Arun Kumar Bajoria & Ors vs State Of West Bengal & Anr

Tirthankar Ghosh, J

The present revisional application has been preferred for quashing of the proceedings of Case No. C774 of 2005 under Section 14(2A) of the

Employees Provident Fund and Miscellaneous provisions Act, 1952 (hereinafter referred to as the 1952 Act only) pending before the Ld. Judicial

Magistrate, 1st Court, Barrackpore.

The revisional application was preferred by four petitioners namely Arun Kumar Bajoria, Bimal Kumar Poddar, Ram Niwas Chirimar and Balbinode

Bajoria. On 25-9-2019 the Ld. Advocate appearing for the petitioners filed supplementary affidavits including the death certificate of two of the

petitioners namely, Arun Kumar Bajoria and Ram Niwas Chirimar and as such this Court was pleased to observe that no requirement was there for

proceeding with the revisional application so far as these two petitioners are concerned. As such the revisional application presently has been argued

on behalf of two of the petitioners namely, Bimal Kumar Poddar and Balbinode Bajoria.

Affidavits were exchanged between the petitioners as well as the opposite party being the PF Authorities. The allegations in brief as narrated in the

petition of complaint which was preferred before the Ld. ACJM, Barrackpore were to the effect that M/s. Hooghly Mills Co. Ltd. : Waverly Jute

Mills at 177, West Ghosh Para Road, Athpur, Jagatdal, North 24 Parganas is an establishment within the meaning of the 1952 Act and the accused

persons at all material times were the persons in charge of the establishment and were responsible for the conduct of its business and in discharge of

such responsibilities took part in the running of its business and as such they were thus required to comply with the provisions of the 1952 Act.

It has been alleged that the accused persons being employer failed to reconstitute the Board of Trustees after expiry of its tenure on 11-1-2003 in

contravention of the provisions of Section 17(1A) (b) of the 1952 Act and paragraph 79C of the Employees Provident Funds Scheme, 1952

(hereinafter referred to as the 1952 Scheme) and as such committed offences under Section 14(2A) read with Section 17 (1A)(b) of the 1952 Act and

paragraph 79C of the 1952 Scheme.

The petitioners challenged the proceedings on the ground that under Section 17(2A) of the 1952 Act, an exemption was granted to the establishment

under Clause (a) of Sub-section 1 of Section 17 and as such the petitioners could not have been roped in for such offence, according to the petitioners,

they do not come within the ambit of Clause (e) of Section 2 of the 1952 Act so as to be referred as ‘employer’. Further the petitioners cannot

be held to be responsible for not reconstituting the Board of Trustees and as such no case was made out against them to be pursued in a Court of law.

The Ld. Advocate appearing for the PF Authorities submitted that the petitioners are responsible for commission of the alleged offence and the

provisions of Section 2(e) and 2(k) exhaustively includes the owners, occupiers, agents, managers having control over affairs and also elaborately

states regarding the person who has ultimate control over the affairs of the establishment. On inspection the officer found that there was gross

violation so far as the reconstitution of the Board of Trustees are concerned and the provisions of Section 17 of the 1952 Act read with paragraph 79C

of the 1952 Scheme of the offences are attracted.

In order to substantiate his contention the Ld. Advocate for the PF Authorities preferred an affidavit-in opposition enclosing a number of documents

wherefrom he tried to draw the attention of this Court to the fact that there was no reconstitution after 11-1-2003 when the tenure of the Board of

Trustees expired and the same was discovered on October, 2005 when the inspection was carried out by the Provident Fund Inspector. The Ld.

Lawyer additionally pointed out the order of sanction which took into account the conduct of the accused persons and observed “that the

establishment failed to reconstitute the Board of Trustees after expiry of its tenure as mentioned in the scheduled Annexure-2 in contravention of

Section 17 (1A)(b) of the 1952 Act read with Para 79C of the 1952 Scheme which is punishable under Section 14(2A) of the 1952 Actâ€​.

The Ld. Advocate also relied upon Srikanta Datta Narasimharaja Wodiyar vs. Enforcement Officer, Mysore reported in (1993) 3 SCC 217, Kamala

Tea Company Ltd. & Ors. vs. The State of West Bengal & Anr. reported in 2007 (2) CLJ (Cal) 124 andA njuman Tea Company Ltd. vs. State of

West Bengal reported in 2008 (1) CHN 1061.

