Directors of a company cannot be held vicariously liable for offences under the Employees Provident Fund Act and Family Pension Fund Act, 1952 merely by virtue of their position, unless specific acts or omissions on their part are alleged.

( 1 ) SEVERAL complaints were registered under sections 14a (l) and 14 (1a) of the Employees Provident Fund Act and Family Pension Fund Act, 1952 (hereinafter referred to as the Act of 1952) against several companies. Out of 6 (six) such, complaints, these six revisional applications have sprung up.

( 2 ) THE learned Chief Metropolitan Magistrate, Calcutta, on receiving the complaints from the Provident Fund Inspector, issued processes against the accused. The accused No. 1 is the Company. The accused Nos. 2 and 3 are the Directors. These accused Nos. 2 and 3 have filed the revisional applications, challenging the order of the learned Chief Metropolitan Magistrate, taking cognizance of the offence against them.

( 3 ) IN all these six cases, the petitioners are the Directors.

( 4 ) MR. S. P. Talukdar, appearing for the petitioners, has made short submissions. His first submission is that the petitioners and the company have deposited the amounts under the Act of 1912, and so the complaints filed on the grounds of violation of the provisions of the Act are not factually tenable. His second submission has been that the complaints, on the face of them, did not disclose any offence against the petitioners. Mr. Biswanath Ghosal, appearing for the O. P. No. 2, has submitted that it is not the stage for assessing evidence and so the contention that the amounts said to be due have already been deposited, cannot be accepted, specially because the affidavits have been sworn by some person not in-charge of the matter. His second submission has been that the complaints clearly disclose the commission of offences, because it is clarified in the complaints that the petitioners were in- charge of the business and were responsible for the conduct of the business. Mr. Tapas Mirdha, appearing for the State, has accepted the arguments of Mr. Ghosal. None has appeared for the O. P. No. 1.

( 5 ) AS to the first submission of Mr. Talukdar, namely, that the amounts due had already been deposited, it is felt that the Court cannot take any notice of the Same. That the amounts were deposited, have been stated in paragraphs 4 and other paragraphs following there. The affidavits were sworn by one. Sri Prabin Pattanay as who simply avers that he is fully conversant with the facts and circumstances of the case. The statements in paragraph Nos. I and 2 only are said to be true to his knowledge and the statements made in paragraphs 3 to 10 are merely his submissions. Therefore, his submission that the amounts said to be due have already been deposited, are not based on knowledge. Moreover, it is not even averred the deposits were made in time. Therefore, the first submission made on behalf of the petitioners must be rejected.

( 6 ) MR. Talukdar has mainly concentrated on the aspect, whether the petitions of complaints, ex facie, disclose any offence. His submission has been that in the petitions of complaints, there are mere bald statements that the petitioners are Directors of the Company and responsible to it for the conduct of its business. According to Mr. Talukdar such statements alone cannot disclose any offence on the part of the Directors, as they are sought to be made liable vicariously. It appears that there is considerable force in this argument. It is clear that the company is liable primarily. The Directors are sought to be made liable vicariously. To fix liability vicariously, it must be demonstrated that such persons were conducting the day to day business and they were responsible for commissions and omissions. In paragraph 5 of the petitions of complaints, it is set out that the accused Nos. 2 and 3, during the relevant period, were in-charge of the establishment and were responsible to it for the conduct of its business and they committed the offences under sections 14a (1) and 14 (1a) of the Act of 1952. As observed in the Supreme Court decision reported in A. I. R. 1983 S. C. 67, the Directors can be made vicariously