M/s. Telco Club vs State Of Jharkhand And Others

Sanjay Kumar Dwivedi, J

Heard Mr. Amit Kumar Das, learned counsel for the petitioner, Mr. Shailesh Kumar Sinha, learned counsel for the State and Mr. Rupesh Singh, learned counsel for opposite party no.2.

This petition has been filed for quashing the entire criminal proceeding including the order taking cognizance dated 11.04.2016 passed in C/2 Case No.409/2015, pending in the Court of the learned Additional Chief Judicial Magistrate at Jamshedpur.

The complaint case was filed by opposite party no.2 alleging therein that the petitioner is an establishment within the meaning Employees' Provident Fund and Miscellaneous Provision Act, 1952 (hereinafter to be referred to as 'the Act, 1952') and the Employees' Provident Fund Scheme, 1952, the Employees' Family Pension Scheme, 1971 and the Employees' Deposit Linked Insurance Scheme, 1976. The petitioner has employed 23 persons who are covered under the Act and the Schemes and the petitioner has been allotted Code No.JHA/JAM/1077/Jamshedpur, Jharkhand. It was further alleged that the petitioner has not filed the returns for the currently period April, 2001 to March, 2002 along with contribution card within month from the date of expiration in accordance with the provisions of paragraphs 35, 42 and 43 of the Employees' Provident Fund Scheme, 1952 in relation to Md. Akhtar and thus, has committed an offence under Section 14(1A), 14(B) of the Act, 1952 and Para 76(D) of the Employees' Provident Fund Scheme, 1952 read with Section 14(2) of the said Act.

Mr. Amit Kumar Das, learned counsel for the petitioner submits that the learned Court has been pleased to take cognizance on the said complaint vide order dated 11.04.2016 under Section 14 of the Act, 1952 read with Para 76(b) of the Employees' Provident Fund Scheme. He further submits that the petitioner is an Association of the officers and retired officers of M/s Tata Motors Limited, who are mostly citizens of India. He submits that the petitioner-Club provides many recreational facilities to its members including sports, library, kitchen facilities etc. which are not open to the general public and restricted to the members of the Club only. He submits that the petitioner-Club is being managed by an Executive Committee which is elected by and out of the members of the Club. He further submits that so far as the allegation in the complaint with regard to an employee, namely, Md. Akhtar of not depositing the contribution w.e.f. April, 2001 to March, 2002 is concerned, that is misplaced. He submits that the said employee was labourer and was working in the said Club on daily wages basis and his service was discontinued w.e.f. the year 2001. He submits that the said Md. Akhtar has filed a petition under Section 26(2) of the Bihar Shops and Establishment Act before the learned Labour Court at Jamshedpur and by way of ex parte order, the learned Labour Court has been pleased to direct to reinstate the said employee, which was challenged by the petitioner-Club before this Court in W.P.(L) No.5900 of 2006. He submits that vide order dated 18.11.2006, notices were issued upon the respondents and stay was granted in favour of the petitioner. He submits that subsequently the said writ petition has been admitted and the same is still pending. He submits that however the deposit with regard to the said period, has already been made before the Department on 01.09.2003 which is admitted in the counter affidavit filed by opposite party no.2. He also submits that the allegations are made of the year 2002 whereas the present complaint case has been filed on 23.06.2015, which further suggests that with malafide intention, the present complaint case has been filed. He submits that Section 14 of the Act, 1952 is not attracted and the intention of not depositing the contribution was not there. On these grounds, he submits that the entire criminal proceeding may kindly be quashed.

On the other hand, Mr. Rupesh Singh, learned counsel for opposite party no.2 submits that the proceeding under Section 7-A of the Act, 1952 has already attained finality and the petitioner has not challenged the same. He further submits that merely depositing the contribution is not a ground of quashing the entire criminal proceeding. He also submits that this is a welfare legislation and there is no limitation in the entire Act and in view of that, the contentions of the petitioner are required to be proved before the learned Trial Court. He submits that the purpose of the entire Scheme is being defeated by the petitioner-Club which is an organization. On these grounds, he submits that this petition may kindly be dismissed.

Mr. Shailesh Kumar Sinha, learned counsel for the State adopted the arguments of Mr. Rupesh Singh, learned counsel for opposite party no.2.

In view of the above submissions of the learned counsel for the parties and looking to the contents of the complaint, the Court has gone through the materials on the record and finds that the allegations are made of not depositing the contribution and challans of one Md. Akhtar for the period from April, 2001 to March, 2002, however the deposition of the amount on 01.09.2003 is not disputed by the opposite party no.2, rather, it has been admitted in the counter affidavit. Thus, the compliance is already there. Further, the liability is being denied by the petitioner on the ground that the said Md. Akhtar was only engaged as a casual labourer and his service was discontinued w.e.f. 2001. An ex parte order has been obtained by Md. Akhtar on the petition filed under Section 26(2) of the Bihar Shops and Establishment Act, which was challenged by the petitioner before this Court in W.P.(L) No.5900 of 2006, wherein, stay has been granted.

There is no doubt that this is a welfare legislation and if two interpretations are there, the statutes are required to be answered in favour of the have-nots. However in the case in hand, the Court finds that the engagement of Md. Akhtar itself is in dispute, which is under challenge before this Court and the order of the learned Labour Court has been stayed.

Looking to Section 14 of the Act, 1952, it clearly suggests that whosoever for the purpose of avoiding any payment to be made by himself under this Act is liable for penalty. The prompt action has been taken by the petitioner and in spite of denying the employment of the said Md. Akhtar, the act of the petitioner suggests that the intention of avoiding is not there. In view of that, Section 14 of the Act, 1952 is not attracted in the case in hand.

Further, the allegations are of the year 2001-02 and the complaint case has been filed on 23.06.2015. There may not be any limitation in the said Act, but the complaint must be filed within a genuine period. Further in the complaint case, no explanation is there with regard to filing of the case belatedly.

In view of the above facts, reasons and analysis, the entire criminal proceeding including the order taking cognizance dated 11.04.2016 passed in C/2 Case No.409/2015, pending in the Court of the learned Additional Chief Judicial Magistrate at Jamshedpur are quashed.

Accordingly, this petition is allowed and disposed of.

Interim order, if any granted by this Court, stands vacated.