In order to appreciate the arguments advanced by both the parties, the provisions of Section 17(1-A) and (1-B) are to be taken into account, which are

as follows:-

“17. Power to exempt. â€" (1-A) Where an exemption has been granted to an establishment under clause (a) of sub-section (1), -

(a) the provisions of Sections 6, 7-A, 8 and 14-B shall, so far as may be , apply to the employer of the exempted establishment in addition to such other

conditions as may be specified in the notification granting such exemption, and where such employer contravenes, or makes default in complying with

any of the said provisions or conditions or any other provision of this Act, he shall be punishable under Section 14 as if the said establishment had not

been exempted under the said clause (a);

(b) the employer shall establish a Board of Trustees for the administration of the provident fund consisting of such number of members as may be

specified in the Scheme;

(c) the terms and conditions of service of members of the Board of Trustees shall be such as may be specified in the Scheme;

(d) the Board of Trustees constituted under clause (b) shall â€

(i) maintain detailed accounts to show the contributions credited, withdrawals made and interest accrued in respect of each employee;

(ii) submit such returns to the Regional Provident Fund Commissioner or any other office as the Central Government may direct from time to time;

(iii) invest the provident fund moneys in accordance with the directions issued by the Central Government from time to time;

(iv) transfer, where necessary, the provident fund account of any employee; and

(v) perform such other duties as may be specified in the Scheme.

(1-B) Where the Board of Trustees eastablished under clause (b) of sub-section (1-A) contravenes, or makes default in complying with, any

provisions of clause (d) of that sub-section, the Trustees of the said Board shall be deemed to have committed an offence under sub-section (2-A) of

Section 14 and shall be punishable with the penalties provided in that sub-section.â€​

The provisions of Para 79C(5) of the 1952 Scheme, which is as follows:-

“79-C. Composition of the Board of Trustees of the exempted establishments and the terms and conditions of service of the trustees. â€

(5) The terms of office of the Trustee shall be five years from the date of election or nomination. An outgoing Trustee shall be eligible for re-election

or re-nomination. A Trustee elected or nominated to fill the casual vacancy shall hold office for the remaining period of the term of the trustee in

whose place he is elected or nominated.â€​

The provisions of Section 14(2-A) of the 1952 Act, which is as follows:-

“(2-A) the Central Provident Fund commissioner may, if requested so to do by the employer, by notification in the Official Gazette, and subject to

such conditions as may be specified in the notifications exempt, whether prospectively or retrospectively, any establishment from the operation of all or

any of the provisions of the Insurance Scheme, if he is satisfied that the employees of such establishment are, without making any separate

contribution or payment of premium, in enjoyment of benefits in the nature of life insurance, whether linked to their deposits in provident fund or not,

and such benefits are more favourable to such employees than the benefits admissible under the Insurance Scheme.â€​

In Regional Provident Fund Commissioner vs. Hooghly Mills Company Ltd. & Ors. reported in (2012) 2 SCC 48, 9the Hon’ble Supreme Court

was pleased to observe that an interpretation of the statute which harmonises with its avowed object is always to be accepted than the one which

dilutes it. The Employees’ Provident Fund Act is a beneficial social welfare legislation to ensure benefits to the employees. It effectuates the

economic message of the Constitution as articulated in the directive principles of State policy. Under the directive principles the State has the

obligation for securing just and humane conditions of work which includes a living wage and decent standard of life. The Act obviously seeks to

promote those goals. Therefore, the interpretation of the said Act must not only be liberal but it must be informed by the values of the Act which must

guide the interpretative process of the legislative device. Thus for the purpose of construing the provisions of the Act, a purposive approach is to be

adopted which would promote the purpose for which the Act was enacted.

Having regard to the principles set out by the Hon’ble Supreme Court and reading Para 79C-5 of the 1952 Scheme along with Section 17(1-A)

(b), I am of the opinion that it was incumbent upon the employer for reconstitution of the Board which expired on or about 11-1-2003 and there was no

scope for the employer to escape from the responsibilities so vested in the 1952 Act. The employer having not done the same is liable to be

prosecuted.

As such there is no illegality in the proceeding, which calls for interference of this Court in respect of the complaint so preferred by the PF Authorities

before the Ld. Judicial Magistrate, Barrackpore.

Accordingly CRR 2866 of 2006 is dismissed.

The Ld. Judicial Magistrate, 1st Court, Barrackpore is directed to proceed with Complaint Case No. 774 of 2005 and take the same to its logical

conclusion.

Interim order, if any, is hereby vacated as the revisional application is dismissed.

Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of the requisite formalities.