Employees State Insurance Corporation vs Smt Nalini Gop Shetty on 5 March, 2013

[Cites 6, Cited by 1]

Karnataka High Court

Employees State Insurance Corporation vs Smt Nalini Gop Shetty on 5 March, 2013

Bench: L. Narayana Swamy

                               1




              IN THE HIGH COURT OF KARNATAKA
                 AT CIRCUIT BENCH, DHARWAD

           DATED THIS THE 05TH DAY OF MARCH, 2013

                             BEFORE

       THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY

              CRIMINAL APPEAL NO.7 OF 2008

Between:

Employees State Insurance Corporation
No.10, Binny Fields
Binnypet
Bangalore - 560 023
Represented by its Insurance Inspector
                                                    ...Appellant
(by Shri V.M. Sheelvant, Advocate)

And:

Smt. Nalini Gop Shetty
Owner of Durga Vilas Hotel
Near Town Police Station
Dharwad
                                                  ...Respondent

(by Shri S.R. Hegde for Sri K.N. Mahabaleshwar Rao, Advocate)

      This Criminal Appeal is filed under Section 378(4) of the
Code of Criminal Procedure praying to set aside the judgment
and order of acquittal dated 24.8.2007 passed by the I
Additional Civil Judge (Sr. Dn.) and CJM Dharwad in CC
No.327/03 acquitting the respondent/accused for the offence
punishable under Section 85G, 85(2) of the ESI Act, 1948; and
etc.
                                  2




      This Criminal Appeal coming on for final hearing, this day,
the Court delivered the following:

                         JUDGMENT

A complaint, under Section 200 of the Code of Criminal Procedure read with Section 3(1) of the Employees State Insurance Corporation Act, 1948 (hereinafter referred to as the "ESI Act" for short), was filed on the file of the I Additional Civil Judge (Sr.Dn.) in CC No.327 of 2003 and the prayer made in the complaint is to prosecute the respondent herein for the offence said to have been committed under Section 85G of the ESI Act. It is submitted that the inspection made in the year 1993-94, some lapses have been found on the respondent for not having disbursed the ESI contribution made by the employees. The Court below, by its order dated 24th August 2007 dismissed the case on grounds viz. The appellant has not obtained sanction for prosecution of the respondent as required under the provisions of ESI Act. It is submitted that the sanction was obtained by the Joint Director, who is not competent to give the sanction; whereas the law provides that under ESI Act, Director General has the competence to give the sanction. Secondly, the 3 complaint was filed after a lapse of ten years. With issuance of the assessment order, the respondent cannot be prosecuted.

2. The learned counsel for the respondent submits to dismiss the appeal. He submits that the order of the Court below is perfectly sound and proper, and no ground for interference is called for in this appeal. The learned counsel for the respondent relied upon the judgment of this Court in the case of EMPLOYEES STATE INSURANCE CORPORATION v. SHRI K. UTTAM CHAND JAIN AND OTHERS reported in 2004(4) KCCR SN 382 whereunder it has been held that "unless the liability is established no person can be convicted irrespective of civil proceedings that has been taken place."

3. Heard both the learned counsel appearing for the parties. It is not in dispute that the complaint itself was filed after a lapse of ten years. The respondent is a Hotel and it is submitted that for the year 1993-94 contribution has been collected and it has been distributed to its employees. Notwithstanding whether the respondent has committed an offence or not, the complaint should have been filed at the 4 earliest point of time. Hence, belated complaint, which is filed after a lapse of ten years, cannot be considered at this length of time. Even if the case of the petitioner is considered, it is almost about two decades from the date of offence stated to have been committed. Secondly, the reasons assigned by the Court below in respect of sanction to be obtained by the Director General under the ESI Act, may not hold good since by virtue of the delegation made to the Joint Director as per Gazette Notification in the year 1997, rightly the Joint Director has authority to sanction.

4. In the light of the submissions made and also in view of the judgment referred to supra, it comes out that before prosecution the respondent should have been provided an opportunity. Along with the complaint, which is available in the lower court records, I have not seen any other particulars and further from the records available it is observed that no useful purpose would be served by allowing this appeal as already two decades have elapsed after the complaint. Under these 5 circumstances, by exercising inherent powers, I am not inclined to interfere with the order of the court below.

5. Accordingly, the appeal stands dismissed.

Sd/-

JUDGE lnn

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