- (1.) These 41 Rules between the same parties arise out of 41 complaints filed by the opposite party No. 2 who is a Provident Fund Inspector, against M/s. Bharat Iron & Steel Corporation and also the present petitioners describing them as partners and also as persona who were, during the relevant period, in charge of this establishment and were responsible to it for the conduct of its business. It was further alleged that the offences complained of were committed by the said establishment with their consent or connivance or were attributable to their negligence. The complaints relate to different months starting from the month of March, 1973. It was alleged that the accused persons have failed to pay the contributions (employer's and employees' share) for the months as stated in each of the complaints and have also failed to pay the administrative charges for such months. The learned Magistrate issued process against all the accused persons. The accused persons are being represented by their lawyers before the learned Magistrate. Now, they have come up before this Court for quashing of the proceedings. In all the 41 cases the common ground is that the learned Magistrate who took cognizance of the offences was not justified in doing so inasmuch as the accused petitioners are partners of the firm M/s. Bharat Iron & Steel Corporation and there was no averment in any of the petitions of complaint regarding specific acts done by any one of them regarding the running of the business of the company.
(2.) Mr. Debaprosad Chowdhury. learned Advocate appearing for the petitioner submitted that having regard to the language of S. 14A (1) it would be apparent that merely because a person is a Director or a Partner of a firm he cannot be prosecuted for the offences committed under the Employees' Provident Fund and Family Pension Fund Act, 1952 and the schemes framed thereunder. According to him the complainant must show how each of them can be said to be the incharge of and was responsible to the Company for the conduct of the business of the Company. Mr. Chaudhury submitted that under S. 14A (1) of the aforesaid Act the liability of a Partner was a vicarious liability and only thoss partners who were in overall control of the day-to-day business of the firm could be prosecuted or punished. Accordingly. Mr. Choudhury submits that unless a petition of complaint contains some facts prima facie showing how the Partner or Partners, complained against, is or are in overall control of the day-today business of the firm no process can be issued against them. In this connection he drew my attention to the unreported Bench decisions of this Court in the Criminal Revn. Case Nos. 1050 to 1952 of 1974 decided on 6-3-1978 : (Since reported in MAHALDERAM TEA ESTATE P LIMITED V/S D N PRODHAN, 1978 LabIC 898) and also in Criminal Revn. Cases Nos. 1550 to 1554 of 1977 decided on 6-3-1978. Mr. Chaudhury also relied upon the observations made by the Supreme Court in the case of Girdhari Lal Gupta V/s. D. N. Mehta, 1971 AIR(SC) 2162
(3.) Section 14A (1) runs as follows: "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-sec. (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. Explanation For the purposes of this section, (a) "Company" means any body corporate and includes a firm and other association of individuals; and (b) "director" in relation to a firm, means a partner in the firm." It is apparent from the language of that section that in a case where the person committing an offence under the Act or 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. Therefore a person who at the time the offence was committed if he was in charge of and was responsible to the company for the conduct of the business of the company he shall be deemed to be guilty of the offence and can be prosecuted and punished along with the company itself.;