- (1.) THESE are appeals preferred by the Inspector of Provident fund, Pondicherry, against the order of the Sub-Divisional Judicial Magistrate, pondicherry, in C. C. Nos. 179 to 187 of 1977, acquitting the respondent, Who was charged for an offence under paragraph 76 (b) and (d) of the, Employees' provident Fund Scheme, 1952, read with section 14 (2) of the Employees' provident Funds and Family Pension Fund Act, 1952 (hereinafter referred to as 'the Act'), in that, he failed to submit the returns in Form Nos. 5, 10 and 12 and failed to pay the contribution towards provident fund and administrative charges in the months covered in the nine cases. Excepting the periods, the facts of all the cases are similar and as the contentions are the same, I propose to pass a common order.
(2.) THE prosecution has examined the same two witnesses to prove the case against the respondent, P. W. 1 is the Inspector of Provident fund, Pondicherry . According to him, he inspected Messrs. Kandan Talkies and found that the respondent is one of the partners. THE respondent employed more than twenty persons as employees and furnished a statement Exhibit P-1, dated 30th April, 1969. A memo. Exhibit P-2 was issued by the Regional Provident Fund commissioner, on receipt of which the respondent paid the, dues and also submitted returns thereunder. Exhibit P-3 is the last return and Exhibit P-4 is the chalan. Afterwards, the respondent failed to implement the provisions of the Act and the, scheme. THE cases cover the period from April, 1972 to April, 1974 and the respondent has not paid the provident fund dues of the employees, his contribution and the administrative charges. THE respondent has also not submitted returns in Forms Nos. 5, 10 and 12. He was asked to appear before the regional Provident Fund Commissioner by Exhibit P-6 notice,. Exhibit P-6 is the copy of the order of enquiry under section 7-A of the Act, Exhibit P-7 is the show cause notice and Exhibit P-8 is the sanction order for prosecution. According to P. W. 2, the Assistant Provident Fund commissioner, the provisions of the Act were extended to Cinema Theatres with effect from 30th July, 1961 and that on 30th April, 1969, he visited M|s. Kandan Talkies. He checked the Register of wages in the presence of one of the partners of the Talkies. Daily wage sheet and voucher were also checked up. Exhibit P-1, the extract taken from the Register of Wages, shows that the strength of employees as on 7th April, 1969, is 27. The enquiry report was sent to the Regional Provident Fund Commissioner. The partner paid the dues and furnished returns upto May, 1970. The respondent has denied having committed any offence and hehas not examined any witness on his behalf. Learned Counsel for the appellant contended that the trial Court was in error in holding that the sanction order was made without the Regional Provident Fund Commissioner applying his mind. The subjective satisfaction has been clearly proved. The other three partners of M|s. Kandan talkies not being prosecuted is not a ground to acquit the respondent. The respondent was the Managing Partner and he was in charge of the affairs of the theatre and hence he was prosecuted. Finally, it was: contended, Exhibit P-1 clearly shows that more than 20 persons were employed in the theatre and the acquittal under these circumstances cannot stand. The respondent being the Managing Partner of M|s. Kandan Talkies, the fact that P. W. 2 inspected the premises on30th April 1969, the preparation of Exhibit P-1 and the signing of it by one of the partners are all not disputed. After this inspection, the respondent has submitted the returns inthe prescribed form upto 31st March, 1972, and thereafter defaulted. One of the contentions of the prosecution is, if an establishment is covered under the provisions of the Act, it cannot question subsequently the correctness of extending the provisions of the Act as per section 15. In Exhibit P-1, five names of the workers were repeated and on the basis of this extract taken from the Register of Wages, this case has been filed against the respondent. In exhibit P-1 only the first six names were shown as permanent employees and the other employees were shown as daily wage coolies. For the purpose of the Act, it is necessary that an employer ought to employ twenty persons. If the respondent has submitted the returns upto 21st March, 1972, on the basis of exhibit P-1 on an accidental miscalculation or on a bona fide mistake and subsequently failed to submit the returns. I am of the opinion that heis not liable for what he is not bound to do under the law. In Exhibit P-1, we find the signature of the son of the respondent K. Sankar in his capacity as partner of the firm. It is admitted by P. W. 2, the Assistant Provident Fund commissioner, that the respondent was present when he inspected the premises. What made him not to get an acknowledgment in Exhibit P-1 from the respondent who was the Managing Partner of the theatre instead of his son is not explained. P. W. 2 has admitted that he has not seized any account book of the theatre. He is not able to say how many persons worked on 6th April, 1969 and 8th April, 1969 (Exhibit P-1 showing, dated of 7th April, 1969), or whether they were working continuously. P. W. 1, the Provident Fund Inspector, professors ignorance whether, the persons mentioned in Exhibit P-1 are employees or not. He admits, it is not necessary to deduct all the employees'shown but only those who are eligible persons. An employee becomes eligible, if he has put in 240 days of service as on that day, to contribute towards the provident fund. A person who has put in less than 240 days of service need not contribute towards the provident fund P. W. 2 has stated that Exhibit P-1 had showed the strength of the employees as 27 as on 7th April, 1969, but, as five of the names were repeated in another register, he excluded them and arrived at the figure of actual strength at 22. This is only an allegation without being established by any proof. Employment for the purpose of the Act is employment in the regular course of business of the establishment. It would not include employment of a few persons for a short period on account of some pressing need or some temporary requirement. In the instant case, the prosecution has not placed enough materials to conclusively prove the theatre had twenty employees at the relevant time.
(3.) LEARNED Counsel for the respondent submitted that the prosecution against the respondent alone is illegal as there are other partners, and M|s. Kandan Talkies also must have been made an accused. There is no explanation forthcoming from the side of the prosecution as to when the respondent alone was chosen to be prosecuted. This may not be in consonance with the terms of section 14-A of the Act. The premises of the respondent's theatre was inspected on 30th April, 1969. The sanction to prosecute the respondent was accorded on 3rd August, 1974. The complaint in Court was filed on 27th August, 1974. P. W. 1 got into the witness box on 9th April. 1976. Thus we see there is enormous delay at every stage of the proceeding and there is no proper explanation forthcoming. The utility of prosecution in cases like this largely lies in its promptitude. The order of the lower Court acquitting the respondent is correct and does not require my interference. The criminal appeals against acquittal stand dismissed. ;