Case: Srikanta Datta Narasimharaja Wodiyarb Vs. Enforcement Officer, Mysore

K. RAMASWAMY, J. 1. Special Leave granted 2. Since common question of law arises in these 18 appeals for decision they are disposed of by a common judgment. The appellant is one of the Directors of M/s. Ideal Jawa (India) Ltd., Yadavgiri, Mysore a Private Ltd. Company established under the Companies Act. It was also registered under the Factories Act, 1948. Its object is to manufacture motor cycles and its accessories. It has its Managing Director, joint Managing Director and Directors including the appellant to manage the establishment. The respondent laid 18 complaints against six accused including the appellant(A-6) and the Company, employer, for their failure to deposit the contribution for the periods of October to December 1990 to the Provident Fund Account No. NK 2260 under the Employees Provident Funds and Miscellaneous Provisions Act, 1952, for short the Act, Employees provident Funds Scheme, 1952, Employees Family Pension Scheme. 1971 and Employees Deposit-Linked Insurance Scheme, 1976, for short the schemes punishable under Section 14-A of the Act read with para 76 of 1952 scheme. On the magistrates taking cognizance thereof the appellant laid criminal miscellaneous proceedings in the High Court to quash the complaints as they do not contain the relevant averments constituting the offences against the appellant. It is his case that he is a mere Director of the Company. He was neither in charge of the Company nor is responsible to comply with the provisions of the Act and the Schemes. In support thereof he placed reliance on the definition employer and the liability has been fastened on the Managing Director or the Manager of occupier of the establishment to abide by the Act and the Schemes. The High Court by its order dated March 3, 1992, dismissed the applications. Thus these appeals 3. Shri Nesargi, learned senior counsel for the appellant contended that a reading of the definition employer in Section 2(e) read with Section 30, 14(1-A) and paras 30 and 38 of the Schemes demonstrates that the employer in relation to an establishment means the owner or occupier of the factory which includes the Agent or the Manager of the factory under the Factories Act. One Shri N. K. Khudamurad was recorded as occupier and one Shri D. K. Darasha was recorded as occupier and one Shri D. K. Darasha was recorded as the Manager. They are in charge of and were responsible to comply with the Act and the Schemes. No specific averments were made in the complaint, making the appellant responsible for the management of the factory or the liability to comply with the Act and the Schemes. The complaint, therefore, laid against him is illegal and the cognizance taken by the Magistrate is vitiated by manifest error of law. In support thereof he placed reliance on the decisions of this Court in Municipal Corpn. of Delhi v. Ram Kishan Rohtagi ( 1983 (1) SCC 1 : 1983 SCC(Cri) 115 ) and Employees State Insurance Corpn. v. Gurdial Singh 1991 (S1) SCC 204 : 1991 SCC(L&S) 833) 4. The Act and the Schemes are self-contained code for deduction from the salary of the employees and the responsibility to contribute in equi-proportion of the employers share and deposit thereof in the account within the specified time under the Act and the Schemes into the account. It is a welfare legislation to provide benefits to the employees as per the Schemes. They need mandatory compliance therewith and violation thereof visits with penal action. Section 2(e) of the Act defines employer which means - in relation to an establishment which is a factory, the owner or occupier of the factory, including the Agent of such owner or occupier, the legal representative of a deceased owner or occupier and, where a person has been named as a Manager of the factory under clause (f) of sub-section (1) of Section 7 of the Factories Act, 1948, the person so named 5. The definition is an inclusive definition bringing within its ambit the owner or occupier as well as its Manager. Section 2(k) defines occupier which means the person who has ultimate control over the affairs of the factory, and, where the said affairs are entrusted to a Managing Agent, such Agent shall be deemed to be the occupier of the factory. Therefore, by its extended definition its sweep is enlarged bringing within its scope the person who is in charge or responsible for in management or ultimate control over the affairs of the factory or establishment. In the event of entrustment to a Managing Agent, such Managing Agent shall also be deemed to be the occupier of the factory Section 6 fastens the obligation on the employer in this behalf. It postulates that the contribution shall be made by the employer to the Fund and shall be 8 1/3% of the basic wages, dearness allowances and retaining allowances, if any, for the payment being payable to each of the employees, whether employed by him directly or through a Contractor. The employees contribution shall be equal to the contribution payable by the employer in respect of him, etc. in its application to any establishment or class of establishment. Other provisions are not relevant, hence they are omitted. Under para 30 of the Employees Provident Funds Scheme, 1952 and the other Schemes, the employer shall deposit the contribution to the Fund 6. Under para 36-A of the Scheme the employer is enjoined to furnish particulars of the ownership of the factory which provides thus "36-A. Employer to furnish particulars of