JUDGMENT
Hiremath, J.
1. In this appeal the appellant has challenged the acquittal of the respondent of the offence punishable under S. 85(e) of the Employees’ State Insurance Act (‘Act’ for short). The complainant through its Insurance Inspector alleged in the complaint that the accused-respondent as a Managing Director of the Factory and the Principal Employer of the said Factory was required to submit to the complainant a return of contribution cards in Form No. 6 as required under S. 44(1) of the E.S.I. Act R/W Regulation 86 of the E.S.I. (General) Regulations, 1950. The time limit for submission of the contribution cards is 42 days under the Regulation and as the same were not submitted he is liable to be punished. It was also stated that he was earlier prosecuted under S. 85(e) of the Act for the similar offence and sentenced to fine. The trial Court on considering the evidence of P.Ws.-1 & 2 tendered during trial found the accused not guilty on the ground that Hanumantharao was appointed Manager of the Factory and it is in evidence that Hanumantharao has submitted return of contribution cards after due date as per Exs. D-1 and D-2 respectively. If a Manager is appointed under the Factories Act he is also an Employer as defined under the Act. As Hanumantharao was already appointed the accused Managing Director according to the trial Court was not liable to be punished for any breach committed under S. 85(e) of the Act. In challenging this Judgment of acquittal it is urged on behalf of the appellant that the trial Court was in error as it did not properly appreciate the definition of the term “Principal Employer” under S. 2(17) of the Act. The definition being an inclusive definition all persons covered by the definition become Principal Employer and hence the respondent cannot escape the liability.
2. On behalf of the respondent however it has been contended that though S. 2(17) of the Act gives inclusive definition nowhere in the complaint the complainant stated what was the capacity in which the respondent-accused was made liable or was prosecuted. Though Ex. D-1 was not produced by the complainant it was got summoned by the respondent from the complainant’s office for his defence and in this Ex. D-1 which is in the prescribed form the name of Hanumantharao also is to be found as Occupier. Though in one of the columns the name of the respondent is also shown as Occupier, the respondent has signed on behalf of the Company as its Managing Director and thus it is likely that the Company is shown as the Occupier. That being so the respondent was not given to understand by the allegations in the complaint in what capacity he was being prosecuted though the term Principal Employer is a comprehensive term. We have been apprised of certain decisions by the learned Counsel on both sides. It was further argued by the learned Counsel for the appellant that this being a beneficial legislation the courts should not give a narrow interpretation and whatever may be the lapse on the part of the Inspector in making averments in the complaint it is enough if it is said that the respondent is a “Principal Employer”.
3. Thus apart from the question of fact whether the respondent was in fact functioning as an Occupier, the question for our consideration is whether it is necessary to specify and aver in the complaint the capacity or character filled in by the accused in such cases at the time the offence was committed.
4. Section 2(17) of the Act defines Principal Employer as follows :
“Principal Employer” means –
(i) in a factory, the owner or occupier of the factory and includes the managing agent of such owner or occupier, the legal representative of a deceased owner or occupier, and where a person has been named as the manager of the factory under the Factories Act, 1948, the person so named;
(ii) in any establishment under the control of any department of any Government in India, the authority appointed by such Government in this behalf or where no authority is so appointed, the head of the Department;
(iii) in any other establishment, any person responsible for the supervision and control of the establishment.”
As certain amendments were introduced in the Act and Regulations from time to time, we have to look to relevant provisions in them as they stood in 1981. Regulation 26 states that an Employer being in possession of contribution cards in respect of any person shall send it by registered post or messenger together with a return in duplicate in Form No. 6 to the appropriate office and under Regulation 26(c) within 42 days of the termination of the contribution period to which it relates. Under Regulation 2(g) of 1950 the term “Employer” has been defined to mean the Principle Employer as defined in the Act. Therefore even under Regulation 26 where the term “Employer” finds place we should read as “Principal Employer”. It could be seen in the definition of “Principal Employer”, among other persons, “Occupier” of the Factory, the Managing Agent or the Owner are also included. Therefore necessarily we have to look to the definition of the “Occupier” under the Factories Act. Under the Factories Act 1948 S. 2(n) defines “Occupier” of a factory to mean the person who has ultimate control over the affairs of the factory. A proviso was inserted by Act 20 of 1987 and therefore we are not concerned with this proviso as the offence is alleged to have been committed by the respondent in the year 1981. Even in the complaint the respondent is described as the Managing Director of M/s. Bangalore Dress Manufacturing Company Private Limited and it is not in dispute now that this M/s. Bangalore Dress Manufacturing Co. is a “Company”. In the complaint, except stating that the respondent B. S. Narayanarao is the Principal Employer nothing more has been stated. The learned counsel for the appellant has asked us to hold that the respondent is the Principal Employer because he is occupier of the Factory. It is a bare question of fact. If we look to the evidence of P.W. 1 he has stated that he had visited the Company which manufactures dresses on 10-8-92 and one B. S. Narayanarao was the Managing Director for the period from 1-9-80 to 30-6-81 and that Hanumantharao was the Manager. He further stated that the contribution cards of 31-1-81 and 28-3-81 were not sent to him within the prescribed time and hence he made a report to his Regional Director. He admitted that he did not make enquiries that under the Factories Act Hanumantharao was the Manager and contribution cards were sent after the due date. The entire correspondence was being done by Hanumantharao on behalf of the Company and when he visited it was he who made available necessary records. It appears even Ex. D-1 was available on record when his evidence was taken and his attention was drawn to the contents therein. P.W. 2 did not add anything more and he was only responsible for advising prosecution of the accused in his capacity as Legal Inspector, Bangalore.
