Mukul Gopal Mukherji, J. - (1.) A petition of complaint was filed by the opposite party against one B.K. Nandy and another B.K. Nandy describing both of them as partners of M/s. Bejoy and Company of 159-C. Lenin Sarani. Calcutta-13, giving out inter alia that they have committed an offence under Section 85 (g) of the Employees State Insurance Act. 1948. The petition of complaint was filed on 24th January, 1981. It was given out in the complaint further that they ought to have submitted the contribution cards for the contribution period, which expired on 26/7/1980 together with a return in Form No.6 and they ought to have complied with their statutory duties on or about 6/9/1980 i.e., within 42 days from the expiry of the contribution period. Since they committed a breach of their statutory duty, the prosecution was lodged. Along with the complaint a sanction accorded by the Regional Director of the Employees State Insurance Corporation dated 21/1/1981 was annexed which reveals that the Regional Director accorded his sanction for prosecuting Sri P.K. Nandy and Sri B K. Nandy, who are alleged to be the partners of the establishment named and styled as MIs. Bejoy and Company. Sri B K. Nandy entered appearance in the case and filed an application drawing the attention of the Court to the fact that except him there was another partner of the firm named as Ranjit Kumar Nandy. Another application was filed on 15/1/1982 by B. K. Nandy contending inter alia that there was no partner bearing the name P.K. Nandy in the said partnership firm. An affidavit to that effect was also filed. Sri P.K. Nandy filed an application on the self same day contending inter alia that he was not a partner of MIs. Bejoy and Company. He had no connection whatsoever with the said firm and he also did not reside at 13, Antony Bagan Lane, as shown in the petition of complaint. On 16th February, 1982 an application was filed on behalf of the prosecution that the name of the accused No.1 Sri P.K. Nandy as appearing in the petition of complaint was a mistake and that the real name should be R.K. Nandy i.e. Ranjit Kumar Nandy who is one of the partners of the partners of the firm MIs. Bejoy and Company and that process shall have to be issued against the said Sri R.K. Nandy. The learned Advocate representing the complainant contended further that he had no objection to the discharge of P. K. Nandy and on that view and in view of the said submission by P.K. Nandy the learned Magistrate discharged P.K. Nandy and issued process against the present petitioner Ranjit Kumar Nandy by order dated 16/2/1982.
(2.) Thereafter the present petitioner surrendered in Court on 27/4/1982 and prayed for bail and he was released on a bail of rupees two thousand only.
(3.) The petitioner now filed the instant revisional application for quashing of the proceeding against him contending inter alia that the prosecution under section 85(g) was clearly barred in view of the fact that section 86 (3) provided inter alia that no court should take cognizance of any offence under the Employees State Insurance Act, except on a complaint made in writing in respect thereof within six months of the date on which the offence is alleged to have been committed and according to their own showing, as is evident from the petition of complaint, the accused persons, as partners of the firm MIs. Bejoy and Company, ought to have submitted their returns along with contribution cards on and about 6/9/1980. The original petition of complaint was definitely filed within the period of limitation but that was so filed against Sri P.K. Nandy and Sri B.K. Nandy and not against the present petitioner against whom process was issued on 16/2/1982, which was admittedly beyond the statutory period of Imitation. That apart, Sub-section (1) of Section 86 postulates that prosecution under this Act shall have to be instituted with the previous sanction of the Insurance Commissioner or of such other Officer of the Corporation as may be authorised in this behalf by the Director General of the Corporation. In the instant case the sanction as accorded by the Regional Director who was otherwise competent to accord sanction but was so done not against the present petitioner but against Sri P.K. Nandy. Even on 16.2.82 process could have been issued against the present petitioner, it was not backed up by a proper sanction in accordance with law.;