Karnataka High Court
Employees' State Insurance ... vs Veerabhadrappa on 1 June, 2000
Equivalent citations: 2001(2)KARLJ84, (2001)ILLJ1532KANT
JUDGMENT
1. This appeal has been preferred by the E.S.I. Corporation and is directed against an order of acquittal recorded in favour of the respondents by the Trial Court. The respondents faced a dual charge of not having filed the requisite returns and not having paid the contribution under the scheme within the prescribed period of time. The respondents contested the case and the Trial Court acquitted the accused principally relying on the observations of this Court in the Division Bench judgment in Employees' State Insurance Corporation v Subbaraya Adiga. The view taken was basically to the effect that the High Court had laid down certain requirements that the Inspectors must adhere to while making a report in respect of the number of employees in a unit and that in the absence thereof, a conviction was not sustainable. Secondly, the Trial Court upheld the technical plea canvassed on behalf of the accused that the sanction order was bad in law on the ground that it appeared that there were some procedural defects that had occurred at the time when the proceedings under Section 45-A of the Act had been taken up and that consequently, the sanction order stood vitiated. The Corporation has challenged the correctness of the order of acquittal through the present appeal.
2. At the hearing of the appeal, the respondent's learned Counsel has raised a preliminary objection insofar as he submits that in an appeal against acquittal, if it is demonstrated that the Trial Court has applied its mind to the record, that the evidence has been considered and that the Trial Court has for valid reasons acquitted the accused, that the High Court ought not to interfere with that order of acquittal unless it is demonstrated that the order of the Trial Court is per se perverse and has resulted in gross miscarriage of justice. The learned Counsel submitted that the view taken is a possible view in the light of the law laid down by the Division Bench on the strength of the record and that it is equally well-settled law that where more than one view is permissible, principles of criminal jurisprudence postulate that the view in favour of the accused must be upheld and he therefore submitted that no interference is called for in the present appeal.
3. The Corporation's learned Counsel on the other hand pointed out that manifest injustice has occurred as a result of the Trial Courts having misconstrued the observations in the Division Bench judgment and that it has resulted in a miscarriage of justice because the defaulters are acquitted on a technical ground and that it is therefore imperative that this Court must rectify the legal position. It was also submitted that having regard to a correct reading of the Division Bench judgment and a correct evaluation of the record, that none of the findings of the Trial Court are sustainable and that consequently, interference in the present case is absolutely necessary. While I do not dispute the well-settled principles as pointed out by the respondent's learned Counsel in relation to the law that applies in an appeal against acquittal, it is equally necessary to record that if the decision of the Trial Court is an erroneous one, if it has long-term damaging consequences particularly in the face of a social welfare legislation and if the reasoning itself is unsustainable, then it is not only necessary but incumbent upon the High Court to set aside the erroneous order, clarify the law and pass an order in consonance with the requirements of justice. As I shall presently demonstrate, the Trial Court was in error on both counts and having regard to this position, the preliminary objection is overruled.
4. Coming to the first aspect of the law, both the learned Counsels read the decision of the Division Bench in Adiga's case, supra, and it is submitted on behalf of the Corporation in the first instance that like all decisions in criminal cases, that decision was confined to the facts of that case and the particular record of that case. What was also emphasised was that the Division Bench has very clearly observed that it is not laying down the general law nor will that decision be applicable in all similar prosecutions. It is true that for certain reasons the Division Bench in that case observed that the Inspector who draws up an inventory of the employees working in an establishment must follow the prescribed procedure which the Division Bench felt would have inspired confidence in the mind of the Court as against a mere list of persons devoid of relevant particulars etc. It was pointed out to the Court that neither the Act nor the rules postulate any such elaborate procedure, that there are inherent and practical difficulties in observing such elaborate norms in all cases and in any event, that the decision would not be applicable to the facts of the present case.
