- (1.) The Revision is filed by the complainant against the order dated 2-3-88 in Crl.R.P.No. 11 of 1987 and the file of the Principal Sessions Judge, Madurai which allowed Cr.M.P.No. 3765 of 1986 in S.T.C.No. 256 of 1986, on the file of J.F.C.M (2), Madurai, the facts of the case are as follows:
(2.) The Revision Petitioner filed a complaint before the Judicial I Class Magistrate No. II, Madurai, against five persons alleging offences under Section 85 (a) of the Employees' State Insurance Act, 1948, hereinafter referred to as the Act, punishable under Section 85 (i) of the said Act. The respondents herein are the accused 1 to 4 in that complaint and they are respectively the Managing Director and Directors of Sree Cotton Mills, Palanganatham, Madurai. The fifth accused in the complaint is stated to be the Manager of the said Company. The allegation in the complaint is that all the accused in the complaint in their respective capacity stated above are the principal employers of the Company and in such capacity they have failed to discharge their obligation under Section 40 of the Act, in that they have not deposited the contribution amount recovered by them from their employees together with their contribution for their employees, for the period January 1986 to June, 1986 (both months inclusive). Learned Magistrate took the complaint on file and issued summons to all the accused.
(3.) On receipt of the summons, accused 1 to 4 in the complaint, filed a petition before the trial Court that they being the Managing Director and Directors respectively of the Company, cannot be made personally liable for any of the default committed by the fifth accused in not depositing the Employees' and Employer's contribution, especially in view of the fact that the fifth accused is the person in ultimate control of the affairs of the Company and therefore he alone would be responsible, if at all, there is any liability. Learned Magistrate by order dt. 10-12-1986 after hearing the complainant's Counsel and the accused Counsel dismissed the petition. Learned Magistrate found that the Minutes Book produced by accused 1 to 4 before him in support of the petition do not show that the fifth accused was in ultimate control of the factory during the relevant time. Aggrieved by this order, accused 1 to 4 in the private complaint took up the matter in Revision before the learned Sessions Judge, Madurai in Criminal R.P.No. 11 of 1987. Learned Judge, after hearing the parties passed an order on 2-3-1988 holding that the respondents herein (Accused 1 to 4) cannot be held responsible personally for the non-payment of the contribution and allowed the Revision. Learned Appellate Judge for arriving at such a conclusion had followed a Judgement of the Bombay High Court reported in Suresh and others vs. Collector of Bombay and others which was quoted with approval in an unreported judgement of this Court rendered by His Lordship Justice Mr. S. Natarajan, as His Lordship then was in C. A.No. 125 of 1983. It is this order of the Appellate Judge which is being questioned in this Revision by the Department.;