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Wire Machinery Manufacturing Corporation Ltd. and ors. Vs. State and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKolkata High Court
Decided On
Case NumberCriminal Revision Nos. 1211 to 1236 of 1976
Judge
Reported in[1979]49CompCas197(Cal),1978CriLJ839
ActsEmployees' Provident Funds and Family Pension Fund Act, 1952 - Section 14(1A), 14A(1), 14AA and 14C; ;Code of Criminal Procedure (CrPC) , 1973 - Section 468(2)
AppellantWire Machinery Manufacturing Corporation Ltd. and ors.
RespondentState and anr.
Appellant AdvocateBijoy Kumar Bhose, ;Aloke Kumar Sengupta and ;Manab Kumar Gupta, ;D.N. Das, ;Archana Sen Gupta and ;Anjan Mukherjee, Advs.;J.N. Ghosh and ;Dilip Kumar Dutta, Advs.
Respondent AdvocateBirendra Nath Mitra and ;Himangshu De, Advs.
Cases ReferredState of Bihar v. Deokaran Nenshi
Excerpt:
- .....funds and family pension fund act, 1952, read with para, 76(b) of the employees' provident funds scheme (hereinafter ' the act and the scheme ') on the basis of complaints filed by the provident fund inspector, west bengal.2. the common question of law which arises in all these rules is whether a complaint can be lodged and cognizance taken after a period of one year from the date of the alleged contravention of the aforesaid provisions of the act and the scheme ?3. according to the complaints the first petitioner along with petitioner nos. 2, 3 and 4 who are its directors had not paid the employer's and employees' share of the contributions and administrative charges for the different months which are the subject-matter of the cases started against them.4. in support of the.....
Judgment:

P.C. Borooah, J.

1. The petitioners in all these rules are being prosecuted in the court of the Metropolitan Magistrate, 7th Court, Calcutta, under the provisions of Sections 14(1A), 14(2), 14A(1) and 14AA of the Employees' Provident Funds and Family Pension Fund Act, 1952, read with para, 76(b) of the Employees' Provident Funds Scheme (hereinafter ' the Act and the Scheme ') on the basis of complaints filed by the provident fund inspector, West Bengal.

2. The common question of law which arises in all these rules is whether a complaint can be lodged and cognizance taken after a period of one year from the date of the alleged contravention of the aforesaid provisions of the Act and the Scheme ?

3. According to the complaints the first petitioner along with petitioner Nos. 2, 3 and 4 who are its directors had not paid the employer's and employees' share of the contributions and administrative charges for the different months which are the subject-matter of the cases started against them.

4. In support of the rules we have heard Mr. Bijoy Kumar Bhose. We have also permitted Mr. J.N. Ghose and Mr. D.K. Dutta to intervene as they are appearing on behalf of the petitioners in other rules pending before us in which the aforesaid question of law also arises.

5. Mr. Bhose submitted before us that under Section 14(2A) of the Act the maximum penalty provided for contravention or making a default in complying with any provisions of the Act is imprisonment which may extend to three months or with fine which may extend to rupees one thousand or with both. Therefore, under Section 468(2)(b) of the Code of Criminal Procedure, 1973 (hereinafter ' the Code '), no court can take cognizance of any offence committed under the Act after the lapse of a period of one year from the date of default or contravention. As such the complaints in the cases, which are the subject-matter of the rules, having been instituted more than one year after the payments become due, the cognizance taken by the learned Magistrate is without jurisdiction and has to be quashed.

6. Mr. J.N. Ghose submitted that under para. 38 of the Scheme the offence was complete on the expiry of the fifteenth day of the month following the month for which there was a default, and this default became a complete offence on and from the sixteenth day of the month. As such it was not a continuing offence.

7. Mr. Dilip Kumar Dutta also submitted that under para. 38 of the Scheme an employer is required within fifteen days of the close of every month to pay the necessary contributions and the administrative charges to the Fund. This, according to Mr. Dutta, clearly shows that if an employer makes any default and does not make the payments within fifteen days of the close of every month, on the sixteenth day, the offence becomes complete and cannot be deemed to continue to be an offence from day-to-day. In support of this argument, Mr. Dutta has referreoj to a decision of the Supreme Court in the case of State of Bihar v. Deokaran Nenshi : 1973CriLJ347 .

8. Mr. Dutta also drew our attention to Section 9 of the Employees' Provident Funds and Family Pension Fund (Amendment) Act, 1973, by which an Explanation has been added to Section 405, Indian Penal Code, and by which an employer is deemed to be a trustee in respect of the deductions made from the employees for credit to the provident fund or family pension fund. In view of this amendment to Section 405, Indian Penal Code, Mr. Dutta's contention is that a defaulting employer becomes liable to prosecution under Section 406 or 409, Indian Penal Code, and as such the default cannot be a continuing offence.

9. Mr. Birendra Nath Mitra, the learned public prosecutor, opposes these rules. According to him, an offence committed under the provisions of the Act and the Scheme is a continuing offence and, as such, Section 472 of the Codeis attracted and a fresh period of limitation shall begin to run throughout the period the offence continues. Mr. Mitra also submitted that by Section 9 of the 1973 Amendment of the Act au offence under the Act and the Scheme has been made punishable under Section 409, Indian Penal Code, which prescribes a maximum penalty of life imprisonment and as such Section 468 of the Code can have no manner of application.

