The main legal point established in the judgment is the necessity of complying with the provisions of the ESI Act, particularly Section 45-A and Regulation 26, and giving a reasonable opportunity of being heard before initiating prosecution for non-payment of contribution.

I.A. Ansari, J.

1. By making this application under Section 482, Cr.P.C. the petitioner, who is accused in CR case No. 1589 (C)/1994 of the Court of learned Chief Judicial Magistrate, Kamrup, has approached this Court with prayer to get quashed the complaint, which has given rise to the CR case No. 1589(C)/1994 aforementioned, and also to get set aside an quashed the order, dated June 27, 1995, passed therein directing issuance of warrant of arrest against the accused-petitioner.

2. The material facts and various stages, which have led to the present revision, may, in brief, be set out as follows:

Shri D.N. Das, an Inspector, appointed Under the Employees' State Insurance Act, 1948, (hereinafter referred to as 'the ESI Act'), instituted a complaint on behalf of the Employees State Insurance Corporation (in short, 'the Corporation'), which gave rise to CR Case No. 1589(C)/1994 aforementioned, the case of the complainant being, in brief, thus. The present accused-petitioner, namely, Sawarmal Agarwalla is the owner of a factory, which is run under the name and style of Assam Rolling Mill, Chapaguri Road, district Bongaigaon, the said factory being covered under the ESI Act, 1948. Under Section 40 of the said Act, every principal employer shall pay in respect of every employee, whether directly employed by him or by or through an immediate employer, both employer's contribution and the employee's contribution. Every such contribution payable under the ESI Act in respect of an employee shall be paid within 21 days of the last day of the calendar month in which the contribution falls due. Under Regulation 26 of the Employee's State Insurance (General) Regulations, 1950 (in short, 'the Regulations'), every principal employer is required to submit the return of contribution in Form-6 in quadruplicate along with the receipted copies of challans within 42 days from the date of expiry of each contribution period. The accused-petitioner, Sawarmal Agarwalla, being the principal employer, has failed to pay, within the stipulated time, contribution amounting to Rs.7058.00/- covering the period from October, 1993, to March 1994, and also he has to submit the return of the contribution in Form-6 in terms of Regulation 26 for the period aforementioned, By so omitting to comply with the provisions of the ESI Act and the Regulations, the accused, as principal employer, has committed offences punishable under Section 85(a) and 85(e) of the ESI Act. The complainant has obtained sanction from the appropriate authority for prosecution of the accused-petitioner.

3. I have heard Mr. A.K. Bhattacharjee, learned senior counsel assisted by Ms. U. Baruah, learned Counsel for the accused-petitioner. I have also heard Mr. B.R. Dey, learned senior counsel, and Mr. K.K. Nandi, learned Standing Counsel, appearing on behalf of the opposite party.

4. Presenting the case on behalf of the accused-petitioner, Mr. A.K. Bhattacharjee has submitted that before the prosecution is launched against a person under Section 85(a) and 85(e) of the ESI Act, the in-built protections, which the ESI Act has made available to the person, who is proposed to be proceeded against, must be complied with and if the same is not followed, the prosecution would be in contravention of the law and cannot be sustained. In support of this submission, Mr. Bhattacharjee, drawing attention of this Court to Sub-section (2) of Section 45-A, contends that the scheme of the ESI Act clearly shows that before launching prosecution against a person under Section 85(a) or 85(e) of the ESI Act, the Corporation must comply with the provisions of Section45-A and must follow, particularly, the proviso to Section 45-A, which makes it incumbent upon the Corporation to give to the person, who has to be proceeded against, a reasonable opportunity of being heard before the amount due to be paid as contribution by such a person is formally demanded and/or such a person is held responsible for not filing of ret