5. For all purposes, as evidence of P.W. 1 goes to show it was Hanumantharao the Manager who was acting as such and whether he is prosecuted or not according to the learned counsel for the appellant it is immaterial in view of the inclusive definition of the term Principal Employer. It is also contended that any one of them may be prosecuted. It is further urged on behalf of the appellant that the respondent was an Occupier and it was unnecessary to be specified in the complaint that he was the Occupier and when he is prosecuted as Principal Employer it must be deemed that he was so. In the case of Royal Talkies Hyderabad v. E.S.I. Corpn., relied upon by him the question was whether the employees serving in the canteen attached to the cinema theatre in question were the employees of the cinema talkies. Their Lordships pointed out that the preliminary test in the substantive clause being wide, the employees of the canteen and the cycle stand may be correctly described as employed in connection with the work of the establishment. A narrower construction may be possible but a larger ambit is clearly imported by a purpose-oriented interpretation. Keeping in view the goal of the statute they pointed out that it is to make the Principal Employer primarily liable for the insurance of kindred kinds of employees on the premises, whether they are there in the work or are merely in connection with the work of the establishment. It was further added that merely being employed in connection with the work of an establishment, in itself, does not entitle a person to be an ’employee’. He must not only be employed in connection with the work of the establishment but also be shown to be employed in one or other of the three categories mentioned in S. 2(9) of the E.S.I. Act Relying on this it was urged that there should not be a narrow construction by us when we have to say whether the appellant has proved that the respondent is the Principal Employer or not. In the case of Bhagirath Kanoria v. State of M.P., the question was whether a particular offence is a continuing offence and it was held that to hold that the employer who had not paid the contribution or the contribution of the employees to the Provident Fund should be decided keeping in view the concern for the welfare of the workers in a particular statute. The offences must be regarded as continuing offences to which Law of Limitation does not apply. It was also pointed out that hairsplitting argument whether the offence against the accused is continuing or non-continuing in nature could have been averted by keeping in view the object and purpose of the Act. It was therefore urged by the learned Counsel that even if in the complaint the capacity in which the respondent was acting has not been stated it is enough if it is stated that he is a Principal Employer and therefore it was wholly unnecessary to give any particulars or the capacity in which he was functioning.
6. The learned counsel for the respondent however invited our attention to the decision of the Supreme Court in the case of Employees’ State Insurance Corporation v. Gurdial Singh, in which definition of the term ‘Principal Employer’ under S. 2(17) of the Act came for consideration. Their Lordships pointed out that what is relevant to consider is whether the liability of Director is covered under clause (i) and if it is, clause (iii) being residuary would not apply in case it is not covered by clause (i), the matter would be regulated by clause (iii). Admittedly in that case the Company had a Factory and it was not in dispute that the Occupier of the Factory had been duly named. It was not in dispute that it had a Manager too. In view of the clear terms in the definition that the Director did not come within clause (i) but the Occupier being there, clause (i) applied and in that view of the matter, clause (iii) could have no application. It may be pointed out that there was an Occupier named by the Company in that case. Even in the case of Sham Sundar v. State of Haryana, it was pointed out that the requisite condition in that case was that the partner was responsible for carrying on the business and was during the relevant time incharge of the business. In the absence of any such proof no partner could be convicted. The point in that case was whether the appellants could have been prosecuted under S. 10 of the Essential Commodities Act as partners of the firm in question. Though the decision has no direct bearing on the point at issue what the Court pointed out was that there must be proof that a particular partner was responsible for carrying on the business as there may be partners who have not taken any active part in the business of the partnership at all. There may be minors and there may be some who could be termed as sleeping partners.
7. It is now necessary to consider the liability of the present respondent in the light of the decisions referred to above. Again going back to the definition of the term “Occupier” under the Factories Act as it stood before insertion of the proviso in the year 1987 the person who had ultimate control over the affairs of the factory was the Occupier. In our view therefore it is necessary for the complainant to allege and prove who exactly was in ultimate control over the affairs of the factory, if at all one is sought to be made liable as an Occupier. As we have already pointed out from the definition of “Principal Employer”, there may be Managing Agent appointed by the Occupier or the Owner, there may be legal representatives of a deceased owner or occupier and where a person has been named as Manager of the Factory the person so named. Therefore the complainant cannot ask the Court to fit the accused into any one of the categories and say that he was responsible for obeying any of the requirements under the statute. As we have already pointed out the evidence of P.W. 1 the Inspector is totally silent in this behalf. What all he stated was that the respondent was a Managing Director and nothing more. The term “Principal Employer” does not include in its definition the Managing Director. He does not say who was the Occupier of the Factory. He does not say who was having ultimate control over the affairs of the factory and does not even say that the respondent was the Principal Employer. Therefore it is not possible to make out from the complaint and much less even from the evidence as to the capacity in which the respondent was sought to be prosecuted.
