K P SUNDARSON Vs. D K BHATTACHARJEE

JUDGEMENT

(1.) The 16 revisional applications, 8 of them made by one K.P. Sundarson and the remaining 8 made by one I.J. Chools heard together seek to quash 8 criminal prosecutions started by a Provident Fund Inspector in the court of the learned Chief Metropolitan Magistrate. Calcutta against the aforesaid 2 petitioners and another under sections 14(A) read with 14-A(1) and 144AA of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 for failure to pay provident fund contribution and family pension fund contribution, in both employees and employer's share as well as administrative charges for 8 different periods. The petitioners were said to be the Chief Executive and a Director respectively of Bertams Scott (1) Limited which according to the petitioners has a factory at Titagarh within 24.Parganas district.

(2.) Several grounds common to all the revisional applications were urged in support of the Rules. In the first place it has been pointed out that the offence was alleged to have been committed by the aforesaid company and relying upon the provisions of section 14A, it has been argued that prosecution of a Director or a Chief Executive was incompetent in the absence of the prosecution of the company itself. There is nothing in section 14-A of the aforesaid Act to support such a contention and, therefore, I am clearly of the opinion that the prosecutions cannot be said to be incompetent as no complaint has been lodged against the company. This contention therefore fa i Is.

(3.) It has been next contended that the petitioners were not in charge of or responsible to the company for conduct of its business and therefore, they could not be held to be vicariously responsible for offence, if any committed by the company. It has been stated in paragraph 3 of the complaint that the petitioners at all material time were the persons in. charge of the establishment and were responsible to it for the conduct of its business while paragraph 2 of the complaint states that the Bertams Scott (I) Ltd. was the establishment in question. Therefore, these two paragraphs read together no doubt suggest that petitioners were the persons in charge of and were responsible to the company for the conduct of its business and so, if the company was the offender then the complaint cannot be said to be lacking in material particulars to make out a case of vicarious liability against the petitioners. However, the complaint itself seems to be confusing and indeed it is not clear whether the alleged offence has been committed by the company. Under section 14(1A) of the Act it is the employer making default in complying with certain provisions of the Act and the scheme framed there under, who is punishable with the sentence prescribed therein. It may also be noted that section 6 of the Act and paragraph 30 of the Scheme cast responsibility upon the employer to do certain acts and the complaints alleged non-performance of such duty. Clearly therefore, the alleged offender is the employer which has been defined in section 2(e) of the Act to mean in relation to an establishment which is a factory the owner or occupier of the factory including the agent of such owner or occupier and when a person has been named as a manager of the factory under clause (f) of sub-section (1) of section 7 of the Factories Act, 1948, the person so named. Now in the instant case the complaints have been lodged against the petitioners under section 14(1A) read with section 14-A(1) suggesting thereby that the petitioners are sought to be made vicariously responsible for the offence committed by the company which must, therefore, be the employer. In paragraph 4 of the complaint, however, it has been stated that it is the petitioners who are the employers. Thus, the allegation that the petitioners are responsible by reason of the provision of section 14-A(1) is inconsistent with the statement in paragraph 4 that the accused persons were the employers. Again the statement in paragraph 2 that the company was an establishment cannot be reconciled with the case that the offence has been committed by the company because if really the company was the establishment, the offender would be the employer namely the owner or occupier of the factory and not the company itself. Thus on such an inconsistent complaint the learned Magistrate was not right in taking cognizance nor the petitioners can be asked to answer a charge under the sections alleged of the aforesaid Act.