IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No. 163 of 2008 with Cr.MMO Nos. 160, 171, 172, 173, 174, 161, 162, 164, 165, 166, 167, 168, 169, 170 and 175 of 2008. Judgement reserved on: 21.12.2009. Date of decision: 28.12.2009. Himachal Fibres Ltd. ……. Petitioners. Vs. Employees Provident Fund Organisation & anr. ……. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the petitioners : Mr. Suneet Goel, Advocate. For the Respondent : Mr. Sandeep Sharma, Assistant Solicitor General of India. Kuldip Singh, Judge, Judge. This judgement shall dispose of Cr.MMO Nos. 163, 160, 171, 172, 173, 174, 161, 162, 164, 165, 166, 167, 168, 169, 170 and 175 of 2008, in which common question of law is involved. The petitioner in each petition has laid challenge as follows:- Cr.MMO No. 163 of 2008. 2. The complaint No. 9/3 of 2008 Annexure P-1 and summoning order dated 23.1.2008 Annexure P-2 passed by learned Additional Chief Judicial Magistrate, Kasauli. Whether the reporters of the local papers may be allowed to see the Judgment? …2… Cr.MMO No. 160 of 2008. 3. The complaint No. 7/3 of 2008 Annexure P-1 and summoning order dated 1.1.2008 Annexure P-2 passed by learned Judicial Magistrate, Ist Class, Kasauli. Cr.MMO No. 171 of 2008 4. The complaint No. 7/3 of 2008 Annexure P-1 and summoning order dated 23.1.2008 Annexure P-2 passed by learned Addl. Chief Judicial Magistrate, Kasauli. Cr.MMO No. 172 of 2008. 5. The complaint No. 1/3 of 2008 Annexure P-1 and summoning order dated 1.1.2008 Annexure P-2 passed by learned Judicial Magistrate, Ist Class, Kasauli. Cr.MMO No. 173 of 2008. 6. The complaint No. 2/3 of 2008 Annexure P-1 and summoning order dated 1.1.2008 Annexure P-2 passed by learned Judicial Magistrate, Ist Class, Kasauli. Cr.MMO No. 174 of 2008. 7. The complaint No. 6/3 of 2008 Annexure P-1 and summoning order dated 23.1.2008 Annexure P-2 passed by learned Addl. Chief Judicial Magistrate, Kasauli. Cr.MMO No. 161 of 2008. 8. The complaint No. 8/3 of 2008 Annexure P-1 and summoning order dated 23.1.2008 Annexure P-2 passed by learned Addl. Chief Judicial Magistrate, Kasauli. Cr.MMO No. 162 of 2008. …3… 9. The complaint No. 13/3 of 2008 Annexure P-1 and summoning order dated 23.1.2008 Annexure P-2 passed by learned Addl. Chief Judicial Magistrate, Kasauli. Cr.MMO No. 164 of 2008. 10. The complaint No. 3/3 of 2008 Annexure P-1 and summoning order dated 1.1.2008 Annexure P-2 passed by learned Judicial Magistrate, Ist Class, Kasauli. Cr.MMO No. 165 of 2008. 11. The complaint No. 6/3 of 2008 Annexure P-1 and summoning order dated 1.1.2008 Annexure P-2 passed by learned Judicial Magistrate, Ist Class, Kasauli. Cr.MMO No. 166 of 2008. 12. The complaint No. 11/3 of 2008 Annexure P-1 and summoning order dated 23.1.2008 Annexure P-2 passed by learned Addl. Chief Judicial Magistrate, Kasauli. Cr.MMO No. 167 of 2008. 13. The complaint No. 4/3 of 2008 Annexure P-1 and summoning order dated 1.1.2008 Annexure P-2 passed by learned Judicial Magistrate, Ist Class, Kasauli. Cr.MMO No. 168 of 2008. 14. The complaint No. 5/3 of 2008 Annexure P-1 and summoning order dated 23.1.2008 Annexure P-2 passed by learned Addl. Chief Judicial Magistrate, Kasauli. Cr.MMO No. 169 of 2008. 15. The complaint No. 10/3 of 2008 Annexure P-1 and summoning order dated 23.1.2008 Annexure P-2 passed by learned Addl. Chief Judicial Magistrate, Kasauli. …4… Cr.MMO NO. 170 of 2008. 16. The complaint No. 12/3 of 2008 Annexure P-1 and summoning order dated 23.1.2008 Annexure P-2 passed by learned Addl. Chief Judicial Magistrate, Kasauli. Cr.MMO No. 175 of 2008. 17. The complaint No. 5/3 of 2008 Annexure P-1 and summoning order dated 1.1.2008 Annexure P-2 passed by learned Judicial Magistrate, Ist Class, Kasauli. 18. The learned counsel for petitioners has made submissions in Cr.MMO No. 163 of 2008 by taking that petition as a lead case, therefore, facts in this petition are given from Cr.MMO No. 163 of 2008. The case of the petitioner is that petitioner is a limited company having its works at 43-44, Industrial Area, Barotiwala, District Solan and is in the business of manufacturing cotton threads. The respondent No. 2 has filed a complaint against petitioner under para-38 of the Employees Provident Fund Scheme, 1952 read with Section 14(1A) and Section 14A of the Employees Provident Fund and Miscellaneous Provisions Act, 1952. The learned Additional Chief Judicial Magistrate, Kasauli has summoned the petitioner in the complaint vide order dated 23.1.2008. 