minal Appeal Nos
402 to 419 of 1993
From the Judgment and Order dated 331992 of the Karnataka High Court in Crl
Petitions Nos 1574 to 1584 of 1991 and 1588 to 1594 of 1991
MS Nesargi RC Mishra and Dr Mrs Meera Aggarwal For Aggarwal  Mishra  Co for the Appellant
VGauri Shankar Anil Srivastava and Mrs Anil Katiyar NP for the Respondent
The Judgments of the Court were delivered by K RAMASWAMYJ Special Leave granted
Since common question of law arises in these 18 appeals for decision they are disposed of by a common judgment
The appellant is one of the Directors of Ms Ideal Jawa India Ltd Yadavagiri Mysore a Private Ltd Company estab lished under the Companies Act
It was also registered under the 
Its object is to manufacture Motor Cycles and its accessories
It has its Managing Director Joint Managing Director and Directors including the appellant to manage the establishment
The respondent laid 18 complaints against six accused including the appellantA 6 and the Companyemployerfor their failure to deposit the contribution for the periods of October to December 1990 to the Provident Fund Account No NK 2260 under the Employees Provident Funds and Miscellaneous Provisions Act 1952 for short the Act  Employees  Provident Funds Scheme 1952Employees  Family Pension Scheme 1971 and Employees  Deposit Linked Insurance Scheme 1976 for short the Schemes  punishable under section 14A of the Act read with para 76 of 1952 scheme
On the Magistrate s taking cognizance thereof the appellant laid Crl
in the High Court to quash the complaints as they do not contain the relevant averments constituting the offences against the appellant
It is his case that he is a mere Director of the 514 Company
He was neither Incharge of the Company nor is responsible to comply with the provisions of the Act and the Scheme
In support thereof he placed reliance on the definition employer  and the liability has been fastened on the Managing Director or the Manager or occupier of the establishment to abide by the Act and the Schemes
The High Court by its order dated March 31992 dismissed the applications
Thus these appeals
Sri Nesargi learned Sr counsel for the appellant contended that a reading of the definition employer  in s2e read with sections 30 14 1 A and paras 30 and 38 of the Schemes demonstrates that the employer in relation to an establishment means the owner or occupier of the factory which includes the Agent or the Manager of the Factory under the 
One Sri NK Khudamurad was recorded as occupier and one Sri DK Darashawas recorded as the Manager
They are Incharge of and were responsible to comply with the Act and the Schemes
No specific averments were made in the complaint making the appellant responsible for the management of the factory or the liability to comply with the Act and the Schemes
The complaint therefore laid against him is illegal and the cognizance taken by the Magistrate is vitiated by manifest error of law
In support thereof he placed reliance on the decisions of this court in Municipal
Corpn
of Delhi vs Ram Kishan Rohtagi  Ors
 and Employees State Insurance Corpnv
Gurdial Singh  Ors
1991 Supp
1 SCC 204
The Act and the Schemes are self contained code for deduction from the salary of the employees and the responsibility to contribute in equi proportion the employer s share and deposit thereof in the account within the specific time under Act and the Schemes into the account
It is a welfare legislation to provide benefits to the employees as per the schemes
They need mandatory compliance and violation thereof visits with penal action
Section 2e of the Act defines 1 employer  which means in relation to an establishment which is a factory the owner or occupier of the factory including the Agent of such owner or occupier the legal representative of deceased owner or occupier and where a person has been named as a Manager of the factory under clause f of sub section
1 of s7 of the  the person so named  
The definition is an inclusive definition bringing within its ambit the owner or occupier as well its Manager
Section 2k defines occupier  which means the person who has ultimate control over the affairs of the factory and where the said affairs are entrusted to a Managing Agent such Agent shall be deemed to be the occupier of the factory
Therefore by its extended definition its sweep is enlarged bringing within its scope the person who is incharge or responsible for in management or ultimate control over the affairs of the factory or establishment
515 In the event of entrustment to a Managing Agent such Managing Agent shall also be deemed to be the occupier of the factory 
Section 6 fastens the obligation on the employer in this behalf
It postulates that the contribution shall be made by the employer to the Fund and shall be 8 13 of the basic wages dearness allowances and retaining allowances if any for the payment being payable to each of the employees whether employed by him directly or through a Contractor
The employee s contribution shall be equal to the contribution payable by the employer in respect of him etc
in its application to any establishment or class of establishments
Other provisions are not relevant hence they are omitted
Under para 30 of the Employees  Provident Fund Scheme 1952 and the other Schemes the employer shall deposit the contribution to the Fund
