RAJ KUMAR GUPTA Vs. STATE OF BIHAR

JUDGEMENT

(1.) The Petitioner has prayed for quashing order dated August 4, 2007, passed by the Judicial Magistrate, 1st Class, Patna in Case No. 2538 (M)/2007, taking cognizance under Section 85(a) of the Employees' State Insurance Act, 1948 (hereinafter referred to as the ESI Act) as well as quashing the entire prosecution on the ground of lack of territorial jurisdiction. The complainant, Opp. Party No; 2, the Insurance Inspector (Legal), Bihar Region of the Employees' State Insurance Corporation, Patna stated that Petitioner's establishment, namely, Purana Bhagirath Hotel, Muzaffarpur, Bihar, Code No. 42-5319, is a factory/ establishment as defined in Sub-Section 12 of Section 2 of the ESI Act. It failed to submit return of Contribution from August 1, 2003 to May 31, 2007, which is mandatory as per Section 44 read with Section 39 of the ESI Act and within the time-limit prescribed under Regulation 26 of the ESI (Genl.) Reg., 1950 i.e., within 21 days of the calendar month in which the contribution falls due. Furthermore, despite a show cause notice, dated September 20, 2006 was also issued under registered post. It is further alleged that Petitioner, the principal employer of the establishment thus committed an offence under Section 85(a) of the ESI Act as amended up to date.

(2.) The Petitioner submits that he is the; proprietor of Purana Bhagirath Hotel situated at Court Compound, Muzaffarpur which does not come under the purview of Factory or Establishment, as defined under Sub-Section 12 of Section 2 of the ESI Act. He submits that; even if his Establishment would come under the ambit of factory under Section 2(12) of the ESI Act, still the prosecution at Patna would be bad in law. The Petitioner contends that not only order taking cognizance, but entire proceeding pending in the Court of Judicial Magistrate, Patna is without jurisdiction. He submits that undisputedly his Establishment is in the district of Muzaffarpur, The contribution used to be deposited at the Branch Office of ESI, Muzaffarpur. The default, if any, on part of the Petitioner took place at Muzaffarpur and thus the Muzaffarpur Court alone would be competent to take cognizance. As per Section 177, Code of Criminal Procedure, an offence could be enquired and tried by a Court within whose local jurisdiction it was committed. He placed reliance on a decision rendered in case of Bimal Kumar Goddhyam @ Bimal Goddhyan v. State of Bihar, 2010 3 LLJ 213 . He further submits that for non-filing of return, the ESI through its Branch Manager Muzaffarpur has filed case under Section 85(e) o the ESI Act in Muzaffarpur Court.

(3.) Learned Counsel for the ESI submits that the instant case is fully maintainable at Patna. He submits that all the contributions made by Establishment/Factory at any centre or counter finally get credited in the Central Account at Patna. He submits that Regional Office of Bihar is situated at Patna, so notice was issued to him by the Assistant Director, ESI, CRO, Bihar, Patna. Learned Counsel has relied upon an order dated September 10, 2007, passes by a single Bench of this Court in case of Durga Kant Jha v. State of Bihar and Anr. in Cr. Misc. No. 29286/2005.