Regional Director, Employees'' State Insurance Corporation vs Supriya S. Bandal (Smt.) and Others

A.S. Oka, J.—Heard Shri Mehta, learned Counsel for the applicant in support of the Revision Application. None appears for the contesting respondents.

The applicant filed a complaint against contesting respondents for the offence u/s 85(a) of the Employees'' State Insurance Act, 1948 (hereinafter referred to as "the said Act") which is punishable u/s 85(i)(b) of the said Act. The allegation in the complaint against the respondents accused is that the respondents accused have failed to pay contribution as required by law and therefore, they have committed an offence and accordingly, the process was issued on the said complaint.

During the pendency of the complaint, an application was made by the accused on the basis of decisions of the Apex Court in the cases of Common Cause A Registered Society through its Director Vs. Union of India (UOI) and Others, and Common Cause, A Registered Society Vs. Union of India (UOI) and Others, . The contention raised in the said application was that as the complaint was not proceeded with and disposed of in terms of the law laid down by the Apex Court in terms of the aforesaid decisions, the accused were entitled to be discharged. The second contention raised in the application was that the concerned accused have made payment of contribution before filing of the complaints. By the impugned order, the learned Magistrate'' discharged the accused on the basis of the law laid down by the Apex Court in the cases of Common Cause a Registered Society v. Union of India (supra) and Common Cause a Registered Society v. Union of India (supra.) The learned Magistrate held that as complaint not having been disposed of in terms of the said decision of the Apex Court, a case was made out for discharge. The learned Judge further held that as contribution amount has been deposited prior to filing of the complaints, the accused are entitled to discharge. The learned Counsel appearing for the applicant placed reliance on the decision of the Apex Court in the case of P. Ramachandra Rao v. State of Karnataka AIR 2002 SC 1856 : (2002) 4 SCC 578. He submitted that the aforesaid two decisions of the Apex Court in the case of Common Cause a Registered Society v. Union of India (supra) and Common Cause a Registered Society v. Union of India (supra) as well as the decisions of the Apex Court in the case of Raj Deo Sharma Vs. The State of Bihar, and in the case of Raj Deo Sharma Vs. The State of Bihar, are no longer a good law. He has also placed reliance on the decision of this Court dated February 14, 2008 in Cri. Revision Application No. 131 of 2000, Regional Director ESI Corporation v. Shyam Bhatia. He submitted that the present revision application is covered by the said decision of the larger bench of the Apex Court.

None appears for the contesting respondents. I have perused the revision application and the impugned order. The order of discharge has been passed on the two grounds. The first ground on which the order of discharge has been passed is that before filing of the complaint the contribution amounts have been deposited. The said view is totally incorrect. Even going by the case made out by the accused, the contribution amount was paid after offence was completed and the deposit of amounts was made before filing of the complaints. this is no ground for discharge of the accused. At the most the deposit of the entire amount of contribution prior to filing of the complaint may be a mitigating circumstance to be considered in the event the accused are convicted. However, the payment of contribution under the said Act of 1948 before filing of the complaints is no ground to discharge the accused.

The constitution Bench of the Apex Court in the case of P. Ramchandra Rao v. State of Karnataka (supra), which was delivered on April 16, 2002 held that the law laid down by the said Court in the cases of Common Cause a Registered Society v. Union of India (supra) and Common Cause a Registered Society v. Union of India (supra) as well as in the case of Raj Deo Sharma v. State of Bihar (supra) and Raj Deo Sharma v. State of Bihar (supra) was no longer a good law. The Apex Court held that prosecution cannot be quashed on the basis of the said decisions. The Apex Court further observed that on the basis of the said decision the orders of acquittal or discharge which have attained finality shall not be re-opened.

However in this case when the Judgment of Apex Court in the case of P. Ramachandra Rao v. State of Karnataka (supra) was pronounced this revision application was pending in this Court and therefore, the impugned order of discharge had not attained finality. Thus the order of discharge based on the decisions in the cases of Common Cause is clearly illegal.

In the circumstances, the impugned order is required to be set aside as the same is illegal. The learned Magistrate will have to proceed with the case in accordance with law.

Hence, I pass following order:

(i) Revision Application is allowed.

(ii) Order of discharge passed by the learned Magistrate which is impugned in the revision application is quashed and set aside.

(iii) The learned Magistrate will proceed with the complaint in accordance with the law.

(iv) Rule is accordingly made absolute in the above criminal revision application with no order as to costs.