IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.686 of 2001 Date of decision : September 26, 2008 ESI Corporation …Appellant. Versus Rajiv Nayar and another …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 No. For the Appellant : Mr. S.R. Sharma, Advocate. For the Respondents : Mr. Bimal Gupta, Advocate. Surjit Singh, Judge( Oral ) This appeal by the Employees’ State Insurance Corporation is directed against judgment, dated 10th April, 2001, of Chief Judicial Magistrate, Sirmour at Nahan, whereby its (appellant’s) complaint, under Section 85(e) of the Employees’ State Insurance Act, 1948, read with Regulation 26 of the Employees’ State Insurance (General) Regulations, 1950, has been dismissed. 2. Relevant facts are as follows. M/s Ess Aar Fabrics, respondent No.2 herein, have a factory at Kala Amb in Sirmour District. Respondent No.1 Rajiv Nayar is designated as principal employer on behalf of respondent No.2. The factory is covered and governed by the provisions of Employees’ State Insurance Act, 1948. It was alleged that the respondents did not submitt returns pertaining to the contribution of the employer and the Whether reporters of the local papers may be allowed to see the judgment? …2… employees, pertaining to the year ending March, 1999, which was due within 42 days of the end of the said year. Learned Chief Judicial Magistrate has dismissed the complaint, holding that the contribution could not be paid within the time fixed, under Regulation 26 of the Employees’ State Insurance (General) Regulations, because of respondent No.1 being sick and unable to attend to the affairs of the factory and that after recovering from his illness, he did pay the contribution. Another reason for dismissal of the complaint recorded by the trial Magistrate is that sanction for prosecuting the respondents, under Section 86(1) of the Employees’ State Insurance Act, had not been proved. 3. I have heard the learned counsel for the appellant as also the learned counsel for the respondents and gone through the record. 4. Learned trial Magistrate has committed a serious illegality by holding that the respondents were not liable to be convicted, on account of their having paid the contribution, even though belatedly. This was not a case of charge based on non- payment of contribution but was based on the allegation that returns regarding contribution had not been submitted on time. It appears that the learned trial Magistrate did not bother even to go through the contents of the complaint. 5. However, I see no reason to disagree with the view taken by the trial Magistrate that sanction, under Section 86(1) of the Employees’ State Insurance Act, which is a condition precedent for launching the prosecution, had not been proved. …3… The Officer of the Employees’ State Insurance Corporation, who filed the complaint, namely A.N. Arora, appeared as PW-1. He did not even make a mention of the sanction, Ex. P-1, leave alone proving it, while in the witness-box. His statement as PW-1 was recorded on 11.12.2000. He only tendered Ex. P-1, the alleged sanction, in evidence, without uttering a word as to by whom it was signed or who had granted it and that too, not while in the witness-box, but when closing his evidence. Thus, the sanction does not stand proved according to law. Consequently the appeal is dismissed. September 26, 2008(sd) ( Surjit Singh ), J