N.C. Mukherji, J. - (1.) This Rule arises on an application under Sec. 401 read with Sec. 482 of the Code and is directed against order No 15 dated 30 8 80 passed by Shri M. M. Mukherjee, Metropolitan Magistrate, 5th Court, Calcutta in Case No. C/1089 of 1979 dropping the proceeding under Ss. 14(1 A) read with 14A(1) of the Employees' Provident Fund & Miscellaneous Provisions Act, 1952 and releasing the accused/opposite parties, The facts of the case may be stated at follows : - In the year 1979 the complainant filed a petition of complaint in the court of the learned Chief Metropolitan Magistrate against the accused opposite parties under Sec. 14(1 A) read with Sec. 14A(1) of the Employees Provident Fund & Miscellaneous Provisions Act in the allegation that the accused persons failed to pay the contributions and the Administrative charges for the months of May and June, 1977. On receipt of the petition of complaint, the learned Magistrate took cognizance. Subsequently, the case was transferred to the learned Metropolitan Magistrate, 5th Court, On 20 5 80 an application was filed before the learned Metropolitan Magistrate 6th Court on behalf of the accused for dropping the proceeding on the ground that the learned Metropolitan Magistrate had no jurisdiction to try the case as the accused opposite parties carry on their business at Bankura and at such the obligations for payment of provident fund contributions and administrative charges, if any, are to be made at Bankura which is outside the jurisdiction of the learned Magistrate's Court. A written objection was filed by the petitioner stating that in view of the decision reported In, 1974 CHN 142, the contention of the accused is net correct. The learned Metropolitan Magistrate after considering the application and the written objection dropped the Criminal proceeding by his order No. 15 dated 30 8.80 in a finding that he had no jurisdiction to try the case. Being aggrieved, the petitioner has come us before us.
(2.) Mr. Dipak Kumar Sengupta learned Advocate appealing on behalf of the petitioner, relies on a decision of a single Judge reported in : 79 CWN 129(B. P. Ghosh a Ors. Vs. Regional Provident Fund Commissioner), in this case, it had been held "where a prosecution Is lodged under para 76 of the Employees' Provident Fund Scheme for alleged failure to pay the contributions to the fund, failure to submit statements end for non compliance with other requirements of the scheme, the Court within the jurisdiction of which the fund Is located and the Office of the Regional Commissioner of the Employees' Provident Fund Is situate has jurisdiction to try the offences. "Mr. Sengupta next relies on another unreported decision of a single Judge in C. R. No. 1499 to 1505 of 1976 disposed of on August 2, 1978. In these cases, It was held "...learned Chief Metropolitan Magistrate had jurisdiction to entertain all the petitions of complaint, First, because the offences. If any, were committed within his jurisdiction when the petitioner failed to comply with the provisions of the Employees' Provident Fund & Family Pension Act, 1952. The Office of the complainant is at 24, Park Street, Calcutta where the deposits were required to be made. Accordingly, it cannot be said that the learned Chief Metropolitan Magistrate have had no jurisdiction to entertain the complaints." In this case, the allegation was that the accused was Proprietor of M/s. Toonbari Tea Estate failed to pay the contributions, both of employees as well as employers' share and also failed to pay the administrative charges and failed to submit return for such months and thereby committed offence under Sec. 14(1 A) 14(2), 14A(1) and 14AA of the Act. Mr. Sengupta next draws our attention to an unreported decision of a single Judge in C. R. Nos. 1616 to 1620 of 1976. In these cases the allegation was that the accused who were Directors of Escal India (P) Ltd. of P 34, C.I T Road, Calcutta 14 failed to contribute administrative charges and submit return for the months of August to December, 1975 as required under the Act and thereby committed offences under Sec. 14(1A) 14(2) and 14A(1) of the Act. In this case, it was held "since the prosecution was not for offence for non -submission return for particular month or months, i do not see how the complaint could have been filed before the learned Metropolitan Magistrate. The offence have been committed at the office of the Company at P 34, C. I. T. Road, Calcutta 14 within the jurisdiction of Sealdah Court. Therefore, the petitions of complaint should have been filed before the learned Magistrate, Sealdah...Accordingly, I hold that the learned Metropolitan Magistrate has no jurisdiction to entertain these complaints. I quash the proceeding in all the cases........." Mr. Sengupta in fair to say that the latest case reported in, 1979(2) CHN 400 (Industrial Construction Co, & Ors v/s. D. K. Bhattacharjee Provident Fund Inspector) of another single Judge Is directly In conflict with the decision reported in, 79 CWN 129. In 1979 (2) CHN 400, the establishment was situated at B. T. Read outside the jurisdiction of the Court of the Metropolitan Magistrate, Calcutta. The alleged offence was for nonpayment of provident fund contribution and administrative charges. There was no allegation of non submission of provident fund returns which are required to be filed in the Office of the Provident Fund Commissioner situated within the jurisdiction of the Metropolitan Magistrate, In such circumstances. It was held by Monoj Kumar Mukherjee, J. that the Metropolitan Magistrate had no jurisdiction to entertain the complaints." As such, the proceedings were quashed.
(3.) Mr. Dipak Kumar Sengupta, learned Advocate appearing on behalf of the petitioner draws our attention to the definition of Fund in Sec. 2(h) of the Act. It has been provided in Sec. 2(h) that Fund means the Provident Fund established under a scheme. Fund, according to Mr. Sengupta is the Fund of the Provident Fund Commissioner which is at the office of the Provident Fund Commissioner, namely, at Park Street within the jurisdiction of the Court of Metropolitan Magistrate, Calcutta.;