Jaganmohan Reddy, J.
1. This Criminal Revision arises out of an order of the 2nd Additional Munsif Magistrate, Vizianagrain made on a complaint laid before him under section 85(c) read with Section 72 of the Employees' State Insurance Act (XXXIV of 1948) (hereinafter referred to as the Act). The accused N. Mill, Principal Employer of Nellimerla Jute Mills Co.. Ltd. at Nellimerla (hereinafter referred to as Jute Mills) has been prosecuted for contravention of Section 72 of the Act as he refused to pay the salary for two days Waiting period of his employees.
The complaint inter alia states that the accused in his capacity as the Principal Employer attends to the payment of wages, including the payment of wages during the period of sickness of the employees in the terms of an award dated 18-3-1953. This award is the award of the Industrial Tribunal known as the 'Sattar Award' binding on the Jute Mills and the employees according to which, the Jute Mills were given a benefit of 10 days sick leave without loss of pay per year as a facility towards their employees,
In October, 1955, the Act was applied to the Jute Mills along with some other mills by a notification published in the Gazatte of India and thereafter the employees were entitled to the benefits under the Act. Under Section 49 of the Act, the employee was entitled only to the period in excess of 2 days initial waiting period. It is the case of the complainant that the employee would be entitled to the facility of payment of two days initial waiting period from the Jute Mills as one of the benefits which they would be entitled to under the terms of the service and the award which benefit was saved by Section 72 of the Act.
It is further stated that the Deputy Regional Director-in-charge of the Employees' State Insurance Corporation drew the attention of the accused to Section 72 of the Act and duly instructed not to reduce the benefits which the Jute Mills were paying previous to the Notification and that some employees have complained that they have not been paid their wages for the first two days of the period of their sickness called the waiting period; but the accused paid no heed and deliberately in contravention of Section 72 of the Act, stopped making this payment of benefit to his employees on account of the first two days of his sickness from 1-1-1957 while he was till that date making such payments.
2. In view of this, a report was made by the Deputy Regional Director-in-charge to the Director General and on 8-11-1958, the Director General, under Section 86 of the Act sanctioned the prosecution of the accused under Section 85(c) of the Act for contravention of Section 72 of the Act, by refusing to pay leave salary for two days to Sri Sasubilli Appalaswamy (Insurance No. 015020) and Sri K. Suryanarayana (Instance No. 15059) during the months of May and June 1958 when they were on leave on grounds of sickness. The accused challenged the jurisdiction of the Court of the First. Class Magistrate-cum District Munsiff, Vizianagram where the complaint was laid.
It was submitted that since there was a dispute about this matter, it must be referred to an Insurance Court to be constituted under Section 74 of the Act and only after its decision and on contravention of it, that he would be liable for prosecution. He further submitted that Section 75 of the Act vests the jurisdiction to decide certain questions arising for consideration while implementing the provisions only by the Employees' Insurance Court, as such it bars the jurisdiction of any other Court.
He also raised the question as to the validity of the sanction and contended that under Section 86 of the Act, only an Insurance Commissioner or such other officer of the Corporation as may be authorised by the Central Government is empowered to sanction a prosecution; but inasmuch as it is stated that the Director General has sanctioned the prosecution, it is not disclosed whether the said Director General is the officer authorised to sanction the prosecution.
Apart from these two main contentions, he also averred that (a) the Regional Director has no right to assume that the Jute Mills are bound to pay sickness benefit for this initial period of two days also and on that assumption to launch the prosecution, and that (b) the prosecution is time-barred in respect of the alleged withholding of the amounts in May .1958.
3. The 2nd Additional Munsif-Magistrate who was seised of this matter, by his order dated 27-1-1959, rejected the challenge of his jurisdiction and dismissed the petition. It appears that the question of jurisdiction was alone raised before him and the points were not at that stage urged or argued; nor have any arguments been addressed on that account before us. The learned Advocate for the petitioner has taken us through several provisions of the Act, all of which, in our view, are not really material for the determination of the simple question, before us, namely, whether criminal Courts are barred from entertaining prosecutions before any matter in dispute between the employers and the employees is decided by the Employees' Insurance Court constituted under Section 74 of the Act.
The general scheme of the Act is as stated in the long title of the act to provide for certain benefits to employees in Case of sickness, maternity and employment injury and to make provision for certain other matters in relation thereto. It constitutes Employees' State Insurance Corporation, Standing Committee and Medical, Benefit Councils under Chapter II, while Chapter III deals with finance and audit of the Corporation.
Section 38 provides for the insurance of all employees in factories or establishments to which the Act applies and under Section 39 contributions have to be made by the employers as well as the employees in accordance with the rate specified in the first schedule or at such rates as the Corporation may fix in cases where the provisions of the Act are applied excluding some of the benefits of the Act to any employee or class of employees in any factory or establishment or class of factories.
