IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 18TH FEBRUARY 2009 / 29TH MAGHA 1930 Crl.MC.No. 3238 of 2006() ------------------------- CC.275/2002 of CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR IC.25/2006 of EMPLOYEES INSURANCE COURT, PALAKKAD (I.A. 45/2006) .................... PETITIONER(S): ------------------------ N.D. MUTHAIAH RAJASAHAI, PRINCIPAL EMPLOYER (NAAGHATHENAH, RESIDENCY ROAD ASRAM, KOLLAM) M/S. SREE NAGALINGAVILAS MILLS, ASRAMAM, KOLLAM. BY ADVS. MR.C.UNNIKRISHNAN (KOLLAM), MR.S.HARIKRISHNAN. RESPONDENT(S): --------------------------- 1. E.S.I. COPORATION, REP. BY THE INSPECTOR, E.S.I. CORPORATION, THRISSUR. 2. STATE OF KERALA, REP. BY PUBILC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. MR.P.SANKARANKUTTY NAIR, SC, ESI CORPN. R2 BY PUBLIC PROSECUTOR MR. GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18/02/2009 ALONG WITH CRMC.NO.3239 OF 2006, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.N.KRISHNAN, J ===================== CRL.M.C. Nos.3238 & 3239 OF 2006 ===================== Dated this the 18th day of February 2009 O R D E R Crl.M.C.No.3238 of 2006 is filed with a prayer to keep in abeyance Annexure A complaint and all further proceedings pursuant to C.C.No.275/2002 pending before the Chief Judicial Magistrate Court, Thrissur till the final disposal of Insurance Case No.25 of 2006, pending before the Employees Insurance Court, Palakkad and Crl.M.C.No.3239 of 2006 is filed to keep in abeyance Annexure A complaint and all further proceedings pursuant to C.C.No.248/2002 pending before the Chief Judicial Magistrate Court, Thrissur till the final disposal of Insurance Case No.26 of 2006 pending before the Employees Insurance Court, Palakkad. 2. Annexure A complaint in both these cases are filed under Section 85(a), (e) and (g) of the E.S.I.Act. Section 85(a) of the Act deals with the failure to pay any contribution which the person is liable to pay and Section 85(e) deals with when the person fails and refuses to submit any return and Section 85(g) deals with the penal clause. The petitions are filed before the E.I.Court for a declaration that the issuance of notice to collect the amount CRL MCS.3238 & 3239/2006 -:2:- as ESI contribution is not proper and that the institutions are not covered under the Employees State Insurance Act so as to pay contribution under the provisions of the Act. So, the principal point which requires determination in the cases is whether the establishments are covered under the provisions of the E.S.I.Act and whether there is any liability for them to pay contribution. It is a matter which is pending adjudication before the E.I.Court, Palakkad in I.C.Nos.25 & 26 of 2006 respectively. It is the competent court to decide that issue and the prosecution of the present petitioners for violation of the provisions of the E.S.I.Act will arise only if it is found that they are covered by the Act and they are not paid contribution. So an adjudication with respect to the coverage of the establishment under the E.S.I.Act by the E.I.Court is necessary to proceed with the prosecution as well. But there cannot be an indefinite postponement of such an adjudication and pendency of a criminal prosecution initiated. I dispose of the Crl.M.Cs granting stay with respect to proceeding with the petitions. But, a copy of this order be sent to the E.I.Court, Palakkad so as to direct that court for an early disposal of I.C.Nos.25 & 26 of 2006 pending before it. One of the parties thereafter can produce a copy of the order before the concerned Magistrate Court and the matter can be CRL MCS.3238 & 3239/2006 -:3:- proceeded with. This shall not be treated as a precedent in other cases. M.N.KRISHNAN, JUDGE Cdp/-