8. Principal Employer is too broad and comprehensive a term and if we keep in view the statement filed by the Company in Form No. 2 with Ex. D1 there are no uniform averments in that. In column No. 7 full name and address of the Manager is required to be given and the same is that of E. Hanumantha Rao. In column No. 8 full name and residential address of the Occupier has to be given and against that column it is stated “same”. The name of B. S. Narayana Rao the present respondent is shown with his capacity as Managing Director in the column relating to name and residential address of the Director in case of Public Limited Liability Company/Firm. At column No. 9 relating to name and residential address of an individual from column No. 8 nominated under section 100 or of any other person appointed to act as Occupier with powers issued by the parent body the name and address of the respondent is shown. Respondent has signed below as Managing Director for the Bangalore Dress Manufacturing Company. It was argued for the respondent that unless the capacity in which the respondent is sought to be prosecuted is averred in the complaint it would not be complete and in accordance with the requirements of law. He would be prejudiced in his defence and the complainant cannot during argument say that because he is prosecuted as a Principal Employer whatever is applicable in the inclusive definition may be availed of. There may be cases in which the Managing Agents may be appointed by the owner or occupier. In the instant case his capacity is only as a Managing Director and nothing more. In our considered view it is necessary in a complaint of this nature where there is inclusive definition to specify what exactly is the capacity in which the accused is sought to be prosecuted. There must be clear evidence in support of the averments made in the complaint. The evidence given by PW 1 in this behalf is too indifferent and too scanty to convey anything that is required to be proved under law. PW 1 does not say anything more in respect of the respondent than that he was the Managing Director which was not disputed, but the Managing Director is not necessarily occupier. We are constrained to say whoever conducted the prosecution did not bear in mind the essential requirements for prosecution of the respondent-accused.
9. The decisions relied upon by the appellant’s Counsel though lay emphasis on the beneficial nature of the legislation in its application, the scope of the present complaint is limited to prosecution for breach of a duty under the statute and Section 85(e) is a penal provision. In the name judicial activism advocated by the appellant’s Counsel the Prosecutor cannot ask the Court to clothe the accused with any capacity which he himself did not disclose either in the complaint or during evidence, and hold him guilty to punish him. In other words the complaint, however laudable and beneficial the object of a statute be, cannot take shelter under it and abdicate his primary responsibility of proving all the ingredients of an offence to hold him guilty. The concept of judicial activism cannot be invoked to fill in the material lacunae in prosecution evidence to the prejudice of an accused person forgetting that it is the duty of the complainant to prove the guilt of an accused person beyond reasonable doubt whatever be the nature of the complaint. The observations of the Supreme Court in Sham Sundar’s case (supra) are relevant and focus on what is required to be proved by the complainant. PW 1 appears to be totally ignorant of the duties of the Manager and Managing Director in the factory in question in as much as he does not even say who was in ultimate control of the affairs of the factory.
10. It was further urged that the complainant has alleged that the respondent-accused was convicted for an offence under section 85(e) earlier and therefore he cannot deny his liability now. Here again it is the appellant’s Counsel who wants to rely on this averment in the complaint in this Court without there being on record atleast a copy of the Judgment in the previous case, if any, let alone in the evidence of PW 1 or PW 2. Thought the trial Court has referred to this allegation in the complaint while stating the case of the complainant there is nothing further to show at least on this point so canvassed before it. The complainant appears to have no basic knowledge of requirement of legal proof of a fact in a criminal case and also appears to have proceeded on certain assumptions of his own. It may be stated here that Section 85(e) relates to failure to pay any contribution which under the Act the person is liable to pay whereas Section 85(e) relates to failure or refusal to submit any return required by the Regulations or making a false return. Thus the breaches contemplated in Section 85(e) and Section 85(e) are different. That apart even to rely on a previous Judgment to show the capacity in which he was prosecuted and was found guilty, the complainant failed to understand that it is a matter of evidence to be brought on record and not a mere allegation in the complaint. Howsoever laudable and beneficial an enactment may be, if there is half hearted and unchecked perfunctory handling of the prosecution, the judicial activism assertively canvassed before this Court by the appellant cannot compel us to sidetrack the basic requirements towards proof of an offence under the Act. This Court cannot in this appeal against acquittal be called upon to supply evidence where none exists.
11. In view of material infirmities in the complaint and in the evidence, even though the trial Court acquitted the respondent on some other ground, we find that the averments in the complaint are too vague and not definite and unless the accused is made known in which category his capacity fits in under the definition of Principal Employer and evidence is led to prove it, it would not be open for the complainant to say whatever may be the averments made, the Court should take into consideration whichever the complainant now wants to urge. Such evidence may be even the material made available by the accused or his admissions. There is no averment or evidence that the respondent had the ultimate control over the affairs of the Company. In that view of the matter we do not find any merit in this appeal and the same is dismissed.
12. Appeal dismissed.