JUDGMENT
L. Sreenivasa Reddy, J
1. Employees’ State Insurance Corporation, Bangalore (hereinafter referred to as ‘the ESI Bangalore’ for the sake of brevity) has preferred this Appeal against the judgment dated 11th January, 1989 passed by the VII Addl.Sessions Judge, Bangalore.
2. The respondent herein is the original accused. The ESI Bangalore, prosecuted him for having committed offences punishable under Section 85(a), 85(e) and 85(g) of the ESI Act on the ground that he had failed to pay the contribution for the wage period ended on 31-3-1986, which should have been paid latest by 21-4-1986 and also failed to submit the returns for the contribution period ended on 31-3-1986, which should have been submitted latest by 30-4-86. The complaint at regards offences punishable under Sections 85(a) and 85(g) of the ESI Act was dismissed as barred by limitation and the case proceeded against the accused in respect of offence under Section 85(e) of the said Act.
3. The trial Court found the accused guilty of offence under Section 85(e) of the ESI Act and sentenced him to pay a fine of Rs. 300/- in default to undergo S.I. for one month. Out of the fine amount a sum of Rs. 100/- was awarded as cost to the complainant.
4. Aggrieved by the said order the accused preferred Criminal Appeal No. 102/1988 before the VII Addl.Sessions Judge, Bangalore. The learned Sessions Judge by his order dated 11-1-1989 set aside the order of conviction and sentence and acquitted the accused of the said offence, relying on a Decision of Madras High Court in ASHOK KUMAR GOYAL v. MANAGER, ESI CORPORATION, MADRAS 1988 Cr.L.J. 1084 where it was held that the non-payment of contribution under Section 85(a) and non-submission of contribution cards and returns punishable under Section 85(e) are two distinct offences and a person not paying contribution cannot be punished for not submitting the contribution cards and returns.
5. Sri M. Papanna, learned Counsel for the appellant, strenuously contended whether an employer fails to pay the contribution or not under the ESI Act, he is liable to submit the returns and that is why failure to submit returns by an employer is made punishable under Section 85(e) of the ESI Act.
6. In order to appreciate the submissions of Sri. Papanna, it is necessary to extract Section 85(e) of the ESI Act. It reads thus:
“If any person fails or refuses to submit any return required by the regulations, or makes a false return, or………..”
26(1) of the Employees’ State Insurance (GEN) Regulations, 1950, reads thus:
“26. Return of contributions to be sent to appropriate office:- (1) Every employer shall send a return of contributions in quadruplicate in Form 6 along with receipt copies of challans for the amount deposited in the Bank, to the appropriate office by registered post or messenger, in respect of all employees for whom contributions were payable in a contribution period, so as to reach that office.
(a) within 42 days of the termination of the contribution period to which it relates;
(b) within 21 days of the date of permanent closure of the factory or establishment as the case may be;
(c) within 7 days of the date of receipt of requisition in that behalf from the appropriate office”.
Form-6 is the prescribed Form for return of contributions and the employer has to furnish the details of the employer’s share as well as employees’ share; the date of challans and the amount covered by the challan together with insurance number, name of the insured person, number of days for which wages paid, total amount of wages paid etc.
6. It is clear from Section 85(e) that an employer is liable for punishment if he fails or refuses to submit any return required by the Regulation or makes a false return. Regulation 26 which has been extracted above, requires an employer to send a return of contributions in quadruplicate in Form-6 along with receipt of copies of challans for the amounts deposited in the Bank to the appropriate office by registered post or messenger in respect of all employees for whom contributions were payable in a contribution period so as to reach that office within the time prescribed by them. Therefore, the first and the foremost requisite before sending the returns is that the employer should have deposited the amounts payable by him in the Bank and then send challans of such amounts deposited together with the statement to the ESI office. Without depositing such amounts in the Bank he is not required to send blank Form No. 6 to the ESI office only to comply with Section 85(e) of the said Act.
7. It is clear from the deposition of Sri. B. Satyanarayana Rao -P.W.2 who was the Head clerk in charge of receipt of returns and payments in the ESI office at Bangalore, that only on making payment of the contribution the return had to be submitted and if no payment is made the return need not be submitted.
8. In the result, for the aforesaid reasons, the appeal is liable to be dismissed. It is dismissed accordingly. The judgment passed by the learned VII Additional Sessions Judge, Bangalore is confirmed.