Delhi District Court
Provident Fund Inspector vs M/S Skipper Construction Company ... on 3 September, 2013
IN THE COURT OF SH. LOKESH KUMAR SHARMA, CHIEF METROPOLITAN
MAGISTRATE, SOUTHEAST DISTRICT, NEW DELHI
CC No. 1/01
Unique I.D. No. 02403R0057342001
Provident Fund Inspector
Sh. D.P. Sethi
Office of the Regional Provident Fund Commissioner
60, Skylark Building, Nehru Place
New Delhi110019
versus
M/s Skipper Construction Company Private Ltd.
Office at 22, Skipper Bhawan, BaraKhamba Road,
New Delhi110001
Through:
1) Sh. Tejwant Singh, Director
2) Sh. Harpreet Singh, Director
Date of institution of complaint :04.02.1994
Date of reserving the Judgment :22.08.2013
Date of pronouncement of Judgment :03.09.2013
COMPLAINT UNDER SECTIONS 6, 14 (2A) AND 14 (A) OF THE EMPLOYEES
PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952
JUDGMENT:
1. The present complaint was filed by one Sh. D.P. Sethi, Provident Fund Inspector CC NO.1/01 PFI verus Skipper Constructions 1/7 against the accused persons averring therein that he was an Inspector appointed under Section 13(1) of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 and was also a public servant within the meaning of Section 21 of the Indian Penal Code.
2. Accused no. 1 was a company incorporated under the provisions of Companies Act and accused no. 2 and 3 were stated to be its Directors having their registered office at 22, Skipper Bhawan, 22, Bara Khamba Road, New Delhi and were covered under the Employees Provident Funds and Miscellaneous Provisions Act, 1952 alongwith Employees Family Pension Scheme, 1971 vide Code No. E/DL/6426. It was alleged further that accused persons had failed to deposit the provident fund contributions of the employees as well as employers to the tune of Rs. 2611/ per month each for the period January 1992 to March 1992 which they were required to deposit alongwith Administrative Charges by 15th of close of that month and hence they had committed offence under Section 6, 14(2A) and 14(A) of the Employees Provident Fund Act for which a complaint was filed after obtaining the requisite sanction from the Regional Provident Fund Commissioner in this regard vide order dated 11.1.1994.
3. The accused persons were summoned to face trial. However, vide order dated 17.8.2001 learned predecessor of this court was pleased to recall the proceedings and discharge accused Harpreet Singh and the case was to survive only against accused no. 1 and 2 alone.
4. Notice of accusation was served upon the accused on 30.10.2001 to which he had pleaded not guilty and had claimed trial.
5. In order to prove the allegations against the accused beyond any reasonable doubt, prosecution has examined two witnesses in all.
6. PW1 was one Smt. Neelam Sabbharwal, working as UDC at the office of Regional Provident Fund Commissioner, New Delhi.
CC NO.1/01 PFI verus Skipper Constructions 2/7
7. In her examination in chief recorded on 6th May, 2002 in her after notice statement, she had deposed that as per the original records brought by her in the court, the Permanent Code of accused was DL6426 and accused had also submitted one form 5A alongwith forwarding letter dated 27.12.1983 wherein accused Tejwant Singh was shown as one of the Directors of the Company had also the person responsible for conduct of the day to day affairs of the accused company. The forwarding letter was Ex. PW1/A and form 5A was Ex. PW1/B. Show Cause Notice dated 16.7.1993 issued by the complainant to accused company was placed on record as Ex. PW1/C and another notice dated 16.7.1993 for conducting proceedings under Section 7A was placed on record as Ex. PW1/D. Proceedings under Section 7A were stated to have been conducted against accused on 27.7.1993 by one Sh. K.C. Jain, the then Regional Provident Fund Commissioner and the same have been placed on record as Ex. PW1/E. Demand notice dated 30.7.1993 issued to accused establishment was placed on record as Ex. PW1/F. Despite an opportunity granted to the accused, this witness was not crossexamined by him.
8. PW2 was one Sh. D.P. Sethi, who is the complainant in the present case and he had deposed that he was working as an Inspector prosecution and the complaint against the accused persons was filed by him which bears his signature at point 'X' on Ex. PW2/A. Before filing the complaint, the PW was also stated to have obtained necessary sanction from Sh. K.C. Jain, the then Regional Provident Fund Commissioner and the sanction order has been placed on record as Ex. PW2/B. The copy of appointment letter issued in favour of complainant has been placed on record as Ex. PW2/C and a gazette notification issued in that regard has been placed on record as Ex. PW2/D. It was stated further by this PW that one Sh. Yashpal Chhabra was the area Inspector where the establishment of accused was functioning and he had CC NO.1/01 PFI verus Skipper Constructions 3/7 filed his reports dated 19.7.1993 and 20.7.1993 in the office of Provident Fund Commissioner which were placed on record as Ex. PW2/E and PW2/F, respectively and Sh. Yashpal Chhabra had also recommended the prosecution against accused persons on 6.8.1993 and the copy of said recommendation was placed on record as Ex. PW2/G.
