- (1.) IN this revision case under section 401 read with section 482 of the Cr. P. C. the point for decision is whether or not a person on account of his being the Chairman of the Board of Directors of an "establishment" can be prosecuted as "principal employer" under section 85 read with section 40-of the Employees State Insurance Act, 1948 (hereinafter to be referred to as the Act ). The question has arisen in the manner stated below.
(2.) AN Inspector under the Act with necessary sanction filed a complaint against the present petitioner describing him as Chairman of the Board of Directors and another gentleman described as Manager and as such principal employer of the establishment Mjs- Dacca ayurvediya Pharmacy Ltd. In paragraph 2 of the complaint it was alleged that m|s. Dacca Ayurvediya Pharmacy Ltd. had its establishment at 195, prince Anwar Shah Road and was allotted a Code number mentioned in the said paragraph. The basis of culpability of the accused was given in paragraph 6 of the petition of complaint as follows :- "that the accused persons have failed to submit such contribution cards in Set-A for the contribution period expired on 31. 7. 76 which should have been submitted by them on or before 11. 9. 76, and for such default the accused persons as principal employer are liable to be prosecuted for commission of an offence punishable under section 85 (a) and (g)of the E. S. I. Act, 1948, read with section 4 (i) - (b) of the E. S. I. (Amendment)Act, 1975, and thus failed to pay contribution as requisite under the E. S. I. "
(3.) AFTER summons was served the petitioner appeared before the learned Magistrate, four witnesses including the complainant were examined by the prosecution and the petitioner was also examined under section 513 of the Code. At that stage the petitioner came" up before this Court to challenge the propriety of the prosecution in so far as he is concerned. It is emphasized that Dacca Ayurvediya Pharmacy of which the petitioner happens to be the Chairman of the board of Directors has been described. as an 'establishment, Paragraph 2 of the petition of complaint and the sanction for prosecution dated 9. 12. 76 granted by the Regional Director indicate that the petitioner is being prosecuted simply on account of his being a principal employer. It is added that there is no averment in the petition of complaint' that the petitioner is in any way responsible for the supervision and control of the establishment in question. On the basis of the facts noted above relying on the Division Bench decision of this Court. in K. N. Genda v. State reported in 1982 lab IC 1777, it is contended on behalf of the petitioner that in the present case there is no sufficient averment to connect the accused with the alleged offence and on this ground the proceeding is liable to be quashed. In this connection it iis pointed out that there is no material to show that the petitioner was in charge of the business or over all control of day to day business of the company.;