JUDGMENT
Malai Subramanian, J.
1. These appeals arose out of different judgments delivered by the Judicial Magistrate No.6, Madurai in various calendar cases referred to above. Since the point involved in all the cases as well as in all the appeals is one and the same, the following common judgment is passed.
2. The Inspector of Employees Provident Fund, Madurai has come on appeal against the acquittal of the first and second accused of offences under Sections 14(1A), 14(A) AND 14AA. According to the complainant/appellant, the first accused company who is the prime accused in this case has violated the provisions of Section 14(1A). The learned Magistrate on facts found no violation and therefore acquitted both the accused. Insofar as the second accused is concerned, he is said to be managing the entire affairs of the first accused company. That is why, he was arrayed under Section 14A.
3. The learned counsel appearing for the appellant/ complainant namely, the Inspector of Employees Provident Fund, Madurai would contend that as against another batch of judgment passed by the same Magistrate, an appeal was preferred against acquittal and the same was allowed by this Court in Crl.A.No.239 & 231/95 and the learned counsel also drew my attention to the judgment delivered by this Court in those two criminal appeals. The learned judge considered the provisions under Section 14(1A), 14A, 14(AA) and then went on to decide that the company also should be made liable for the violation and since the second respondent who was said to be the Managing the affairs of the company was dead, the learned judge chose to set aside the order of acquittal of the first accused company and then imposed a fine of Rs.500/- on each appeals. Though reference has been made to that judgment, I am inclined to assess the legal provisions independently.
4. This is an appeal against acquittal. The respondent No.2 is no more and therefore, the charge abates. Insofar as Section 14(AA) is concerned, it only speaks about enhanced punishment after previous conviction. It is not a case where the appellant would contend that the accused were earlier convicted and therefore enhanced punishment should be imposed. Therefore, quoting Section 14(AA) is irrelevant in so far as this case is concerned. The second section quoted in the judgment of the trial Court is 14A. This is an enabling provision to punish the persons who were in charge of and were responsible to the company for the conduct of the business of the company along with the company. If the company is found guilty, since the company is the principal offender, the person who is in charge of the Management of the Company should also be fastened with vicarious liability. Therefore this is only an enabling provision under which if any violation is proved, the first accused company/the first respondent herein can be held guilty. The main penal provision is Section 14(1A). It reads thus:
“An employer who contravenes, or makes default in complying with, the provisions of Section 6 or clause (a) of sub-section (3) of section 17 in so far as it relates to the payment of inspection charges, or paragraph 38 of the Scheme in so far as it relates to the payment of administrative charges, shall be punishable with imprisonment for which may extend to three years, but-
(a) which shall not be less than one year and a fine of ten thousand rupees in case of default in payment of the employees contribution which has been deducted by the employer from the employees wages;
(b) which shall not be less than six months and a fine of five thousand rupees, in any other case;…”
5. Section 14(1A) of the Act punishes three violations. The first one is the contravention of provisions of Section 6; the second is the contravention of provisions found in Section 17(3A) insofar as it relates to the payment of inspection charges and the third violation is para-38 of the Family Pension Scheme or the Insurance Scheme, in so far as it relates to the payment administrative charges. In this case, according to the learned counsel appearing for the appellant, the violation is section 6 of the Employees Provident Fund and Miscellaneous Provisions Act, 1952. When any accused is charged with an offence, the violation of which is punishable, the penal provision should go along with the provision that was contravened. Suppose, the penal provision alone is sufficient so that the court can take into consideration the definition provisions, then the definition provisions need not be included in the charge. For example, where charges are framed for an offence under Section 323 or 324 I.P.C., there is no necessity to include Section 319 which describes and defines what is meant by hurt. But where a penal provision punishes violation of various contraventions, it is the bounden duty of the charging officer to specify the provision which was said to have been violated by the accused or otherwise miscarriage of justice is bound to occur and prejudice also would be caused to the accused concerned. The proper provisions as per the facts of these cases would be charging the accused for an offence under Section 14(1A) r/w Sec. 6 of the Act.
6. The judgment of the trial Court does not speak about Section 6 at all and it naturally leads to an inference that the complaint would not have been lodged under Section 14(1A) r/w Section 6 of the Act.
7. In view of the above circumstances, merely charging the accused under Section 14(1A) without including Section 6 of the Act had caused prejudice to the accused resulting in miscarriage of justice and therefore on that score alone, the acquittal of the accused cannot be interfered with. Section 6 enjoins upon an employer to pay the contribution of the fraction of the basic wages etc. mentioned therein of the employees. Section 6 reads thus:
“Contributions and matters which may be provided for in Schemes:- The contribution which shall be paid by the employer to the Fund shall be eight and one-third per cent of the basic wages, dearness allowance and retaining allowance if any for the time being payable to each of the employees whether employed by him directly or by or through a contractor and the employee’s contribution shall be equal to the contribution payable by the employer in respect of him and may if any employee so desires, be an amount exceeding eight and one-third per cent of his basic wages, dearness allowance and retaining allowance if any, subject to the condition that the employer shall not be under an obligation to pay any contribution over and above his contribution payable under this section.”
8. Section 6 of the Act only speaks about the amounts of contribution to be paid by the employer to the provident fund. It also speaks about the employees’ contribution equal to the contribution payable by the employer. In the absence of including in the charge or in the complaint, Section 6 of the Act which is the violation according to the appellant, I am unable to hold that the first accused complainant is liable to pay contribution and therefore, punishable under Section 14(1A) of the Act. Especially since Section 14(1A) punishes three violations including the violation under Section 6 of the Act, there should be a specific charge against the accused. The accused have to defend themselves with reference to the ingredients of Section 6. Therefore, on that score alone, I am unable to dislodge the order of acquittal.
9. In the result, the appeals stand dismissed.