JUDGMENT
Manjula Chellur J.
1. Heard
2. The appellant launched prosecution against the respondents herein for the offence under Section 85(a) of the ESI Act punishable under Section 85(i)(b) of the Act. This is in respect of non-payment of contribution for the period between 1.10.2001 to 31.3.2002.
3. The contributions payable by the accused-employer were not made in accordance with Section 39 and 40 of the Act read with regulations 29 and 31 of the ESI General Regulations 1950. According to the complainant, a mandatory notice was sent to the respondents accused demanding the said contributions, but there was no response from them. Hence, he filed a private complaint before the learned JMFC., Davangere. After taking cognizance, notice was issued to the respondents/accused.
4. After appearance on 21.8.2004 the respondents filed a challan submitting that the entire dues towards the ESI contributions for the above said period was paid by them. There is nothing on record to show that such payment was accepted or admitted by the complainant. However, based on the said challan, the trial Court opined that no purpose would be served in keeping the prosecution case pending and the proceedings were dropped under Section 258 of Cr. P.C by discharging the accused.
5. The penal action that is available to the Corporation is enumerated under chapter 7 of the ESI Act. Section 84 deals with penalty of making false statement by the concerned persons, who came before the Court regarding the payment of contributions. Section 85 deals with punishment for failure to pay contributions etc. The various sub-clause of Section 85 deals with the nature of mandatory or statutory payments, which an employer is required to make and so also with regard to the reduction of wages against the employee in contravention of Sections 72 and 73 etc. However, we are only concerned with the non-payment of contribution.
6. Section 85(a) deals with regard to launching prosecution. If the employer fails to pay any contribution under the Act, he is liable to be punished. Section 85(i)(b) is invoked in the present case, which means the contributions had to be paid by the employer.
7. It is also noticed that sanction for launching prosecution was obtained before filing the private complaint. The question here would be, whether the offence committed by the accused is absolved for non-payment of contribution by making belated payment. In other words, whether the original guilt of the accused gets wiped off with the belated payment. The prosecution is contemplated under the Act in order to see that the employers would pay the contribution within time so that the benefit would accrue to the employees in proper channel. By delayed payments ultimately employees would be put to hardship. The Corporation is in an embarrassed situation in such cases. Its main duty is to streamline the payment of contributions and see that it reaches the right person on time. The Act is aimed at giving benefits to the employees. In other words, to put an end to the attitude of the employers, the very Act came into existence, in view of this, penal action prosecution also contemplated under the Act as stated above, when once the offence is committed, by belated payment, the offence which envisages the launching of prosecution does not stop, the Court has to record the evidence and proceed with the matter and finally, if there is any discretion contemplated under the Act, it can proceed in accordance with such provision. Then only it could show any latitude towards the accused. By mere acceptance of belated contributions by the employers, the guilt of the accused does not get absolved. Therefore, the order of the Trial Court dated 21.8.2004 in discharging the accused only on the ground of non-payment of contributions for which prosecution was launched was against the provisions of law contemplated under special enactment. Reference is made to a decision in the case of P. Renuka v. The Employees State Insurance Corporation, Trissur and Anr., 1992 Labour and Industrial Cases 2310.
8. Under these circumstances, the appeal is allowed. The order dated 21.8.2004 is set aside. The matter is remitted back to the Trial Court for fresh disposal on merits of the case in accordance with law.
9. The parties are directed to appear before the Court on 23.6.2005.