There are also provisions under Sections 40 - 45 of the Act which deal with the requirements of principal employer to pay contributions in the first instance, recovery of contribution from immediate employer, general provisions as to the payment of contributions, method of payment of contribution, employers to furnish returns and maintain registers in certain cases, Inspectors, their functions and duties.
Chapter V deals with benefits conferred on the employees under the Act. Sections 47, 48 and 49 deal with sickness benefit and the payment regarding the two days waiting period. The relevant provisions of the Act for the purpose of determining the question before us are Sections 72, 74(1), 75(1)(c), 75(1)(g), 75(2)(f), 75(3), 85(c) and 86. These may be now read.
72. No employer by reason only of his liability for any contributions payable under this Act shall, directly or indirectly reduce the wages of any employee, or except as provided by the regulations, discontinue or reduce benefits payable to him under the conditions of his service which are similar to the benefits conferred by this Act.
74 (1). The State Government shall, by notification in the official Gazette constitute an Employees' Insurance Court for such local area as may be specified in the notification,75(1) If any question or dispute arises as to --(e) the right of any person to any benefit and as to the amount and duration thereof, or(g) any other matter which is in dispute between a principal employer and the corporation, or between a principal employer and an immediate employer, or between a person and the Corporation, or between an employee and a principal, or immediate employer, in respect of any contribution or benefit or other dues payable or recoverable under this Act, such question or dispute shall be decided by the Employees' Insurance Court in accordance with the provisions of this Act.
75 (2) The following claims shall be decided by the Employees' Insurance Court namely:-
(f) any claim for the recovery of any benefit admissible under this Act
75 (3) No Civil Court shall have jurisdiction todecide or deal with any question or dispute asaforesaid or to adjudicate on any liability which byor under this Act is to be decided by the Employees'Insurance Court.
85 (c) If any person in contravention of Section 72 reduces the wages or any privileges or benefits admissible to an employee ..... heshall he punishable with imprisonment which may extend to three months or with fine which may extend to five hundred rupees, or with both.
86 (1) No prosecution under this Act shall be instituted except by or with the previous sanction of the Insurance Commissioner or of such other officer of the Corporation as may be authorised in this behalf by the Central Government,
(2) No Court inferior to that of a Presidency Magistrate or a Magistrate of the first class shall try any offence under this Act.
(3) No Court shall take cognizance of any of fence under this Act except on a complaint made in writing in respect thereof, within sis months of the date on which the offence is alleged to have beep committed.
4. A reading of Sections 74 and 75 of the Act would indicate that where a dispute arises under the provisions of the Act, that matter must be decided by an Employees' Insurance Court and not by a Civil Court. Sub-section (3) of Section 75 has the effect of merely ousting the jurisdiction of the Civil Court with respect to matters arising under the Act. There is nothing in any of the provisions of the Act which precludes the Criminal Court from enter faming a prosecution under the Act except after an adjudication of that matter by the Employees' Insurance Court: nor is there any justification in the contention that the adjudication by the Insurance Court is a Condition precedent to the vesting of jurisdiction in a Criminal Court in respect of prosecution launched for contravention of the provisions of the Act.
It may be that the employer disputes the liability to pay any benefit saved under Section 72, a matter upon which we do not wish to express our views nor do we propose to deal with the contention on the merits of the question. But the mere fact that an Employer raised a dispute does not preclude the criminal Courts from entertaining a complaint unless the Act specifically precludes it, which it does not.
5. It is not unknown that there are many wrongs which give rise both to Criminal as well as Civil liabilities such as for instance, breach of trust, breach of contract, defamation etc. It is a salutary principle that a thief or a clerk or a servant or an agent or a defamer who commits theft or criminal breach of trust or defamation should not only be compelled to restore his plunder or unlawful gain or to Compensate for the damage caused to one's reputation, but they should also be made criminally liable to deter them against the commission of such wrongs.
These wrongs are entertainable by the Criminal Courts as well as by Civil Courts. In the case of the former the wrong is termed a crime and in the case of the latter a civil liability giving rise to a claim of right. There is no provision of law or any principle of jurisprudence which precludes both these courts from determining these matters simultaneously, though in practice one Court may stay its hand till the determination of the other Court's finding so as to avoid a conflict.
Further, adjudication by a Criminal Court which applies the principle of giving the benefit of doubt to the accused does not, by itself, negative the liability in a civil Court. Civil and Criminal remedies are concurrent and not alternative and where, as in this case, the employee claims to be entitled to receive some remuneration under the provisions of the Act, he can claim it as a civil remedy which under the Act will be determined by the Employees' Insurance Court.
The proceedings of this Court are governed by provisions of Sections 77 - 80 of the Act under which the Employees' Insurance Court has all the powers of a Civil Court and an order made by it is enforceable as if it were a decree passed in a suit by a Civil Court Apart from this, the policy of the Legislature is to create a wrong making the employer liable to be punished if he contravenes the Act. The penal liability is therefore apart from the civil liability which the employee can enforce in an Insurance Court.
