Initiating criminal proceedings before the final adjudication of the dispute would be an abuse of the process of law. Criminal liability arises only after the failure to deposit the determined amount within the stipulated time and when the adjudicatory process attains finality.

JUDGMENT

Manish Pitale, J. - The Petitioner is proprietor of M/s. Swastik Enterprises and he has filed this Petition for quashing of a complaint filed by the Respondent-Provident Fund Inspector before the Judicial Magistrate First Class at Ponda, claiming that the said complaint initiated under the provisions of the Employees Provident Funds and Miscellaneous Provisions Act, 1952, (the aforesaid Act), is not maintainable in the facts and circumstances of the present case.

2. In the present case, proceedings were initiated under the provisions of the said Act on the basis that the establishment of the Petitioner stood covered and that there was outstanding liability under the said Act, which the establishment had not deposited. The Petitioner does not dispute the fact that the establishment stood covered under the provisions of the said Act and that contributions towards provident fund are being made. The area of dispute is confined to the question as to whether a particular allowance to be paid to the employees of the aforesaid establishment is covered under the definition of wages and consequently whether the contribution towards provident fund ought to be deposited by including the component of the said allowance. According to the Petitioner, the said allowance pertains to house rent payable to the employees, which is not covered under the provisions of the said Act. It is further brought to the notice of this Court that while submitting details to the concerned authority, the Petitioner had struck off the column of Dearness Allowance (DA) and instead written House Rent Allowance (HRA) in its place. While depositing contributions and submitting returns, the Petitioner excluded the component of HRA, which is the bone of contention in the present case.

3. It is in this backdrop, that the Assistant Provident Fund Commissioner initiated proceedings under Section 7A of the aforesaid Act. Pursuant to the said proceedings, an order dated 23.05.2012 came to be passed against the Petitioner. The Assistant Provident Fund Commissioner held that an outstanding amount of Rs.1,63,350/- was payable on the part of the Petitioner and his establishment in the respective accounts of the employees within a period of 15 days from the date of receipt of the order.

In the said order, it was recorded that none appeared on behalf of the establishment of the Petitioner on number of dates. The said authority proceeded on the basis of the documents available on record, to determine the outstanding amount at Rs.1,63,350/-.

4. The Petitioner filed an application for recall of the said order and he also filed Writ Petition no. 312 of 2015, before this Court to challenge the aforesaid order dated 23.05.2012.

5. On 22.04.2016, this Court disposed of the said Writ Petition No. 312 of 2015, by directing that the Assistant Provident Fund Commissioner shall dispose of the application filed by the Petitioner for recall of the order dated 23.05.2012. This Court took note of Section 7B of the said Act, which provides for review of orders passed by the said authority. It was made clear while disposing of the said Writ Petition that the order dated 23.05.2012, was not being disturbed.

6. It is significant that prior to the aforesaid developments, on 29.09.2014, an Enforcement Officer of the Employees Provident Fund Organisation i.e. Respondent-Inspector herein, filed a criminal complaint before the Court of Judicial Magistrate First Class at Ponda. The complaint was filed under Sections 14(1B) and 14(2A) of the aforesaid Act on the ground that the Petitioner had committed offence under Section 6C thereof by failing to comply with the order dated 23.05.2012.

7. During the pendency of the said criminal complaint, and in pursuance of the direction of this Court given in Writ Petition No. 312 of 2015, the Regional Provident Fund Commissioner-II, Regional Office at Goa, passed an Order dated 29.12.2016, holding that there was sufficient evidence on record to show that the Petiti