19. The petitioner has filed the petition, under Section 482 Cr.P.C. for quashing the complaint and the summoning order. It has been alleged that due to financial crises, the petitioner had closed down its operation in the year 2002. The petitioner had filed reference under Section 15 of the Sick Industrial Companies (Special Provisions) Act, 1985 (for short, SICA) before Board for Industrial and Financial Reconstruction (BIFR). The case was registered as Case …5… No. 219 of 2001. The BIFR vide order dated 18.9.2007 has declared the petitioner company to be sick industrial company under Section 3(1)(0) of SICA. The BIFR has also appointed IDBI as the operating agency with direction to prepare revival scheme for the petitioner. The reference is pending before BIFR and the reviving process of the company is in progress. It has also been submitted that reference of the company was registered in the year 2001. The BIFR had earlier rejected the reference, the petitioner company had preferred an appeal before AAIFR, which had remanded the matter back to the BIFR and finally the petitioner company was declared sick on 18.9.2007. 20. The BIFR on 1.10.2007 has restrained the respondents not to take any coercive steps against the petitioner company as well as its promoters/ directors. The respondents had filed CWP NO. 1127 of 2008 in this court against the order of BIFR. The petitioner had put in appearance in the writ petition which is still pending in this court. It is the case of the petitioner that inspite of the order of BIFR, the respondents have taken coercive steps against the petitioner as well as its directors/ promoters by filing complaint in the court below. The case of the petitioner is that once the reference is registered with BIFR, no coercive measure can be initiated against the petitioner company in order to effect forceful recovery of dues in view of Section 22(1) of SICA which prohibits proceedings of such nature. It has been submitted that in view of Section 22 of SICA, no complaint or proceeding against the petitioner and its directors under the Employees Provident Fund Scheme 1952 and under Employees Provident Fund and Misc. Provisions Act, 1952 is maintainable …6… against the petitioner and its promoters/ directors. The petitioner has thus prayed for quashing of complaint and summoning order. 21. The petition has been opposed by Sh. Sandeep Sharma, learned Assistant Solicitor General of India. He has submitted that filing of the complaint under the Employees Provident Fund Scheme, 1952 and Employees Provident Fund and Misc. Provisions Act, 1952 is not barred under Section 22 of SICA or order dated 18.9.2007 as well as order dated 1.10.2007 of BIFR. He has submitted that criminal prosecution under the aforesaid scheme and Act is not barred under Section 22 of SICA. 22. I have heard the learned counsel for the parties. The learned counsel for the petitioner at the time of hearing of the petitions has submitted that BIRF vide order dated 21.7.2009 has given some reliefs and concessions to petitioner and has relied para 13.9 of order dated 21.7.2009 of BIFR in case No. 219/ 2001 in re: M/s Himachal Fibres Ltd., which is as follows:- “(i) (a) Factory in Himachal Pradesh: To consider waiver of penal damages of Rs.82,27,421 already levied by the department for late payment of PF contribution due to factors beyond the control of the company, and not to charge any penalties and damages on the outstanding principal, dues, if any, as on the COD. (b) Registered Office in Delhi: To consider waiver of penalties and damages after crystallizing of liabilities. (ii) To allow the payment of Rs.39,43,057/- towards interest of Provident Fund dues, outstanding as on …7… cut-off date after a moratorium of two years in 36 equal monthly installments on interest free basis. “ 23. The submission of learned counsel for the petitioners is that in view of order dated 18.9.2007 read with order dated 1.10.2007 and order dated 21.7.2009 of the BIFR, the criminal case against the petitioner is barred under Section 22 of SICA. The BIFR keeping in view the principles set out in AAIFR’s order dated 25.10.2005, was satisfied that the company had become a sick industrial company as on 31.12.2000 in terms of Section 3(1)(o) of SICA and accordingly BIFR declared the petitioner company sick vide order dated 18.9.2007. The BIFR under Section 17(3) of SICA appointed IDBI as the Operating Agency with direction to prepare a revival scheme for it, if feasible. The BIFR on 18.9.2007 had issued the following directions:- (i) The cut-off date (COD) for the scheme should be taken as 31.12.2007. (ii)The company shall submit its upto date audited balance sheets to BIFR and the OA. (iii) The company shall pay OA fees of Rs.2 lakhs to IDBI. 24. The BIFR during the pendency of draft Rehabilitation Scheme (DRS) received an application dated 26.9.2007 from the company against the order dated 24.9.2007 issued by Employees Provident Fund Organization (EPFO), Shimla with a prayer to the Board to set-aside the said order and to issue further direction