IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.172 OF 1997 Employees’ State Insurance Corporation .. Appellant Versus The State of Maharashtra & Anr. .. Respondents Mr.H.V.Mehta for the appellant. Mr.Y.S.Shinde, A.P.P for the State. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 05th March 2009. : 05th March 2009. : 05th March 2009. ORAL ORAL ORAL JUDGMENT: JUDGMENT: JUDGMENT: . This is an appeal for enhancement in sentence preferred by the Employees’ State Insurance Corporation. The appellant filed a complaint alleging commission of an offence punishable under section 85A of the Employees’ State Insurance Act, 1948 (hereinafter referred to as the said Act). The allegation made in the complaint was that the 2nd respondent accused has failed to pay contribution in respect of employees in his factory for the wage periods of February 1989, March 1989 and April 1989 on or before 21st March 1989, 21st April 1989 and 21st May 1989 respectively. In the complaint it was pointed out that due to defaults made (2) by the 2nd respondent during four earlier pay wage periods he was prosecuted and was convicted. 2. The process was issued on the said complaint. On 13th April 1990 the 2nd respondent accused appeared before the learned Magistrate and pleaded guilty. He was sentenced to pay fine of Rs.50/-. In default of payment of fine, he was directed to undergo simple imprisonment for five days. 3. The learned counsel appearing for the applicant has invited my attention to section 85A of the said Act as it existed prior to amendment made by Act No.29 of 1989. He submitted that under the proviso to the said section, minimum sentence of three months was prescribed by the Statue and in violation of the said statutory provision, the learned Magistrate has let off the 2nd respondent on fine of Rs.50/-. 4. The learned counsel appearing for the appellant has placed reliance on a decision of this Court in the case of Employees’ State Insurance Corporation Vs. S.K.Aagarwal (1991 Maharashtra Law Journal 935). He also placed reliance on decision of the Apex Court in the case of People’s Union for Democratic Rights Vs. (3) Union of India (AIR 1982 Supreme Court 1473). Lastly, he invited my attention to another decision of the Apex Court of Organo Chemical Industries Vs. Union of India [(1979) 4 Supreme Court Cases 573]. He submitted that the impugned order to the extent to which sentence of payment of fine of Rs.50/- is imposed is illegal and therefore a case is made out for grant of enhancement in the sentence in terms of the proviso to section 85A of the said Act. None appears for the 2nd respondent. 5. I have given careful consideration to the submissions. The case of the appellant is that the 2nd respondent failed to pay contributions for wage periods of February 1989, March 1989 and April 1989 as required under sections 39 and 40 of the said Act read with Regulation 31 of the Employees’ State Insurance (General) Regulations, 1950. The allegation is that the 2nd respondent committed offence under section 85(a) which is punishable as provided in clause (i) of section 85. 6. Section 85A as it stood prior to 20th October 1989 i.e on the date on which the offence was committed by the 2nd respondent reads thus: (4) "85A. Enhanced punishment in certain cases after previous conviction.- Whoever, having been convicted by a court of an offence punishable under this Act, commits the same offence shall, for every such subsequent offence, be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to two thousand rupees, or with both; Provided that where such subsequent offence is for failure by the employer to pay any contribution which under this Act he is liable to pay, he shall, for every such subsequent offence, be punishable with imprisonment for a term which may extend to one year but which shall not be less than three months and shall also be liable to fine which may extend to four thousand rupees." 7. In the complaint filed by the appellant he stated that for four distinct wage periods in the year 1988-89 the 2nd respondent committed similar default and therefore complaints were filed against the 2nd respondent. It is stated that in all the four complaints the 2nd respondent was convicted and sentence (5) of fine was imposed. Section 85A provides for stringent punishment in case an offender commits more than one offence of similar nature. The proviso to section 85A provides that where such subsequent offence is for failure by the employer to pay any contribution which under the said Act he is liable to pay, he shall for every such subsequent offence be punishable with the imprisonment for a term which shall not be less than three months and shall also be liable to pay fine which may be extended to Rs.4000/-. 