5. The respondent's learned Counsel has placed heavy reliance on the decision in question and his submission is that the Department is bound by the ratio of that judgment. His further submission is that unless the procedure prescribed in Adiga's case, supra, is followed to the latter, that the Department cannot insist on the acceptance of the list produced by the Inspector because it will not satisfy the requirements of law. According to the learned Counsel, the reason why the Division Bench prescribed that procedure was in order to totally eliminate the possibility of the Inspector merely writing out the numbers, names and ages and alleging that those were persons working in the establishment. He has supported the findings of the Trial Court that in the present instance the Inspector has not drawn up any such inventory on the lines as indicated by the Division Bench and he therefore submitted that the accused has been rightly and justifiably acquitted.
6. I need to prefix my findings with a few observations, the first of them being that in criminal eases the facts and the record differ from case to case even if there is broad similarity with regard to charges, procedures etc. It is for this reason that even though the judgment in a similar case will be respected and will invariably be followed, that in sum and substance what is required to be done is that the gist and spirit of the decision is what is required to be gleaned and is required to be given effect to. There could be no two opinions about the fact that the evidence with regard to the number of employees must pass the test of absolute scrutiny by the Court and in order to inspire such confidence, the Division Bench has laid down one set of procedures which could embody the level of confidence which a Court is looking for. It is also essential to gauge as to whether the facts are similar before applying the ratio of a particular decision in any criminal case. Also, a Court is required to take into account the realistic and practical situation that obtains and to then decide as to whether the evidence is good enough or not. For example, where an Inspector visits an establishment, it may or may not he possible even to make contact with all the employees who are present there and who are working and the Inspector will have to accept at face value whatever replies they give. If for instance some of the persons have been instructed to state that they are casual workers or that they were merely present there or that they were visitors, it would be extremely difficult for the Inspector to verify the correctness of these statements because those persons are obviously under the influence and control of the employer. Again, the records may not necessarily reflect the true state of affairs insofar as an employer who is on the wrong side of the law would undoubtedly manipulate the records in keeping with what the employer desires to project. These are the very obvious and day-to-day hurdles that the Inspectors of the Department encounter and in this background, bearing these facts in mind a Court is required to apply the law keeping in view the fact that no guilty person should be permitted to get the advantage of wrongful acts. If that were to happen, it would frustrate the very purpose of the legislation.
7. Coming to the facts of the present case, the Corporation's learned Counsel heavily relies on Exhibit P. 1. This is a document containing a list of sixteen employees which is on the letterhead of the Company. It is in the handwriting of the accused who is the proprietor and is signed by him as per the evidence of the Inspector. The defence taken is that a blank signature was taken from the accused and that the names have been subsequently interpolated and that the document is fabricated. Since this is a very familiar defence, it is necessary for me to observe that the Trial Courts are not obliged to go through any elaborate and extreme procedure of sending the document to a handwriting expert because under the law it is open to the Presiding Judge to evaluate through whatever means necessary and decide as to whether or not the list that is produced is in the handwriting of the accused, has been signed by the accused and for this purpose it is always open to the Court to obtain specimens of the disputed handwritings etc., and compare them if necessary and once the Court comes to the conclusion that the list is genuine, that is virtually the end of the matter. Adiga's case, supra, dealt with an entirely different set of facts wherein the list that had been drawn up by the Inspector was under dispute. Even in those cases, I need to observe that if the Court is satisfied that the list passes the test of scrutiny and that the evidence in respect of the number of employees is good enough, that evidence can certainly form the basis of a conviction and it is incorrect an the part of the Trial Courts to insist that in each and every case any over-elaborate procedure is required to be followed. On the present set of facts where the list that has been produced is in the handwriting of the accused and has been signed by him, no further evidence is necessary as far as the prosecution is concerned.
8. I need to deal with the submissions canvassed on behalf of the accused by the learned Counsel who stated on instructions that the body of Exhibit P. 1 is not in the handwriting of the accused. His submission was that at the time of inspection, a signature was obtained on the letterhead by the Inspector and that the Department has thereafter incorporated the rest of the contents. For this purpose, I have very carefully and elaborately scrutinised not only the evidence of P.W.1 but more importantly the document itself. I see no ground on which the evidence, of P.W.1 can be rejected as there is nothing brought on record to indicate that he is either a liar or that he had any animosity against the accused to the extent of falsely implicating them and fabricating the document. More importantly, the document itself very clearly establishes that the entire body was in writing and the signature tally with each other completely and totally, that it is also obvious that the document was written with the same instrument and at the same point of time. Under these circumstances, the defence contention will have to be rejected.