not to attach the bank account of the company being maintained with Canara Bank Sector 17-C, Chandigarh or to take coercive action against the company and its directors/ promoters for recovery of …8… arrears due to EPFO. The BIFR on 1.10.2007 under Section 22 (3) of SICA had issued the following directions:- (i) The Assistant PF Commissioner of EPFO shall refrain from attaching bank account of the company with Canara Bank at Chandigarh. (ii) The Assistant PF Commissioner of EPFO shall also refrain from taking any coercive action against the company and its Directors/ Promoters till finalization of the DRS. (iii) The company shall not default in timely payment of current dues to EPFO. (iv) A compliance report shall be forwarded to the Board immediately after implementing the Bench directions. 25. The Section 22 of SICA provides suspension of legal proceedings for the winding up of the industrial company or for execution, distress or the like against any of the properties of the industrial company or for the appointment of a receiver in respect thereof and no suit for the recovery of money or for the enforcement of any security against the industrial company or of any guarantee in respect of any loans or advance granted to the industrial company shall lie to be proceeded with further, except with the consent of the Board, or, as the case may be, the Appellate Authority. In the context of Section 22 of SICA, the learned counsel for the petitioner has submitted that criminal prosecution of the petitioner company without the permission of the BIFR is not maintainable, the company has already been declared sick by BIFR and the sanctioned scheme of the petitioner company under the SICA is in operation. …9… 26. In Deputy Commercial Tax Officer and others vs. Corromandal Pharmaceuticals and others (1997) 10 SCC 649 the assessee company was declared as a sick industrial company under the Sick Industrial Companies (Special Provisions ) Act, 1985 (SICA) by the Board for Industrial and Financial Reconstruction (BIFR). The BIFR sanctioned a scheme for the rehabilitation of the assessee company w.e.f. 19.11.1990. The assessee was assessed to sales tax under the A.P. General Sales Tax Act 1957 for the AYS 1992-93 and 1993-94 during the years 1994 and 1995 respectively. There was default on the part of the assess. The Sales Tax authorities initiated action under Section 17 of the A.P. General Sales Tax Act. The contention of the assessee was that the recovery proceedings were barred by Section 22(1) of the Act. On the other hand, the revenue contended that the recovery proceedings related to the period after the sanctioned scheme was brought under implementation and the legal bar or embargo under Section 22 of the Act could only be in respect of sales tax dues included in a sanctioned scheme; that Section 22 should be reasonably construed and understood or read down accordingly. The Supreme Court held that Section 22 (1) of SICA should be read down or understood as contended by the revenue. 27. The Supreme Court in Gujarat Steel Tube Co. Ltd. Vs. Virchandbhai B. Shah and others (1999) 8 SCC 11, where the suit was filed by respondent against the petitioner for eviction, an application under Section 11 (4) of the Bombay Rent Control Act was filed stating therein that the petitioner had not been paying rent and, therefore, appropriate order as contemplated by the said sub-section …10… should be passed. It was contended that petitioner company had become sick and a reference had been made to BIFR under Section 15(1) of the SICA and in view of Section 22 of SICA, no suit for recovery of money could be filed or proceedings taken against the petitioner. The Supreme Court held that if a tenant does not pay the rent then the protection which is given by the Rent Control Act against his eviction is taken away and that non-payment of rent, order of eviction may be passed. It may be possible that in view of provisions of Section 22, the trial court may not be in a position to pass a decree for the payment of rent but when an application under Section 11 (4) is filed, the trial court in effect gives an opportunity to the tenant to pay the rent, failing which the consequences provided for in the sub- section would follow. An application, under Section 11(4), or under any other similar provision cannot, in the opinion of the Supreme Court, be regarded as being akin to a suit for recovery of money. 