Directors of a company cannot be held liable as principal employers under Section 85(g) of the Employees' State Insurance Act when a manager has been named as the principal employer.

( 1 ) THIS revisional petition under Section 401 read with Section 482, Cr. P. C. is directed against an order dated 3. 4. 85, passed by learned Chief Judge, City Sessions Court, Calcutta, in criminal appeal No, 34 of 1984 whereby the learned Judge allowed the appeal in part, upholding and confirming the sentence of conviction against two accused petitioners passed by Metropolitan Magistrate, 5th Court, Calcutta, but modifying the amount of fine that was to be paid by the accused-petitioner.

( 2 ) THE complainant-opposite party State Insurance Corporation brought this case against the accused-petitioner Nos. 1 and 2 the Directors, and accused petitioner No. 3 (whose name has been deleted subsequently in this petition) the Manager of the factory, Shiva Glass Works Co. Ltd. , as the principal employers, for their failure to submit contribution cards for the period 24. 11. 79 and 26. 1. 80, which should have been submitted according to the complainant on or before 5. 1. 80 and 7. 3. 80, respectively. Allegedly the accused petitioners were also convicted previously for similar such offence in 1975. The accused petitioners by such non-submission of contribution cards allegedly violated Regulation 26 of the Employees State Insurance (General) Regulations, 1950, and made themselves liable for prosecution under Section 85 (g) of the E. S. I. Act.

( 3 ) THE defence of the accused petitioners was that they had not committed any offence and not being the principal employers in respect of the factory could not be prosecuted for the alleged offence. The learned Magistrate found the accused persons including the present petitioners guilty of the said offence having been found them as principal employers which was upheld though the sentence was modified on appeal by the Chief Judge.

( 4 ) IT is against this order of the appellate Court that the petitioner have moved this Court by this revision petition.

( 5 ) IT was the specific defence of the accused before the Trial Court as well as before the Court of appeal that accused No. 3 Shri J. P. Roy was the Manager of the factory and as such he was the principal employer within the meaning of Section 2 (17) of the E. S. I. Act and was principally responsible for submission of the contribution cards. Argument was also advanced before the Courts below that the accused petitioners simply being the Directors of the factory and there having been no specific averment in the petition of complaint against them could not be said to be the principal employers at the material time when accused No. 3 was acting as the manager of the said factory.

( 6 ) THE learned Chief Judge acting as the Court of Appeal did not accept this contention advanced on behalf of the accused petitioners but found them to be the principal employers as well, along with the Manager, and upheld thereby the order of conviction passed by the learned Magistrate.

( 7 ) UNDISPUTEDLY, the accused petitioners are the Directors of a factory, namely, M/s. Shiva Glass Works Co. Ltd. , of which accused No. 3 who was also impleaded as petitioner No. 3 (deleted in this petition) is the Manager. The learned Chief Judge in arriving at his finding of conviction against the accused petitioners held that as Directors they can also be said to be the principal employers within the meaning of Section 2 (17) of the E. S. I. Act. In this connection he placed reliance upon three decisions of this Court reported in 1970 Cr. L. J. page 954 (B. M. Charterjee v. State of West Bengal and Anr.) and that in 1978 CHN page 444 (Bidyut Kumar Sett and Anr. v. Satyesh Chandra Bagchi and Ors.) and the third decision reported in 1979 (1) CHN page 208 (Arun Kumar Pal Chowdhury v. Satyesh Chandra Bagchi ).

( 8 ) IT is now a settled position who can be prosecuted under Section 85 (g) of the E. S. I Act, for non-submission of contribution cards as required under Section 40 read with Regulation 26 of the Employees State Insurance Regulation, 1950, is th