CUTTACK WHOLESALE CO OPERATIVE STORES LIMITED CUTTACK Vs. REGIONAL PROVIDENT FUND COMMISSIONER BHUBANESWAR

JUDGEMENT

(1.) In those batch of writ applications, which were heard together as common question of law is involved, the petitioners pray for quashing the criminal proceedings on the ground that there was no liability to deposit the Employees' provident fund until the adjudication was finally modified by this Court in the writ petition and was reduced and there has been no delay in making the deposit subsequent to the order of the High Court. In fact, the petitioners had filed an application before the Magistrate in the complaint case in question but the Magistrate rejected the said prayer on a finding that the accused not having deposited the provident fund dues within the stipulated period, the offence is committed and the accused are liable to be prosecuted. The accused persons are the Co-operative Society and its Secretary. Petitioner No. 2 who was the Secretary of the Society came on transfer from the post of sub-Assistant Registrar in April, 1984. The Society had been superseded in the month of September, 1982 and was under liquidation in the year 1988. A Liquidator had been appointed by the Deputy Registrar, Co-operative Societies, and the said Liquidator examined the books and records of the society to find out the liabilities and thus, from the date of appointment of the Liquidator, the management of the society had been vested with the Liquidator. The Regional Provident Fund Commissioner adjudicated the liability of the society towards the payment of provident fund dues of the employees and the Society had challenged the same in the High Court. Ultimately, the High Court reduced the amount in question and also had specified the period during which the reduced amount will be paid. But even prior to the judgement of the High Court, the Commissioner had filed the complaint under Section 76(d) of the Employees' Provident Funds Scheme, 1952, read with Section 14(1-A) and Section 14-A of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 and that criminal proceeding is continuing. The petitioners' case in the present writ applications is that non-deposit of the provident fund dues is not deliberate and there is no mens rea and the High Court itself having reduced the amount, the complaint for non-deposit to the amount prior to the modification under the High Court's order would not be sustained.

(2.) The Provident Fund Commissioner has filed a counter affidavit taking the stand that admittedly the deposits not having been made within the stipulated period, the offence is committed and, therefore, rightly the magistrate has taken cognizance under Section 14-C of the Act and this Court will not be justified in interfering with the aforesaid order of cognizance.

(3.) The admitted position that emerges, therefore, is that the Regional Provident Fund Commissioner in exercise of his power under Section 7-A of the Act had determined the liability of the petitioners. The petitioners assailed the same by way of writ petition in the High Court. The High Court reduced the amount and allowed the petitioners to deposit the same in instalments. But even before the High Court determined the liability and reduced the amount as determined by the Commissioner, the Commissioner had filed a complaint before the magistrate and the magistrate had taken cognizance of the same. Though technically an offence is committed when the legal dues are not deposited within the period provided for under the Act, yet for every criminal offence intention has to be looked into. The fact that the petitioners were challenging the adjudication made by the Provident Fund Commissioner by filing a writ petition and ultimately the High Court reduced the amount cannot be totally lost sight of. But a criminal prosecution can be quashed only when the High Court is satisfied that the facts alleged on the face value do not constitute the offence in question. In the facts and circumstances of the present case, it is difficult for us to came to a conclusion that the allegations in the complaint petition do not make out the offence in question, even though there is sufficient force in the contention of Mr. Lal, the learned counsel for the petitioners, that there is absolutely no mens rea and the petitioners had been perusing their remedies by challenging the adjudication made by the Commissioner in the writ petition and ultimately this Court reduced the liability and also granted time for payment of the reduced amount. In the aforesaid premises, while we are not in a position to quash the criminal proceedings for the grounds already indicated, but we would make it clear that the facts and circumstances as established require a re-thinking by the Regional Provident Fund Commissioner as to whether he would withdraw the complaints already filed, particularly when petitioner No. 2 is an employee who had come on deputation and there has been absolutely no deliberate laches on his part in making the deposits is question. The Regional Provident Fund Commissioner may re-consider the matter and if he is satisfied that there was no deliberate laches on the part of the petitioners in making the deposits in question, he may withdraw the complaints already filed.