In the High Court of Jharkhand at Ranchi
W.P.(Cr.) No.25 of 2009
Badal Kumar Ghosh ...........................Petitioner
VERSUS
State of Jharkhand and another...Respondents
CORAM: HON'BLE MR.JUSTICE R.R.PRASAD
For the Petitioner : Mr.G.C.Jha
For the Respondent no.2: Mr. Rajan Raj
13. 29.3.10
. This writ application has been filed for quashing the entire
criminal proceeding of Complaint Case no.2758(M) of 2002
(T.R.No.1865 of 2006) pending in the court of Judicial Magistrate, 1st
Class, Ranchi including the order dated 26.11.2002 whereby the
Chief Judicial Magistrate, Patna took cognizance of the offence
under Section 85(a) of the Employees’ State Insurance Act, 1948
(hereinafter referred to as ‘the Act’).
It appears that petitioner’s sweet meat shop being run in the
name and style of “Sweet Corner” at Ashok Nagar, Ranchi when was
inspected by the Insurance Inspector in the month of December,
1999, it was found that the employer had engaged 12 employees in
the process of manufacturing of sweet meat in his shop falling within
the definition of ‘factory’ as defined in Section 2(12)(a) of the Act
and as such, the employer was liable to pay contribution for the
employees for the period from April, 1999 to 30.9.2001 under
Section 40 read with Section 39 of the Act within the time prescribed
but no such contribution had been deposited with the said insurance
and, therefore, a complaint was lodged in the court of Chief Judicial
Magistrate, Patna alleging therein that on account of non-deposit of
the contribution, the petitioner committed offence under Section
85(a) of the Act. Upon which, cognizance of the offence was taken
2
by the Chief Judicial Magistrate, Patna on 26.11.2002 under Section
85(a) of the Act against the petitioner.
In course of time, under the order of the Patna High Court,
an order was passed on 4.7.2006 by the Chief Judicial Magistrate,
Patna to transfer the case to the court of competent jurisdiction of
the State of Jharkhand. Thereupon record was received in the court
of Chief Judicial Magistrate, Ranchi on 2.8.2006. Thereafter the
petitioner on receiving notice, appeared in the case and then police
paper was supplied to the counsel appearing for the petitioner.
Thereupon, substance of accusation was explained on 7.2.2007 to
which the accused pleaded not guilty and claimed to be tried.
However, subsequently, an application was filed on behalf of
the complainant praying therein to frame charge against the
petitioner. A rejoinder to that application was filed on behalf of the
petitioner. After hearing, the court did find that vide its order dated
22.5.2007 that sufficient materials are there to frame charge under
Section 85(a) of the Act and hence, directed the petitioner to appear
physically so that charge be framed. But the petitioner instead of
appearing physically before the court below, filed an application
under Article 226 of the Constitution of India after almost one and
half year before this Court on 4.2.2009 whereby entire criminal
proceeding and also the order taking cognizance were challenged.
Mr.G.C.Jha, learned counsel appearing for the petitioner
submits that provision of Employees’ State Insurance Act, 1948 is
not applicable as the petitioner, who was having sweet meat shop
had never employed more than 7 employees and as such,
establishment of the petitioner never comes within the definition of
‘factory’ as defined in Section 2(12)(a) of the Act and therefore, the
entire prosecution is misconceived and the order taking cognizance is
fit to be quashed.
3
Mr.Rajan Raj, learned counsel appearing for the respondent
no.2 submits that the point raised on behalf of the petitioner cannot
be subject matter for its adjudication before this Court in exercise of
extraordinary jurisdiction rather raised can only be decided during
trial as to whether the petitioner had engaged more than 10
employees or not in the process of manufacturing of sweet meat
and that the trial court, while hearing on a petition filed on behalf of
the complainant for framing of charge did find sufficient material to
frame charge under Section 85(a) of the Act and instead of
challenging that order, this writ application has been filed wherein
order taking cognizance of the offence has been challenged and
under this situation, this writ application is fit to be rejected.
Having heard learned counsel appearing for the parties, it
does appear that it is the case of the complainant when inspection
was made by the Insurance Inspector, 12 employees were found
engaged by the petitioner in the sweet meat shop and as such, the
petitioner under the Act was liable to pay contribution as the
establishment of the petitioner falls within the definition of ‘factory’
as defined in Section 2(12)(a) of the Act which fact is being disputed
at this stage by taking plea that the petitioner had never employed
more than ten persons, rather the shop was being run with the help
of 2-3 employees and rarely it exceeds 6-7 employees. This issue
needs to be decided in course of the trial as the matter raised in
defence cannot be taken into consideration for quashing the entire
criminal proceeding.
Accordingly, I do not find any merit in this writ application and
hence, this writ application is dismissed.
( R.R. Prasad, J.)
ND/