( 1. ) CRIMINAL Revision No. 177 of 1959 is a reference by the Additional Sessions Judge, Ujjain, on an application in revision by the Provident Fund Inspector; Criminal Revision No. 267 of 1959 is an application in revision filed in this Court by the said inspector; himself. Both arise from the orders of the Magistrate, Ujjain, dismissing three complaints by the said inspector on the ground that the allegations mentioned in them, did not constitute the offences under the respective counts, because the law creating them had been brought into force after the omissions had been committed.

( 2. ) THE accused (non-applicants), who are the proprietors of a textile mill at Ujjain, were in those complaints charged under three counts:

(i) Under Section 406, Indian Penal Code, for criminal breach of trust in respect of amounts deducted during the months, January, February and March 1953, from the wages of their employees as contribution to the Employees Provident Fund, which the accused employers retained themselves and failed to deposit into the fund (actually it is alleged that this is the position during the whole year 1953, but the complaints as such are in regard to the three months already stated); (ii) under Para. 76 (a) of the Employees Provident Fund Scheme, 1952, failing to pay to the fund the contribution they (the employers) are liable to pay under the scheme; (iii) under Para. 76 (c) for failing to submit to the Commissioner, the monthly consolidated statements showing recoveries made from the wages of each employee and the employers contribution made in course of each of the months.

( 3. ) THE learned City Magistrate, Ujjain City, has dismissed the complaints on the preliminary ground that the acts alleged did not amount to any offence as the scheme itself, though deemed to have come into force from September 1952 was brought into force retrospectively, by a notification made on 28 October 1953. He seems also to have felt that this notification by the Central Government was itself ultra vires of Article 20 of the Constitution. He, however, did not think it necessary to make a reference under Section 432, Criminal Procedure Code, to the High Court, because the scheme is not "an Act, Ordinance or Regulation. "

( 4. ) THE application in revision filed before the learned Additional Sessions Judge, Ujjain, from his order, could have been treated as one for further inquiry; but he held that the City Magistrate, Ujjain, should have made a reference to the High Court under Section 432, Criminal Procedure Code. As he failed to do so, the learned Additional Sessions Judge has himself done be.

( 5. ) THE questions before us are, firstly, whether the prima facie case under Section 406 can be considered independently of the operation of the scheme; secondly whether the allegations in regard to nonpayment of the contributions and the submission of returns are continuing offences under Paras. 76 (a) and

(c) of the scheme read with Section 14 of the Employees Provident Funds Act of 1952 ; thirdly, whether the notification SRO/2035 of 20 October 1953, bringing the scheme into operation in September 1952, is itself invalid and inoperative as being repugnant to Article 20 of the Constitution.

( 6. ) THE facts of the case are practically common ground. The Employees Provident Funds Act (19 of 1952) came into force on 4 March 1952. Section 5 of the Act empowers the Government to make schemes for the establishment of provident funds for employees or any class of employees and specify the establishment or class of establishments to which the scheme shall apply. Schedule I of the Act enumerates the industries for the establishments in which the schemes would apply at the first instance, which Includes establishments employing more than fifty persons and manufacturing textiles. A scheme was prepared and published in 1952 and was brought into force on 2 September of that year. However, the commencement clause was not happily worded and accordi