JUDGMENT
P.K. Patra, J.
1. This is an appeal against the judgment of acquittal dated September 22, 1984 passed by the S.D.J.M. Sadar, Cuttack in 2(c) C.C. No. 367 of 1983 acquitting the accused persons of the charges under Sections 14(1A) and 14A of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (Act 19 of 1952) (hereinafter referred to as ‘the Act’).
2. Respondent No. 1 Rameswarlal Maliram Binamata Guraku Factory is an industry manufacturing Guraku since 1960. Respondent No. 2 Maliram. Agarwalla and respondent No. 3 Nanda Kishore Agarwalla are the two partners in charge of the business of the industry. According to the appellant, the Inspector of Provident Fund in the office of the Regional Provident Fund Commissioner, Orissa, Bhubaneswar, respondent No. 1 was a covered establishment under the Act having employed more than twenty employees and was registered under the Act vide G.S.R. No. 895 dated June 1, 1966 on the basis of the written information (Ext. 2) furnished by the management through its partner Maliram Agarwalla (respondent No. 2) on September 21, 1966 during the visit of Shri H.C. Mohapatra (p.w. 2), the then Inspector of Provident Fund. It is alleged that in spite of registration of the firm under the Act, the respondents failed to pay the Provident Fund contributions of the employees and the employer for the months of May, 1982 and June, 1982 amounting to Rs. 98.00 only as required under the Employees’ Provident Fund Scheme, 1952 (hereinafter referred to as ‘the Scheme’) in spite of service of notice on them issued by the Regional Provident Fund Commissioner, Orissa, Bhubaneswar. Hence prosecution was launched by p.w.1 Shri D. Pradhan against the respondents for alleged commission of offences under Sections 14(1-A) and 14-A of the Act.
3. In order to bring home the charge against the accused persons, prosecution examined only two p.ws of whom p.w. 1 Duryodhan Pradhan is the Inspector of Provident Fund, Bhubaneswar who had submitted the prosecution report against the accused persons and p.w. 2 Shri H.C. Mohapatra is another Inspector of Provident Fund, Orissa, Bhubaneswar who had visited the factory on September 21, 1966 and on whose report the factory was registered under the Act. Ext. 1 is the sanction order of the Regional Provident Fund Commissioner dated May 11, 1983 to prosecute the accused persons. Ext. 2 is the carbon copy of the writing alleged to be in the hand of respondent No. 2 Maliram Agarwalla to the effect that there were nine employees in the establishment including one car driver and one salesman, besides twelve female labourers engaged on daily wage basis and that the factory was started since 1960. Ext. 3 is a copy of the notice issued to respondent No. 1. Ext. 4 is the copy of the assessment order made by the Regional Provident Fund Commissioner in respect of respondent No. 1.
4. The defence plea was that the firm was not liable under the Act since at no point of time it had employed more than twenty employees and that the claim was barred by limitation. In support of the defence plea, respondent No. 3 examined himself as p.w. 1. He also produced two Attendance Registers maintained by the establishment since its beginning of which Ext. A relates to the entries from the month of September, 1966 and Ext. B relates to the entries from the month of January, 1969 which revealed that in June, 1966 there were nine employees and in January, 1969 there were eight employees. The registers further reveal that the number of employees in the establishment never exceeded nine.
5. The learned S.D.J.M. accepted the contention of the accused persons that the establishment was not liable under the Act and that the claim of the prosecution was barred by limitation.
6. Being aggrieved by the said order of acquittal, the appellant has preferred this appeal inter alia stating that the learned S.D.J.M. did not consider the provision of Sub-section (5) of Section 1 of the Act which is as follows:
“(5) An establishment to which this Act applies shall continue to be governed by this Act notwithstanding that the number of persons employed therein at any time falls below twenty.”
7. None appeared for the appellant. Mr. D.P. Mohanty learned senior Advocate for the respondents contended that the impugned judgment is unassailable and cannot be interfered with as respondent No. 1 had never employed twenty persons as regular employees since its inception.
8. As per the provisions of Sub-section (5) of Section 1 of the Act as quoted above, the first requirement is that the establishment should be governed by the provisions of the Act and thereafter it shall continue to be governed by the Act notwithstanding that the number of persons employed therein at any time falls below twenty. In the present case, the prosecution relied on the statement of a partner of the firm as per Ext. 2 that there were nine employees on the pay roll of the firm and twelve female labourers who were working there were not on the pay roll. The defence plea was that the number of employees of the firm never exceeded nine and in support of such plea two Registers, Exts. A and B, were produced in Court. As required under the Employees’ Provident Fund Scheme, 1952, the duties of employers within the purview of the Act have been mentioned in sub-para (2) of para 36, wherein it is stated that every employer shall send to the Commissioner within fifteen days of the close of each month a return in Form 5. sub-para (4) of the said para- 36 reads as follows:
“(4) Every employer shall maintain an inspection note book in such form as the Commissioner may specify, for an Inspector to record his observations on his visit to the establishment.”
9. There is no iota of evidence on record that the employer in the present case submitted any statement or return as required under the Scheme to the Commissioner and that any Inspector ever visited the establishment and recorded his observations on such visit. In the prosecution report submitted in this case there is no mention about the returns and statements or payment of administrative charges and/or contribution by the firm as required under the Scheme.
10. In the case of the Provident Fund Inspector v. T.S. Hariharan reported in (1971-I-LLJ-416)(SC) it has been held the word “employment” means an employment in regular course of business of an establishment and that such employment will not include employment of a few persons for a short period on account of some passing necessity or some temporary emergency beyond the control of the establishment. Keeping in view the above decision of the Apex Court, twelve female workers engaged on daily wage basis by the present establishment were not eligible to be reckoned along with nine regular employees for attracting the provisions of the Act for the purpose of contributory provident fund, specially when their identity was unknown. It is common knowledge that such daily labourers work for a few days in one establishment and then shift to another establishment according to their own convenience. They cannot be treated as employees of the establishment in the regular course of business and under employment of the establishment for the purpose of the Act. In the absence of any evidence on record, the carbon copy of the alleged statement of a partner of the firm (Ext. 2) which is otherwise inadmissible in evidence, could not be utilised in support of the prosecution case that the firm had been registered under the Act and that it was liable under the Act and the Scheme.
11. In view of the discussions made above, it is found that the present establishment of respondent No. 1 was not liable to be registered under the provisions of the Act from its inception and as such the question of application of Sub-section (5) of Section 1 of the Act to the establishment does not arise. Accordingly, the appeal is devoid of any merit and the impugned judgment of acquittal cannot be interfered with.
12. In the result, the appeal fails and- is dismissed.