KRISHNA PULVERSING MILLS Vs. EMPLOYEES STATE INSURANCE COPORATION

JUDGEMENT

(1.) This Criminal Petition, under Section 482 Cr P C , is filed praying to quash the additional charge framed by the Judicial Magistrate of First Class, to try the offences under the ESI Act and Chairman, Industrial Tribunal, Hyderabad, in P C No 60 of 2003 against the petitioners under Section 85(1)(a) of the Employees' State Insurance Act 1948 (for short 'the ESI Act'), vide order dated 21/09/2005 The learned counsel for the petitioners submits that since the petitioner No 2 representing petitioner No 1-Mill has not paid the employer's contribution amounting to Rs 13,354/- for the period from 01/04/2001 to 30/09/2001, which he was liable to pay under the Act the offence under Section 85(a) of the ESI Act alone is attracted, and the Judicial Magistrate of First Class has rightly framed charge under Section 85(a) of the ESI Act he however, committed a gross error in framing additional charge under Section 85(i)(a) of the ESI Act, and more so when there was no such prayer made by the complainant in the complaint filed against the petitioners and no sanction, as required under Section 86(1) of the ESI Act for prosecuting the petitioners under Section 85(i)(a) of the ESI Act was obtained by the complainant from the competent authority He thus prayed that the additional charge framed by the Judicial Magistrate of First Class against the petitioners under Section 85(i)(a) of the ESI Act, be quashed On the other hand, the learned Standing Counsel appearing on behalf of respondent No 1-ESI submitted that ds petitioner No 2, representing petitioner No 1-Mills, has failed to pay the employer's contribution, amounting to Rs 13,254/- for the period from 01/04/2001 to 30/09/2001, which he was liable to pay under the ESI Act the petitioners are liable for prosecution under Section 85(a) of the ESI Act, and as such, after obtaining prior sanction from the competent authority, the complainant lodged the compldint against the petitioners, and the learned Judicial Magistrate of First Class has rightly framed charge against the petitioners for the offence under Section 85(a) of the ESI Act He submitted that a person who commits offence under Section 85(a) of the ESI Act, is punishable under Section 85(i)(a) of the ESI Act, and inasmuch as there is an allegation that the petitioner has committed an offence under Section 85(a) of the ESI Act, the learned Judicial Magistrate of First Class, having framed charge under Section 85(a) of the ESI Act, committed no error in framing additional issue against the petitioners under Section 85(i)(a) of the ESI Act, which is a penal provision He submits that as the complainant has obtained prior sanction from the competent authority for prosecuting the petitioners under Section 85(a) of the ESI Act, no separate sanction is required to be obtained under Section 86(1) of the ESI Act, for prosecuting the petitioner under Section 85(i)(a) of the ESI Act which is a penal provision.

(2.) The learned Public Prosecutor appearing on behalf of respondent No 2-State adopted the submissions of respondent No 1 Heard the learned counsel for the petitioners, the learned Standing Counsel for respondent No. 1-ESI and the learned Public Prosecutor for respondent No.2-State. Having regard to the rival contentions it is expedient to notice the relevant provisions of the Employees' State Insurance Act, 1948 (for short 'the Act') and the very scheme under the Act The Act is a beneficial legislation meant to sub-serve the interests of the employees It seeks to provide inter alia certain benefits to employees in case of sickness, maternity and employment injuiy and for certain other matters in relation thereto. It obligates every factory or establishment to which the Act applies to get registered in the manner prescribed under the Act. For the purpose of administration of the insurance scheme to employees, the Central Government is obligated to establish a Corporation to be known as the Employees' State Insurance Corporation. The Corporation thus established shall in addition to the scheme of benefits, specified inter alia in the Act promote measures in the improvement of the health and welfare of insured persons and rehabilitation and re- employment of insured person who have been disabled or injured and may incur in respect of such measures, the necessary expenditure from the funds of the corporation, Chapter IV of the Act, envisages contributions from the employees and the employers to create a fund called the Employees' State Insurance Fund. The Act obligates under Section 38 all the employees in the factories or establishment to which it applies shall get insured. Under Section 39 tne contributions shall be paid by the employer and the employee which are known as the "employers' contribution" and the "employees' contribution". The principal employer shall pay in respect of every employee, both the employers' contribution and ttie employees' contribution, Thereafter in cases where the employees are directly employed, the principal employer is entitled to recover from the employee the employee's contribution by deduction from his wages. The Act in Chapter VI contemplates the adjudication of disputes and claims that might arise in the administration by establishing Courts. The Court is competent to adjudicate the dispute as to whether any person is an employee, the rate of wages or average daily wages of an employee, the rate of contribution payable by the principal employer, whether any person is the principal employer, the right of any person to any benefit and such other matters. Chapter VII provides for the penalties for violation of the provisions of the Act. Section 84 prescribes punishment for furnishing a false statement. Section 85 prescribes punishment for failure to pay contribution Section 85A prescribes enhancement in the event of repeating the crime. Section 85 is germane in the context and it reads thus.

(3.) A charge is expected to be framed by the Court containing concisely the essential ingredients that constitute the offence, the name of the offence, the penal provision under which the offence is punishable, the date and time of place of offence committed, if any, as can be seen from Sections 211 and 212 of the Criminal Procedure Code, so as to give notice of the same to the accused, so that the accused can meet the charge effectively. That is the object behind the framing of a charge.