Karnataka High Court
Sub-Regional Office vs Sri. Srinivas Vithal Rao Sutrave And Anr on 22 December, 2020
Author: P.N.Desai
Bench: P.N.Desai
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE P.N.DESAI
CRIMINAL APPEAL NO.200022/2016
Between:
Sub-Regional Office ESI Corporation
Keshwarpur, Hubli (Now at Gulbarga)
Represented by the Branch Manager
Branch Office, ESI Corporation
Shahabad - 585 228.
.... Appellant
(By Sri R.S.Patil, Advocate)
And:
1. Sri Srinivas Vithal Rao Sutrave
Manager Partner C/o Devanand
Automobiles, Station Road
Raichur.
2. M/s Devanand Automobiles
Station Road, Raichur 584 101.
... Respondents
(By Sri Sudheer Kulkarni, Advocate)
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This Criminal Appeal is filed under Section 378-A
of Cr.P.C. praying to set aside the judgment and order
dated 7.11.2015 in C.C.No.468/2008 at Annexure-A,
passed by the Judicial Magistrate First Class-II, Raichur
and convict the accused and etc.
This appeal coming on for final hearing this day,
the Court delivered the following:
JUDGMENT
This appeal is filed by the Sub-Regional Office, ESI Corporation-complainant challenging the judgment of acquittal passed by the JMFC-II, Raichur, dated 07.11.2015 in C.C.No.468/2008, wherein the learned Magistrate acquitted the accused under Section 85(i) (a) and (ii) of the Employees' State Insurance Act (hereinafter referred to as 'ESI Act' for short), 1948.
2. The brief case of the complainant before the trial Court is that accused No.2-M/s Devanand Automobiles, and accused No.1 being the principal employer of said factory in terms of Section 2(17) of the 3 ESI Act and incharge during the period of default and was responsible for the conduct of the business. The accused have failed to pay any contributions in accordance with Section 39 of the ESI Act, for the period from 01.10.2006 to 31.10.2007 as required under Section 40 of the said Act. Hence, accused are liable to prosecution under Section 85 of the ESI Act. In this regard a show cause notice in Form No.C-18 was issued to accused No.1, but the same was returned with remarks as 'Refused' no reply was received. Therefore, for not making contribution of Rs.19,305/- for the said period, complainant filed a complaint under Section 200 of Cr.P.C. the accused for the offence punishable under section 85(i)(a) and (ii) of ESI Act.
3. The trial Court after taking cognizance recorded plea of the accused. Thereafter the complainant got examined himself as PW.1 and got marked 11 documents at Ex.P1 to Ex.P11 and closed 4 his side evidence. Statement of the accused was recorded and accused stated that he has already paid the contribution.
4. After hearing the arguments the trial Court acquitted the accused.
5. Aggrieved by the same, this appeal is filed on the ground that,
a) the judgment and order passed by the trial Court is contrary to the law and facts;
b) the appellants have not produced the copy of the order passed under Section 45-A of the ESI Act in the trial Court but concluded that the appellants have not at all passed such order which is wrong;
c) but order under Section 4-A of the ESI Act has been passed on 15.10.2007 and notice of the same was received by the accused;
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d) that the trial Court without framing any issues as to the applicability of the Act has decided that the act was not applicable;
e) the trial Court wrongly assumed civil jurisdiction and come to conclusion that the Act is not applicable; under Section 74 of the ESI Act the Tribunal is constituted to decide the applicability of the Act and any disputes regarding payment of contributions, rate of wages, other benefits and disputes between the employer and the corporation, it is not who has got jurisdiction and when trial Court has no jurisdiction or not;
f) the trial Court has taken judicial notice of Ex.P1 to Ex.P11 which have been received by the accused; the trial Court has failed to take notice of those exhibits and passed the order which is erroneous.
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6. With these contentions the appellant has prayed to set aside the judgment of acquittal and convict the accused.
7. After the appeal is admitted and inspite of giving sufficient notice and opportunity, there is no representation for the appellant's side. Therefore, this Court proceeded in the matter in accordance with law. Heard the arguments of the respondents' side.
8. The learned counsel Sri Sudheer Kulkarni, for respondents argued that the provisions of the ESI Act has no application to the establishment of the accused. The accused is not covered under the ESI Act. The complainant has not passed any order under Section 45-A of the Act to make application of the Act. There must be minimum ten employees work in the establishment and as per the records produced by the complainant at Ex.P4 there were six employees and out of them two are trainees. The unit was already closed in 7 the year 2004. In support of his argument, the learned counsel further relied on the decision of Hon'ble Supreme Court in the case of Employees State Insurance Corporation vs. M/s M.M.Suri & Associates (P) Ltd. reported in [(1998) 8 SCC 111]. With these main arguments, he prayed to dismiss the appeal.