6. The learned Advocate for the petitioner has referred us to two decisions viz., Public Prosecutor v. Thimmiah, : AIR1959AP207 (FB) and Kasturi and Sons (Private) Ltd. v. Salivateswaran, : (1958)ILLJ527SC in support of his contention. In the former casa, the Full Bench was concerned with the maintainability of a challenge to the assessment made against the accused and for non-payment of which he was being prosecuted.
On the analogy of this case, it is sought to be contended that the matter must be disposed of first by the Insurance Court, the infringement of which order will alone expose the petitioner to prosecution. In our view, this contention is wholly misconceived. Under the Madras General Sales Tax Act, a prosecution is for non-payment of the demand raised against the assessee and before ever a demand can be raised the assessment must be made. If an assessment is made, then the Sales Tax Act itself provides a hierarchy of tribunals to challenge that order and the demand.
The prosecution under Section 15 (b) of the Sales Tax Act as has been observed by the Full Bench is a mode adopted for realising the tax that is finally determined. It is the failure to meet the liability created by Section 10 that is made an offence and the purpose of Section 15 (b) is to enforce payment through the agency of criminal Courts and defer non-payment of tax. It was therefore held that in a prosecution under Section 15 (b), it is not open to question the validity of the assessment made under the Act and that Criminal Court has no jurisdiction to adjudicate upon the correctness of the amount taxed under the Act.
The position under the Sales Tax Act therefore is that criminal prosecution is a sine qua non of the determination of tax liability. Under the provisions of the Act which is under consideration before us, no such condition has been prescribed. It will be for the authority vested with the duty to prosecute, to satisfy itself that a breach has occurred and it is 'for that authority to establish in that prosecution that the employer has Committed the wrong.
7. In the Supreme Court case cited by the learned Advocate for the petitioner, the provisions of Section 17 of the Working Journalists (Conditions of Service and Miscellaneous Provisions) Act, 1955 tell for consideration. That section authorises the State Government on the application being made by an employee for the recovery of any compensation, gratuity or wages which are due to him to issue a certificate for that amount to the Collector on it being satisfied.
On such certificate being issued, the Collector is enjoined to proceed to recover that amount in the same manner as an arrear of the land revenue. In considering that provision, it was contended that the condition precedent for the application of Section 17 is a prior determination by a competent authority or the Court of the amount due to the employees from his employer. That contention was accepted by the Supreme Court inasmuch as the words 'due to him' would indicate that what is contemplated is the stage of execution which follows the passing of the decree or the making of an award or an order by an appropriate Court of the authority.
Their Lordships pointed out that the State Government or the specific authority mentioned in Section 17 has not been clothed with the normal powers of a Court or a tribunal to hold a formal enquiry and therefore, the granting of a certificate by the State authority would only arise if the amount is due which fact must be determined by some other authority. The provisions of the ACT dealt with by the Supreme Court arc not pari materia and the observations made therein, have no application to the provisions of the Act which we are considering in this case.
The learned Public Prosecutor contends that the words 'payable or recoverable' under the provisions of the Act used in Section 75(g) would not apply to the benefits recoverable under the conditions of service of the employee. This contention in our view has no force inasmuch as it is by virtue of Section 72 that the benefits under the conditions of service other than those conferred by the Act are saved. But for that provision, the benefits conferred under the conditions of service on the employee would have been superseded,
It is therefore evident that the right to recover any benefits under the terms of the conditions of service accrue only by force of Section 72. As such they are payable or recoverable under the provisions of the Act within the meaning of Section 75(g). Even so, there is no warrant for the contention that no prosecution would lie unless there has been a determination of the question whether a benefit accrues to the employee under the conditions of service. The terms of Section 72 inhibit an employer directly or indirectly to reduce the wages or except as provided discontinue or reduce the benefits payable to the employee under the conditions of his service which are similar to the benefits conferred by the Act.
The prosecution for contravention of that provision is specifically provided for in Section 85(c) and has, not been made subject to the determination by any other Court of the question whether the employee is entitled to 'similar benefits' under the conditions of his service or whether the employer has discontinued or directly or indirectly reduced the wages.
8. In these circumstances, there is no bar for the jurisdiction of the criminal Court to entertain a complaint for an alleged contravention of the Act apart from the employees' liability to recover the same by a reference of the dispute to the Insurance Court. If the employer challenges this liability and avers that he is not guilty of any contravention of the provisions of the Act, it could be raised both as a defence in the Criminal Court as well as in the proceedings before the Insurance Court. The petitioner has not filed any application to refer the matter to the Insurance Court and even if he had done so, in our considered view, the criminal Court would not be barred from entertaining the complaint.
9. In the result the petition is dismissed.