28. In Kusum Ingots & Alloys Ltd. Vs. Pennar Peterson Securities Ltd. and others (2000) 2 SCC 745, the Hon’ble Supreme Court in para-15 of the judgement has held as follows:- “The next question for consideration is whether under the provisions of the SICA there was any legal impediment for payment of the amount for which the cheques were drawn and for that reason the appellants cannot be taken to have committed an offence under S. 138 NI Act. A bare reading of the S. 22 of the SICA makes the position clear that during pendency of an inquiry u/S. 16 or during the preparation of a scheme referred to under S. 17 or during implementation of a sanctioned scheme or pendency of an appeal under S. 25, no proceedings for winding up of the industrial company or for execution, distress or the like against any of the properties of the industrial Company or for the appointment of a receiver in respect thereof and no suit for the recovery of money or for enforcement of any security against the industrial company or of any guarantee in respect of any loans or advance granted to the industrial company, shall lie or be proceeded with further, except …11… with the consent of the Board or, the Appellate Authority, as the case may be. The section only deals with proceedings for recovery of money or for enforcement of any security or a guarantee in respect of any loans or advance granted to the company and a proceedings for winding up of the company. The section does not refer to any criminal proceeding. In M/s. B.S.I. Ltd. v. Gift Holdings Pvt. Ltd. (Criminal Appeal No. 847 of 1999) (reported in 2000 AIR SCW 521) we held that pendency of proceeding under S. 22(1) of SICA alone is not sufficient to get absolved from the liability under S. 138 of the NI Act.” In para- 18, the Hon’ble Supreme Court has further held as follows:- “In our considered view S. 22 SICA does not create any legal impediment for instituting and proceeding with a criminal case on the allegations of an offence under S. 138 of the NI Act against a company or its Directors. The section as we read it only creates an embargo against disposal of assets of the company for recovery of its debts. The purpose of such an embargo is to preserve the assets of the company from being attached or sold for realisation of dues of the creditors. The section does not bar payment of money by the company or its directors to other persons for satisfaction of their legally enforceable dues. 29. In Orr Cee Electronics Limited, Mysore and others And Judicial Magistrate First Class (II Court), Mysore and others 2000-I-LLJ 843, the writ petitions filed to quash the validity of prosecution proceedings instituted before the Judicial Magistrate Ist Class at Mysore for commission of offences, punishable under Sections 14(1A) and 14-A of the Employees Provident Funds and Miscellaneous Provisions Act, 1952. One of the questions involved in those writ petitions was that the institution and continuance of the prosecution proceedings was barred by provision of Section 22 of SICA. It was held that prosecution proceedings do not answer the description set out in Section 22 of the proceedings which are forbidden. It was also held that in the absence of a specific bar …12… contained in Section 22 forbidding prosecution for offences already committed by the company or its officers, it is difficult to extend the prohibition contained in Section 22 to prosecutions validly launched against it. The learned Single Judge thus repelled the contention that the prosecution proceedings were barred by provision of Section 22 of SICA. 30. In Ralliwolf Limited and Regional Provident Fund Commissioner-1 for Maharashtra & Goa and others 2001-I-LLJ 1423, the issue involved was whether an action to recover dues payable by the petitioner under the Employees Provident Funds and Miscellaneous Provisions Act, 1952 is maintainable when the employer who is sought to be proceeded against is an industrial company in respect of whom a proceeding is pending under the Sick Industrial Companies (Special Provisions) Act, 1985. The learned Single Judge of Bombay High Court after noticing several judgements of High Courts and Supreme Court has held that provisions of Section 22 (1) of SICA, 1985 would not be of any assistance to the petitioner in the facts and circumstances of the case, having regard to the nature of payment required to be made by way of provident fund and other contributions under the EPF Act, 1952. 