Delhi District Court
Esic vs . M/S Calitex Processors on 28 August, 2012
IN THE COURT OF METROPOLITAN MAGISTRATE 05 (N/E)
KARKARDOOMA COURTS, DELHI.
Presided by: Ms. Susheel Bala Dagar
ESIC vs. M/s Calitex Processors
CC No. 82 ESI/08
U/s 85 (a) (e) ESI Act
J U D G M E N T
a)Serial no. of the case : 82 ESI/08
b)Date of commission of offence : 31.08.2001
c)Name of the complainant : S.C Gupta, Insurance Inspector
ESIC
d)Name and Add. of the accused : Pramod Kumar Jindal, S/o Lt.
Sh. Kishan Gopal, Proprietor
M/s Calitex Processors,
22/19/5, Gali No.8, Samaypur
Badli, Delhi42
e)Offence complained of : 85 (a) (e) ESIC Act
f) Date of institution of the case/filing of
the chargesheet : 19.03.2002
g) Date on which order was reserved 28th August, 2012
h) Date of decision : 28th August, 2012
i)Plea of accused : Pleaded not guilty
j)Final Order : Convicted
k)Unique Identification No. : 02402R0314032003
BRIEF FACTS AND REASONS FOR DECISION
1. The case of the complainant is that the accused No. 2 is the CC No.82 ESI/08 ESIC Vs. Calitex Processors Page 1 of9 proprietor of the firm, accused No.1 M/s Calitex and having control over the business of the said firm. The accused is under statutory obligation to file written contribution in Form 6 for the contribution period ending March 2000, September 2000 and March 2001 but the accused failed to file the same. Moreover the accused also failed to pay the contribution for the period from November 1999 to January 2000 and March 2000 to March 2001. The accused is regular defaulters in paying the contribution and filing of return of contribution. A Show Cause Notice dated 31.08.2001 was given by the complainant to the accused and the same was duly served upon the accused. The accused did not pay the contribution and neither filed the return of the contribution nor replied to the Show Cause Notice within the given period, hence the complainant filed the present case.
2. Summons were issued against the accused vide order dated 15.04.2002 for the offence U/s 85 (a) and 85 (e) of the Employees State Insurance Act, 1948 (hereinafter known as the Act). On appearance of the accused matter was listed for pre charge evidence. Complainant examined Sh. SC Gupta Inspector ESIC as CW1, Ms. Promila, Assistant, ESIC as CW2 and Sh. Balistor LDC, ESIC as CW3 at the pre charge stage. Pre charge evidence was closed and after hearing the arguments charge U/s 85 (a) and (e) of the Act read with CC No.82 ESI/08 ESIC Vs. Calitex Processors Page 2 of9 regulation 26, 27 and 31 of the Employees State Insurance Act (General regulation 1950 read with section 39, 40 and 43 of the Act) was framed to which the accused pleaded not guilty and claimed trial.
3. In order to prove its case the complainant adopted the pre charge evidence as part and parcel of the complainant's evidence. CW1 filed notification dated 26.07.1991 as Ex. CW1/A and CW1/B vide which he was authorized to institute and depose in the present complaint on behalf of the ESIC. He also relied upon the Show Cause Notice dated 31.08.2001 as Ex. CW1/2. CW2 proved A.D Cards Ex. CW2/1 to show the service of Show Cause Notice. CW3 proved the postage and dispatch entry of the show cause notice in general register at Srl No.37 and 41 on 07.09.2001 as Ex. CW3/1 and Ex. CW3/2 respectively.
4. Statement of the accused was recorded U/s 313 Cr.PC in which all the incriminating evidence was put to the accused Pramod Kumar Jindal. In reply to the incriminating evidence accused stated that he has been falsely implicated in the present case. All payments for the relevant period as mentioned in the complaint has already been made by him. The intimation regarding the same was also sent to the complainant but no reply was ever received from the complainant regarding receipt of the contribution. The factory/unit was closed w.e.f 07.04.00 to 14.04.00 and 05.12.00 to 01.08.01 as per the direction CC No.82 ESI/08 ESIC Vs. Calitex Processors Page 3 of9 of the Hon'ble Supreme Court. He filed photocopy of documents in support of his contentions. Matter was listed for D.E.
5. In his defence accused examined Ms. Jitender Gaba, Law Officer Delhi Pollution Control Committee (hereinafter known as DPCC) as DW1, Sushil Kumar Srivastava, Assistant Environment Engineer, DPCC as DW2 and Sh. Manoranjan Kumar, Naib Tehsil office of SDM Narela, as DW3.