ownership. - Every employer in relation to a factory or other establishment to which the Act applies on the date of coming into force of the Employees Provident Funds (Tenth Amendment) Scheme, 1961, or is applied after that date, shall furnish in duplicate to the Regional Commissioner in Form No. 5-A annexed hereto particulars of all the branches and departments, owners, occupiers, directors, partners, manager or any other person or persons who have the ultimate control over the affairs of such factory or establishment and also send intimation of any change in such particulars, within fifteen days of such change, to the Regional Commissioner by registered post and in such other manner as may be specified by the Regional CommissionerProvided that in the case of any employer of a factory or other establishment to which the Act and the Family Pension Scheme, 1971, shall apply the aforesaid Form may be deemed to satisfy the requirements of the Employees Family Pension Scheme, 1971, for the purpose specified above." 7. The employer shall, in the first instance, pay both the contribution payable by himself (in the Scheme referred to as employers contribution). and also, on behalf of the member employed by him directly or through a Contractor, the contribution payable by such member (in the Scheme referred to as members contribution). Para 38 provides that the employer shall within 15 days of the close of every month pay the same to the Fund by separate bank drafts or cheques and the administrative charges. Within 25 days of the close of the month, the employer shall forward to the Commissioner a monthly consolidated statement as per Form 5 with particulars mentioned therein 8. Form 5-A envisages to give particulars in Columns 1 to 7 thereof, i.e. particulars of owner, etc. The appellants establishment stated the name of the establishment as Ideal Jawa (India) Ltd., Code No. of the establishment, its address, nature of business, period of its commencement and manufacturing status, have been give. In Column 8 the establishment is to furnish the names of the owner-company. Directors. It was mentioned therein as Mr. N. K. Irani as Managing Director; the appellant as one of the Directors and others. In Column 10 the names of occupier and Manager as registered under the Factories Act were given. In Column 11 which specifies particulars, thus : Particulars of the persons mentioned above, who are in charge of, and responsible for the conduct of the business of the establishment. Therein was stated that "as per the details mentioned in Item 8". As stated earlier in Column 8 the names of the Managing Director, the Joint Managing Director and two Directors including the appellant have been mentioned 9. Section 14-A which is penal states thus "14-A. Offences by companies. - (1) If the person committing an offence under this Act, the Scheme or the Family Pension Scheme or the Insurance Scheme in a company, every person who at the time the offence was committed was in charge of and was responsible to the company for the conduct of the business of the company, as well as the company shall be deemed to be guilty of the offences and shall be liable to be proceeded against and punished accordingly Provided that nothing contained in this sub-section shall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence (2) Notwithstanding anything contained in sub-section (1), where an offence under this Act, the Scheme or the Family Pension Scheme of the Insurance Scheme has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of any director or manager, secretary or other officer shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly Explanation. - For the purpose of this section - (i) company means any body corporate and includes a firm and other association of individuals; and (ii) director in relation to a firm, means a partner in the firm." * 10. Para 76 also fastens criminal offence for non-compliance with the provisions of the Schemes on the persons in charges of and responsible for the management or control of the establishment. It could thus be seen that every person who at the time the offence was committed, was in charge of and was responsible to the establishment for conduct of its business as well as the Company shall be liable to be proceeded against and punished accordingly. It is seen that Form 5-A read with para 36-A gives an option to the employer to furnish particulars of ownership and the branches of the department, owners, occupiers, Directors, partners, Manager or other person or persons who have ultimate control over the affairs of such factory or establishment in charge of and responsible for the conduct of the business of the Company and compliance with the statutory obligation fastened under the Act and the relevant schemes. Particulars in Column 8 as regards owners and Column 10 relates to Manager or occupier and their names, addresses etc. and Column 11 refers to the persons in charge of and responsible to the management of the establishment of factory. In Form 5-A, as seen earlier in Columns 8 and 11, it was specifically stated that the Managing Director, Joint Managing Director and Directors including the appellant are not only owners of the factory, but are in charge of and responsible for the management of the factory and the establishment. In paragraph 3 of the complaint, it was specifically stated, "that accused 2 to 6 (appellant) are the persons in charge of the said establishment and are responsible for conduct of its business. They are thus required to