OM PRAKASH SAXENA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) By filing this Criminal Revisional application under Sec. 482 of the Code of Criminal Procedure, 1973, the petitioners being the accused persons sought for quashing of the proceeding being Case No. C/307 of 2016 under Ss. 14(1A), 14A(1) and 14(2A) of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 pending before the Court of the Learned Judicial Magistrate, 1st Class, 1st Court, Barrackpore including the Order passed therein dated July 05, 2016. By the said order, the Learned Magistrate took cognizance against the present petitioners.

(2.) The brief facts, leading to filing of this instant Criminal Revisional application, are that one Sanjay Biswas, Enforcement Officer, Employees' Provident Fund Organization, Sub-Regional Office, Barrackpore lodged a petition of complaint against the present petitioners contending therein that the accused persons, being the Directors, were in charge of establishment, namely, M/s Bengal Waterproof Limited having its registered officer at "MMS Chambers", 1st Floor, 4A, Council House Street, Kolkata - 700 001 and were responsible for the conduct of its business. In discharge of such responsibilities, they took part in the running of the business. They are bound to comply with the provision of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 and the scheme in respect of the said establishment. The accused persons, however, failed to submit the monthly returns for the period April 2009, December 2011 to January 2012 under the provisions of Clause 16 of Appendix "A" to Paragraph 27AA of the Employees' Provident Fund Scheme, 1952. Therefore, they committed an offence under Ss. 14(1)/14(1A)/14(1B)/14(2A)/14A(1)/14A(2)/14AA of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952. 2a. It is the contention of the petitioners that the complaint has been made by the Officer is totally false and fabricated. No such offence was committed by the present petitioners. The opposite party no. 2 has suppressed the entire material facts before the Learned Magistrate to the effect that M/s Bengal Waterproof Limited has been non-operational since 2013. All the employees of the said establishment resigned from the establishment in the month of November, 2011. The fact of resignation was also brought to the notice of the opposite party no. 2. Accordingly, the opposite party no. 2 has released the funds held under the Provident Fund deposit scheme for final settlement of the fund's dues to all the employees. All payments have been made to all the employees according to their entitlements. Not a single complaint has been made by any of the employees of the said establishment against the petitioners. As such, the entire complaint is false and misconceived and proceeding therein is liable to be quashed at the threshold. After receiving such petition of complaint, the Learned Magistrate took cognizance and issued process against the present petitioners. Hence, this instant Criminal Revisional application.

(3.) Learned counsel appearing on behalf of the petitioners vehemently submitted that the allegations levelled against the present petitioners are false and fabricated. The opposite party no. 2/complainant has suppressed the material facts in the petition of complaint with regard to the non-operational of the organization since 2013. Furthermore, it is also not disclosed to the Learned Court below about the resignation of all the employees from the establishment in the month of November, 2011. The said facts were brought to the knowledge of the petitioner no. 2 by the establishment prior to making complaint. Accordingly, the opposite party no. 2 has released the funds held under the provident fund deposit scheme for final settlement of provident fund dues to all the employees. All employees of the said establishment have already received their entitlements as a final settlement. Not a single complaint has been lodged or pending against the establishment from the side of the employees. After payment of such final settlement of the provident fund to the employees, the Utilization Certificate was also forwarded to the authority including all members. 3a. It is further submitted that the authority has issued a letter directing the establishment to undergo an audit through the empanelled auditor. The surrender of exemption in respect of the establishment in question was approved by the Regional Provisional Commissioner and forwarded for issuing a specific notification to the Central Provident Fund Commission. Therefore, the complainant has suppressed all material facts before the Learned Court below. The prosecution against the present petitioners, who were Directors, cannot be allowed to continue as the Directors had resigned from the company. Therefore, they are not liable for vicarious liability to the act of the company itself. 3b. Despite the fact as aforesaid, the Learned Magistrate, without thoroughly examining the entire complaint, mechanically and without applying judicious mind took cognizance against the petitioners solely on the basis of a form of general allegation made by the opposite party no. 2/complainant. 3c. It is further argued that the instant criminal proceeding is initiated after the expiry of limitation period. Accordingly, the Order of taking cognizance by the Learned Magistrate is barred by limitation under Sec. 468 of the Cr.PC. 3d. Finally, it was submitted that even for the sake of argument, g the allegation of the complainant is that the establishment has not submitted the returns on time. But, the company has deposited the amount to the provident fund deposit scheme in time. The establishment could not submit the return because the portal does not permit the establishment to submit the return in time in view of Hon'ble High Court's order passed in another proceeding being WP No. 15191(W) of 2011. Prior to lodging of the said complaint, no opportunity was given to the petitioners to explain the reason as to why they did not file returns. 3e. It is further submitted that on the similar set of allegations made by the same complainant against this establishment, the Co- ordinate Bench of this Court in CRR No. 3262 of 2017 WITH CRR No. 3263 of 2017 (Om Prakash Saxena and Ors. Vs. The State of West Bengal) disposed of and quashed the entire proceeding only on the ground that the complaint is barred by limitation and the Learned Magistrate mechanically had taken cognizance beyond the period of limitation which is barred under the provisions of Sec. 468 of the CrPC. 3f. The learned counsel also drew attention about the constitution of the Ad-hoc Committee for enhancing coverage and reducing litigation. The Hon'ble Chairman, Central Board of Trustees, Employees' Provident Fund (CBT EPF) directed to constitute the above committee from amongst members of the CBT EPF to give recommendation for enhancing coverage and reducing litigation and the said committee was constituted vide order dtd. 27/11/2021. For enhancing coverage and reducing litigation, following recommendations of the Committee were approved by CBT in its 230th meeting: - "(i) to ensure a universal social security coverage by enrolling all employees upto the wage ceiling;