Through: Mr.Ravi Nayak Additional
Public Prosecutor for Respondent
No.1-State
Respondent No.2 in person
+ (ii) CRL.M.C. No. 102/2000
OM PRAKASH .....Petitioner
Through: In person
versus
STATE & ANR. .....Respondents
Through: Mr.Ravi Nayak Additional
Public Prosecutor for Respondent
No.1-State
Mr. Vishwa Bhushan, Advocate
for respondent No.2
CORAM:
1. In the above captioned first petition, petitioners are the Deputy
General Manager (P&A) and the Manager of Badarpur Thermal Power
Station, who are accused of misappropriating the contribution of canteen
employees of Badarpur Thermal Power Station (hereinafter referred to
as B.T.P.S.) towards Provident Fund.
2. Aforesaid petitioners in Crl.M.C. 3038/1999 are seeking quashing
of complaint No.642/1/96 (Annexure-A) and the summoning order of 12th
May, 1998 (Annexure-B) vide which they have been summoned as
accused for committing the offence under Section 409 of IPC. Petitioners'
application in Crl.M.C. 3038/1999 to recall abovesaid summoning order
stands dismissed by trial court vide order of 27 th September, 1999
whereby petitioners' co-accused-R.D. Gupta was discharged.
3. In the above captioned second petition, preferred by Om Prakash,
who is the complainant of aforesaid complaint under Sections
405/406/409/34 of IPC (Annexure-A), trial court's order of 27th
September, 1999 discharging R.D.Gupta is assailed.
4. At the final hearing, with the consent of both the sides, above-
captioned two petitions were heard together as the challenge in these two
petitions is to the order of 27th September, 1999 (Annexure-B) and so, by
this common judgment, both these petitions are being disposed of.
5. The facts as disclosed in the impugned order are as under: -
"The complainant Om Prakash has filed the present
complaint against the accused persons R.D. Gupta, C.
Vijay Kumar and R. Hari Kumar and M/s. Badarpur
Thermal Power Station for offences U/s. 405/406/409/34 of
IPC alleging that they all being the persons responsible to
the company for the conduct of its business, having
deducted Provident Fund from the salaries of the canteen
employees, which is being run through a Contractor and
have never deposited the same with the Provident Fund
Commissioner and dishonestly misappropriated the same."
6. At the hearing, it was strenuously contended by learned counsel for
petitioners-C. Vijaya Kumar & Others that B.T.P.S. is a Public Utility
Service of NTPC owned by Government of India and that before the year
1995, the contract to run the canteen of B.T.P.S. plant used to be given to
private contractors by inviting tenders and the canteen contractor-Ram
Kumar was called upon to deposit the contribution of Provident Fund of
afore-referred canteen employees in the office of Regional Provident
Fund Commissioner vide letter of 9th March 1990 but there was no
response from the canteen contractor.
7. As per petitioners' counsel, in the afore-noted background, B.T.P.S.
retained the amount equivalent to the provident fund contribution of
canteen employees from the bills of canteen contractor with a clear
understanding that the aforesaid amount would be returned to the canteen
contractor on production of "No Dues Certificate" from Provident Fund
Commissioner. Learned counsel for petitioners further asserts that despite
repeated requests, Provident Fund Commissioner had not allotted a
separate Provident Fund Code to canteen contractor to deposit canteen
employees' contribution of Provident Fund and so, in order to safeguard
the interest of the employees of canteen contractor, the management of
B.T.P.S. retained an amount equivalent to the canteen employees'
contribution to Provident Fund from the bills of canteen contractor. After
the canteen contract of B.T.P.S. was terminated, canteen employees had
filed Writ Petition No.610/1995 seeking their absorption in B.T.P.S. It
stands noted in ordersheet of 4th July, 2013 that aforesaid Writ Petition
stands dismissed and erstwhile canteen employees have not succeeded in
appeal against it.
8. It was pointed out by petitioners' counsel that in the aforesaid Writ
Petition, direction was sought to Regional Provident Fund Commissioner
to initiate action against concerned authorities for violation of Employees
Provident Fund Act but no such direction was issued. According to
learned counsel for petitioners, respondent-complainant Om Prakash, a
Union Leader, in Crl.M.C. 3038/1999, had failed to get the relief in the
abovesaid Writ Petition and aforesaid Om Prakash has filed the instant
complaint (Annexure-A) with ulterior motive and with malice as, on
account of misconduct, aforesaid Om Prakash is facing enquiry
proceedings in which his dismissal from service is contemplated.
