IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.09.2011 CORAM THE HONOURABLE MR. JUSTICE K.B.K.VASUKI Criminal Appeal Nos.775 and 1225 of 2004 Manager, Employees State Insurance Corporation Limited, Salem. ..Appellant in both the appeals (complainant) ..vs.. 1.M/s.Sri Rajendira Mills Limited represented by it Managing Director. 2.S.Chockalingam, Managing Director, M/s.Sri Rajendira Mills Limited. .. Respondents in both the appeals (Accused) Prayer: Criminal Appeals are filed under Section 378 Code of Criminal Procedure against the judgment dated 25.2.2004 and 25.06.2004 respectively made in C.C.Nos.208 & 209 of 2003 respectively on the file of the Judicial Magistrate No.II, Salem. For appellant : M/s.S.Jayakumar For Respondents: M/s.C.S.Dhanasekar COMMON JUDGMENT The present appeals are filed by the Employees State Insurance Corporation as Complainant against the order of acquittal of A1- Company and A2 its Managing Director. 2.In both the cases, the prosecution was initiated against the respondents 1 and 2 on the strength of Ex.P3-Sanction Order given by the Regional Director in compliance with Section 86 for the failure of the company to pay employees' contribution as contemplated under Section 40 of the Employees State Insurance Act, 1948 [herein after shortly referred to as E.S.I. Act] for the contribution period ending on 31.3.2002. 3. The trial court acquitted the accused mainly on two legal aspects. (1) Ex.P3-sanction order is only to initiate prosecution against the factory and no sanction order is accorded for prosecution https://hcservices.ecourts.gov.in/hcservices/ against the company and it is anti dated. (2)The prosecution, for the failure to pay contribution within time, can be initiated against the principal employer and not against either Managing Director or the Company and the Managing Director or the Director cannot be personally held liable for such failure. Aggrieved against the same, the complainant-Employees State Insurance Corporation filed the present appeal before this Court. 4. The learned counsel for the appellant has seriously questioned the correctness of the order of acquittal by invoking Section 86-A and by drawing the attention of this Court to Ex.P3-sanction order. It is contended by the learned counsel for the appellant that Ex.P3-sanction order clearly refers the sanction sought for against A1-Company and A2-Managing Director and about the failure on the part of the Company to pay contribution within the time specified and the sanction is accorded to proceed against the factory run by the Company and against the person shown as Serial No.2 who is none else than the Managing Director of the Company and the sanction order is hence legally valid and the prosecution is on the strength of the sanction order legally instituted. 5. It is further contended by the learned counsel for the appellant that the provision under Section 86-A of the E.S.I.Act, deals with the offences by the companies and as per Section 86-A (1) when the person committing an offence under this Act is 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 offence and shall be liable to be proceeded against and punished accordingly. The learned counsel for the appellant has also pointed out the explanation provided under Section 86-A as per which, the 'Director' in relation to a Company other than a firm means the Managing Director or a whole-time Director, as such, the Managing Director, who is, according to the complainant Corporation, was responsible to the Company for the conduct of the business, is the proper person to be proceeded against for the offences committed by the Company. 6.Per contra, it is argued by the learned counsel for the accused that as per the law laid down by the Hon'ble Apex Court, the Managing Director and the Director cannot be treated as 'principal employer' who is, Under Section 40 bound to pay contribution at the first instance and hence cannot be personally held liable for any default to pay contribution. It is further argued by the learned counsel for the accused that Ex.P1 and Ex.P3 gazette notification and sanction order respectively, do not disclose that it is the outcome of subjective satisfaction of the sanctioning authority and the same are not valid by reason of omission of the sanctioning authority to state the ground on which the sanctioning authority is satisfied about prima facie case to order sanction and the subjective satisfaction of the sanctioning authority is not a matter for presumption and the order of sanction https://hcservices.ecourts.gov.in/hcservices/ should contain the facts constituting the offence and also the grounds on which the sanctioning authority was satisfied and the order of acquittal passed by the trial court is hence application of mind. 7. The learned counsel for the accused while arguing so fairly conceded that Under Section 86A which deals with Offences by the 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 and when an offence has been committed with the consent or connivance of or is attributable to, any neglect on the part of Director or Manager, Secretary or other officer of the company such director manager, secretary or other officer of the company, shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. The learned counsel also pointed out the 2nd ground based on which the order of acquittal is recorded, as if the complainant is bereft of any averments for raising vicarious liability on the Managing Director of Director or other official of the company as referred to above. 8.Heard the rival submissions made on both sides. 9. In order to appreciate the first argument for and against the validity of sanction order, Ex.P3 sanction order is to be looked into. The cursory glance at the documents reveals that identical sanction order was passed. Ex.P3 sanction order proceeds to say that the sanctioning authority is satisfied that the company as well as the Managing Director, failed to pay employers share of contribution along with employees share of contribution for the period mentioned therein as required under relevant provisions of law and the same is the offence under Section 85(a) r/w.85(c) of E.S.I. Act in CC.No.208 of 2003 and under Section 85(e) of the Act in CC.No.209 of 2003. It is further stated in Ex.P3 sanction order that in pursuance of the powers delegated under Section 86(1) of the Act, the sanctioning authority, sanction the prosecution of the factory and the person at Sl.No.2 for the said offence. 