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High Court Of Calcutta
D. K. SETH
GINIA DEVI AGARWALLA - Appellant
Versus
PROVIDENT FUND INSPECTOR - Respondent
W. P. 2029 Of 2001
Decided On : 10/11/2001
EMPLOYEES' PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952 - SECTION 14 (1A) AND (1B) - PROSECUTION FOR DEFAULT IN COMPLYING WITH PROVISIONS OF THE ACT - PAYMENT OF DUES BEFORE LAUNCHING OF PROSECUTION - WHETHER PROSECUTION CAN CONTINUE - INTERPRETATION OF SECTION 14 (1A) AND (1B) - DISTINCTION BETWEEN 'CONTRAVENTION' AND 'DEFAULT' - APPLICABILITY OF SECTION 472 OF THE CODE OF CRIMINAL PROCEDURE - LIMITATION UNDER SECTION 468 OF THE CODE.
Fact of the Case:
A petition was filed under section 14 (1b) of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 against an 80-year-old woman for default in complying with the provisions of the Act. The petitioner contended that the entire dues had been paid before the initiation of the prosecution and that there had been a non-application of mind in lodging the criminal case as the prayer for recovery of dues had already been paid.
Finding of the Court:
The Court held that the prosecution for default in complying with the provisions of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 could continue even if the entire dues had been paid before the initiation of the prosecution. The Court interpreted section 14 (1a) and (1b) of the Act and held that 'contravention' and 'default' are to be read in the context in which they are used according to the legislative intent having regard to the Scheme of the Act and frame of the Scheme. The Court also held that section 472 of the Code of Criminal Procedure, which deals with continuing offences, was applicable and the limitation under section 468 of the Code was not applicable.
Issues: 1. Whether prosecution for default in complying with the provisions of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 can continue even if the entire dues had been paid before the initiation of the prosecution? 2. Interpretation of section 14 (1a) and (1b) of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952. 3. Distinction between 'contravention' and 'default' under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952. 4. Applicability of section 472 of the Code of Criminal Procedure to offences under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952.
Ratio Decidendi: 1. The Court held that the prosecution for default in complying with the provisions of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 could continue even if the entire dues had been paid before the initiation of the prosecution because: a. Section 14 (1a) and (1b) of the Act make an employer liable for prosecution whenever there is a contravention or default in complying with the provisions mentioned therein. b. The phrase 'contravention' and 'default' is to be read in the context in which it is used according to the legislative intent having regard to the Scheme of the Act and frame of the Scheme. c. Non-payment within time is a failure to pay within time. Default means failure to pay. Failure to pay within time is therefore a default. 2. The Court interpreted section 14 (1a) and (1b) of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 as follows: a. Section 14 (1a) makes contravention or default in compliance of section 6 (a) or 17 (3) of the Act or Paragraph 38 of the Scheme punishable. b. Section 14 (1b) makes contravention or default in compliance of section 6c, section 17 (3a) (a) of the Act punishable. 3. The Court held that the distinction between 'contravention' and 'default' under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 is that 'contravention' is the violation of a provision of the Act or Scheme, while 'default' is the failure to comply with a provision of the Act or Scheme. 4. The Court held that section 472 of the Code of Criminal Procedure, which deals with continuing offences, was applicable to offences under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 because: a. Default is a continuous offence which is governed by section 472 of the Code of Criminal Procedure. b. Limitation provided under section 468 of the Code is not applicable to continuing offences.
Final Decision: The Court dismissed the petition and held that the prosecution for default in complying with the provisions of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 could continue even if the entire dues had been paid before the initiation of the prosecution.
( 1 ) THE Court: A complaint has been lodged under section 14 (1b) of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 against the petitioner. Mr Biswanath Samaddar, learned counsel for the petitioner, contends that the petitioner is an 80 years old lady and that before the launching of the prosecution the entire dues on the basis whereof the prosecution was initiated had been paid. He contends that there might be some delay in the deposit but the entire deposit having been made, no prosecution can continue in view of the decision in the case of Provident Fund Inspector, Faridabad v. M/s. Jaipur Textile, Faridabad, and Another reported in AIR 1987 SC 1738. He also contends that there has been a non-application of mind in lodging the Criminal Case, inasmuch as alongwith the prosecution a prayer was also made for recovery of the dues which had already been paid and it clearly shows a blatant non-application of mind. He also relies on a decision of the Division Bench of this Court in the case of The Regional Provident Fund Commissioner, West Bengal v. Raj Kumar Nemani and Ors. reported in 1995 (1), CLJ 89 in which the decision of the apex Court in Jaipur Textile (supra) was considered. He also relies on an unreported decision in the case of M/s. Nayek Paper and Board Mills and Another v. The Union of India and Others in C. R. Case No. 6445 (W) of 1982 disposed of on November 30, 2000, in support of his contention.
( 2 ) MR. Mishra, learned advocate for the respondents, on the other hand, contends that this Court in Writ Jurisdiction cannot interfere with the criminal prosecution. If the petitioner has any defence, it is to be pleaded before the Criminal Court. He relies on an unreported decision of a Division Bench of this Court in the case of M/s. Universal Heavy Mechanical Lifting Enterprise and Anr. v. Union of India and Ors. in matter No. 97 of 1993 disposed of on December 16, 1995, to support his contention that in exercise of the Writ Jurisdiction the prosecution cannot be interfered with. He also relies on a decision in the case of N. K. Jain and others v. C. K. Shah and others reported in AIR 1991 SC 1289 which supports this view. He further relies on a decision in the case of Bhagirath Kanoria and Others v. State of M. P. reported in AIR 1984 SC 1688 as well as a decision in the case of M/s. Sanyal Lahiri and Co. Ltd. and Others. v. Shri C. B. Paul and Another reported in 1995 Cr. LJ 3945.
( 3 ) AFTER having heard the learned counsel for the parties, it appears that section 14 (1a) and (1b) of the Act, makes an employer liable for prosecution whenever there is a contravention or default in complying with the provisions mentioned therein. It is not in dispute that the provisions were contravened or there was a default in complying with the provisions. Thus default was sought to be explained that it means a total default or a default till the prosecution is launched. According to Mr. Samaddar, it cannot be treated as a default before launching of the prosecution, in case the entire amount is paid before the prosecution is launched, in that event, it would neither be a contravention nor a default.
( 4 ) I cannot accede to such a proposition. Section 6 of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the Act) casts a liability on the employer to contribute to the Fund as provided therein. For carrying out the object and purpose of the Act section 5 provides for Employees' Provident Fund Scheme (hereinafter referred to as the Scheme ). In chapter V, paragraph 30 of the scheme makes the employer liable for payment of both the contribution at the first instance. Paragraphs 35 and 36 of the Scheme cast an obligation on the employer to prepare cards and submit returns respectively. By reason of clause 2 of paragraph 36 of the Scheme return is to be submitted within 15 days of the close of each month. Under paragraph 38 the employer is oblige
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