9. Alleging abuse of process of the court by abovesaid Om Prakash, it
was contended by petitioners' counsel that since petitioner-C. Vijaya
Kumar had conducted enquiry against afore-referred Om Prakash and
petitioner-R. Hari Kumar had been defending the management in various
proceedings against respondent/complainant-Om Prakash, therefore,
continuance of proceedings arising out of the complaint in question
would demoralize petitioners of Crl.M.C. 3038/1999 and continuance of
proceedings in the complaint (Annexure-A) would be futile as petitioner-
B.T.P.S. has deposited on 19th August, 1997 the canteen employees'
contribution of Provident Fund with Regional Provident Fund
Commissioner after they were called upon to do so vide order of 2nd July,
1997 (Annexure-D colly.). Thus, according to learned counsel for
petitioners in Crl.M.C. 3038/1999, it is a fit case to quash complaint
(Annexure-A) and proceedings arising out of it. To contend so, reliance
was placed upon decisions in Inspector of P.F. v. Jaipur Textiles AIR
1987 SC 1738 and Employees State Insurance Corporation v. S.K.
Aggarwal & ors. AIR 1998 SC 2676.
10. Afore-referred Union Leader-Om Prakash is the second respondent
in Crl.M.C. 3038/1999, who, not only supports the impugned order, but
had submitted during the course of hearing, that the Regional Provident
Fund Commissioner vide order of 2nd July, 1997 had held that petitioner-
B.T.P.S. has violated the provisions of Provident Fund Act by not
depositing the Provident Fund deductions of canteen employees' and so
petitioners-accused persons are liable to the prosecuted for commission of
the offence of criminal misappropriation.
11. Although plea of lack of sanction under Section 197 of Cr.P.C. or
of criminal proceedings in question being barred by Section 14 of the
Employees Provident Fund Act, or of canteen employees being not the
employees of B.T.P.S. or that non deposit of Provident Fund contribution
of canteen employees' does not constitute the offence of criminal
misappropriation, was not urged on behalf of petitioners-accused persons
but respondent-Om Prakash has placed on record his short written
submissions on aforesaid aspects in which reliance has been placed upon
decisions in Mohd. Hadi Raja v. State of Bihar AIR 1988 SC 1945; Om
Prakash Gupta v. State of UP 1957 SR 423; State Of Kerala v. V. Padmanabhan Nair. (1999) 5 SCC 690; Maidhan Gupta v. State of UP
1976 Crl. L.J. 868; Harihar Prasad v. Tulsi Das Mundhra AIR 1981 SC
81; Akharbhai Nazarali v. Mohd. Hussain Bhai AIR 1961 MP 37;
Bhagirath Kanoria v. State of MP AIR 1984 SC 1688; Provident Fund
Inspector, Anantapur v. M/s. The Andhra Co-operative Spinning Mills
Ltd. & ors. 1994 Crl. L.J. 1132; Hari Nath v. State 1978 Crl.L.J. 1018;
Jagannath Prasad Jhalani & ors. v. Regional Provident Fund
Commissioner (Haryana) & Anr. (1987) 2 Comp. LJ 151 (Delhi);
Hindustan Times Ltd v. Union of India (1998) 2 SCC 242; C.K. Shah
Provident Fund Inspector v. Natson Manufacturing Co. Pvt. Ltd. & Anr.
Guj. LR 419 (1976); Ajay Mehra & Anr. v. Durgesh Babu & Ors. 2001
(3) Crimes 155 (SC); Mahindra Singh & Ors. v. State of Bihar 2001 (3)
Crimes 158 (SC) and Parimal Chandra Raha & Ors. v. Life Insurance
Corporation & Ors. AIR 1995 SC 1666.
12. In the last, it was contended by respondent-complainant Om
Prakash, who had chosen to argue these matters in person, that since
petitioners-accused had defaulted in paying Provident Fund contribution
of canteen employees with Provident Fund Authorities, so proceedings
arising out of complaint (Annexure-A) ought to be continued against
petitioners-accused persons as well as against their co-accused R.D.
Gupta, who had been illegally discharged by trial court vide impugned
order of 27th September, 1999 by erroneously holding that abovesaid R.D.
Gupta was not working as General Manager, B.T.P.S., during the period
in question.
13. Thus, in the above-captioned second petition, prosecution of
aforesaid R.D. Gupta as co-accused is sought in the complaint
proceedings in question.
14. After having extensively heard both the sides and on perusal of the
complaint (Annexure-A), impugned order, written submissions, the
material on record and the decisions cited, I find that it would be
appropriate to deal with above-captioned second petition first.
15. The operative part of the impugned order of 27th September, 1999
is as under: -
"It is not disputed that accused person R.D.Gupta
joined the establishment in 1996 whereas the
misappropriation relates to earlier period prior to the
joining of accused R.D. Gupta as General Manager, BTPS.
It has been argued by the complainant that non-
payment of contribution to provident fund by the employer
is a continuing offence as held in Bhagirath Kanoria and
Others v. State of M.P. AIR 1984 S.C.1688, and that being
so, the time of posting is of no consequence.
This argument of the complainant suffers from a
fallacy and is devoid of any merit.