Under para 36A of the Scheme the employer is enjoined to furnish particulars of the ownership of the factory which provides thus 36 A Employer to furnish particulars of ownership Every employer in relation to a factory or other establishment to which the Act applies on the date of coming into force of the Employees  Provident Funds Scheme 1961 or is applied after that date shall furnish in duplicate to the Regional Commissioner in Form No 5A annexed hereto particulars of all the branches and departments owners occupiers directors partners manager or any other person or persons who have the ultimate control over the affairs of such factory or establishment and also sent intimation of any change in such particulars within fifteen days of such change to the Regional Commissioner by registered post and in such other manner as may be specified by the Regional Commissioner
Provided that in the case of any employer of a factory or other establishment to which the Act and the Family Pension Scheme 197 1 shall apply the aforesaid Form may be deemed to satisfy the requirements of the Employees  Family Pension Scheme 197 1 for the purpose specified above
 The employer shall in the first instance pay both the contributions payable by himself in the Scheme referred to as employer s contribution and also on behalf of the members employed by him directly or through a Contractor the contribution payable by such member in the Scheme referred to as member s contribution
Para 38 provides that the employer shall send to the Commissioner within 15 days of the close of every month pay the same to the Fund by separate Bank Drafts or cheques and the administrative charges
Within 25 days of close 516 of the month the employer shall submit a monthly consolidated statement as per form 5 with particulars mentioned therein
Form 5 A envisages to give particulars in Columns 1 to 7 thereof ie particulars of owner etc
The appellant s establishment stated the name of the establishment as Ideal Jawa India Ltd Code No of the establishment its address nature of business period of its commencement and manufacturing status have been given
In Column 8 the establishment is to furnish the names of the owner company Directors
It was mentioned therein as Mr NK Irani as Managing Director the appellant as one of the Directors and others
In column 10 the names of occupier and Manager as registered under the were given
In Column 11 which specifies particulars thus particulars of the persons mentioned above who are Incharge of and responsible for the conduct of the business of the establishment 
Therein it was stated that as per the details mentioned in item 8
As stated earlier in column 8 the names of the Managing Director the Joint Managing Director and two Directors including the appellant have been mentioned
Section 14A which is penal states thus 14A Offences by Companies 1If the person committing an Offence under this Act the Scheme or the Family Pension Scheme or the Insurance Scheme in a company every person who at the time the offence was committed was Incharge of and was responsible to the company for the conduct of the business of the company as well as the company shall be deemed to be guilty of the offences and shall be liable to be proceeded against and punished accordingly
Provided that nothing contained in this sub section shall render any such person liable to any punishment if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence
2Notwithstanding anything contained in sub section
1 where an offence under this Act the scheme or the Family Pension Scheme or the Insurance Scheme has been committed by a company and it is proved that the offence has been committed with the consent or connivance of or is attributable to any neglect on the part of any 517 director or manager secretary or other officer shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly
ExplanationFor the purposes of this Section a Company means any body corporate and includes a firm and other association of individuals and b director in relation to a firm means a partner in the firm
 Para 76 also fastens criminal offence for non compliance of the provisions of the schemes on the persons incharge of and responsible for the management or control of the establishment
It could thus be seen that every person who at the time of the offence was committed was Incharge of and was responsible to the establishment for conduct of its business as well as the company shall be liable to be proceeded against and punished accordingly
It is seen that Form 5 A read with para 36A give an option to the employer to furnish particulars of ownership and the branches of the department owners occupiers directors partners manager or other person or persons who have ultimate control over the affairs of such factory or establishment incharge of and responsible for the conduct of the business of the company and compliance of the statutory obligation fastened under the Act and the relevant schemes
Particulars in column 8 as regards owners and column 10 relates to Manager or occupier and their names addresses etc
and column 11 refers to the persons Incharge of and are responsible to the management of the establishment or factory are specified
