- (1.) THE appellant filed two complaints against the respondent seeking his conviction under Sections 85(a) and 85(e) of the Employees State Insurance Act, 1948 (in short, 'the ESI Act').
(2.) THE complaint was filed by Employees State Insurance Corporation with the allegation that respondent no.2 was covered under the ESI Act. It was required to file the return of contribution under Section 39, 40(1), 43, 44 of ESI Act, 1948 read with regulations 1950 for the period ending September, 1994 and thereby he committed offence under Section 85(e) of the ESI Act. The learned trial court acquitted the accused with the observations as follows: "Further the maintainability of the complaint is to be seen that whether this complaint is maintainable in the eye of law. The employee not making contribution cannot be punished for non -submitting the cards and return. I have relied upon the factories journal report Vol. 87 page 64, the case titled "ESIC vs. D.P. Sharma" in which it is held that u/s 85(e), the employee is liable for punishment if he fails to submit any return or fails to make or refuses to make any or makes false return. Regulation 25 requires the employee to send the return of contribution quadruplicate in form which is along with receipt of copies of challan for the amount deposited in bank to the appropriate office by registered post or by messenger in respect of employee for whom the contribution were payable in a contribution period so as to reach that office within the time prescribed by them. The first and formost requisite is that the employee who have deposited the amount payable by him in the bank and has sent challan of such amount deposited together with the statement to the ESI Office without depositing such amount in the bank is not required to sign the blank form only to comply with Section 85(e) of the act. Hence on the basis of the citation, since the accused has not made payment of contribution, the accused could not be held guilty u/s 85(e) as another complaint had been filed by the complaint titled "ESI vs. Parminder Singh u/s 85(a) decided together. Hence accordingly the accused acquitted of the offence u/s 85(e) of the ESI Act. File be consigned to the record room."
(3.) THE learned counsel for the appellant has argued that the respondent no.2 despite his liability of making contribution under the Act failed to make contributions. A complaint was filed against him under Section 85(a) of the ESI Act in which he was convicted. The non -filing of return constitute a separate offence and the trial Court has committed default in acquitting respondent no.2. On perusal of file, I find no substance in the argument of learned counsel for the appellant. Section 85 of the ESI Act, provides as follows: "85. Punishment for failure to pay contributions, etc. -If any person - (a) Fails to pay any contribution which under this Act he is liable to pay, or (b) Deducts or attempts to deduct from the wages of an employee the whole or any part of the employer's contribution, or (c) In contravention of section 72 reduces the wages or any privileges or benefits admissible to an employee, or (d) In contravention of section 73 or any regulation dismisses, discharges, reduces or otherwise punishes an employee, or (e) Fails or refuses to submit any return required by the regulations, or makes a false return, or obstructs any Inspector or other official of the Corporation in the discharge of his duties, or (g) Is guilty of any contravention of or non -compliance with any of the requirements of this Act or the rules or the regulations in respect of which no special penalty is provided, [he shall be punishable - [(i) where he commits an offence under clause (a), with imprisonment for a term which may extend to three years but - (a) Which shall not be less than one year, in case of failure to pay the employee's contribution, which has been deducted by him from the employee's wages and shall also be liable to fine of ten thousand rupees; (b) Which shall not be less than six months, in any other case and shall also be liable to fine of five thousand rupees: Provided that the Court may, for any adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a lesser term; (ii) Where he commits an offence under any of the clauses (b) to (g) (both inclusive), with imprisonment for a term which may extend to one year or with fine which may extend to four thousand rupees, or with both.]";