- (1.) AS the issue involved in all these 35 writ applications is the same and similar and the parties are also same, all these matters were heard together and are being disposed of by this common order.
(2.) THROUGH these writ applications, the petitioners have invoked extraordinary jurisdiction of this Court as enshrined under Article 226 of the Constitution of India for quashing the entire criminal proceedings of all the complaint cases mentioned above including the order dated 26-3-2009 whereby and where under cognizance of the offences under Sections 14(2), 14A and 14AA of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as 'the Act') has been taken by learned Chief Judicial Magistrate, Jamshedpur against the petitioners in all the complaint cases whereof allegations are the same but the period of alleged contravention is different. It is the case of the petitioners that officers of the Provident Fund Department visited the premises of the firm, namely, M/s. Textile Centre (petitioner No. 10) and M/s. Dulhin, (petitioner No. 11) both partnership firms to which other petitioners are the partners. Since partners of both the firms were common, therefore, officers of Provident Fund Department took both the firms as one firm where number of employees were found to be 21 and as such the provisions of the Act is applicable to the said firms. Thereafter Assessing Officer, vide its order dated 13- 4-1999 found the firm to be liable to make payment of certain liabilities under the Act which was sought to be reviewed in a review application filed under Section 7-B of the Act which got dismissed on 29-5-1999. Thereupon petitioner No. 10, M/s. Textile Centre challenged the said order before this Court, vide C. W. J. C. No. 3286 of 2000 which was disposed of by giving liberty to the petitioner to file appeal before the Provident Fund Tribunal, New Delhi. Accordingly, appeal was preferred before the Provident Fund Tribunal which was dismissed. That order was challenged before the Hon'ble Delhi High Court which also got dismissed. Further case is that while the matter was pending before the Provident Fund Tribunal, Assistant Provident Fund Commissioner assessed the amount as Rs. 6,24,611/- to be paid for the period from 19-9-1996 to February, 2003. When the petitioners lost everywhere, the said amount was deposited in the year 2006. Thereafter the petitioners were asked to submit statements in statutory form for the period from September, 1996 to March, 2003 which could not be submitted under misconception that the petitioners are not required to submit those forms as the contributions had already been made. Thereupon, respondent No. 3, Inspector (Enforcement Officer) appointed under Section 13 of the Act lodged as many as 35 complaint cases in a printed form wherein certain allegations were also incorporated but those are not concerned with the petitioners. Only some of them are related to the petitioners and those allegations are that the petitioners failed to submit to the Regional Provident Fund Commissioner consolidated statement in Form 12-A or extract thereof in Form 24 for the quarter starting from September, 1996 to November, 1999 within time as stipulated under the provision of Employees' Provident Fund Scheme, 1952 on account of alleged default for 27 quarters starting from September, 1996 - November, 1996 to March, 2003 - May, 2003 for which complaint cases were filed separately. That apart eight complaint cases were filed alleging therein that petitioners failed to submit annual return (contribution card) for the period 1996-97,1997-98,1998-99,1999-2000, 2000-2001, 2001-2002, 2002-2003, 2003-2004 in form No. 3-A and form No. 6-A as required under paragraph No. 43 of the scheme within the prescribed period. Thus, it was alleged that the accused persons have committed offences under Sections 14(2) and 14-A of the Act read with paragraph 76(b) of the scheme. That apart, one of the paragraphs in each of the complaint petition is related to matter concerning by previous conviction but columns meant for incorporation of certain information relating to previous conviction is blank suggesting that no such previous conviction is there so far petitioners are concerned, still the Court apart from the offences under Sections 14(2) and 14-A of the Act has taken cognizance under Section 14-AA of the Act relating to previous conviction of a person.
(3.) BEING aggrieved with the order taking cognizance in each of those cases, the petitioners have preferred the aforesaid applications. Mr. Manish Kumar, learned counsel appearing for the petitioners submits that admittedly prosecution has been launched in the year 2009 for non-submission of the consolidated statements at the end of each quarter in statutory form relating to the period from September, 1999 to May, 2003 and also for non-submission of the annual return from 1996-97 to 2003-2004 in Forms 3-A and 6-A during the stipulated period which is punishable for one year under Section 14(2) of the Act read with clause 76(b) of the Employees Provident Fund Scheme, but prosecution has been launched in the year 2009 much after one year when the period of limitation expires, still the Court took cognizance of the offences without condoning the delay in terms of Section 473 presumably for the reason that the said offence is a continuing offence. But admittedly it is not a case of non-deposit of the statutory dues, rather the case is of non-submission of the return/consolidated statements in statutory form which would never be a continuing offence in view of the ratio laid down in a case of State of Bihar v. Deokaran Nenshi and another (AIR 1973 SC 908) laying down the principle for ascertainment of an offence being continuing or non-continuing offence.;