10. Mr. Mitra also drew our attention to Section 14C of the. Act and submitted that when an employer fails to comply with the order of the court to make good the default within a specified period, he would be, in addition to being sent to prison, made liable to pay a fine extending to rupees hundred per day till the payments are made and this, according to Mr. Mitra, goes to show that if any default is made by an employer under the provisions of the Act and the Scheme it must be a continuing offence.

11. Mr. D.N. Das, appearing on behalf of the provident fund inspector, also submitted that an offence committed under the provisions of the Act is a continuing one because on and from the sixteenth day of a particular month when there is a default as regards the deposits to the fund relating to the previous month, the offence commenced and it continued day-to-day till the default was made good. In support of his argument Mr. Das drew our attention to the case of Best v. Butler and Fitzgibbon [1932] 2 KB 108 (KB), wherein it was held that the withholding of any money referred to in Section 12 of the Trade Unions Act, 1871, was a continuing offence because every day the money was wilfully withheld, an offence within the meaning of Section 12 was committed. Mr. Das also submitted that the Act is self-contained and, as there is no provision which lays down any period of limitation regarding the lodging of a complaint, Section 468 of the Code would not apply.

12. The Supreme Court in the case of State of Bihar v. Deokaran Nenshi : 1973CriLJ347 , was dealing with a similar question. In that case, the respondents were being prosecuted under Section 66 of the Mines Act, 1952, for their failure to furnish the requisite returns for a particular year on or before January 21 of the succeeding year as required under Regulation 3 of the Indian Metalliferous Mines Regulation, 1926. The question is also whether the offence in question was covered by the substantive part of Section 79 of the Mines Act or by the Explanation thereto. If the substantive part applied, the complaint would be time barred, but if the offence was a continuing offence the Explanation to the said section would operate and no question of limitation would arise as long as the offence continued.

13. The Supreme Court in dealing with the question explained what was a continuing offence in the following terms (p. 909);

' Continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It is one of those offences which arises out of a failure to obey or comply with arule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience or non-compliance occurs and recurs, there is the offence committed. The distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues and, therefore, constitutes a fresh offence every time or occasion on which it continues. In the case of a continuing offence there is thus the ingredient of continuance of the offence, which is absent in the case of an offence which takes place when an act or omission is committed once and for all. '

14. The Supreme Court ultimately held in favour of the respondents by holding that the infringement occurred on January 21 of the relevant year and was complete on the owner failing to furnish the annual returns by that day, and as such the complaint was time barred as the offence in question fell within the substantive part of Section 79 of the Mines Act and not under the Explanation attached to it. In this case, the Supreme Court also considered the English decision referred to by Mr. Das.

15. Paragraph 38 of the Scheme requires an employer to pay to the Fund the employer's and employees' contributions together with the administrative charges within fifteen days of the close of every month. The infringement for the failure to do so, therefore, occurs on the close of the fifteenth day of the month and is complete on the employer failing to make the payment to the Fund by that date. No provision of the Act or the Scheme lays down that, if an employer makes a default in making the payment to the Fund within the stipulated time as required by para. 38 of the Scheme and carries on his business, he would be guilty of an offence or that the offence would continue till the default is made good. Therefore, in the instant cases, once the defaults were made, the offences were committed once and for all and became complete on the close of the due date. As such, there could not be any ingredient of continuance in the offence to make it a continuing one.

16. Section 14C(1) of the Act empowers a court to make an order directing an employer to make good the default within a specified period, or within an extended period if an application be made in that behalf. In case an employer does not comply with such an order he can be made liable to the payment of fine which may extend to rupees one hundred for every day after the expiry of such period till the default is made good.

17. Section 14C, therefore, provides the requisite machinery for realising from a defaulting employer the arrears payable to the Fund. Sub-section (2) imposes a further penalty of a day-to-day fine if an employer fails to make good the default within the time specified under Sub-section (1).A default committed under the Act or the Scheme and a machinery provided under the Act for making good the default must be kept in, separate compartments. The provision of penalising a defaulting employer with a day-to-day fine till the default is made good does not make the initial infringement a continuing offence.

18. By virtue of the Explanation to Section 405, Indian Penal Code, which has been added by Section 9 of the 1973 amendment of the Act, an employer can be prosecuted for the offence of criminal breach of trust. The question of non-applicability of Section 468(2)(b) would arise only if complaints are lodged against an employer under the provisions of the Indian Penal Code in respect of any defaults being made under the provisions of the Act or the Scheme.

19. In view of what has been stated above, the complaints in all these cases having been filed beyond a period of one year they would be time barred in accordance with the provisions of Section 468(2)(b) of the Code and the cognizance taken on the basis of such complaints would be without jurisdiction.

20. The rules are accordingly made absolute and the proceedings pending against the petitioners in all the cases covered by these rules are quashed.

S.C. Majumdar, J.

21. I agree.


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