8. It will be necessary to refer to the decision of this Court in the case of Employees’ State Insurance Corporation (supra). This was a case where the respondents before this Court were prosecuted for an offence under section 85(a) of the said Act and was convicted by the learned Magistrate on 21st June 1978 by imposing fine amount of Rs.100/-. It appears that a revision application was preferred by the Corporation before the Sessions Court. The revision application was dismissed. Therefore, the Corporation moved this Court by filing an application under section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the said Code). By order dated 03rd March 1982, this Court upheld the contention of the Corporation that a (6) minimum sentence of imprisonment for three months ought to have been imposed by the learned Magistrate. Therefore, this Court remanded the matter to the learned Magistrate with a direction that an appropriate sentence as provided under section 85A of the said Act must be imposed on the accused. After remand by this Court, instead of enhancing the sentence, the learned Magistrate reduced the sentence. The learned Magistrate held that the accused were entitled to benefit of the Probation of Offenders Act. This Court held that the said order of the learned Magistrate was manifestly incorrect as the said order sets at naught provision of section 85A of the said Act. This Court therefore passed an order remanding the case to the learned Magistrate with directions to comply with provisions of section 85A of the said Act. My attention was invited to what is held by the Apex Court in the case of People’s Union for Democratic Rights (supra). The relevant part of paragraph No.7 of the decision of the Apex Court takes a note of the manner in which violations of labour laws enacted for the benefit of the workmen have been dealt with by learned Magistrates by imposing small fines. The Apex Court observed that if violations of labour laws are going to be punished only by meagre fines, it would be impossible to ensure (7) observance of the labour laws and they would remain merely paper tigers without any teeth or claws. The Apex Court observed that the violation of the labour laws should be viewed with strictness and adequate punishment must be imposed. 9. The proviso to section 85A has undergone further amendment by Act No.29 of 1989 which was brought into force with effect from 20th October 1989. By the said amendment now the minimum punishment has been raised to two years and Courts have been enjoined to impose fine of Rs.25,000/-. Thus, the proviso is made more stringent by the said amendment brought on the statute book subsequently. 10. In the present case there are clear assertions in the complaint that four earlier offences were committed by the 2nd respondent. When law prescribes the minimum punishment, the learned Magistrate could not have brushed aside the earlier convictions and imposed a sentence to pay fine of only Rs.50/-. It is true that such orders passed without adverting to the mandatory provisions of law certainly make a mockery of penal provisions incorporated in the said Act which are brought on the statute book with the object of providing (8) certain benefits to employees in case of sickness, maternity and employment injury. The benevolent objects of the Act are defeated by such approach. 11. Now the question is whether this Court can interfere at this stage. The offence relates to non payment of contribution for wage periods of February, March and April 1989. The complaint was filed in February 1990 and the impugned order has been passed on 30th April 1990. If interference is made by imposing sentence of three months, the 2nd respondent will have to undergo sentence of imprisonment after lapse of more than 19 years from the date of commission of the offence. 12. Moreover, before the said course is adopted, it will be necessary to allow the appellant to substantiate their case that for earlier wage periods, similar offences were committed by the 2nd respondent and the 2nd respondent was convicted for such offences. For that purpose, as in the case of Employees’ State Insurance Corporation Vs. S.K.Agarwal (supra) order of remand will have to be passed. In the case before this Court, the order of conviction by the learned Magistrate was passed on 26th June 1978 and in the year 1982 order (9) of remand was passed by this Court. Thereafter, fresh order was passed by the learned Magistrate which was interfered with by this Court in the judgment delivered in the year 1991. 13. In the present case if the order of remand is passed, it will have effect of re-opening of case after long lapse of time of 19 years and more. 14. In the circumstances, considering the peculiar facts, this is not the case where at this stage order of enhancement of the sentence can be passed. 15. Subject to what is observed above, the appeal stands dismissed. (A.S.Oka,J)