DW1 brought the inspection report dt. 07.04.2000 regarding the inspection at the accused premises. He stated that the inspection was conducted in pursuance to Hon'ble Supreme Court of India's order regarding water polluting industries. The unit was found engaged in dyeing activity which is by nature a water polluting activity, it was observed during inspection that unit was found in operation. The inspection was conducted by the SDM (Environment) Sh. A.V. Prem Nath, Sh. S.K. Srivastava, Assistant Enviornmental Engineer, DPCC and the proprietor of M/s Calitex Process Sh. Pramod Kumar Jindal. DW1 identified the signature of Sh. S.K. Srivastava who was working as Assistant Environment Engineer in DPCC during the year 2000 on the inspection report dated 07.04.2000 Ex.DW1/A. DW2 stated that on 07.04.2000 he along with SDM (Environment) Sh. A.V Prem Nath inspected the unit of the accused. CC No.82 ESI/08 ESIC Vs. Calitex Processors Page 4 of9 The inspection report Ex. DW1/1 was filled up and signed by him and SDM (Environment), the unit was sealed in the presence of the SDM on that day. DW3 produced letter dated 05.12.2000 issued by the then SDM Sh. Pankaj Kumar in connection with sealing order in respect of the unit of the accused issued by the office SDM Narela as Ex. DW3/1.
6. Defence Evidence was closed. Matter was listed for final arguments. I have heard Sh. P.S Bisht Ld. Counsel for the complainant and Sh. Subhash Chand and Sh. C.P Singh Ld. Counsels for the accused and perused the Court records.
7. Ld. Counsel for the complainant has argued that no document has been shown by the accused to prove that any contribution as alleged in the complaint has been paid. Moreover no document of closure of the during that period is filed by the accused on record. Ld. Counsel for the accused has argued that contribution has already been paid and the photocopy of the same is already on record, the return of contribution for the period ending from 30.09.1999 was submitted in the office of the complainant on 05.12.1999. It is argued that the unit was closed as per the order of Hon'ble Supreme Court. It is argued that no contribution is pending against the accused as the complainant would have filed the civil suit for recovery if any contribution would CC No.82 ESI/08 ESIC Vs. Calitex Processors Page 5 of9 have been pending against the accused. The complainant has not filed any proof which shows that there is any kind of contribution pending on the part of the accused.
8. During cross examination CW1 stated that one Show Cause Notice was sent to the proprietor of the firm signed by the deputy director on 31.08.2001 but he did not remember the date of the approval of the sanction by the concerned branch. CW2 stated that Show Cause Notice was sent at the factory address and another was sent at the residential address of the proprietor of the accused firm. She stated that no reply to the Show Cause Notice was received but a reply in response of the speaking order U/s 45 A dated 29.10.2001 was received on 20.12.2001. She did not know whether the factory was sealed on 07.04.2000 and stated that no intimation was sent by the accused to their office regarding closure. It is stated that accused had filed the returns for the period October 1999 to March 2001 in December 2001. CW3 reiterated that one notice was sent to the accused at his residential address and another notice was sent on the factory address of the accused.
9. When opportunity was given to the accused to lead defence evidence accused has not produced any documentary evidence to show the factory was lying closed w.e.f 07.04.00 to 14.04.00 and CC No.82 ESI/08 ESIC Vs. Calitex Processors Page 6 of9 05.12.00 to 01.08.20001 except asserting the same in his statement U/s 313 Cr.PC . Moreover, the accused has only placed on record photocopy of the paying slips of the contribution and has failed to prove any receipts at the time when opportunity was given to him to lead defence evidence. It has been held in the case of V.S. Yadav v. Reena dated 21 September, 2010 of Hon'ble Delhi High Court :
"..............It must be borne in mind that the statement of accused under Section 281 Cr. P.C. or under Section 313 Cr. P.C. is not the evidence of the accused and it cannot be read as part of evidence. The accused has an option to examine himself as a witness. Where the accused does not examine himself as a witness, his statement under Section 281 Cr. P.C. or 313 Cr. P.C. cannot be read as evidence of the accused and it has to be looked into only as an explanation of the incriminating circumstance and not as evidence. There is no presumption of law that explanation given by the accused was truthful. If mere statement under Section 313 Cr. P.C. or under Section 281 Cr. P.C. of accused of pleading not guilty was sufficient to rebut the entire evidence produced by the complainant/ prosecution, then every accused has to be acquitted. But, it is not the law............"
