Employers are liable for the payment of employees' share of Provident Fund contribution, and subsequent payment does not absolve the employer from liability.

Md. Mumtaz Khan, J.

1. The instant revision has been preferred by the accused persons/petitioners praying for quashing of the proceeding of G.R. Case No. 2258 of 2014 arising out of Hare Street Police Station Case No. 642 of 2014 under Section 406/409/34 of the Indian Penal Code pending before the court of learned Chief Metropolitan Magistrate, Kolkata.

2. On November 19, 2014, Enforcement Officer, Employees Provident Fund Organization(Opposite party no.2) inspected the establishment M/s Ultimo Logistics Private Limited having its office at 9 Dacres Lane (1st floor), Kolkata 700069 and also at 10, Government Place East Kolkata 69. During inspection he noticed that the petitioners being employers/Managing Director/Directors and the persons responsible for the conduct of the business of the said company though deducted a sum of Rs. 2,33,742/-from the salary/wages of the employees as employees share of Provident Fund contribution for the period from March 2012 to October 2014 but not deposited the amount with the statutory fund in violation of Section 6 of the Act read with Para 38 of Employees Provident Fund Scheme. Accordingly, he lodged a complaint against the petitioners for commission of an offence punishable under Section 406/409 of the Indian Penal Code.

3. On the basis of above complaint a case was started against the petitioners at the Hare Street P.S. and investigation ensued and thereafter on completion of investigation a charge sheet was submitted against the petitioners under Section 406/409/34 of the Indian Penal Code.

4. It was submitted by Mr. Sabyasachi Banerjee, learned Advocate appearing on behalf of the petitioners that the criminal proceeding initiated against the petitioners is not maintainable and the same is liable to be quashed for the following reasons :

(1) Though the criminal proceeding has been initiated against the petitioners for not depositing the Employees share of Provident Fund contribution but the provisions of Employees’ Provident Funds and Miscellaneous Provisions Act has not been invoked rather case was started against the petitioners under Indian Penal Code in their personal capacity and not as the directors of the company in question,

(2) It is the company which is the principal employer but the same has not been made a party to the proceeding and as such in the absence of company being made a party to the proceeding, the said proceeding is arbitrary and infructuous and the petitioners being directors can not be held liable for non-payment of a statutory dues by the company,

(3) Petitioners were never connected with the day to day affairs of the accounting for the said company and its statutory compliances and as such directors can not be made vicariously liable to the acts of the company in a penal offence unless specific overt act has been brought against the directors and in the instant case there has been no mention of any specific role played by the petitioners in the commission of the alleged offence,

(4) the entire Employees share of Provident Fund contribution was already deposited with the concerned authority on the very next day of the inspections of the company and the said fact of depositing of EPF contribution is clearly reflected in the charge sheet itself.

5. Mr. Banerjee relied upon the decisions of Employees’ State Insurance Corporation Vs. S.K. Aggarwal and Ors. reported in (1998)6 Supreme Court Case 288, R.L. Kanoria & 4 Ors. Vs. State of West Bengal & Ors. reported in (2003) 3 CHN 400, Prabhash Kumar Basu Vs. State of West Bengal reported in (2012)3 CHN 233, Ashoke Sadhya Vs. State of West Bangal with Inderjit Singh Oberoy Vs. State of West Bengal reported in 2015(3) CHN (Cal) 755, Aneeta Hada Vs. Godfather Travels and Tours Private Limited with Anil Hada Vs. Godfather Travels and Tours Private Limited with Avnish Bajaj Vs. State and Ebay India Private Limited Vs. State and another reported in (2012)5 Supreme Court Cases 661 and two unreported judgments of this Court,