A director of a company cannot be held responsible for any act of the company who is the employer and is liable for depositing the employees' share of provident fund before the provident fund authority, without making the company also an accused in the case.

JUDGMENT :

Shampa Dutt Paul, J.

1. The present revision has been preferred praying for quashing of proceeding being G.R. No.13/16 in connection with Gorubathan Police Station Case No.02/16 dated 07.01.2016 under Section 406/409 of the Indian Penal Code pending in the Court of the learned Additional Chief Judicial Magistrate, Kalimpong.

2. The petitioner's case is that the petitioner is the Director of Subarnapur Tea Estate Pvt. Ltd. owner of Fagu Tea Estate having its registered office at South Colony, P.O. Mal, District-Jalpaiguri and its tea estate namely Fagu Tea Estate at P.O. Gorubathan, District-Darjeeling.

3. The said Company is the owner of the said tea estate and the employer within the meaning of Section 2(i) of the Employees' Provident Fund & Miscellaneous Provisions Act, 1952. The said company is covered by the Employees' Provident Fund & Miscellaneous Provisions Act, 1952, and has to pay provident fund dues under the provisions of the said Act in respect of the said tea estate.

4. The financial condition of the said company depends largely on the market conditions. If the market conditions are adverse the said company is unable to make payment of wages and other statutory dues. The company suffered primarily from high cost of labour and other inputs as also low price realisation of its product. However, payment of wages has been made first as a priority to make payment of wages, rations and other statutory dues. The provident fund payment is always made thereafter.

5. The said company has not defaulted in payment of wages. The said company has however, been unable to make timely payment of provident fund contribution towards the employees' share amounting to Rs.10,70,195/- for the period from April, 2015 to November, 2015 as it has been prevented by circumstances beyond its control from making payment of the said provident fund dues in time. However, the said company subsequently paid the total dues.

6. That pursuant to a complaint dated 07.01.2016 lodged by one Pradip Majumdar, Provident Fund Enforcement Officer, Siliguri before the Officerin- Charge, Gorubathan Police Station, the petitioner was arrayed as an accused in Gorubathan Police Station case no.02 of 2016 dated 07.01.2016 for offences punishable under Sections 406/409 of I.P.C., for alleged non-payment of employees' share of provident fund contribution for the period from April, 2015 to November, 2015. On the basis of the said complaint Gorubathan Police Station Case No.02/16 dated 07.01.2016 a criminal case being G.R. Case No.13/16 has been initiated and is pending against the petitioner in the court of the learned Additional Chief Judicial Magistrate, Kalimpong. The Sub-Inspector, Gorubathan Police Station submitted the final report/charge sheet on the basis of which the said learned Magistrate took cognizance of the said offences.

7. On 20.06.2016, the said company has paid Rs.12,38,588/- towards the employees' share for the said period and thereby cleared the dues in respect of the said employees' share amounting to Rs.10,70,195/- for the said period for which the said F.I.R. has been lodged and the said G.R. proceeding has been filed. The said payment has been received and accepted by the provident fund authority. Statement of accounts has been filed.

8. Mr. Milon Mukherjee, learned senior counsel, appearing for the petitioner has submitted that due to prolonged agitation and strike called by the Gorkha Janamukti Morcha headed by Sri Bimal Gurung from 15th June, 2017 to 4th October, 2017 the petitioner could not take any steps for modification of the order dated 21.03.2017.

9. Mr. Mukherjee further submits that it has been held by the Supreme Court in Employees' State Insurance Corporation vs. S. K. Agarwal & Ors. that in neither of the explanation under Section 405 of the Indian Penal Code there is found anything to the effect that the Directors of the Company or an establishment may be prosecuted under Section 405 of Indian Penal code for the alleged commi