The judgment establishes that courts must enforce minimum punishments and direct payment of contributions for non-compliance under welfare legislation.

O R D E R

~~~~~~~

Revision petitioner is the complainant in C.C.No.464/1992 on the file of the Judicial Magistrate of the First Class-I, Thrissur. Originally, the complaint was filed before the Chief Judicial Magistrate, Thrissur as S.T.No.543/1990 accusing the respondent offence under Section 85 (a) and (e) of the Employees State Insurance Act (herein after referred to as 'the Act'). The allegation against the respondent was that he was the employer of the Toddy Shop bearing No.T.S. 1 and 2 which would come within the purview of the Act and that the respondent was bound to file half yearly returns and to remit contributions under the Act. But the respondent failed to submit the half yearly returns and to remit the contribution for the period ended on September, 1989 and March, 1990.

2. The respondent pleaded guilty before the trial court.

The learned Magistrate on accepting the plea of guilty, convicted and sentenced the respondent to a fine of Rs.1,000/-

with a default sentence of simple imprisonment for one month.

3. Assailing the omission of the trial court to direct the

1st respondent to remit the ESI contribution under Section 85C of the Act, this Revision Petition is preferred.

4. I have heard Adv.Sri.P.Sankarankutty Nair, the learned counsel appearing for the revision petitioner and Sri.Om Prakash, the learned counsel appearing for the respondent.

5. At the time of argument, the learned counsel for the revision petitioner also would submit that Section 85 (a) of the Act mandates minimum sentence and the trial court had also gone wrong in awarding a sentence lesser than the minimum sentence mandated by (a) of the ESI Act. It is submitted that being a question of law, the revision petitioner can raise the same though not pleaded in the memorandum.

6. For a correct appraisal of the case, a reading of Sections 85 and 85C would be relevant. Section 85 reads as follows:

“85. Punishment for failure to pay contributions, etc.:- If any person-

(a) fails to pay any contribution which under this Act he is liable to pay, or (b) deducts or attempts to deduct from the wages of an employee the whole or any part of the employer's contribution, or (c) in contravention of Section 72 reduces the wages or any privileges or benefits admissible to an employee, or (d) in contravention of Section 73 or any regulation dismisses, discharges, reduces or otherwise punishes an employee, or (e) fails or refuses to submit any return required by the regulations, or makes a false return, or (f) obstructs any Inspector or other official of the Corporation in the discharge of his duties, or (g) is guilty of any contravention of or non-compliance with any of the requirements of this Act or the rules or the regulations in respect of which no special penalty is provided, he shall be punishable -

(i) where he commits an offence under Clause(a), with imprisonment for a term which may extend to three years but -

(a) which shall not be less than one year, in case of failure to pay the employee's contribution which has been deducted by him from the employee's wages and shall also be liable to fine of ten thousand rupees;

(b) which shall not be less than six months, in any other case and shall also be liable to fine of five thousand rupees:

Provided that the Court may, for any adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a lesser term;

(ii) where he commits an offence under any of the Clauses (b) to (g) (both inclusive), with imprisonment for a term which may extend to one year or with fine which may extend to four thousand rupees, or with both]

Section 85C reads as follows:

“85C. Power of Court to make orders:-

(1) Where an employer is convicted of an offence for failure to pay any contribution payable under this Act, the Court may, in addition to awarding any punishment, by order, in writing, require him within a period specified in the order (which the Court may if it thinks fit and on application in that behalf, fr