9. In his crossexamination by Sh. N.K. Handa, learned counsel for the accused persons, he had deposed that his appointment vide notification Ex. PW2/C was purely temporary and on ad hoc basis in nature, which was only for a period of six months and this ad hoc appointment was later on regularized by another notification which the witness could not produce on the court record despite claiming so, hence an adverse inference was liable to be drawn against him. However, he had claimed that he could have produced the same if so demanded. He had also denied the suggestion that there was no subsequent notification of regularization of his appointment as an Inspector. It was further deposed by him that Sh. K.C. Jain, the then Regional Provident Fund Commissioner from whom the sanction for filing of the present complaint was taken by him was himself also competent to file the complaint. The witness was stated to have worked under Sh. K.C. Jain from 1990 to 1994 but he was not presently working under him due to official hierarchy. He had also denied the suggestion that he had never seen the said K.C. Jain either writing or signing any document in his presence. The signatures appearing on Ex. PW4/B were stated to be only initials of Sh. K.C. Jain, however, the witness could not have definitely and precisely said as to whether those initials were actually of Sh. K.C. Jain or not. It was also submitted by him that as per gazette notification Ex. PW2/D dated 21.1.1988 only Provident Fund Officers and Enforcement Officers were entitled to be appointed as Inspectors whereas the witness was only a Head Clerk on the date of such notification. The witness had not personally verified the contents of the CC NO.1/01 PFI verus Skipper Constructions 4/7 report submitted by Sh. Yashpal Chhabra vide Ex. PW2/E and PW2/F, however, he had only relied upon their contents. PW2 himself had never paid any personal visits to the premises of the accused. It was also stated by him further that although as per Ex. PW2/F though the record was not made available by the accused but no record was subsequently summoned from the accused by him as well because the authority for summoning the same was only vested with the Assistant Commissioner. PW2 had worked with one Sh. Yashpal Chhabra since 1961 till 1994 and he was stated to be not his subordinate nor his officer rather he was his contemporary. PW2 had also denied the suggestion that he had never seen the said Yashpal Chhabra writing or signing. Further it was denied by him that no notice was ever served upon the accused and it was stated that notice was served vide Ex. PW1/C, however, there was no acknowledgment of its receipt on the part of the accused persons. It was further denied by him as incorrect that the accused was not the person responsible for the conduct of day to day business of the accused company or that the business premises of the accused company were lying locked and there were no employees working therein and hence no deduction were required to be made by the accused persons or to deposit the same with the Provident Fund Authorities. Thereafter evidence was closed.
10. Statement of accused under Section 313 Cr.P.C. was recorded on 23.7.2003 in which accused had claimed himself to be innocent, falsely implicated in the present case and had also expressed his willingness to adduce DE, however, no such DE was ever adduced by him at any point of time whatsoever.
11. I have heard Sh. R.N. Singh learned counsel appearing for the complainant and as well as Sh. N.K. Handa, learned defence counsel.
12. From the testimonies of both the witnesses examined by the department, it CC NO.1/01 PFI verus Skipper Constructions 5/7 becomes amply clear that in the prosecution lodged against the accused under Section 7A, he was never given any opportunity to participate or being heard at any point of time whatsoever.
13. Further once the receipt of the notice which is mandatory in nature has been categorically disputed and denied by the accused, then it was incumbent upon the complainant to have proved its dispatch as well as service upon accused which the department had miserably failed to do in this case. Reliance in this regard has been placed by the learned counsel for the complainant on the judgment of K.C. Mehra v. The Regional Provident Fund Commissioner and Anr. Reported in 1990_ wherein it was held that where a notice of proceedings under Section 7A of the Act was not served upon the accused and impugned order was passed at the back of the accused, the same was liable to be set aside and consequently, even the recovery notices were also liable to be set aside.
14. Reliance has also been placed in a case titled as Satyanarayan Kauntia and Ors. v. State of Jharkhand and Ors.
reported in 2010(5) RCR (Crl.) 259 wherein it was stated that though nonpayment of employers contribution to the Provident Fund can easily be assumed to be a continuing offence but the offence related to nonfiling of annual returns and consolidated statements in the statutory form within the stipulated period under the Act or the Scheme cannot be regarded as a continuing offence for the simple reason that if one had failed to submit those statements within the stipulated period, one can be said to have committed the offence once and for all.
15. Since the department itself had failed to prove the very dispatch and the receipt of notice upon the accused hence, I have no hesitation in holding that the case of the department cannot survive in its present form and is liable to be discarded because PW1 examined by it was CC NO.1/01 PFI verus Skipper Constructions 6/7 merely a record witness and PW2 who was the complainant in the present case was not having any personal knowledge about any of the facts related to the present case and rather he had blindly acted upon the reports produced before him purporting to be those prepared by late Sh. Yashpal Chhabra.
16. Accordingly, the present complaint is dismissed. Accused is acquitted. Bail bond of the accused persons are cancelled. Sureties are discharged. Original documents of the accused persons as well as their sureties be returned to them against acknowledgment and receipt thereof.
17. File be consigned to the record after completion of the necessary formalities.
ANNOUNCED IN THE OPEN COURT ( LOKESH KUMAR SHARMA) TODAY ON 03.09.2013. CMM/SE/Saket Court/New Delhi. CC NO.1/01 PFI verus Skipper Constructions 7/7