Rule. Rule made returnable forthwith.

2. Heard both the counsel.

3. The question that arise for consideration in this petition is whether, Chairman of a company can be said to be an employer within the meaning of Explanation 2 to Section 405 read with Section 406 Indian Penal Code so as to make him liable for prosecution under Section 406 Indian Penal Code for non-deposit with the Provident Fund Authorities of the provident fund dues deducted from the employees salary.

4. The facts set out in the petition can be briefly stated as follows. The petitioner is the Non-Executive Chairman of a company by name M/s. Precision Fasteners Ltd. The company was declared a sick industrial unit in terms of Section 3(1)(4) of the Sick Industrial Companies (Special Provision) Act, 1985 (hereinafter referred to as 'SICA') and a scheme of its revival 'passed under Section 19(3) and 18(4) of SICA. The company has 54 employees and it's day to day management, administration and control is vested in the Managing Director and CEO of the Company, Shri. Dilip Singh Lodha. Mr. T. M. Vishwanathan, a whole time Executive Director was looking after the overall function of the company till 15th January, 2008. The company had in compliance with Section 6 and 7 of the Factories Act filed a declaration in Form 2 stating, the whole time Director of the company as the occupier and one Mr. Ravindra Jagannath Mhatre as Manager of the factory for the purposes of the Act in the year 2006. In November, 2008 respondent no.3 Assistant Provident Fund Commissioner, Employees Provident Fund Organization issued recovery certificate dated 5th April. 2008 for a sum of Rs.20,93.268/- in respect of the contribution from the employees. The notice was addressed to the Managing Director, Shri. D. S. Lodha. The company then approached the Board of Industrial and Financial Reconstruction which passed the order dated 9th January, 2009. interalia directing respondent no.3 to accept payment of the outstanding dues, upon sale of assets of the company's Kalwe unit. In the meantime. it permitted release of an adhoc amount of Rs.10,00,000/- towards the part payment of the outstanding dues. Accordingly, the company deposited a sum of Rs.10,00.000/ - vide pay-order dated 27th January. 2009.

5. On 2nd November. 2009 the petitioner learnt that a complaint had been filed by one Mr. Masheri. Enforcement Officer. Employees Provident Fund Organization With the Assistant Commissioner of Police. MIDC. Mahad Police Station alleging that the petitioner in the "capacity of owner" and "person responsible for all the working of the company" had committed the offence punishable under Section 406 Indian Penal Code by non-deposit of the provident-fund dues deducted from the employees salary with the provident fund authorities. Based on the complaint, an FIR has been lodged with impending threat of arrest of the petitioner.

6. The petitioner, claims that, he is not in any way concerned with the day to day management of the Company. The management and control of the day to day affairs of the company is vested in the Managing Director. He contends that the Director or Non-Executive Chairman of a public limited company is not employer within the meaning of Section 2(e) of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the 'the Employees Provident Fund Act'). In this connection, reliance is place on the decision of Single Judge of .this Court in the case of Sharad Mittersain Jain & Ors. Vs. State of Maharashtra, reported in 2004(1) CLR page 971 : [2004 ALL MR (Cri) 75] and of the Apex Court in the case of Employees State Insurance Corporation Vs. S. K. Aggarwal reported in 1999(2) Mh.L.J. 935. The Apex Court in S. K. Agarwal's case (supra) was considering the question whether directors of a Company would be covered by the definition of Principal "employer" under the Employees State Insurance Act (hereinafter referred to as the ESI Act). After noting the provi