Decided on August 02,1963

Provident Fund Inspector, Kozhikode Appellant
MOHAMMED Respondents


P.GOVINDA MENON,J. - (1.)THIS is an appeal filed by the Provident Fund Inspector,Kozhikode against the order passed by the Industrial Tribunal First Class Magistrate of Kozhikode acquitting the accused who was prosecuted for offence under paragraph 76 of the Employees 'Provident Funds Scheme,1952 - hereinafter referred to as the Scheme.
(2.)THE case against the accused was that he failed to pay the employer's and the employees 'share of contributions together with the administrative charges for the month of March 1962 in the manner specified under paragraph 38(1)of the Scheme;( 2)Failure to send to the Regional Provident Fund Commissioner,returns in Form 5 together with a declaration in Form 2 and returns in Form 10 for the month of March,1962 in the manner specified under paragraph 36(2 )(a)and(b)of the Scheme;and(3)Failure to send to the Commissioner the monthly consolidated statement showing recoveries made from the wages of each employee and the amount contributed by the employer in respect of each such employee in Form 12 for the month of March,1962 in the manner specified under paragraph 38(2)of the Scheme.
When the case came up for hearing,the accused stated that he had already paid the amount and sent the returns before the filing of the complaint and as such he is not guilty of the offence charged.The learned Magistrate agreeing with the contention held that the complaint was not maintainable and acquitted the accused.It is the legality of this order that is challenged in this appeal.In view of the importance of the question involved regarding the interpretation of the Employees 'Provident Funds Act,1952 - hereinafter referred to as the Act - and Scheme framed thereunder,the case was referred to this Bench for decision.

(3.)LEARNED counsel for the respondent does not dispute the proposition that it is not open to the Magistrate to refuse to examine the complainant and the witnesses produced by him and the acquittal of the accused under S.245 without recording any evidence is clearly illegal.In fact the Code makes no provision for the acquittal of the accused persons without examining witnesses.But it is contended that no useful purpose would be served by ordering a retrial as the complaint itself is not maintainable.It is,therefore,necessary to look into the relevant provisions of the Act.The Act came into force in March 1952.S.1(3)of the Act extended the operation of the Act in the first instance to all factories engaged in any industry specified in schedule 1.Later by the amending Act 46 of 1960 it was made to apply to other establishments employing 20 or more persons which the Central Government may by notification in the official gazette specify in this behalf.That the motor transport industry has been brought within the scope of S.1(3)of the Act is not disputed.Under S.5 of the Act the Central Government may by notification in the official gazette frame a Scheme for the establishment of provident funds under this Act for employees or of any class of employees and specify the establishment or class of establishments to which the said Scheme shall apply and there shall be established,as soon as may be after the framing of the Scheme,a fund in accordance with the provisions of this Act and the Scheme.In exercise of the powers conferred by S.5,the Central Government has framed the Employees 'Provident Funds Scheme,1952 and it was duly notified by publication in the official gazette on 2nd September,1952 as required under law.

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