comply with all the provisions of the Act and the Schemes in respect of the said establishment." * It is made mandatory to the employer to abide by the same and non-compliance therewith is liable for prosecution under Section 14-A of the Act. Section 14(1-A) relied on by Shri Nesargi relates to only liability for punishment for contravention or making default to comply with Section 6 or Section 17(3-A) insofar as it relates to the payment of inspection charges and para 38 of the Scheme insofar as it relates to payment of administrative charges. That has no application as regards the offence covered under Section 14-A by the companies are concerned. Accordingly we hold that the appellant having been declared himself as one of the persons in charges of and responsible for conduct of the business of the establishment or the factory, the complaint and non-compliance therewith having been enumerated in subsequent paras of the complaint, it was validly made against the appellant along with order accused for the alleged contravention. Necessary allegations bringing out the ingredient of offence have been made out in the complaint. Therefore, the learned Magistrate has rightly taken cognizance of the offence alleged against the appellant 11. Employees State Insurance Corpn. v. Gurdial Singh 1991 (S1) SCC 204 : 1991 SCC(L&S) 833) is the case relating to an admission made by the prosecution that the Directors were not in charge nor are responsible for compliance with the provisions of the Employees State Insurance Act, 1948. "Admittedly the company had a factory and it is not in dispute that the occupier of the factory had been duly named. It is also not in dispute that it has a Manager too". In view of this admission the Directors were held not responsible for non-compliance with the provisions of the Employees State Insurance Act, 1948. The ratio therein, therefore, does not assist the appellant. Equally in Municipal Corpn. of Delhi v. Ram Kishan Rohtagi 1983 (1) SCC 1 : 1983 SCC(L&S) 833) for an offence under Prevention of Food Adulteration Act specific provisions of Food Adulteration Rules provide for nomination of occupier of Manager responsible for the production or manufacture of articles of food, etc. by the company and were nominated. Under those circumstances, this Court upheld the quashing of the proceedings against the Directors as the complaint did not contain necessary allegations constituting the offence against the Directors. The appeals are thus dismissed R. M. SAHAI, J. 12. Can a Director of a private Company, who is neither an occupier nor a manager be prosecuted under Section 14-A of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (in brief the Act) for violation of the Provident Funds Scheme 13. That depends, obviously, on the scheme of the Act, the liability it fastens on the Director of the Company and applicability of the penal provisions to the statutory violation or breach of the Scheme framed under it. But before doing so it may not be out of place to mention that the Act is a welfare legislation enacted for the benefit of the employees engaged in the factories and establishments. The entire Act is directed towards achieving this objective by enacting provisions requiring the employer to contribute towards Provident Fund, Family Pension and Insurance and keep the Commissioner informed of it by filing regular returns and submitting details in forms prescribed for that purpose. Paragraph 36-A of the Provident Funds Scheme framed by Central Government under Section 5 of the Act requires the employer in relation to a factory or other establishment to furnish Form 5-A mentioning details of its branches and departments, owners, occupiers, Directors, partners, Managers or any other person or persons who have ultimate control over the affairs of the factory or establishment. The purpose of giving details of the owners, occupiers and Directors etc. is not an empty formality but a deliberate intent to widen the net of responsibility on any and every one for any act or omission. It is necessary as well as in absence of such responsibility the entire benevolent scheme may stand frustrated. The anxiety of the legislature to ensure that the employees are not put to any hardship in respect of Provident Fund is manifest from Section 10 and 11 of the Act. The former grants immunity to provident fund from being attached for any debt outstanding against the employee. and the latter provides for priority of provident fund contribution over other debts if the employer is adjudged insolvent or the Company is winded up. Such being the nature or provident fund any violation or breach in this regard has to be construed strictly and against the employer 14. Reverting to the statutory provisions Sections 14 and 14-A provide for penalties. The one applies to whosoever is guilty of avoiding payment of provident fund and to employer if he commits breach of provisions mentioned in its various clauses whereas Section 14-A fastens liability on certain persons if the person committing the offence is a company. The scope of the two sections is same. Latter is wider in its sweep and reach. The former applies to anyone who is an employer or owner or is himself responsible for making payment whereas latter fastens the liability on all those who are responsible or are in charge of the Company for the offence committed by it. Section 14-A reads as under "14-A. Offences by Companies. - (1) If the person committing an offence under this Act, the Scheme or the Family Pension