In form 5 A as seen earlier in columns 8 and 1 1 it was specifically stated that the Managing Director Joint Managing Director and Directors including the appellant as not only owners of the factory but are Incharge of and responsible for the management of the factory and the establishment
In paragraph 3 of the complaint It was specifically stated that accused 2 to 6 appellant are the persons Incharge of the said establishment and are responsible for conduct of its business
They are thus required to comply with all the provisions of the Act and the Schemes in respect of the said establishment
It is made mandatory to the employer to abide by the same and non compliance thereof is liable for prosecution under section 14A of the Act
Section 141 A relied on by Sri Nesargi relates to only liability for punishment for contravention or making default to comply with section 6 or section 17 3 A in so far as it relates to the payment of inspection charges and para 38 of the Scheme in so far as it relates to payment of administrative charges
That has no application as regards the offence covered under section 14A by the companies are concerned
Accordingly we hold that the 518 appellant having been declared himself as one of the person Incharge of and responsible for conduct of the business of the establishment or the factory the complaint and non compliance thereof having been enumerated in subsequent paras of the complaint it was validly made against the appellant along with other accused for the alleged contravention
Necessary allegations bringing out the ingredient of offence have been made out in the complaint
Therefore the learned Magistrate has rightly been taken cognizance of the offence alleged against the appellant
Employees  State Insurance Corporation vs Gurdial Singh  Ors
1991 Supp 1 SCC 204 is the case relating to an admission made by the prosecution that the Directors were not Incharge nor are responsible for compliance of the provisions of the  Admittedly the company had a factory and it is not in dispute that the occupier of the factory had been duly named
It is also not in dispute that it has a Manager too
In view of this admission the Directors were held not responsible for non compliance with the provisions of the 
The ratio therein therefore does not assist the appellant
Equally in Municipal Corporation of Delhi vs Ram Kishan Rohtagi  Ors  for an offence under Prevention of Food Adulteration Act specific provision of Food Adulteration Rules provide to nominate occupier or Manager responsible for the production or manufacture of articles of food etc
by the company and were nominated
Under those circum stances this court upheld the quashing of the proceedings against the Directors as the complaint did not contain necessary allegations constituting the offence against the Directors
The appeals are thus dismissed
RM SAHAI J Can a director of a private company who is neither an occupier nor a manager be prosecuted under Section 14A of the Employees  Provident Fund and Miscellaneous Provisions Act 1952 in brief the Act  for violation of the Provident Fund Scheme
That depends obviously on the scheme of the Act the liability it fastens on the director of the Company and applicability of the penal provisions to the statutory violation or breach of the scheme framed under it
But before doing so it may not be out of place to mention that the Act is a welfare legislation enacted for the benefit of the employees engaged in the factories and establishments
The entire Act is directed towards achieving this objective by enacting provisions requiring the employer to contribute towards Provident Fund Family Pension and Insurance and keep the Commissioner informed of it by filing regular returns and submitting details in forms prescribed for that purpose
Paragraph 36A of the 519 Provident Fund Scheme framed by Central Government under Section 5 of the Act requires the employer in relation to a factory or other establishment to furnish Form 5A mentioning details of its branches and departments owners occupiers directors partners managers or any other person or persons who have ultimate control over the affairs of the factory or establishment
The purpose of giving details of the owners occupiers and directors etc
is not ail empty formality but a deliberate intent to widen the net of responsibility on any and every one for any act or omission
It is necessary as well as in absence of such responsibility the entire benevolent scheme may stand frustrated
The anxiety of the Legislature to ensure that the employees are not put to any hardship in respect of Provident Fund is manifest from Sections 10 and 11 of the Act
The former grants immunity to provident fund from being attached for any debt outstanding against the employee
And the latter provides for priority of provident fund contribution over other debts if the employer is adjudged insolvent or the company is winded up
Such being the nature of provident fund any violation or breach in this regard as to be construed strictly and against the employer
Reverting to the statutory provision Sections 14 and 14A provide for penalities
The one applies to whosoever is guilty of avoiding payment of Provident fund and to employer if he commits breach of provisions mentioned in its various clauses where as Section 14A fastens liability on certain persons if the person committing the offence is a company
The scope of the two sections is same
Latter is wider in its sweep and reach
