S. Palaniappan, Petitioner in both Crl. O.P. No. 14224 and 14225/99, S. Thiagaraja Chettiar and G. Ramasubramaniam, Petitioner in Crl. O.P. Nos. 14225/99 (Accused) vs Sub-Inspector of Police, North Police Station, (Now transferred to Central Crime Branch, Tiruppur), Respondents in both the petitions (Complainant)

S. Thangaraj, J.—Crl. O.P. No 14224 of 1998 is filed by the accused No. 2 in C.C.No. 249 of 1989 on the file of the Judicial Magistrate No. I, Thiruppur u/s 482 Cr.P.C. to quash the said case pending against him. The petitioner and 3 others were the Directors of Tiruppur Cotton Spinning and Weaving Mills Ltd., Tiruppur and they have collected a sum of Rs. 34,350/- towards Employees provident Fund and Rs. 4,405/- towards Employees Family pension Fund from the employees of the Mill under the Employees provident Fund Scheme and the Employees Family Pension Fund Scheme during the period between August, 1984 and December, 1984 and failed to contribute the employer''s contribution and committed criminal breach of trust in respect of the said amount and on the said allegations, the Sub Inspector of police, North police Station, Tiruppur filed a charge-sheet against the petitioner and 3 other Director for the offence u/s 409 I.PC. which was taken on file by the said Court in C.C. No. 249 of 1989.

Crl. O.P. No: 14255 of 1998: The Inspector of police, North police Station, Tiruppur filed a charge sheet against the petitioner and another accused, who were Directors of Tiruppur Cotton Spinning and Weaving Mills Ltd., Tiruppur in C.C. No. 211 of 1989 on the file of the Judicial Magistrate No. I, Tiruppur alleging that between March, 1987 and May,1987. they have collected a sum of Rs. 92,711/- from the employees towards Employees Provident Fund and also Rs. 12,554/- towards Family Pension Fund and failed to pay employees contribution and also committed Criminal breach of trust in respect of the said sums collected from the employees.

The petitioner herein have filed these two Crl. O. Ps. u/s 482 Cr.P.C. to quash the said two cases pending against them on the file of the Judicial Magistrate No. 1,Tiruppur.

Learned Senior Counsel for the petitioners has raised two grounds to quash the said proceeding. (1) The company alone is responsible for the collection of contribution from the employees towards Employees Provident Fund, and Employees Family Pension Fund and to add employer''s contribution and to pay the said sums before the authorities concerned and the Directors are not responsible either for the collection of employees'' contribution or making of employer''s contribution or payment of the said sums before the officers concerned: (2) The Directors of the company cannot be held responsible for said charge without the company has not been made as a party.

Learned Government Advocate has argued that there are decisions to show that the Directors, who are in the administration of the company, are held responsible for the failure on the part of the company, which is the employer. Learned Senior counsel for petitioners has not pressed that ground.

The first ground that the company is the employer and the company alone is liable for the said charge u/s 409 I.P.C. was substantiated by the two decisions relied on by learned senior counsel for the petitioners.

The Calcutta High Court in S.K. Agarwala v. E.S.I. Corporation (1985 (2) S.L.R. 25) held that though the Directors are ''immediate employers'' or ''principal employers'' under the Employers State Insurance Act. but cannot be considered to be an ''employer'' under the Indian Penal Code and therefore, they cannot be held liable for the failure to deposit the contribution of Employees'' State Insurance Fund deducted from the employees along with the contribution of the employer.

The Employees State Insurance Corporation has taken it on appeal to the Supreme Court of India and Their Lordships of the Supreme Court in Employees'' State Insurance Corporation v. S.K. Aggarwal, (1998 (3) L.L.N. 920) held that "Therefore, even if we-read the definition of "Principal employer" under the Employees'' State Insurance Act, 1948. in Explanation 2 to Section 405 of the Indian Penal Code, the Directors of the company, in the present case, would not be covered by the definition of "principal employer" when the company itself owns the factory and is also the employer of its employees at the head office. In any event, in the absence of any express provision in the Indian Penal Code incorporating the definition of "Principal employer" in Explanation 2 to Section 405, this definition cannot be held to apply to the term "employer" in Explanation 2. As the High Court has observed, the term "employer" in Explanation 2 must be understood as in ordinary parlance. In ordinary parlance it is the company which is the employer and not its Directors, either singly or collectively". From this decision of the Apex Court that the company is the employer and not Directors and therefore, the Directors, are not liable.

In such circumstances, the charges in respect of the Directors of the company are liable to quashed.

In the result, Crl. O.P. Nos. 14224 and 14225 of 1998 are allowed and C.C. Nos. 249 and 211 of 1989 on the file of the Judicial Magistrate No. 1, Tiruppur are quashed against these petitioners.