The Regional Director v. Employees State Insurance Corporation

#1. Madhukar B. Jadhav & Ors. 2. Smt. Kusum Dashrath Jadhav Partners of Sapta Shringi Restaurant Near S.T. Road, Vasai Road Station (W), Thane - 401 202

#3. Sapta Shringi Restaurant Near S.T. Road, Vasai Road Station (W), Thane - 401 202

#4. State of Maharashtra Mr.H.V. Mehta, Advocate for applicant. None for respondent nos. 1 to 3 Mrs.S.D. Shinde, APP for State. ] ] ] ] ] Respondents ] 1 to 3 ] (Ori.accused) ] ] ] ] ] ] ] Respondent No.4. Coram : SMT. R.P. SONDURBALDOTA, J. Date : 18th June, 2010 P.C.

#1. The revision applicant, the Regional Director, Employees State Insurance Corporation (ESIC) filed complaint against respondent nos.1 to 3 under Section 85(a) of Employees State Insurance Act, 1948 (hereinafter referred to as “the said Act”) punishable under Section 2 85(i)(b) of the said Act for nonremittance of contribution due under the said Act. The process had been issued on the complaint. During the pendency of the complaint, application was made by respondents no. 1 to 3 on the basis of decisions of the Apex Court in the cases of Common Cause I[(1996)4 Supreme Court Cases 33] and Common Cause II [(1996)6 Supreme Court Cases, 775 contending that as the complaint was not proceeded with and disposed of in terms of law laid down by the Apex Court in those decisions, they were entitled to be discharged. The applicant had contended in reply that the ESI Act being a welfare legislation, directions contained in the Common Cause Case were not applicable. It was also contended that the offence under Section 85(a) of the ESI Act is an economic offence and as such also the directions contained in the Common Cause cases were not applicable to it. The learned Metropolitan Magistrate by his order dated 5th June 2000 rejected the contentions of the applicant as regards the applicability of the Common Cause case and discharged respondents no.1 to 3 in view of the fact that the trial in the proceedings had not commenced despite passage of two years. The charge in the matter was also not framed against the contesting respondents.

#2. Mr.Mehta, the learned counsel for the applicant submits 3 relying upon the decision of the Apex Court in the case of P. Ramachandra Rao vs. State of Karnataka, reported in (2002) 4 Supreme Court Cases 578 that the two decisions of the Apex Court in the Common Cause I and Common Cause II as well as the decisions of the Apex court in the case of Raj Deo Sharma(I) [(1998 7 Supreme Court Cases, 507] and Rejedeo Sharma II [(1999) 7 Supreme Court Cases, 604 are no longer a good law. The order in discharge has been passed solely on the ground of applicability of the Common Cause judgment. The Constitution Bench of the Apex Court in the case of P. Ramachandra Rao vs. State of Karnataka (supra) held that the prosecution cannot be quashed on the basis of the decisions in the two Common Cause cases as well as in Raj Deo Sharma’s cases. When this judgment of the Apex Court was pronounced, this Revision Application had been pending, as such the impugned order of discharge had not attained finality. Thus the order of discharge based on the decision of cases of Common Cause being clearly illegal and is liable to be set aside. Hence, I pass following order. O R D E R The Revision Application is allowed. Order of discharge passed by the learned Magistrate

#2. which is impugned in the revision application is quashed and set aside. 4

#3. The learned Magistrate will proceed with the complaint in accordance with the law.

#4. Rule is accordingly made absolute in the above Criminal Revision Application with no order as to costs. (SMT.R.P. SONDURBALDOTA,J)