- (1.) This Revisional Application under section 482 read with section 401. Cr. P. C. is for quashing the proceeding in G. R. No. 987/92 pending before the Learned Judicial Magistrate, 3rd Court, Howrah arising on the basis of Jugacha police Station Case No. 57/90 under section 406/409, I. P. C.
(2.) The Opposite Party No. 2, Provident Fund Inspector lodged F. I. R. against the present petitioners for an offence under section 406/409, I. P. C. by lodging a complaint in the term that on 21-3-90 the O. P. No. 2-complainant inspected the office of M/s. Gobinda Glass Works Limited, Ramrajatala and found that the employers, that is, the present petitioners deducted a sum of Rs. 34,010/- from the wages of the employees for the period January, 1990 and did not deposit the amount after deduction with the Statutory Board of trustees for the provident fund. The learned Magistrate took cognizance and proceeded against the petitioners. As the petitioners could not appear before the Court on successive dates the transferee Magistrate issued warrant of arrest against the absentee petitioners by his order dated 30-7-92. By this revisional application the petitioners submit that in such a case personal appearance was not necessary and the order of the Learned Magistrate was illegal. Charge- sheet that was submitted by the I. O. against the petitioners was false. They further submit that they are none of the occupier, agent, owner or employer of the factory within the meaning of Employees 'Provident Fund and Miscellaneous Provisions Act, 1952, hereinafter referred to as the Act. There was a Manager of the factory and as such under section 2(e) he must be held to be the agent or accupier of the company and not the present petitioners. The petitioners did not take part in daily administration of the factory, they are merely the directors of the company and for that they cannot be held liable for the alleged delayed deposit. In the face of the fact that the deducted amounts have already been deposited with the Board of Trustees, the petitioners pray for quashing the proceedings and the orders. On behalf of the petitioners, the learned senior advocate Mr. B. Roy argues that nothing has been disclosed in the petition as to how the present petitioners are responsible, and, as such, the petitioners cannot be held liable for any offence under section 14A of the Act. The offence, if any, was by the company and without impleading the company no action can be enforced against the present petitioners. For establishing the responsibility of the present petitioners the established provision of law is that they must be held to be the charge of the business of the company. As there was a Manager all through the petitioners who were the directors could not be held responsible; and again, the complapainant did not disclose how the petitioners were responsible. Unless this is proved that they took active part in the business and looked after the administration of the company, the petitioners cannot in any way be held responsible for the offence as alleged. Charge-sheet was filed against the petitioners as individuals and not as the employers in the company. No case has been filed against the company and as such the case is not maintainable. He maintains that it is the company which should be punished and not the directors. It is admitted that the petitioners were the directors of the company. Unless the extent of the responsibility is proved they cannot be held liable. The petitioners charge-sheet did not disclose how the petitioners were responsible in respect of alleged offence. The petitioners were neither employers nor occupiers of the factory, in the sense the terms are understood under section 2(e) and 2(k) of the Act. There is no specific allegation against the petitioners and for that the case against the petitioners must be quashed. The learned senior advocate Mr. B. Roy further argues that the amount deducted was already deposited on 3-5-90 and hence the petitioners were not liable at all, although they are the directors of the company.
(3.) The learned advocate for O. P. No. 1 submits that admittedly the amount was deducted and the same was liable to be deposited by the 15th of the next month following, but the amount was not deposited within that time limit. Subsequent deposit after the fixed date cannot be considered in favour of the petitioners. Undobtedly the deducted amounts were not deposited with the Board of Trustees within the time and as such the petitioners, who are admittedly the directors of the company, cannot avoid the responsibility. As under section 2(e) an employer means the owner or occupier of the factory including the agent of such owner or occupier and where a person has been named as the Manager, the person so named. Under section 2(k) the term "Occupier of a factory" means the person who has ultimate control over the affairs of the factory, and, where the said affairs are entrusted on a Managing Agent, such agent shall be deemed to be the occupier of the Company. The learned advocate for the O. P. No. 2 refers to a good number of rulings reported in Srikanta Datta Narasimharaja Wodiyar v. Enforcement Officer, 1993 AIR(SC) 1656 Anil Saran v. State of Bihar, 1996 AIR(SC) 204 Rabindra Chamria v. Registrar of Companies, 1992 AIR(SC) 398 and to an unreported ruling in Criminal Reivision Nos. 1754-1757 of 1989.;