10. Thus the close reading of sanction order would reveal that the same, except stating the name of the company and the name of the Managing Director and the nature of the offence committed, the period in which, it is committed and the relevant penal provision of law under which the sanctioning authority is empowered to grant sanction, does not mention the grounds on which he arrived at subjective satisfaction that the facts referred to therein constitute an offence and it is a fit case for granting sanction to launch prosecution against the persons named in the sanction order. 11. It is well laid down in AIR 1979 SC 677 in Mohd. Iqbal Ahmed V. State of AP that the grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to Government servants against frivolous prosecution and https://hcservices.ecourts.gov.in/hcservices/ must therefore be strictly complied with before any prosecution can be launched against the public servant concerned. In order to render any sanction to be valid, the same shall contain not only the facts constituting the offence, but also the grounds on which the satisfaction of the sanctioning authority was based and application of mind and any case instituted without a proper sanction must fail because this being a manifest defect in the prosecution, the entire proceedings are rendered void abinitio and the prosecution case fails on this score alone. 12. The Supreme Court in the same judgment, was of the view that the mind of the sanctioning authority cannot be presumed, as such, the presumption does not arise automatically but only on proof of certain circumstances. The principle laid down by the Supreme Court in the judgment referred to above is strictly applicable to the facts of the present case. 13. This Court is hence constrained to hold that Ex.P3 sanction order is improper and invalid for the failure of the sanctioning authority to refer the grounds of satisfaction and the same is not curable defect and the same renders the entire proceedings to be void and on this score alone, the prosecution launched against the accused is liable to be negatived. The total non application of the mind of the sanctioning authority resulted in granting sanction to proceed against the company and the Managing Director of the Company. Whereas, the sanction granted is to launch the prosecution against the factory owned by the Company and the Managing Director of the Company. It cannot be disputed that the factory and the company are two different entities and the company owned factory and the sanction against the factory cannot be proper sanction to launch the prosecution against the company. Viewing from any angle, the order of sanctioning authority without proper sanctioning order cannot be sustained. 14.The next point arises for consideration to this court is as to whether the prosecution can be launched against the Managing Director of the company. The sanction order proceeds to say that the sanctioning authority is satisfied that M/s.Sri Rajendira Mills represented by it Managing Director, Mr.S.Chockalingam, failed to submit returns in Form-6, employers share of contribution along with employees share of contribution. 15. Here is the case, wherein admittedly the company owns factory and the over all control vests with the Board of Directors headed by the Managing Director and the control of the factory is vested with one of the employees empowered as 'principal employer'. It may be true that under section 40 of the Act, the principal employer is liable to make employees contribution. Principal employer as per definition clause under Section 2(17) is (i)in a factory, the owner or occupier of the factory and includes the managing agent of such owner or occupier, the legal representative of a deceased owner or occupier https://hcservices.ecourts.gov.in/hcservices/ and where a person has been named as the manager of the factory under (the Factories Act, 1948 (63 of 1948)], the person so named (ii)in any establishment under the control of any department of any Government in India, the authority appointed by such Government in this behalf or where no authority is so appointed, the head of the department; (iii) in any establishment under the control of any department of any Government of India, the authority appointed by such Government in this behalf or where no authority is so appointed, the head of the Department and (iv)in any other establishment, any person responsible for the supervision and control of the establishment. 16. It is not in dispute that Clauses 2 and 3 may be applicable to the case in hand, as per Section (17)(i) the owner or the occupier of the factory can be treated as principal employer. The principal employer is alone originally as per amended Act, held liable for prosecution for the failure to pay contribution. 17. Whereas after the amendment notified during 20.10.1989 Section 86-A(1) and 86-A(2) are read as follows : Section 86-A(1). if the person committing an offence under this Act 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. Section 86-A(2) where an offence under this Act has been committed with the consent or connivance of, or is attribute 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: (ii) "director" in relation to - (a) a company other than a firm, means the managing director or a whole-time director; 18. As rightly argued by the learned counsel for the appellant, as per 1989 amendment a Director including Managing Director or whole time director, under the circumstances as narrated in any of the grounds formulated under Section 86A(2), shall be deemed to be guilty of the offence and shall be proceeded against for any violation of the mandatory requirement amounting to offence under the Act. Basing on the same, the learned counsel for the accused argued that the trial court has grossly erred in including the second respondent/Managing Director who cannot come under the definition of principal employer and no prosecution can be launched against the Managing Director for his failure to pay employees contribution. 