Orissa High Court
E.S.I. Corporation vs Brajakishore Panigrahi & Anr on 22 July, 2009
HIGH COURT OF ORISSA,
CUTTACK
CRIMINAL APPEAL NO. 183 OF 1990
From the judgment dated 30.01.1990 passed by Sri S.K. Dash, Judicial
Magistrate First Class, Bhubaneswar in 2 (C) C.C. Case No. 2 of
1988/Trl.No.791 of 1989.
E.S.I. Corporation .........
Appellant
Versus
Brajakishore Panigrahi & Anr ......... Respondent
For appellant : M/s. J.K.Tripathy, S. Mishra &
B.V.B. Das.
For respondents : M/s. S.P. Mishra, A.R. Dash,
A.K. Mishra & N.N. Satpathy
for R-1
M/s. S.C. Mohanty, G.K. Behera
& G.R. Nayak for R-2.
PRESENT :
THE HONOURABLE SHRI JUSTICE PRADIP MOHANTY
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Date of judgment : 22.07.2009.
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PRADIP MOHANTY,J. This appeal is directed against the judgment and order
dated 30.01.1990 passed by the Judicial Magistrate First Class,
Bhubsaneswar in 2 (C) C.C. Case No. 2 of 1988/Trl. No.791 of 1989
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acquitting the respondents of the charge under Section 85(g) of the
Employees State Insurance Act.
2. The case of the prosecution is that M/s Hirakhanda
Engineers (P) Ltd, Rourkela was a factory as per the provision of E.S.I. Act
and Code No.441838 had been allotted to it by the E.S.I. Corporation.
Accused-respondent no.1 being the Managing Director and accused-
respondent no.2 being the Director were the principal employers of the said
factory. On 27.07.1987, the respondents failed to produce the records of the
factory before the Deputy Regional Director, E.S.I. Corporation,
Bhubaneswar for inspection and thus they violated the provisions of E.S.I.
Act. After obtaining necessary sanction from the competent authority, P.R.
was submitted against the respondents.
3. The plea of the defence was complete denial of the
demand of records by the E.S.I. authority and their specific plea was that
the prosecution was barred by limitation.
4. In order to prove its case, the prosecution examined as
many as three witnesses and exhibited 20 documents. P.W.1 is the Deputy
Regional Director of E.S.I. Corporation, P.W.2 is the Inspector of E.S.I. and
P.W.3 is the Insurance Inspector of E.S.I. On the other hand, defence
examined none.
5. The learned J.M.F.C., Bhubaneswar, who tried the case
vide his judgment dated 30.01.1990 acquitted the respondents of the charge
under Section 85 (g) of E.S.I. Act with a finding that the prosecution was
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barred by limitation and the sanctioning authority had not applied his mind
before according sanction.
6. Learned counsel for the appellant assailed the
judgment on the following grounds:
(i) The sanction order and the prosecution report
clearly stated that the respondents failed to
produce the records on 27.07.1987, the
limitation runs from 28.07.1987, i.e., the date
on which the offence was committed. The
learned Magistrate took cognizance on
04.01.1988, i.e., within six months. Therefore,
the prosecution is not barred by limitation.
(ii) The sanctioning authority had applied his mind
and thereafter granted sanction of Prosecution.
7. Perused the record and the provisions of the E.S.I. Act. In
the instant case, P.W.1 stated that he inspected the factory on 18.06.1987
and demanded the records but the respondents did not produce the same.
He proved the sanction order Ext.10. In cross-examination he admitted that
on 18.06.1987, the respondents failed to produce the registers for the first
time before him. He also admitted that no Inspector had visited the factory
to verify the registers. P.Ws.2 and 3 also corroborated the statement of
P.W.1. From the above, it is crystal clear that the offence under Section 45
of the E.S.I. Act had been committed on 18.06.1987 for which they were
liable under Section 85(g) of E.S.I. Act. Since P.W.1 had visited the factory
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on 18.06.1987, when the respondents failed to produce the records,
limitation is to be calculated from that date. Section 86(3) of the E.S.I. Act,
which deals with limitation, is quoted below:
"86(3). No Court shall take cognizance of any
offence under this Act except on a complaint
made in writing in respect thereof, within six
months of the date on which the offence is alleged
to have been committed."
8. From a bare reading of the aforesaid provision, it is
crystal clear that no court shall take cognizance after six months. In the
instant case, prosecution was launched on 04.01.1988 and the Magistrate
took cognizance on the same day, i.e., 04.01.1988. Under the statute, there
is no provision for condonation of delay. Thus, launching of prosecution
report and taking cognizance by the Magistrate were after expiry of six
months. The sanction order (Ext.10) was also obtained after the expiry of
the period of the limitation.
9. In view of the above, this Court is not inclined to interfere
with the impugned judgment. Accordingly the appeal is dismissed.
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PRADIP MOHANTY, J.
Orissa High Court, Cuttack
The 15th July, 2009/ Alok
