- (1.) THIS Rule relates to a proceeding in case no. C-5335 of 76 under Employees Provident Funds Act, 1952, pending before the learned Metropolitan Magistrate, 7th Court Calcutta under section 14 (1a), 14 (2) and 14a (1) of the Employees Provident Funds and Family pension Fund Act, 1952 read with paragraph 7 (6) (b) and 7 (6) (d) of the Employees Provident Fund scheme.
(2.) THE petitioner no. 1 is M/s. Hind Tin Industries is situated at 107a, raja Dinendra Street, Calcutta. The petitioner no. 2 is the General Manager. The petitioner no. 3 is the karta of M/s. Hind Tin Industries. The petitioner no. 4 is the factory manager. It appears that a petition of complaint dated the 25th of November, 1976, was filed by the Provident Fund Inspector before the learned Chief Metropolitan Magistrate, Calcutta on the basis of which cognizance was taken under section 14 (1a), 14 (2) and 14a (1) of the Employees Provident Fund and Family pension Fund Act, 1952, read with para. 76 (b) and 76 (d) of the Employees provident Fund Scheme. The same was then transferred to learned Metropolitan magistrate 7th Court.
(3.) IT is stated in the petition upon which this rule was issued that it would be gross abuse of the process of law if the prosecution initiated upon a perfunctory, baseless and vague complaint is allowed to continue. Mr. Talukdar, the learned advocate appearing in support of the rule mainly urged that the allegations against Mr. J. K. Kaiyan and Sri Gopal Chandra Saha are that they are in charge of the said establishment and are responsible to it for the conduct of his business. According to Mr. Talukdar, the same is not enough to implicate the aforesaid petitioners and on the basis of the said complaint no process should have been issued, nor any cognisance taken. He referred in this connection to a decision mahalderam T. E. Vs. Prodhan reported in 1978 Calcutta High Court Notes 336 in which similar averments in the petition of complaint were considered not enough for the purpose of taking cognisance. In that case Mr. D. P. Chowdhury, the learned advocate, who appeared for the petitioners submitted that it had to be established "that the Director was in charge of or was responsible to the company for the conduct of the business of the company. A bold statement like that made in this petition of complaint was not enough". Mr. Das appearing for the provident Fund inspector also conceded that the complaint was nor happily worded. Under those circumstances the cases pending against the petitioners were quashed. After quoting section 14a (which may be noted here also) these observations were made by the Division Bench. Section 14a of the Act is in the following terms :- "if the person committing an offence under this Act, the scheme or the family Pension Scheme is a company, every person, who at the time the offence was committed was in charge of and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Provided that nothing contained in this sub-section shall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in sub-s. (1), where an offence under this Act, the Scheme or the Family Pension Scheme, has been committed by a Company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of any director or manager, secretary or other officer of the company, such director, manager, secretary or other officer shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly". "under the aforesaid section" it was observed, "a company is made primarily liable for an offence committed under the Act. The liability may be extended to other person vicariously only under the conditions laid down in the section. A director of a company may be concerned only with the policy to be followed and might not have any hand in the management of its day to day affairs. Such persons must necessarily be immune from such prosecutions". ;