The former applies to anyone who is an employer or owner or is himself responsible for making payment whereas latter fastens the liability on all those who are responsible or are in charge of the company for the offence committed by it
Section 14A reads as under 14 A Offences by companies 1 If the person committing an offence under this Act the Scheme or the Family Pension Scheme or the Insurance Scheme is a company every person who at the time the offence was committed was in charge of and was responsible to the company for the conduct of the business of the company as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly Provided that nothing contained in this sub section shall render any such person liable to any punishment if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence
520 2 Notwithstanding anything contained in sub section 1 where an offence under this Act the Scheme or the Family Pension Scheme or the Insurance Scheme has been committed by a company and it is proved that the offence has been committed with the consent or connivance of or is attributable to any neglect on the part of any director or manager secretary or other officer of the company such director manager secretary or other officer shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly
Explanation For the purposes of this section i company means any body corporate and includes a firm and other association of individuals and ii director in relation to a firm means a partner in the firm
 Sub sections 1 and 2 extend the liability for any offence by any person including a partner by virtue of explanation if he was incharge or was responsible to the company at the time of committing the offence
The expression was in charge of and was responsible to the company for the conduct of the business  are very wide in their import
It could not therefore be confined to employer only
The employer is defined by Section 2e to mean 2 e employer  means iin relation to an establishment which is a factory the owner or occupier of the factory including the agent of such owner or occupier the legal representative of a deceased owner or occupier and where a person has been named as a manager of the factory under clause f of sub section 1 of Section 7 of the  the person so named and iiin relation to any other establishment the person who or the authority which has the ultimate control over the affairs of the establishment and where the said affairs are entrusted to a manager managing director or managing agent such manager managing director or managing agent Both clauses i and ii again are wide in their sweep
In clause i are 521 included not only owner or occupier but even the agent or manager
When it comes to establishments other than factory it is not confined to owner or occupier but to all those who have control or are responsible for the affairs of the company
It includes even director
Therefore every such person who has the ultimate control over the affairs of company becomes employer
To say therefore that since paragraph 36 A requires an employer to do certain acts the responsibility for any violation of the provision should be confined to such employer or owner would be ignoring the purpose and objective of the Act and the extended meaning of employer in relation to establishments other than the factory
The declaration therefore in Form 5A including appellant as one of the persons in charge and responsible for affairs of the company was in accordance with law therefore his prosecution for violation of the scheme does not suffer from any error of jurisdiction or law
ORDER For reasons given by us in our concurring but separate orders the appeals fail and are dismissed
Appeals dismissed


Summary:
Respondent Company filed a writ application in the High Court to refrain the appellants from giving effect to the vesting of the lands in question and to take possession of tank fisheries lying therein
The Single Judge directed an action under section 102 of the West Bengal Estate Acquisition Act 1953 and to take possession of the lands pursuant thereto giving an opportunity to the respondents
The Division Bench on appeal held that appellants should take action under the West Bengal Land Reforms Act 1955 within a period of two months of its judgment failing which the respondents would he at liberty to deal with and dispose of the lands and until then the appellants were restrained to take possession of the lands
The Single Judge and the Division Bench found that the Revenue Officer initiated proceedings to revise the old Jama of lands as he found from record of rights that lands were classified as Beel  marshy land and the appeal of the respondent under Section 443 of the Act was allowed holding that the lands being tank fisheries  old Jama was to be maintained
481 482  The present appeal by special leave was filed against the judgment of the Division Bench of the High Court contending that by operation of sections 4 and 5 of the West Bengal Estate Acquisition Act fisheries being one of the interests that stood extinguished and vested in the State Govt
