GINIA DEVI AGARWALLA Vs. PROVIDENT FUND INSPECTOR

JUDGEMENT

(1.) The Court: A complaint has been lodged under section 14(1B) of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 against the petitioner. Mr Biswanath Samaddar, learned counsel for the petitioner, contends that the petitioner is an 80 years old lady and that before the launching of the prosecution the entire dues on the basis whereof the prosecution was initiated had been paid. He contends that there might be some delay in the deposit but the entire deposit having been made, no prosecution can continue in view of the decision in the case of Provident Fund Inspector, Faridabad v. M/s. Jaipur Textile, Faridabad, and Another reported in AIR 1987 SC 1738. He also contends that there has been a non-application of mind in lodging the Criminal Case, inasmuch as alongwith the prosecution a prayer was also made for recovery of the dues which had already been paid and it clearly shows a blatant non-application of mind. He also relies on a decision of the Division Bench of this Court in the case of The Regional Provident Fund Commissioner, West Bengal v. Raj Kumar Nemani & Ors. reported in 1995 (1), CLJ 89 in which the decision of the apex Court in Jaipur Textile (supra) was considered. He also relies on an unreported decision in the case of M/s. Nayek Paper and Board Mills and Another v. The Union of India and Others in C.R. Case No. 6445 (W) of 1982 disposed of on November 30, 2000, in support of his contention.

(2.) Mr. Mishra, learned advocate for the respondents, on the other hand, contends that this Court in Writ Jurisdiction cannot interfere with the criminal prosecution. If the petitioner has any defence, it is to be pleaded before the Criminal Court. He relies on an unreported decision of a Division Bench of this Court in the case of M/s. Universal Heavy Mechanical Lifting Enterprise & Anr. v. Union of India & Ors. in matter No. 97 of 1993 disposed of on December 16, 1995, to support his contention that in exercise of the Writ Jurisdiction the prosecution cannot be interfered with. He also relies on a decision in the case of N.K. Jain and others v. C.K. Shah and others reported in AIR 1991 SC 1289 which supports this view. He further relies on a decision in the case of Bhagirath Kanoria and Others v. State of M.P. reported in AIR 1984 SC 1688 as well as a decision in the case of M/s. Sanyal Lahiri & Co. Ltd. & Others. v. Shri C.B. Paul and Another reported in 1995 Cr.LJ 3945.

(3.) After having heard the learned counsel for the parties, it appears that section 14(1A) and (1B) of the Act, makes an employer liable for prosecution whenever there is a contravention or default in complying with the provisions mentioned therein. It is not in dispute that the provisions were contravened or there was a default in complying with the provisions. Thus default was sought to be explained that it means a total default or a default till the prosecution is launched. According to Mr. Samaddar, it cannot be treated as a default before launching of the prosecution, in case the entire amount is paid before the prosecution is launched, in that event, it would neither be a contravention nor a default.