J.P. Mitter, J.
1. These appeals against acquittals preferred by the State of West Bengal involve the interpretation of para 70 of the Coal Mines Provident Fund Scheme.
2. The facts leading up to the prosecution ofthe respondents were these: The respondents werethe partners of a firm carrying on business as colliery owners. Under the Coal Mines ProvidentFund Scheme, the respondents were liable to paytheir contribution in respect of the provident fundsof those of their employees who had Joined theProvident Fund Scheme. At the date of the institution of the complaint, a sum of Rs. 11,343-15 annaswas owing to the said Fund. The respondents hadalso defaulted in submitting duly stamped contribution cards for the periods ending 30-9-1951, and30-9-1952. On or about 10-8-1953, S. P. Sarma. Inspector, Coal Mines Provident Fund, submitted areport about the respondents having breached theprovisions of paras 33, 38 and 42 of the Coal MinesProvident Fund Scheme and asked for sanction fortheir prosecution. Such sanction having been obtained on or about 10th August, a petition of complaint dated 13-8-1953, was filed before the Sub-Divisional Officer, Asansol.
3. Upon a consideration of the evidence, the trial Court found the respondents guilty of contravention of the provisions of paras. 33, 38 and 42 of the Scheme and sentenced each of the respondents to pay a fine of Rs. 200/-, in default to suffer simple imprisonment for one month. It was ordered that the entire amount of the fine, if realised, was to be paid to the Commissioner, Coal Mines Provident Fund Scheme, by way of compensation.
4. The respondents appealed to the learned Sessions Judge who by his judgment of 21-7-1954, allowed the appeals and set aside the convictions and the sentences concerned. It is from the appellate order of acquittal that the present appeals were preferred by the State.
5. Before us Mr. J. M. Banerjea on behalf of the State has conceded that the learned appellate Court was right in holding that the prosecution had failed to establish any contravention of the provisions of either para. 38 or para. 42 of the said scheme. Mr. Banerjea, however contended that an offence for contravention of the provisions of para. 33 had been made out and that a charge under para. 70 read with para 33 of the Scheme was sustainable. In our view, Mr. Banerjea is right, as we shall presently indicate. The learned SessionsJudge does not appear to us to have applied his mind to this part of the case as fully as he should have done. In our view, he is wrong in saying that the scheme did not provide for any punishment for contravention of the provisions of para. 33. If the learned Judge had only noticed Clause (f) of para. 70 of the scheme, he would have seen that any contravention of or non-compliance with any of the requirements of the Act or of the scheme was punishable. Paragraph 33 of the scheme is in the following terms:
'(1) Every contribution payable under this Scheme shall, except as otherwise provided herein, be paid by affixing a stamp in the space provided therefor in the contribution card maintained for each member in Form D or E annexed hereto.
(2) An employer who is liable to pay contributions in respect of any member employed by him,shall pay the contributions in the following manner:
The employer shall before paying the member the wages in respect of any part of the period for which contributions are payable affix to the card of the member a stamp or stamps in payment of the contributions due in respect of that period:
Provided that it shall be the duty of the employer in any case--(a) before the termination of the employment, except where the employment is terminated by the member without any notice or intimation to the employer, in which case the employer shall pay contributions within fourteen days of the termination of the employment, (b) within six days after the expiration of the period of currency of the card, (c) if the wages have become due but have not been paid, within forty-eight hours after receiving a request in that behalf from the member, to affix to the card of the member a stamp or stamps in respect of the period ending at the date of such termination, expiration or request. (3) In respect of the period during which the Contribution Card of the member has not been received by an employer from the last employer or the Commissioner, the employer shall prepare an emergency card in Form F annexed hereto and shall pay any contribution payable in respect of the member by affixing a stamp or stamps to such a card.'
It is common case that the provision that every contribution payable under the Scheme shall, except as otherwise provided in the Scheme, be paid by affixing a stamp in the space provided therefor in the Contribution Card, was not observed. Mr. Banerjea argued that the only mode of payment of the contribution by the employer was by affixing of stamps upon what is known as the Contribution Card and that as it was established beyond any doubt that no payment by the employer of his contribution under the Act had been made by the mode provided in para. 33, each of the respondents was guilty of an offence under para. 70 read with para. 33 of the Scheme.
6. Mr. Sen Gupta appearing on behalf of the respondents contended firstly, that the purported sanction (Ex. 10(1)) was no sanction and secondly that in view of the amendment of the Coal Mine Provident Fund Scheme and Bonus Schemes Act by the introduction of a new section, No. 10A, the respondents could not be found guilty of any offence under para. 70 read with para. 33 of the Scheme.
7. As to the first point urged by Mr. Sen Gupta, it is quite clear that the petition of complaint found at pages 5 to 7 was placed before Mr. s. N. Mubayi, Coal Mines Provident Fund Commissioner, before it was filed in the Court of the learned Sub-divisional Officer, Asansol. It was after the Commissioner had given his sanction by an endorsement on the document itself that the petition concerned was filed in the Court of the learned Sub-divisional Officer. The date of the sanction was 10-8-1953. The petition was filed in the Court of the learned Sub-divisional Officer on 13-8-1953, Having examined the original document, we are satisfied that although the document concerned including the endorsement might have been typed out at the same time, we cannot say that the sanctioning authority did not apply his mind to the facts of the case. It appears, on the other hand, from the endorsement itself that he did apply his mind to the facts of the case and then gave the necessary sanction to initiate the prosecution. On the facts we hold that the sanction concerned was given after the Commissioner had considered the facts bearing upon the prosecution.
8. As to the second point, all we need say is that Section 10A merely provides for the mode of recovery of money due from an employer and does not affect para. 70 of the Scheme. In our view, a prosecution, as here, is competent in spite of there being a provision under the Act for recovery of moneys due from an employer under the Act or the Scheme. The importance of Section 10A is that the Government may now recover any amount due from an employer in respect of any contribution or bonus under the scheme in the same manner AS an arrear of land revenue. In view of such provision, we do not think that the amount due is to be necessarily realised by the imposition of a fine under the penal provision of the Scheme. In all the circumstances of this case, we think, therefore, that a nominal fine will meet the ends of justice.
9. For the foregoing reasons we must set asidethe order of acquittal passed by the learned Sessions Judge in so far as the charge related to aviolation of the provisions of para. 33 of the scheme.On the evidence and in the light of our interpretation of para. 70 of the scheme, we find each oneof the respondents, except respondents 8 and 10who are minors, guilty of an offence under para.70 read with para. 33 of the Scheme and sentenceeach to pay a fine of Rs. 10/-, in default to suffersimple imprisonment for a week.
10. I agree.