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Judgment
Ananad Byrareddy, J. - Heard the learned Counsel for the petitioners and the learned Counsel for the respondent.
The case of the petitioners is that petitioner No.1 is an establishment within the meaning of the Employees'' Provident funds and Miscellaneous Provisions Act, 1952 (the Act). The Employees'' Provident Fund Scheme, 1952 (1952 Scheme], The Employees'' Pension Scheme, 1995 and The Employees'' Deposit Linked'' Insurance Scheme, 1976 it is the case of the respondent that, under section 14(2-A) of the Act, the petitioners were required to file Form No. 5-A online as required under para 36-A and 36(7) of the 1952 Scheme in view of the order dated 25.2.2015. The respondent''s complaint is that the petitioners have failed to file the said returns by 31.3.2015 in spite of several requests and notices. In view of the same, it is contended that the petitioners have committed an offence punishable under section 14(2-A) of the Act read with para 76(b) of the 1952 Scheme and a case has been registered before the Special Court for Economic Offences and the petitioners are facing Trial. It is stated by the learned counsel for the petitioners that there was indeed a default in the first instance, however, the petitioners have submitted the returns belatedly, as on 7.8.2015, after complaint was filed. It is however, pointed out that the default if any, would attract the penalty prescribed in para 76(b) of the 1952 Scheme and section 14(2-A) of the Act is not attracted in any manner as the default is in filing the returns and not in respect of any contribution or other payments. Therefore, the complaint having been filed for the offence punishable under section 14(2-A) of the Act, is totally misconceived. It could at best be restricted to violation of para 76(b) of the 1952 Scheme. It is this, which is the primary contention of the learned Counsel for the petitioners.
The learned Counsel for the respondent states that section 14(2-A) of the Act provides for penalty in respect of any default in compliance with the provisions of the Act and therefore there is no infirmity in the complaint alleging offence punishable under section 14(2-A) of the Act and para 76(b) of the 1952 Scheme.
However, it is to be noted that section 14(2-A) is in respect of any violation of the provision of the Act and not of the Scheme and therefore, the penalty provided under para 76(b) is specifically in respect of the default which is alleged against the petitioners. Consequently it is only under para 76(b) that the petitioners could be penalized and prosecuted and not for any alleged offence under section 14(2-A) of the Act, which is also not a case of the respondent and it is also to be noticed that in the instant case, the default of the petitioners was in furnishing particulars, which has been complied with, though belatedly, and if the petitioners were to plead guilty of having committed this fault and if section 14(2-A) was also to be complied, it would result in the petitioners being imprisoned for one month, which is the minimum imprisonment and also liable to pay line which would be a consequence of penalty under section 14(2-A) being imposed on the petitioners. This would result in incongruity. The Default, if any, is only referable to para 76(b) of the 1952 Scheme. Therefore, the Court below shall proceed to consider the case against the petitioners only in respect of the violation referable to para 76(b) of the 1952 Scheme and deal with the case, accordingly.
In the result, the petition is allowed in part. The proceedings initiated against the petitioners, in so far as the alleged commission of offence punishable under section 14(2-A) of the Act, is quashed.