9. The respondent's learned Counsel disputed Exhibit P. 1 which is a xerox copy of the factory licence and which clearly indicates that the unit was using power. His submission is that either the original ought to have been produced or that the witness from the K.E.B. or the office of the factory Inspector ought to have been summoned in order to establish that the unit was using power and in the absence thereof, that it was impermissible for the Court to have relied on a xerox copy. I do not see much substance in this defence because the correctness of the xerox copy was never disputed before the Trial Court and it is a xerox copy of the licence which was possessed by the accused and furthermore, that on the overall facts and circumstances of the case, it can never be disputed that the unit was a power operated one. Moreover, the overall contention with regard to whether the unit is covered by the scheme or not was really the subject-matter of the order passed under Section 45-A and in my considered view, if that order has become final, then it is not open to the accused to seek to go behind that order or to question the validity thereof in the present prosecution.
10. Coming to the second aspect of the case, the Corporation's learned Counsel has submitted that no appeal was filed against the order passed under Section 45-A which has become final and that the various questions put to P.W.2 with regard to the procedure adopted in that proceeding ought not to have been even permitted by the Trial Court. It is her submission that even assuming that the accused desired to find fault with that order, that the only forum for doing so was through the filing of an appeal and this not having been done, that the accused is totally bound by the order in question.
11. The respondent's learned Counsel has disputed this position. His submission is that his client had no notice of that proceeding, that it was an ex parte order and that the same was not served on the accused. This last aspect of the matter is incorrect because Exhibit P. 6 is the acknowledgement of service produced by the Department and therefore, no such contention can be adopted. Even assuming that for whatever reason the accused had no notice or knowledge of the order under Section 45-A, the position that emerges in law is that once the sanction order has been issued which is based on the earlier order and the prosecution was instituted, the accused had notice of the fact that the quantifications have been determined and even at that point of time it was open to the accused to appeal against the order passed under Section 45-A assuming that the accused had no notice or knowledge earlier. If no appeal is filed even at this stage, then the accused cannot be allowed to go behind anything concerning the order passed under Section 45-A which has assumed finality and which binds the accused.
12. As regards the challenge to the sanction order, the Trial Court has upheld the contention raised on behalf of the defence that there appears to be some ambiguity with regard to whether or not the accused had notice of the aforesaid order and under these circumstances, that the sanction order which proceeded on the basis of the earlier order was bad in law. This was a wholly incorrect and impermissible inference because as indicated by me, the Trial Court ought to have adopted the position that the order under Section 45-A having assumed finality cannot be questioned and that being the position, the sanction order which flows on that basis could not also be called into question.
13. Having re-examined the record and the position in law, I am satisfied that the Trial Court was in error in having recorded an order of acquittal in favour of the accused. The order of acquittal is accordingly set aside. The respondent's learned Counsel submitted that the accused is a small businessman and he has also submitted that the accused has paid up the amounts subsequently and has produced documentary evidence in support thereof. His last submission was therefore that even though the legal position has now been clarified by the High Court, that the order of acquittal ought not to be disturbed. This plea has been opposed by the Corporation's learned Counsel who submits that the law is now well-settled to the effect that the evidence is complete, that the payment was not tendered within the prescribed period of time and that any subsequent payment will not wipe out the offence but will at the highest be a ground on which a Court may take a lenient view in the matter of punishment. This is the correct position in law and having regard to the fact that the subsequent payment has been made, in my considered view, even though the accused has been convicted of the offence punishable under Section 85(a) of the Act, it is directed that he shall undergo S.I. till the rising of the Court and shall pay a fine quantified at Rs. 1,000/- in default, S.I. for fifteen days. The accused is granted three weeks time to deposit the fine amount with the Trial Court. It is directed that the accused shall remain present before the Trial Court on 3-7-2000 when the Trial Court shall ensure that the directions contained in this order are complied with. If for any reason the case is not taken up on that date, then the Court shall deal with the same on some subsequent date.
14. The appeal accordingly succeeds to this extent and stands disposed of.