S. Siri Jagan, J.

1. In these two appeals common questions of law arise for decision of this Court. The parties in these two appeals are also the same. The appellant issued show cause notices to the respondent to show cause, why criminal prosecution should not be initiated against him for non-payment of contributions under the Employees State Insurance Act for different periods in respect of the employees of the Co-operative Society of which the respondent was the then President. The respondent challenged the show cause notices before the Employees Insurance Court, Alappuzha, which was adjudicated by the Employees Insurance Court as IC Nos. 6 and 7 of 2004. In the I.Cs, the respondent sought a declaration that the proposal to initiate criminal prosecution against the respondent as per the show cause notice is unsustainable on the ground that the liability is only on the Co-operative Society of which he was the President at the relevant time and the respondent has no personal liability to pay the same. The E.I court, relying on the decision of the Division Bench of this Court in Suseelan v. State of Kerala reported in 2002 (1) KLT 226, held that insofar as the respondent is only the president of a Co-operative Society, he is not personally liable for the default of the society in payment of contributions under the E.S.I Act and declared that the proposal for prosecution of the respondent for the default as per the show cause notices is unsustainable. The appellant is challenging the judgments of the E.I.Court.

2. The appellant raises two contentions. The first is that, initiation of prosecution proceedings is not one of the subject matters enumerated in Section 75 of the Employees State Insurance Act, in respect of which only a person can approach the E.I court under that Section. The second is that, what was issued to the respondent was not a demand for payment of contributions, for which only Suseelan's case applies, but a show cause notice directing him to show cause, why criminal prosecution should not be initiated against him for non-payment of contributions by the society, since he was a person in charge of the affairs of the Society at the relevant time, as contemplated in Section 86A of the Employees State Insurance Act. According to the appellant, the reliance by the E.I. court on the decision in Suseelan's Case is misplaced. It is submitted that, the issue in Suseelan's case was as to whether, the secretary of a Cooperative Society is personally liable to pay contributions payable by the society under the Toddy Worker's Welfare Fund Act 1969. In that decision, while holding that the secretary of the society has no personal liability for payment of contributions under the Act, the Division Bench has specifically observed that, the question will be different in the case of the prosecution, for which under Section 15 of Toddy Worker's Welfare Fund Act 1969, separate provision is made, making every officer of the Co-operative Society personally liable for punishment along with the society. The E.I.Court lost sight of that part of the decision, even after quoting that part also in the judgment, insofar as the ratio of that part of the decision would be squarely applicable to the facts of this case in view of Section 85 read with Section 86A of the E.S.I. Act, is the contention raised by the appellant.

3. In answer, the counsel for the respondent would contend that his applications are maintainable under Section 75 of the Employees State Insurance Act. He relies on Sub Section (d) of Section 75 (1) of the Employees State Insurance Act, in support of that contention, which according to him, gives powers to the the E.I.Court to deal with the question or dispute as to the person who is or was the principal employer in respect of any employee. According to the counsel for the respondent, for initiating prosecution against the respondent, certainly the question as to, whether he is the principal employer would arise in