It is the settled principle of criminal jurisprudence
that the offence is committed once i.e. to say offence once
committed is committed and the continuity of the offence
has been in respect of the period of limitation and not in
respect of the persons.
It is not disputed that at the time when the default in
payment of PF was made accused R.D. Gupta was not
posted at any position in the establishment and that being
so, it cannot be said that he is liable to be prosecuted
simply because he was served with a notice dated 17.10.96
regarding payment of PF contributions to the Fund and
further that he had preferred an appeal against the order
dated 2.7.97 of the RPFC as he being the at helm of affairs
of the establishment is under an obligation to protect the
interest and defend the establishment.
As far as accused persons- C.Vijaya Kumar and
R.Hari Kumar are concerned they being the Managers (IR
& W) were responsible for the affairs of the canteen.
Accused C.Vijaya Kumar had even issued circular from
time to time regarding the canteen and as DGM (P&A)
had been responsible for the observance and
implementation of all statutory obligations. Accused R.
Hari Kumar himself has stated before RPFC on oath that
he is connected with the affairs of the canteen and that the
canteen is functioning directly under him.
In view of the aforesaid observations, I allow the
application of review of the summoning order as regards
accused R.D. Gupta and summoning order against him is
withdrawn. Accused R.D. Gupta is discharged. And as
regards accused persons C. Vijaya Kumar and R.Hari
Kumar, the application is dismissed, and they are directed
to appear in person."
16. In the above-captioned second petition, it is neither averred nor it
was contended by Om Prakash that the finding returned in the impugned
order of 27th September, 1999 of R.D. Gupta joining the establishment of
B.T.P.S. prior to the year 1996 i.e. during the period in question being not
disputed, is factually incorrect. Otherwise also, Om Prakash has not
placed on record any material/document to show that R.D.Gupta was in
the establishment of B.T.P.S. during the period in question. Since the
finding returned in the impugned order of R.D. Gupta of being not in any
position in the establishment of B.T.P.S. remains unassailable, therefore,
the above-captioned second petition being without substance, is
dismissed.
17. However, so far as the above-captioned first petition is concerned,
it transpires that the central issue raised is of deposit or non deposit of
entire contribution of canteen employees Provident Fund with Provident
Fund Authorities. The stand taken on behalf of petitioners-accused is that
when they were called upon to deposit the Provident Fund contribution, it
was promptly done. In this regard, reliance was placed upon order of 2nd
July, 1997 of Regional Provident Fund Commissioner, Delhi to assert
that the retained Provident Fund contribution amount was deposited with
the Provident Fund Authorities without delay. In this regard, attention of
this Court was drawn to letter of 19th August, 1997 by petitioner-R.Hari
Kumar to Regional Provident Fund Commissioner disclosing that in
pursuance to aforesaid order of 2nd July, 1997, a sum of `4,67,252/- &
`53,596/- was promptly deposited towards canteen employees' Provident
Fund.
18. It is no doubt true that in the order of 2 nd July, 1997 of Regional
Provident Fund Commissioner (Annexure-D colly.), the retained amount
due has not be quantified but in the subsequent order of 6th August, 2004,
Assistant Provident Fund Commissioner (placed on record by Employees'
Provident Fund Organization), M/s. NTPC Limited, a parent organization
of petitioner-B.T.P.S., has been directed to deposit the canteen employees'
provident fund contribution in question after giving a set off of
`5,20,878/- deposited by petitioners-accused and thereafter, the amount
due was found to be `7,54,360/-.
19. Neither during the course of final hearing nor in the written
synopsis, it was disclosed by learned counsel for petitioners-accused that
the outstanding amount of `7,54,360/-, as reflected in the order of 6th
August, 2004, has been deposited by petitioner-B.T.P.S. or its parent
organization-National Thermal Power Corporation. Relevantly, vide
interim order of 17th August, 2004 in the above-captioned first petition,
petitioners-accused had sought time to file additional documents to show
that the entire Provident Fund dues in question stand deposited. However,
at the final hearing, learned counsel for petitioners-accused had not drawn
attention of this Court to any document to show that the entire Provident
Fund due stood deposited.
20. In aforesaid view of this matter, central issue as to whether entire
B.T.P.S. canteen employees' provident fund dues have been deposited or
not, remains a disputed question of fact, which ought not to be
determined by this Court while exercising its inherent powers under
Section 482 of Cr.P.C. In the peculiarity of these matters, it is deemed fit
to leave the aforesaid issue open to be considered at the appropriate stage
of trial. Thus, while not commenting upon merits, above-captioned first
petition is disposed of in the aforesaid terms. Above-captioned second
petition is dismissed in light of the observations made in the preceding
paragraphs of this judgment. However, nothing is observed in the
judgement which can be construed as an expression on merits, to avoid
prejudice to either side.
21. Both these petitions are accordingly disposed of.
(SUNIL GAUR)
Judge
SEPTEMBER 30, 2013
s