Moreover, the witnesses were examined by the accused out of whom only DW2 stated that the unit was sealed in his presence on 07.04.2000 but he did not produce any record to show that the unit remained sealed for all the times after that. Perusal of the record shows that only an inspection report dated 07.04.2000 is filed on record as Ex.DW1/A. The inspection report nowhere says that the unit was closed on that day. Thus, the fact that the industrial unit was lying closed during the alleged period is not proved by the accused. Moreover, the accused did not reply to the Show Cause Notice Ex. CC No.82 ESI/08 ESIC Vs. Calitex Processors Page 7 of9 CW1/2 within the stipulated period of 15 days. The accused has stated that he has replied the show cause notice but the reply which is referred, photocopy of which is lying in the Court file refers to order U/s 45(A) dated 29.10.2001 of the case and it is not the reply to the said show cause notice dated 31.08.2000.
10. Further the testimony of CW1 to CW3 regarding non paymetn of contribution and filing of return of contribution on time has remained unchallenged by the accused as not even a single question or any receipt showing the payment of contribution has been put to the complainant witness during cross examination. This amounts to admission on the part of the accused of not making the payment of contribution by the due date. In the case of Sarwan Singh v. State of Punjab AIR 2003 SC 3652, wherein it has been observed:-
"...it is a rule of essential justice that whenever the opponent has declined to avail himself of the opportunity to put his case in cross examination, it must follow that the evidence tendered on that issue ought to be accepted. It goes without saying that a skillful cross-examiner must hear the statements in chief examination with attention, and when his turn comes, he should interrogate the witness on all material points that go against him. If omits or ignores then they may be taken as an acceptance of the truth of that part of witness's evidence."
Thus, the show cause notice dated 31.08.2000, sanction letter dated 04.01.2002 and notification in favour of the insurance inspector CC No.82 ESI/08 ESIC Vs. Calitex Processors Page 8 of9 and the show cause notice are proved by the complainant and not rebutted by the accused. In these circumstances it is not clear that the accused has not made the payment of contribution and has not produced the records as mentioned in the complaint hence the accused stands convicted.
Be put up for hearing on the point of sentence on 31.08.2012.
Dictated and Announced in open Court (Susheel Bala Dagar) on this 28th day of August, 2012 Metropolitan Magistrate/NE05 Karkardooma Courts/Delhi CC No.82 ESI/08 ESIC Vs. Calitex Processors Page 9 of9 ORDER ON SENTENCE Present : Sh. P.S Bisht Counsel for complainant.
Convict in person with his Counsel Sh. Deepak Sharma and Mayank Sharma.
I have heard the Counsel for the complainant and convict on the point of sentence and carefully perused the record.
It has been submitted by the counsel for the convict that lenient view be taken since he has deposited all the contribution. He has shown the receipt of payment of contribution in the Court. The counsel for the complainant has verified the same. Further counsel for the convict argues that the convict has a family to maintain and has been facing the rigors of the trial since the year 2003.
Considering the submissions made by both the sides keeping in view of facts and circumstances of the case as well as the fact that the convict has made the payment of the necessary contribution with ESIC Department, convict is sentenced to imprisonment till the arising of Court and to pay Rs.10,000/ as fine in default S.I. for three months. Fine paid. Bail bond cancelled, surety discharged. Documents if any be returned, Endorsement on documents be cancelled.
File be consigned to record room.
Announced in the open Court (Susheel Bala Dagar) th on this 07 day of September, 2012 Metropolitan Magistrate (NE) Karkardooma Courts, Delhi CC No.82 ESI/08 ESIC Vs. Calitex Processors Page 10 of9 ESIC vs. M/s Calitex Processors CC No. 82 ESI/08 U/s 85 (a) (e) ESI Act 07.09.12 Pr: Counsel for complainant Sh. P.S Bisht.
Convict with counsel Sh. Deepak Sharma and Mayank Sharma.
Vide separate order on sentence the convict is sentenced to imprisonment till the rising of the Court u/s 85 (e) and fine of Rs.10,000/ U/s 85 (a) of the ESIC Act. Fine paid. Receipt given.
(Susheel Bala Dagar) Metropolitan Magistrate/NE05 Karkardooma Courts/Delhi It is 5.00 pm. At this stage Court has arisen. Convict be released. Bail bond cancelled. Surety discharged. Original documents if any be returned to the rightful owner after cancellation of endorsement if any.
File be consigned to record room.
(Susheel Bala Dagar) Metropolitan Magistrate/NE05 Karkardooma Courts/Delhi CC No.82 ESI/08 ESIC Vs. Calitex Processors Page 11 of9