19. As rightly pointed out by the learned counsel for the https://hcservices.ecourts.gov.in/hcservices/ respondent/accused in order to hold the managing director responsible for any offence committed by the company, he must be shown to have been in-charge of and so responsible for the company affairs and the conduct of the business of the company at the time of commission of the offence or it ought to have been averred and proved that the offence was committed with the consent or connivance of or is attributed to, any neglect on the part of, and on the failure of the appellant to raise necessary averments in the complaint and to prove the same during trial the deeming provision cannot be attracted. 20. The learned counsel for the appellant and the respondents, in respect of their respective contentions cited the following authorities, the authority cited on the side of the appellant are : (i) 2011 II LLJ 820 (M.P) in Tata company Ltd., V. Deputy Director (ii) 2003 III LLJ (cal) in R.J.Kanoria V. State and (iii) 1998 II LLJ 247 in Inspector, ESI Corporation, Madurai Vs. A.L.Veerappan. The authorities cited on the side of the respondents are (i) AIR 1991 SC 1741 in ESI V. Gurdial Singh and (ii) 1998 (6) SCC 288 in Employees State Insurance Corporation V. S.K.Aggarwal and others. 21. The trial court relied on two other judgments cited on the side of the respondents and arrived at the conclusion that the Director did not come within the definition of principal employer. It may be true that in both the cases, the Supreme Court was of the view that Section 2(17) of ESI Act uses the words "owner and "occupier" disjunctively and when the owner of the factory is the principal employer there is no need to examine who is the occupier and the owner will be considered as the principal employer under Section 40 and he is liable for contribution and when the owner of the factory is a company and is the principal employer and not its director, the director of the company would not be covered by the definition of the principal employer. 22. Whereas our High court in the judgment reported in 1998 II LLJ 247 (cited supra) was of the view that as the company represented by the director being in ultimate control over the affairs of the company, it cannot be stated that the person, who is nominated by the directors to be incharge of the affairs of the company alone should be prosecuted and not others. The case above cited was dealt with by the Supreme Court before introduction of Section 86-A and there was no occasion for the supreme court to deal with the vicarious liability aspect and the person incharge of the affairs of the company or the director or other officer referred to in Section 86-A(2), who are in the manner referred therein responsible for the commission of the offence. In that event, the view of the Hon'ble Supreme Court cannot be applied to the criminal prosecution instituted much after the introduction of Section 86-A of the Act. Though, our High Court does not refer to newly introduced Section 86-A, the view expressed by our High Court is based on the principles laid down by the Supreme Court in the earlier judgments mentioned therein. https://hcservices.ecourts.gov.in/hcservices/ 23. Whereas in the judgment reported in 1998 6 SCC 288 (cited supra) the Supreme Court did not appreciate the identical issue in the light of the amended provisions of law under Section 86-A for the simple reason that the contribution period covered in the case was between February 1981 and September 1981 much before the amendment. Whereas, the Calcutta High Court in the case dealt with by it after referring to relevant provisions of law before and after 1989 amendment, arrived at conclusion that the owner of the factory, being admittedly the company the Managing Director of the company was therefore a managing agent of such owner and a 'principal employer' as per Section 2(17) of the Act 1948 and applying the deeming provisions one of the directors of a company becomes an occupier of the factory and the complaints against the Managing Director and Director is hence competent and the cognizance taken by the Magistrate, on the said complaint cannot be said to be unlawful. However, this court is not inclined to agree with the observation of the Calcutta High Court in the authority cited above. 24. In my considered view, the Managing Director or a Director can be proceeded against as per deeming provisions under Sections 86A (1) and 86A(2), if the complainant raises specific averments as to how and in what manner the Managing Director in the present case at the time of commission of the offence is responsible for the affairs of the company and as to whether he has in any other manner contributed to the commission of the offence. This court finds considerable legal force in the contention so raised on the side of accused and no interference is called for in the order of acquittal of the 2nd accused/Managing Director for want of necessary averments in this regard. 25. Even otherwise, mere raising averments in the complaint is not sufficient enough to establish the complainants case and the appellant shall establish the same, through satisfactory evidence during trial and the present case contains the same averments regarding the responsibility of the Managing Director as principal employer and the same are not sufficient enough to invoke the deeming provisions of the Act and the same are also not duly proved during trial. Thus, for want of proper averments and proof regarding the responsibility of the Managing Director, he cannot be personally prosecuted for the failure of payment of contribution and the grounds on which the trial court passed an order of acquittal on different reasons, do not hence call for any interference by this Court. https://hcservices.ecourts.gov.in/hcservices/ 26. In the result, both the appeals are dismissed. Sd/- Asst.Registrar(CS II) 16.4.2014 /True Copy/ Sub Asst.Registrar aes/tsh To 1.The Judicial Magistrate No.II, Salem. 2.-do- thro' the Chief Judicial Magistrate, Salem. +1cc to Mr.S.Jayakumar, Advocate Sr 59824 +1cc to Mr.C.S.Dhanasekar, Advocate Sr 59838 SK(CO) km/16.4. Crl.A.Nos.775 & 1225 of 2004 https://hcservices.ecourts.gov.in/hcservices/