31. Before the Andhra Pradesh High Court in Sarvaraya Textiles Limites And Commissioner, Employees Provident Fund and others 2002-I-LLJ 611 a writ appeal was filed against the order of learned Single Judge declining to interfere with the order of attachment dated 5.7.2001 passed by third respondent under Section 8-B and 8-G of the Employees Provident Funds and Miscellaneous Provisions Act, 1952, as also the order of appointing a receiver in …13… respect of the appellant’s business concern for proper management/ running of the business in accordance with the rules. The contention was that the appellant is a sick company within the meaning of Section 3(1)(o) of SICA. The question before the learned Single Judge and Division Bench for consideration was as to whether having regard to provision of Section 22 (1) of SICA, the proceedings could be stayed. The learned Single Judge dismissed the writ petition holding that Section 22 (1) of SICA is not applicable and the provisions of EPF Act would not come within the purview thereof. The Division Bench held that provisions of Section 22 (1) of SICA have no application to the provident fund scheme framed under the provisions of the EPF Act and the dues under the EPF Act do not fall within the purview of Section 22(1) of the SICA. It was further held that the respondents are, therefore, entitled to take recourse to coercive steps for recovery of the dues towards the employees share of contribution. 32. The order dated 18.9.2007 of the BIFR even remotely does not touch about the criminal case. The directions given by the BIFR in para-4 of the order dated 1.10.2007 is to be read alongwith para-2 of the order. The petitioner company on 26.9.2007 filed an application before the BIFR against the order dated 24.9.2007 issued by the Employees Provident Fund Organization (EPFO), Shimla with the prayer to the BIFR to set-aside the said order and to issue further directions not to attach the bank account of the company maintained with Canara Bank, Sector 17-C at Chandigarh or to take coercive action against the company, its directors/ promoters for recovery of arrears due to EPFO. …14… 33. The order dated 1.10.2007 nowhere indicates that any application was filed by the petitioner company before the BIFR for staying criminal prosecution of the petitioner company or its directors/ promoters for violating Employees Provident Fund Scheme, 1952 read with Section 14(1A) and Section 14A of the Employees Provident Fund and Miscellaneous Provisions Act, 1952. Therefore, there is no question of BIFR considering and staying the criminal prosecution of the petitioner company and / or its directors/ promoters. 34. It has not been pointed out on behalf of the petitioner company that any application later on was filed before the BIFR for staying the criminal prosecution of the petitioner company or its directors/ promoters, hence again, there is no question that vide order dated 21.7.2009 the BIFR has stayed the criminal prosecution of the petitioner company or its directors/ promoters under para 13.9 of the order dated 21.7.2009.It has not been pointed out during hearing by either side that in CWP No. 1127 of 2008 some order has been passed having bearing on the pending criminal cases against the petitioner. 35. The Section 22 of SICA creates a bar on legal proceedings in certain situations. Therefore, Section 22 of SICA is to be interpreted strictly. The Section 22 of the SICA is no bar for the prosecution of petitioner company in each case for which the petitioner has been prosecuted for violation of Employees Provident Fund Scheme, 1952 read with Employees Provident Fund and Miscellaneous Provisions Act, 1952. …15… 36. In view of above discussion, there is no merit in the petitions, which are accordingly dismissed. The interim orders passed in the petitions stand vacated. The parties through their counsel are directed to appear before the concerned courts of Addl. Chief Judicial Magistrate/ Judicial Magistrate, Kasauli on 11.1.2010. December 28, 2009. ( Kuldip Singh ), (Hem) Judge. …16… IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No. 160 of 2008. Judgement reserved on: 21.12.2009. Date of decision: 28.12.2009. Himachal Fibres Ltd. ….. Petitioner. Vs. Employees Provident Fund Organization & anr. ….. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?2 For the petitioner: Mr. Suneet Goel, Advocate. For the Respondents: Mr. Sandeep Sharma, Asstt. Solicitor General of India. Kuldip Singh, Judge. For judgement, see judgement of date rendered in Cr.MMO No. 163 of 2008, titled Himachal Fibres Ltd. vs. Employees Provident Fund Organization & anr. December 28, 2009. ( Kuldip Singh ), (Hem) Judge. Whether the reporters of the local papers may be allowed to see the Judgment? …17… IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No. 171 of 2008. Judgement reserved on: 21.12.2009. Date of decision: 28.12.2009. Himachal Fibres Ltd. ….. Petitioner. Vs. Employees Provident Fund Organization & anr. ….. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?3 For the petitioner: Mr. Suneet Goel, Advocate. For the Respondents: Mr. Sandeep Sharma, Asstt. Solicitor General of India. Kuldip Singh, Judge. For judgement, see judgement of date rendered in Cr.MMO No. 163 of 2008, titled Himachal Fibres Ltd. vs. Employees Provident Fund Organization & anr. December 28, 2009. ( Kuldip Singh ), (Hem) Judge. Whether the reporters of the local papers may be