Scheme or the Insurance Scheme is a company, every person, who at the time the offence was committed was in charge of, and was responsible to, the company the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly Provided that nothing contained in this sub-section shall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence (2) Notwithstanding anything contained in sub-section, (1), where an offence under this Act, the Scheme or the Family Pension Scheme or the Insurance Scheme has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director or manager, secretary or other officer of the company, such director, manager, secretary or other officer shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordinglyExplanation. - For the purposes of this section - (i) company means any body corporate and includes a firm and other association of individuals; and (ii) director, in relation to a firm means a partner in the firm" 15. Sub-sections (1) and (2) extend the liability for any offence by any person including a partner by virtue of explanation if he was in charge or was responsible to the Company at the time of committing the offence. The expression, was in charge of and was responsible to the Company for the conduct of the business are very wide in their import. It could not, therefore, be confined to employer only. The employer is defined by Section 2(e) as follows "2.(e) employer means - (i) in relation to an establishment which is a factory, the owner or occupier of the factory, including the agent of such owner or occupier, the legal representative of a deceased owner or occupier and, where a person has been named as a manager of the factory under clause (f)of sub-section (1) of section 7 of the Factories Act, 1948, the person so named; and (ii) in relation to any other establishment, the person who, or the authority which, has the ultimate control over the affairs of the establishment, and where the said affairs are entrusted to a manager, managing director or managing agent, such manager, managing director or managing agent;" * Both clauses (i) and (ii) again are wide in their sweep. In clause (i) are included not only owner or occupier but even the agent of Manager. When it comes to establishments other than factory it is not confined to owner or occupier but to all those who have control or are responsible for the affairs of the Company. It includes even Director. Therefore, every such person who has the ultimate control over the affairs of Company becomes employer. To say therefore that since paragraph 36-A requires an employer to do certain acts the responsibility for any violation of the provision should be confined to such employer or owner would be ignoring the purpose and objective of the Act and the extended meaning of employer in relation to establishments other than the factory. The declaration therefore in Form 5-A including appellant as one of the persons in charge and responsible for affairs of the Company was in accordance with law. Therefore his prosecution for violation of the Scheme does not suffer from any error of jurisdiction or lawORDER

Decision reasoning: 0[ds]It is made mandatory to the employer to abide by the same and non-compliance therewith is liable for prosecution under Section 14-A of the Act. Section 14(1-A) relied on by Shri Nesargi relates to only liability for punishment for contravention or making default to comply with Section 6 or Section 17(3-A) insofar as it relates to the payment of inspection charges and para 38 of the Scheme insofar as it relates to payment of administrative charges. That has no application as regards the offence covered under Section 14-A by the companies are concerned. Accordingly we hold that the appellant having been declared himself as one of the persons in charges of and responsible for conduct of the business of the establishment or the factory, the complaint and non-compliance therewith having been enumerated in subsequent paras of the complaint, it was validly made against the appellant along with order accused for the alleged contravention. Necessary allegations bringing out the ingredient of offence have been made out in the complaint. Therefore, the learned Magistrate has rightly taken cognizance of the offence alleged against the appellant11. Employees State Insurance Corpn. v. Gurdial Singh 1991 (S1) SCC 204 : 1991 SCC(L&S) 833) is the case relating to an admission made by the prosecution that the Directors were not in charge nor are responsible for compliance with the provisions of the Employees State Insurance Act, 1948. "Admittedly the company had a factory and it is not in dispute that the occupier of the factory had been duly named. It is also not in dispute that it has a Manager too". In view of this admission the Directors were held not responsible for non-compliance with the provisions of the Employees State Insurance Act, 1948. The ratio therein, therefore, does not assist the appellant. Equally in Municipal Corpn. of Delhi v. Ram Kishan Rohtagi 1983 (1) SCC 1 : 1983 SCC(L&S) 833) for an offence under Prevention of Food Adulteration Act specific provisions of Food Adulteration Rules provide for nomination of occupier of Manager responsible for the production or manufacture of articles of food, etc. by the company and were nominated. Under those circumstances, this Court upheld the quashing of the proceedings against the Directors as the complaint did not contain necessary allegations constituting the offence against the Directors. The appeals are thus dismissed