. Ltd. & Anr. 127 G.L.R. 419 which also arose from a decision rendered by the Metropolitan Magistrate Ahmedabad.

(3.) It is therefore abundantly clear that sentence imposed by the learned trial Magistrate is ridiculously low and unduly lenient apart from the fact that it has been imposed without regard to the provision contained in sec. 14(1-A) clause (a); and apart from the fact that the sentence of imprisonment has altogether been dispensed with in the absence of the existence of any reason much the less an adequate and special reason. Under the circumstances the sentence imposed by the learned trial Magistrate requires to be enhanced. The learned Counsel for respondent No. 2 his filed a lengthy affidavit running into about 11 pages wherein respondent No. 2 has traced the history of the financial difficulties faced by the company concerned at the material time. He has also adverted to the circumstance that some 12 prosecutions were instituted against these very respondents for different charges and that 5 of these cases were withdrawn by the competent authority and in 7 cases applications for withdrawn were made but the learned Magistrate refused to accord sanction to such withdrawal. In the present case no application for withdrawal was made at all. In the affidavit it has been stated that to the best of the information available to respondent No. 2 the Central Government was considering withdrawal of the case. It must be stated that there is no question of withdrawing the case as the case has already resulted into conviction and sentence and there is no provision for withdrawing an appeal preferred by the State. There is no material on the record to show that the Central Government is considering the request made by the respondents sympathetically. Besides the present appeal has been preferred by the State and not the Central Government. Be that as it may be these circumstances can hardly have a bearing on the question of appropriate sentence which requires to be imposed.