S. Rangarajan, J.
(1) This judgment will dispose of Cr. M(M) 461/76, 462/76, 463/76, 464/76 and 465/76 also.
(2) The Union of India has filed this petition, after unsuccessfully moving the Additional Sessions Judge to enhance the sentence of fine of Rs. 75.00 alone imposed not only in this case but in each of the other five cases, the respondent Mohd. Ahmed, the proprietor of M/s. Awaz Khan Mohd. Ismail Khan, 2500 Ballimaran, Delhi having been convicted on his own plea of guilty under section 14(I-A) of the Employees' Provident Funds and Family Pension Fund Act, 1952.
(3) It was not disputed that the respondent who had collected the employees' provident fund under the said Act did not pay the same to the Government as he was under a legal obligation to do. The learned Magistrate seems to have dealt with the matter in a very perfunctory manner and he did not even seem to be fully aware of the fact that he had to impose a minimum sentence of simple imprisonment for three months. Section 14, as it stands amended at present, reads as follows :
'14. Penalties .-(1) Whoever, for the purpose of avoiding any payment to be made by himself under this Act the Scheme or the Family Pension Scheme or of enabling any other person to avoid such payment knowingly makes or causes to be made any false statement or false representation shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. (I-A) An employer who contravenes, or makes default in complying with, the provisions of Section 6 or clause (a) of sub-section (3) of Section 17 in so far as it relates to the payment of inspection charges, or Paragraph 38 of the Scheme in so far as it relates to the payment of administrative charges, shall be punishable with imprisonment for a term which may extend to six months, but- (a) which shall not be less than three months in case of default in payment of the employee's contribution which has been deducted by the employer from the' employees' wages; (b) which shall not be less than one month, in any other case ; and shall also be liable to fine which may extend to two thousand rupees : Provided that the Court may, for any adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a lesser term or of fine only in lieu of imprisonment. (2) Subject to the provisions of this Act, the Scheme or the Family Pension Scheme may provide that any person who contravenes, or makes default in complying with, any of the provisions thereof shall be punishable with impri- sonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. (2-A) Whoever contravenes or makes default in complying with any provision of this Act or of any condition subject to which exemption was granted under Section 17 shall, if no other penalty is elsewhere provided by or under this Act for such contravention or non-compliance, be punishable with imprisonment which may extend to three months or with fine which may extend to one thousand rupees, or with both.'
According to Section (1A) (a) the punishment cannot be less than three months in case of default in payment of the employees' contribution which has been deducted by the employer from the employees wages. There is also a proviso which enables the court, for any adequate and special reasons to be recorded in the judgment, to impose a sentence of imprisonment for a lesser term or of fine only in lieu of imprisonment. The learned Metropolitan Magistrate (Shri Gulab T.) has not mentioned any reason worth the name but merely observed as follows :
'...since he is old and infirm and the looking to the trade (sic). I taking lenient view feel that interest of justice will be met by sentencing the accused to a fine of Rupees Seventy five only or in default 10 days S. 1'
(4) The learned Magistrate does not seem to have appreciated the seriousness of the offence- which the respondent admittedly coriamitted, namely, that he had taken from the employees' contribution amounts made by them but did not deposit the same. This is a piece of social welfare legislation enacted to safeguard the interests of the employees and it is nothing short of the employer trying to make private profit out of this situation. It seems to me. on the contrary, that offences of this nature should be taken serious notice of. The Legislature in its wisdom has required a Magistrate to impose a minimum sentence of three months' S. 1. in a case where the employees' contribution is involved; in any other case for instance, the non-payment of employer's contribution, the minimum sentence to be imposed woude be a month's imprisonment. This itself indicates that the Legislature was anxious to see that such violations of the law were not made by the employers. There is no excuse whatever for an employer collecting the contribution from the employee but yet not depositing the same. In this and the other five Revision Petitions, which represent various periods ranging between April 1973 and December 1973, the respondent has consistently failed to deposit the employees' contribution which he had collected. Merely staling that the respondent was 'old and infirm' but yet looking after the concern would not be the kind of special and adequate reason to impose a penalty less than the minimum which the Legislature contemplates. In this context, I find that the learned Additional Sessions Judge who dismissed the Revision Petition filed by the Provident Fund Inspector on the ground that he could not order an enhancement of sentence imposed in these cases, had rightly stated that the Magistrate appeared 'to have himself invented the excuse of the respondent being infirm and old.' the learned Judge had himself seen the respondent and observed that he appeared to be quite hale and bearty.
(5) In these circumstances the Revision Petition is accepted and the sentence imposed on the respondent is enhanced to his being ordered to undergo S. 1. for three months, in addition to the payment of fine of Rs. 75.00 , already imposed by the lower court (with the default sentence). The respondent has not appeared before this Court either personally or through his lawyer. Steps will be taken for securing his presence, for apprehending him, to undergo the period of S. 1 for three months which has been imposed on him in this and the other five connected cases. The sentence of three months' simple imprisonment in all these cases will, however, run concurrently.