IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 25TH MARCH 2010 / 4TH CHAITHRA 1932 Crl.MC.No. 2343 of 2007() ------------------------- ST.267/2005 of JUDL. MAGISTRATE OF FIRST CLASS, OTTAPPALAM .................... PETITIONER(S): --------------- C.K.GOPINATHAN, PROPRIETOR, M/S.HOTEL DEVALOKAM BAR, PONNANI PO, EDAPPAL. BY ADV. SRI.P.RAMAKRISHNAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. ESI CORPORATION, REPRESENTED BY THE MANAGER, LOCAL OFFICE, ESI CORPORATION, FEROKE. R1 BY P.P.SRI.I.V.PRAMOD ADV. SRI.T.V.AJAYAKUMAR, SC, ESI CORPN. FOR R2 SRI.P.SANKARANKUTTY NAIR, SC, ESI CORPN FOR R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 25/03/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl. M.C. No. 2343 of 2007 ----------------------------------------------- Dated 25th March, 2010. ORDER Petition filed to quash Annexure-I complaint. 2. Second respondent herein filed a complaint against petitioner alleging that he is the principal employer of a factory/establishment known as M/s.Hotel Devalokam Bar and he is responsible for the supervision and control of the same. He committed certain defaults which are punishable under the provisions contained in the Employees' State Insurance Act, 1948 ('the Act' for short). During the inspection by the inspecteor, he did not produce the records. As per Section 85(g) of the Act, non-production of records is an offence and hence he is sought to be prosecuted for offence under Section 85(g) of the Act. 3. Learned counsel for petitioner submitted that in Insurance Appln.No.56/2006 between the same parties, a Division Bench of this Court, as per judgment dated 14.6.2007, held that the establishment of petitioner is not [Crl.M.C.No.2343/07] 2 covered under the Act. It was found that the establishment never employed more than 9 persons in a day and it is not a covered establishment. Therefore, petitioner is not liable for offence under Section 85(g) of the Act. Learned counsel for 2nd respondent argued that even though there is a finding that petitioner's establishment is not covered establishment that does not mean that petitioner can violate Section 85(g) of the Act for which petitioner is being prosecuted. 4. According to learned counsel for 2nd respondent, Annexure-IV judgment of this Court is only in respect of coverability of the establishment under the Act, but that does not mean that petitioner is not liable under Section 85(g) of the Act. He also argued that petitioner can be prosecuted for non-production of records in accordance with Regulation 14 read with Section 44 of the Act. 5. On hearing both sides and going through the relevant provision, I find that as per Section 44(1) of the Act, every principal and immediate employer shall submit to the Corporation or to such officer of the Corporation, as it may direct, such returns in such form and containing such particulars relating to petitioners employed by him or to any [Crl.M.C.No.2343/07] 3 factory or establishment in respect of which he is the principal or immediate employer as may be specified in regulation in this behalf. The liability to comply with Section 44(1) is on the principal or immediate employer in respect of a factory or establishment referred to in the Act. A reading of Regulation 14 also shows that liability under the said provision is also on the principal employer. 6. The “principal employer” is defined in Section 2(17) of the Act. As per the said provision, “principal employer” in a factory is the owner or occupier of a factory etc. As per Annexure-IV judgment of the Division Bench of this Court, the very same establishment of petitioner is held to be not covered under the Act. Therefore, petitioner cannot be prosecuted for non-compliance or contravention of Section 44 of the Act as the principal employer. Hence, continuance of proceedings against petitioner on the basis of Annexure-I complaint will amount to abuse of process of Court. Hence, Annexure-1 is to be quashed to prevent abuse of process of court and in the interest of justice. [Crl.M.C.No.2343/07] 4 Hence, the following order is passed: 1) Annexure-1 complaint is quashed. 2) Petitioner shall not be proceeded against on the basis of Annexure-1 complaint. Petition is allowed. Sd/- K. HEMA, JUDGE. Krs. [Crl.M.C.No.2343/07] 5