IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Rev. No. 120 of 2001. Reserved on : 7-8-2007. Date of Decision: 14. 08.2008. _______________________________________________________ Employees State Insurance Corporation. Petitioner. Versus Sanjay Anand and another. Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting?.. No. For the Petitioner : Mr. S.R. Sharma, Advocate. For the respondents. Mr. Ramakant Sharma, Advocate. Surinder Singh, J. The respondents were discharged for the offence under Section 85 (a) of the Employees State Insurance Act, 1948, in short “ESI Act”. As such, the present revision petition has been filed by the Employees State Insurance Corporation through its Manager Local Office. As a matter of fact, the allegations made in the petition here-in are that it filed the complaint against the respondents before the learned trial Court on the ground that “M/s Santosh Rubber Products Pvt. Limited”, respondent No.2 of which Sanjay Anand is its Managing Director, was covered under the ESI Act. Shri Sanjay Anand was responsible for the supervision, control and conduct of the establishment being the Principal Employer in terms of Section 2 (17) of the said Act. Since the aforesaid respondent failed to pay the contribution amount as required under Section 39, 40 (1) and 43 of the Act read with regulation 31 of the Employees State Insurance (General) Regulation, 1950 with - 2 - effect from April 1997 to September 1997 which was due on 21st of each month, therefore committed offence under Section 85 (a) of the ESI Act. Necessary sanction for the prosecution as required under Section 86 (1) ESI Act and launched the prosecution. The complaint was filed in the year 1998. Finding sufficient grounds to proceed against the respondents under the aforesaid Section, the respondents were summoned for 24.11.1998. They put in appearance. The complainant had the pre-charge evidence by only examining Shri Rakesh Kumar, Manager (PW1). The learned trial Court after considering the submissions of both the parties and after having gone through the pre-charge evidence, did not find sufficient grounds to frame the charge and even if the evidence on record remains un-rebutted, there were no chances for the conviction of the respondents. In this revision petition, challenge has been made to the said order on the ground that the provisions of the Act have been violated by the respondents and during the inspection by O.P. Awan Manager of the Corporation, it was found that fifteen persons were working inside the Factory, thus the learned trial Court wrongly dis-believed the statement of PW1 by applying the principles which were not applicable in the instant case and further that the prosecution sanction was also wrongly discarded. Shri S.R. Sharma, learned counsel for the petitioner has vehemently argued that the learned trial Court did not appreciate the facts on record properly. The respondents were allotted the permanent Code Number in the year 1991 and it was incumbent upon the respondents to comply with the provisions of - 3 - the Act. The Inspection report on record makes it clear that fifteen workers were working in the premises of the respondents. Therefore, prima facie, there was a case worth framing the charge against the respondents. Contra, Shri Rama Kant Sharma, learned counsel for the respondents has supported the reasoning given by the learned trial Court. I have given my thoughtful considerations to the points raised and have carefully examined the record. As a matter of fact, the allegation against the respondents is that they failed to pay to the Corporation the contribution as required under Section 39, 40 (1) and 43 of the ESI Act read with Regulation 31 of ESI Regulations between the period April, 1997 to September 1997 which was due on 21st of each of the following month at the rate and manner prescribed in the Act. Section 2 (12) of the Act defines the “factory” which means any premises including the precincts thereof wherein ten or more persons are employed or were employed for wages on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power or whereon twenty or more persons are employed for wages in any part of which a manufacturing process is being carried on without aid or power. Section 38 of the Act provides that subject to the provisions of this Act all employees in the factories to which this Act applies shall be insured in the manner provided by the Act. In case if any person fails to pay any contribution under the Act, he - 4 - is liable to punishment as prescribed under Section 85 (a) of the Act. Precisely, the allegations in the complaint are that Shri O.P. Awan had inspected the premises of the factory and found fifteen workers. The respondents had allegedly not deposited the contribution despite show cause notice given to them. O.P. Awan Manager was not examined to prima facie establish his inspection report. Issuance of show cause notice by the complainant has not been proved. PW1 Rakesh Kumar in his cross-examination, has admitted that he was not aware as to how many workers were working in the said factory after 1991 or whether the respondents had deposited any contribution. The original inspection report has not been produced on record which was a primary document and the very foundation of the case. Therefore, the alleged infraction of the provisions of the Act prima facie did not make out a case. Thus looking into the complaint, initial statement of the complainant and papers accompanying it, in my opinion, the learned trial Court has rightly discharged the respondents. Accordingly the order of discharge passed by learned trial Court is up-held and the revision petition is dismissed. (Surinder Singh) Judge. August 14 , 2008. (bm) - 5 -