In the High Court of Punjab and Haryana at Chandigarh Crl. Revision No.1046 of 2001 Date of Decision:March 10, 2009 Pritam Singh ---Petitioner versus State of Punjab and others ---Respondents Coram: HON'BLE MRS. JUSTICE SABINA *** Present: Mr. S.N.Chopra,Advocate, for Mr. Rakesh Chopra, Advocate, for the petitioner Mr. Aman Deep Singh Rai, AAG, Punjab Mr.Ajay Pal Singh, Advocate, for Mr. B.S.Bhalla, Advocate, for respondents No. 2 and 3 *** SABINA, J. Pritam Singh-petitioner was convicted for an offence under Section 85(a) of the Employees Act, 1948 (for short - “The Act”) vide judgment dated 31.8.1998 by Chief Judicial Magistrate, Fatehgarh Sahib. Vide order of even date passed by learned Chief Judicial Magistrate, Fatehgarh Sahib petitioner was sentenced to undergo rigorous imprisonment for six months and fine of Rs. 5000/- for commission of offence under Section 85(a) of the Act. Aggrieved by the same, petitioner preferred an appeal and the same was dismissed by learned Additional Crl. Revision No.1046 of 2001 -2- Sessions Judge, Fatehgarh Sahib vide judgment dated 12.7.2001. Hence, the present revision petition. The brief facts of the case, as noticed by the learned Appellate Court in para 2 of its judgment, are as under:- “The complaint in this case was filed by the Employees State Insurance Corporation (hereinafter called the corporation) through its Inspector S.S.Gargish (PW1), on the allegations that the establishment M/s Agro Services was covered under the ESI Act and that Pritam Singh, Managing partner was its Principal employer; that Pritam Singh was Incharge and responsible to the establishment when the offence was committed: that the accused had failed to pay the corporation and contribution as required as under Section 39, 40(1) and 43 of the ESI Act read with Regulation 31 of the employees State Insurance (General) Regulation 1950 for the wage period from 4/94 to 9/94 and the same is punishable under Section 85(a) and 85-C of the ESI Act, 1948: that necessary sanction as required under Section 86(1) of the ESI Act was obtained. After the summoning of the accused, on finding a prima facie case against the accused a notice of accusation was served on the accused regarding his having committed an offence punishable under Section 85(a) of the Employees State Insurance Act, 1948. The contents of the said notice were read over and explained to the accused to which she pleaded not guilty and claimed trial.” Crl. Revision No.1046 of 2001 -3- Learned counsel for the petitioner has submitted that the prosecution had miserably failed to prove its case. There is no material to prove that the petitioner is the Incharge and responsible for the conduct of the business of the company. The alleged show cause notice dated 9.2.1995 (Ex. P-1) served upon the petitioner was also not proved on record. In support of his argument learned counsel has placed reliance on N.K.Wahi vs. Shekhar Singh and others 2007(2) RCR(Criminal 267. Learned counsel for the respondent has submitted that the petitioner was the Principal employer of M/s Agro Services and did not contribute the Employees State Insurance Fund for the period from April, 1994 to September, 1994. Show cause notice was also served upon the petitioner. Despite that the amount, in question, was not deposited by the petitioner. PW-1, S.S.Gargish has deposed that the petitioner did not make any contribution under Section 40 read with Section 39 of the Act. Petitioner was the principal employer of the firm and had failed to make the contribution from April, 1994 to September, 1994. A show cause notice was served upon the petitioner through registered post on 9.2.1995. After obtaining sanction under Section 86 of the Act, the complaint, in question, was filed. In his cross examination, he deposed that he was not in possession of the postal receipt vide which notice mark PA was sent to the accused. He had not brought any document to the effect that the petitioner was responsible and principal employer of the firm. He has stated so orally as he was working as an Inspector at Mandi Gobindgarh. He had not brought any statement of the account of the said ledger. Crl. Revision No.1046 of 2001 -4- Thus, in the present case, the alleged notice of demand which was served on the petitioner is not duly proved to have been served on the petitioner as the postal receipt vide which the said notice was sent to the petitioner has not been proved on record. In these circumstances, it was not established by the prosecution that the alleged offence had taken place within the knowledge of the petitioner. There is also no document on record to the effect that the petitioner was responsible for carrying on the business of the firm. In these circumstances, the courts below had erred in convicting and sentencing the petitioner under Section 85(a) of the Act. Accordingly, this petition is allowed. Impugned judgments of the courts below are set aside. The petitioner is acquitted of the charge framed against him. (SABINA) JUDGE March 10, 2009 PARAMJIT