Decided on September 21,1983

P F INSPECTOR Respondents


- (1.) For failure to pay the contributions (both employees' and employer's shares) and to pay the administrative charges for 6 months, six separate complaints were filed by the Provident Fund Inspector against the petitioners under S. 14 (1A) read with S. 14A (1) of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the 'Act'). Similar six prosecutions were launched for the same six months (December, 1978 to May, 1979) for failure to pay the deposit linked insurance fund contributions and to pay the administrative charges, under S. 14 (1B) read with S. 14A (1) of the Act. As admittedly all these 12 prosecutions were barred by limitation under S. 468, Criminal P. C., the complainant filed identical applications in all the 12 cases praying for condonation of delay in filing the complaints. To appreciate the contentions raised on behalf of the parties in these 12 revisional applications arising out of those 12 complaints, it will be necessary to reproduce the grounds taken in the application for condonation of the delay, which are contained in paras 1 and 2 of the application and read as follows : "1. That according to the present system P. F. contributions are deposited by , parties with the State Bank and the E. P. F. Department receive the information of such deposits only when the Bank or the party send a copy of the Challan to the P. F. Department. In case of non- deposit of contributions there is no means for the E. P. F. Department to know the default unless it is verified by inspection of the Books of the defaulting establishment and thereafter proceeding under Sec. 7A of the E. P. F. Act, was started. This takes a very long time. 2. That in the present case the default was detected and proceeding under S. 7A were started on 18-6-1979 and demand notice issued on 14-3-1980." The learned Magistrate condoned the delay provisionally and took cognizance of those complaints and issued process against the petitioners. After entering appearance the petitioners filed applications in the 12 cases contending that the learned - Magistrate was not justified in condoning the delay on the grounds urged by the complainant and as such the cognizance was bad. By identical orders the learned Magistrate rejected the said applications of the petitioners and hence these revlsional applications.
(2.) Mr. Dipak Kumar Sengupta, the learned Advocate appearing on behalf of the petitioners, submitted that the time consumed in disposing of a proceeding under S. 7 A of the Act could not be considered a valid ground for condoning the delay as such proceeding had no relevance for prosecution under S. 14 of the Act. Mr. Taher Ali, who appeared on behalf of the complainant in some of the cases, submitted that without initiating proceeding under S. 7-A of the Act it could not be ascertained what was the actual amount due from the employees and without such ascertainment prosecution under S. 14 of the Act could not be launched. Mr. Poddar, learned Advocate appearing for the complainant in the other cases, however, contended that though a proceeding under S. 7-A of the Act was not a prerequisite for initiating a prosecution under S. 14 of the Act, such determination was felt necessary to give an opportunity to the defaulting employer to pay off the dues by a certain date, and to avoid prosecution.
(3.) The contention of Mr. Ali cannot be accepted as the determination of the actual amount of the contributions has nothing to do with the default in payment of the contributions within the statutory period. In other words, once an employer fails to pay the contributions within the time statutorily fixed, he violates the provision of the Act and renders himself liable for prosecution and such a prosecution is not dependent upon the quantum of the contributions. That the complainant is fully aware of this position has been made abundantly clear by the averments made in paras 1 and 2 quoted above, wherein it has been specifically stated that after the default was detected, the proceeding under S. 7-A was started. Once the default is detected, time will run for the purpose of Ss. 468 and 469 Criminal P. C. and consequently it cannot be said that the proceeding under S. 7-A of the Act is essentially required for prosecuting the employer under S. 14-A of the Act.;

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