free of all incumbrances with effect from 161956 the respondents lost right title and interest therein that since the respondent failed to make an application in form B  within the specified time expressing his intention to retain the lands the entire lands including tank fisheries stood vested in the State that as per the entries in the record of rights the lands were only Beel Marshy landsand not tank fisheries and therefore even the exercise of the option to retain possession was not available that since the respondent raised a dispute the Single Judge rightly directed an enquiry under section 102 and to take action pursuant to its result under section 101 that the Division Bench committed manifest error in treating that the decision of the Tribunal under section 443 relating to jama to be final and the lands to be tank fisheries and that the respondent was entitled to retain khas possession with all right tide and interest therein as an owner and that the direction given to initiate the action under the West Bengal Land Reforms Act 1955 within the specified period and on failure thereto liberty given to the respondent to alienate the lands was beyond the relief sought in the writ petition
The respondents submitted that they purchased the leasehold rights in 1937 from the earliest purchaser of the lands who purchased the same from the original Zamindar and since then the respondents were using the lands as tank fisheries that when notification under section 4 was issued the lands were being used as tank fisheries that despite its vesting by operation of section 62 the respondent had right to retain possession as an owner and the action for dispossession under section 101 was illegal that the liability of dispossession of the respondent from the lands would arise only if the possession was found to be unlawful and that the Division Bench therefore rightly directed to initiate proceedings under the West Bengal Land Reforms Act and to take action thereunder
Allowing the appeal this Court HELD11
By operation of sub sec
1 of Sec
5 the estate and all the rights of intermediaries including fisheries in the estate shall stand determined and ceased and stood vested in the State free from all incumbrances
488 G 483 12Incumbrance defined under Sec
2hof the Act means in relation to estates and rights of intermediaries therein does not include the rights of a raiyat or of an under raiyat or of a non agricultural tenant but shall except in the case of land allowed to be retained by an intermediary under the provisions of sec
6 include all rights or interests of whatever nature belonging to intermediaries or other persons which relates to lands com prised in estates or to the produce there of
Therefore tide to rights or interests in lands which include fisheries held by an intermediary shall stand extinguished and ceased and stood vested in the state free of all incumbrances
488 H 489 A 13The exceptions engrafted in the incumbrance and exempted from the operation of Sections 4 and 5 are only the rights of a raiyat or of an underraiyat or of a non agricultural tenant and the right of retention of possession allowed to an intermediary under Sec
6 of the Act All other rights interest of whatever nature or tide belonging to the intermediaries or other persons who hold the lands under lease from intermediary should also stood extinguished
489 C 14All grants and confirmation of title to estates and rights therein to which the declaration of vesting applies and which were made in favour of intermediaries shall stand determined and ceased by operation of Sec
51 b of the Act
489 D 15The respondents being purchasers of lease hold interest in tank fisheries it also stood extinguished
16The pre existing right tide and interest in the lands situated in an estate stood extinguished and ceased to have effect on and from notified date ie June 1 1956 and stood vested in the State free from all incumbrances
The non obstanti clause under Sec 6 excluded from the operation of secs
4 and 5 only of the interest of the respondent to retain physical possession of the lands covered by Sec 6 subject to sec
The intermediary by operation of Sec
102 shall be required to submit in form B  within 60 days from the date of issuing notice under Sec
101 of his intention to retain possession of the tank fisheries
On such submission of Form B  the Collector without dispossessing himit shall be entitled to prescribe such terms and conditions to which the intermediary or the leasee shall be bound and hold the tank fishery and shall remain in possession using the tank fisheries for pisciculture or for fishing and subject to payment of such rent as may be determined under the Act and 484 finally entered in the Records of Rights
491 E F 17
The lands once retained under Sec
by the intermediary and accepted by the authorities pursuant to form B  declaration the intermediary is entitled to retain possession and is not liable to dispossession so long as he complies with the terms and conditions if any imposed and the rent imposed is being paid
492 E 18
The avowed object of Act is to divest the pre existing right tide and interest of the intermediary in the lands situated in an estate in a district or part of the district and shall stand divested from the Zamindar or intermediary except of a raiyat or under raiyat or non agricultural tenant
Notwithstanding such divestment thereof the intermediary has been empowered to hold and retain possession directly under the State and hold it as a tenant subject to such terms and conditions and subject to payment of rent as may be determined under the Act
