HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No.5451 OF 2006 Between: M/s Samyuktha Cold Storage and Trading Company Pvt. Ltd & another. … PETITIONERS AND The Employees State Insurance Corporation having its registered office at 5-9-23, Hill Fort Road, Adarshnagar, Hyderbad rep. By its Insurance Inspector (legal) & another. … RESPONDENTS HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No.5451 OF 2006 ORDER: This petition is filed by the accused Nos.1 and 2 under Section 482 Cr.P.C. for quashing proceedings in P.C.No. 136 of 2004 on the file of Special Judicial Magistrate of First Class to try offences under the ESI Act-cum-Chairman, Industrial Tribunal-I, Hyderabad, relating to offence punishable under Section 85(a) of the Employees’ State Insurance Act, 1948 (in short, the Act). The first petitioner-Company is running a cold storage unit. The second petitioner is Managing Director of the first petitioner- Company. Alleging that the first petitioner is carrying on manufacturing process in its unit with more than 10 workers, assessment was made under Section 45-A of the Act determining contribution payable by the first petitioner as an employer. Questioning the same, the first petitioner filed E.I.C.No. 40 of 2004 in the Employees State Insurance Court-cum-Chairman, Industrial Tribunal-I, Hyderabad, by way of an appeal. Pending the appeal case, the Industrial Tribunal-I, Hyderabad, passed order dated 02.11.2004 in I.A.No. 253 of 2004 in E.I.C.No. 40 of 2004 suspending all further proceedings under the assessment order dated 11.12.2003. Simultaneously, the first respondent-ESI Corporation launched criminal proceedings against the petitioners in P.C.No. 136 of 2004 under Section 85(a) of the Act. There is no dispute that after filing of this petition, the Industrial Tribunal-I, Hyderabad, dismissed E.I.C.No. 40 of 2004 on 24.04.2007. As against the said dismissal order, the first petitioner filed CMA.No. 467 of 2007 in this Court. It is stated to be still pending. This Court, by order dated 24.07.2007 in CMA.MP. No. 1065 of 2007 in CMA.No. 467 of 2007, passed interim suspension of operation of order No. AP/INS.IV/52-21448-03 dated 11.12.2003 of the first respondent, subject to the first petitioner depositing half of the demanded amount within four weeks from that date. It is stated that the first petitioner has complied with the conditional order passed by this Court. Having regard to suspension orders passed by the Industrial Tribunal-I, Hyderabad, on 18.10.2004 and interim suspension passed by this Court on 24.07.2007, the impugned order making assessment of contribution payable by the first petitioner is not holding the field. In that view of the matter, the question of non-compliance of assessment order under Section 45-A of the Act does not arise so long as the suspension order is in force. Therefore, the first respondent is not entitled to prosecute the petitioners for non-payment of contribution etc. It would be premature on the part of the first respondent to launch the prosecution. Assuming for a moment for the sake of argument that suspension orders were obtained by the first petitioner subsequent to filing of complaint before the Magistrate Court on criminal side, the complainant/first respondent is not entitled to pursue the prosecution so long as the suspension order is in force. In the result, the Criminal Petition is allowed quashing proceedings in P.C.No. 136 of 2004 on the file of Special Judicial Magistrate of First Class to try offences under the ESI Act-cum- Chairman, Industrial Tribunal-I, Hyderabad. It is however made clear that the first respondent-Corporation will be entitled to file fresh prosecution case against the petitioners, in case CMA.No.467 of 2007 is disposed of in their favour. SAMUDRALA GOVINDARAJULU,J Date:29.01.2010 usd