TMI Blog1960 (3) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... rs retained themselves and failed to deposit into the fund. (Actually, it is alleged that this is the position during the whole year 1953, but the complaints as such are in regard to the three months already stated). (ii) Under Paragraph 76(a) of the Employees' Provident Fund Scheme, 1952, failing to pay to the fund the contribution they (the employers) are liable to pay under the scheme. (iii) Under Paragraph 76(c) for failing to submit to the Commissioner, the monthly consolidated statements showing recoveries made from the wages of each employee and the employers' contribution made in the course of each of the months. 3. The learned City Magistrate, Ujjain City, has dismissed the complaints on the preliminary ground that the acts alleged did not amount to any offence, as the scheme itself, though deemed to have come into force from September, 1952, was brought into force retrospectively, by a notification made on 28-10-1953. He seems also to have felt that this notification by the Central Government was itself ultra vires of Article 20 of the Constitution. He, however, did not think it necessary to make a reference under Section 432, Cr. P. C., to the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istrative charges. In addition, they also failed to send the returns to the Commissioner. 7. Thus, they failed to comply with Paragraph 38 of the Scheme, sub-paragraph (1) of which directs that the employer shall deduct the employees' contribution from their wages and then add his own contribution, and such administration charges as might be fixed by the Central Government and shall pay to the fund by cheque or bank draft within 15 days from the close of each month; sub-paragraph (2) directs that he should also forward to the Commissioner within 15 days from the close of each month, a monthly consolidated statement showing the recoveries from the employees' and the employer's own contribution. Failure to do so is punishable under Paragraph 76(a) and (c) of the Scheme, with imprisonment up to six months and a fine up to ₹ 1000/-, or both. The Scheme itself is secondary legislation; but Section 14(2) of the Act enables the framers of the Scheme to make penal rules. 8. The facts alleged have not been disputed before the Magistrate, so that, we have to proceed on the assumption that they are prima facie true, and see if that constitutes the offences respectively ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rule or what amounts to a rule, made by the Government in exercise of powers given by an enactment and itself having the force of law; law itself is separately mentioned. 10. The establishments in the textile industry came under the operation of the Act from its very inception. The Scheme itself came into force on 2-9-1952, the date on which it was notified. It was felt that there were certain omissions in the Scheme as was originally made and accordingly, by notification SRO/2035 of 20-10-1953, it was expressly provided that as respects factories relating to industries other than certain ones, and including the textile industry, the Scheme should be deemed to have come into force with effect from the 2nd September, 1952. There is nothing wrong in the Scheme itself being made retrospective in its operation and if there was any doubt, Section 5(2) removes it. But it is one thing to say that any non-penal law or rule or regulation, can operate retrospectively, and another thing to urge that by virtue of a parliamentary enactment, even a penal provision can have retrospective effect. In my view, it was not the intention of Section 5(2) that even a penal provision contained in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oyer is relieved of his duty and there is nothing more to be done. On the contrary, the duty of the employer is in any event, to pay and to send the returns; otherwise, one will be ignoring the very purpose of the scheme. 14. A similar question arose before the High Courts of Patna and Calcutta in connection with the construction of creches and bathrooms as provided in the Mines Creche Rules and the Coal Mines Pithead Bath Rules of 1946. The Management having omitted to construct these amenities within the time specified, it was prosecuted in those cases, after the lapse of the term before which prosecution should have been launched. In both, the defence contended that the prosecution would not lie after the expiry of the term; the prosecution urged, however, that the offence of omission to construct these amenities was a continuing one. In the Patna High Court, State v. Kunj Behari, AIR 1954 Pat 371, there was a difference of opinion, the majority view being that it was a continuing offence and the prosecution was not barred by Section 42 of the Mines Act, which provided a limitation for such prosecutions. The matter is elaborately discussed in the Calcutta judgment, in G. D. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... slation does not hit a law punishing continuing offences. Till the date of the penal legislation, the act alleged may not be an offence calling for punishment under the penal law. But as soon as the law comes into force, then it becomes an offence and can be punished as such. A stereotype example given in text-books on the American Constitution is the prohibition law. The possession of liquor till the coming into force of prohibitory legislation may not be an offence. But as soon as the prohibitory legislation comes into force, the possession of liquor even though it may have commenced before that day, may become a punishable offence. Thus, the prima facie case under Paragraph 76(a) and (c) would not be hit by Article 20(1). Certainly, this argument has no application whatsoever to the prima facie case under Section 406, I. P. C., which, in any view of the matter, should have been inquired into and investigated. 17. On behalf of the non-applicant-employer, it is pointed out that Section 8 of the Act enables the appropriate Government to realise as arrears of land revenue, any monies that are due from the employers. But I do not see how it follows that penal action under Paragrap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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