Therefore the entitlement to retain possession of the land ie tank fisheries in this case is not absolute but hedged with the conditions precedent of expressing his intention to retain possession by filing form B within 60 days and abiding to comply with such terms and conditions as may be imposed and also payment of rent
492 GH 443 A 19
By operation of the explanation to Sec
61 e tank fisheries not only it must be a tank fishery at the date of vesting but it must also continue to be used for pisciculture or for fishing
The emphasis on being used  obviously is that the tank fisheries should be continued to be used for public purpose namely the fish seedling or fish must be made available for public consumption
493 B 110
The intermediary shall hold the tank fishery on the date of vesting as tank fishery but continue to hold and use the same thereafter for pisciculture or fishing as explained in explanation 61 e of the Act
Subsequent conversion of the land as tank fisheries is not material
493 D State of UP vs Krishna Gopal  Anr 1988 Supp
2SCR 391 and Sasanka Sekhar Maity  Ors
v Union of India   cited
Saroj Kumar Bose v Kanailal Mondal  Ors 19852 SCR 393 and State of West Bengal v Atul Krishna Shaw  Anr 1990 Supp 1 SCR 901 explained
485 111
The word revised  under sub sec
1 of Sec
44 indicates that the State Govt
or its officers shall be entitled to revise from time to time the Record of Rights and to make necessary entries or corrections in the relevant columns of Record of Rights in its settlement operations or as per exigency envisaged under the Act and the rules made therein
The order under Sec
443 becomes final so long as there is no revision effected
The question of res judicata therefore does not arise and the previous appellate order does not preclude the authorities to revise the Record of Rights
492 B 112
The Division Bench of the High Court is not right in its conclusion that the order passed by the appellate authority under Sec 44 3 is final and the authorities have no jurisdiction to revise the Record of Rights
492 C 113
Sub section2 of Sec 6 expressly postulates that if he holds the tank fisheries should be for continued for use as tank fisheries and it would be subject to such terms and conditions and subject to payment of rent as may be fixed
The holding of the land is as a tenant the emphasis is that his possession is without any interest in the land
Under TP Act a tenant has lease hold interest in the land
But in Sec62 as a tenant for the purpose of payment of the rent and retention of possession and appears to he nothing more
As regards tank fishery is concerned though exemption has been granted it is subject to the condition of continued user for pisciculture or fishing
495 E 114
From the scheme of the Act it would appear that the intermediary or the lessee gets no absolute right in the tank fisheries which were already divested but to remain in khas possession and to enjoy the usufruct thereof ie for pisciculture or fishing without any interest or sub soil rights and subject to such terms and conditions and subject to payment of rent as prescribed under the Act but not as owner thereof
The direction thereforeby the High Court that the respondents are entitled to dispose of the land is contrary to and in negation of the scheme of the Act and Rules
Therefore it is manifestly illegal
495 G 115
The appellant is free to issue notice to the respondent under Sec
10 2 of the Act and conduct an enquiry into and rind 1 on the date of the vesting whether the lands were being used for pisciculture or fishing ie tank fisheries 2 whether the respondent had submitted form B  within the prescribed time exercising the option 486 to retain possession of the lands in question as tank fisheries and 3 whether the respondent is continuing to use the lands in question as tank fisheries
Reasonable opportunities shall be given to the respondents to prove itstheir case
496 A B 116On the enquiry if it is found that the lands are not tank L116On the enquiry if it is found that the lands are not tank L116On the enquiry if it is found that the lands are not tank fisheries as on the date of vesting or that the respondent had not submitted option in Form B  to retain possession of the lands as tank fisheries within the prescribed period then the lands stood vested in the State free from all incumbrances and authorities are entitled to take possession of the land under Sec
101 read with Sec
103
In case if it rinds that the lands were being used as tank fisheries as on the date of vesting and that the respondents exercised the option within the time to retain possession and is continuing to use the tank fishery for pisciculture or for fishing and if it has been continuing in possession of tank fishery It is free to impose if not already imposed such terms and conditions as may be necessary to ensure continued use of tank fishery for pisciculture or for fishing subject to payment of such rent as may be fixed or revised and ultimately entered in the Record of Rights
In case the respondent commits contravention thereof it is open to the State to resume possession
In case the respondent is not using the tank fishery for pisciculture or for fishing or alienated the lands it is open to the appellants to take possession of the lands and all sales if made by the respondents do not bind the State
496 C E