9. Perused the judgment of the trial Court and also evidence produced in this case.
10. It is seen from the judgment of the trial Court that the trial Court at para-20, which reads as under:
Though, the advocate for accused much argued that, on the relevant point of time the Factory of accused was closed, but, he has not produced any document in this regard. On the other hand, the complainant denied said contention, but, equally he also not produced any document to show that the Factory was not closed. As, I have already discussed above when the provisions of ESI Act are not applicable to the present case, then, it is not necessary to discuss whether on the relevant 8 point of time the Factory of accused was closed or not. Therefore, without much and elaborate discussion on each and every contention raised by the accused, applicable to the accused. Under such circumstances, I have not hesitation to arrive at a conclusion that the prosecution has failed to prove its case beyond reasonable doubt. Therefore, I answer point No.1 in the Negative.
11. It is evident from said reasoning that the trial Court has not considered the point whether the factory was closed or not? It is also evident that the trial Court wrongly casted burden on complainant stating that the complainant has not produced any documentary evidence to show that the factory was not closed. Such an observation casting on the burden on complainant is not correct. Further, it is to be noticed that in the document at Ex.P8 produced by the complainant there is a reference about MFA No.3047/2004 decided on 22.07.2005 by this Court, which is filed by the same complainant against the same respondent, the copy of which is available in 9 record indicates therein at para-4 this Court has held regarding the coverage of ESI Act was a conclusive in the proceedings year E.I.3/1994. The records in this case also indicates that as per Ex.P1 as per Section 1(3) of the ESI Act, vide notification No.S-38013-12-76-1 made the provisions of the Act applicable and the sanction order at Ex.P10 also indicates that the provisions of ESI Act are made applicable and a Code No.53-10622-74 has been allotted to accused factory. The documents referred by the trial Court is of the year 1993 i.e. Ex.P4, but the case is filed not for the year 1993, but for contribution for a period of 01.10.2006 to 31.10.2007. The trial Court has not taken into consideration Section 1(6) of the ESI Act, which reads as under:
1(6) A factory or an establishment to which this Act applies shall continue to be governed by this Act notwithstanding that the number of persons employed therein at any time falls below the limit specified by or under this Act o the manufacturing process therein ceases to be carried on with the aid of power.10
12. Therefore, when once the ESI Act is made applicable in view of Section 1(6) of the ESI Act, the contention of the appellant in this regard is not tenable unless the respondent prove before the Court regarding non-working of his company or establishment during the said period. The respondent has also contended that the said company was closed long back.
13. The order sheet of the trial Court indicates that the respondent/accused has sought time for adducing defence evidence. But it appears from the order sheet that letter was received from the High Court for early disposal, the case was preponed to 22.08.2015 for defence evidence. It is observed that the accused has no evidence and case was posted for arguments and the judgment came to be passed.
14. On perusing the 313 of Cr.P.C statement of accused, the accused has stated that he has paid the 11 amount. So without considering the material aspect and evidence on record, the trial Court has wrongly come to the conclusion only on the point that the ESI Act is not applicable and wrongly casted burden upon the complainant to prove that they have not produced any documents to show that the company is closed.
The trial Court mainly relied upon the evidence of PW.1 who is an official of the complainant. It is evident that the complainant being a office, there will be change of officers and whoever is on duty as on the date of filing of complaint, will depose the evidence. The ESI Corporation being statutory body, then it is possible that on the basis of record maintained by it and officers involved by virtue of office gives evidence but not in their personal capacity, it could not be that the records should be spoken by author of such records. Therefore, finding in this regard by the trial Court is perverse finding. Whether the decision cited by accused referred by the trial Court is applicable or not in the light of the 12 other provisions of law and evidence placed on record particularly the admission of the accused in this regard is not considered. Therefore, the matter requires fresh consideration and an opportunity shall also be given to accused to lead his defence evidence. Therefore, as the judgment passed by the trial Court without properly appreciating the evidence and law has wrongly passed acquittal order. Therefore, the judgment being perverse needs interference by this Court. Accordingly, I pass the following:
ORDER The appeal is allowed.
The matter is remanded back to the trial Court for fresh consideration in accordance with law.
The trial Court shall give an opportunity to both sides to place their evidence and by giving reasonable time. Since the matter is pending for long, the trial 13 Court shall dispose of this matter within a period of six months from the date of receipt of a copy of this order.
Both parties shall assist the Court in early disposal of case.
There is no order as to costs.
Sd/-
JUDGE sdu