BY AD vs DENU JOSEPH

STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. BY ADVS. SRI.T.V.AJAYAKUMAR KUM.P.H.RIMJU JOTHIS CHACKO(K/700/2016) Crl.M.C No.2451/2020 2 SMT SEETHA S, SR PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 26.03.2025, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C No.2451/2020 3 ORDER The accused in CC No.1705/2013 on the files of the Judicial First Class Magistrate Court III, Thiruvananthapuram, has filed this petition under Section 482 of the Cr.P.C, with a prayer to call for the records pertaining to Annexure A complaint filed by the 1st respondent before the said court, and to direct the learned Magistrate to keep in abeyance the aforesaid complaint, until a decision is rendered by the Employees’ Insurance Court, Kollam, in Annexure C application filed by him, challenging Annexure B order, on the basis of which, the aforesaid complaint has been filed.

2. Annexure B order had been passed by the Assistant Director, Employees State Insurance Corporation, Sub Regional Office, Kollam, fixing an amount of Rs.78,732/-, as contribution under the Employees State Insurance Act, due from the establishment conducted by the petitioner, for the period from 1.9.2006 to 31.3.2008. Alleging that the petitioner did not make payment of the aforesaid contribution, despite the demand made by the 1st respondent, Annexure A complaint was filed before the learned Magistrate, alleging the commission of offence under Section 85(a) of the Employees State Insurance Act, 1948. The learned Crl.M.C No.2451/2020 4 Magistrate took cognizance of the offence and issued summons to the petitioner to answer the charge under the aforesaid provision of the ESI Act. In the meanwhile, the petitioner challenged Annexure B order before the Employees’ Insurance Court, Kollam, by filing Annexure C application under Section 77(1) of the Employees State Insurance Act, 1948. Earlier, the above application was allowed ex parte by the Employees’ Insurance Court, Kollam, vide Annexure D judgment. The 1st respondent challenged Annexure D judgment before this Court by filing Insurance Appeal No.3/2013. As per the judgment dated 7.06.2017, this Court set aside the above ex parte judgment of the Employees’ Insurance Court, and remanded back the case to the said court with a direction to consider the application on merit, and to dispose of the matter in accordance with law, subject to payment of cost of Rs.8000/- by the 1st respondent to the petitioner herein. Now, the costs as ordered is said to have been paid, and the case is said to be pending consideration of the Employees’ Insurance Court, Kollam.

3. The grievance of the petitioner is that, if the learned Magistrate proceeds with Annexure A complaint, before the decision being rendered by the Employees’ Insurance Court, Kollam, in Annexure C Crl.M.C No.2451/2020 5 application, it will cause serious prejudice to the petitioner. According to the petitioner, there is every chance of the Employees Insurance Court, Kollam, allowing Annexure C application, and that if it is so allowed, Annexure - A complaint filed by the 1st respondent alleging non- payment of the contribution ordered vide Annexure B order, becomes otiose. It is for the above reason that the petitioner seeks a direction to the learned Magistrate to keep in abeyance the proceedings initiated pursuant to Annexure A complaint, till a decision is rendered by the Employees’ Insurance Court, Kollam, in Annexure C application.

4. Heard the learned counsel for the petitioner, the learned counsel for respondents 1 and 2 and the learned Public Prosecutor representing the 3rd respondent.

5. As already stated above, the proceedings pending before the Judicial First Class Magistrate Court-III, Thiruvananthapuram, C.C.No.1705 of 2013, relates to the non-payment of contribution amounting to Rs.78,732/-, assessed by the 1st respondent vide Annexure- B order. The aforesaid order of the 1st respondent is under challenge in Annexure C proceedings pending before the Employees Insurance Court, Kollam. It follows without saying that, if the Employees’ Insurance Court, Crl.M.C No.2451/2020 6 Kollam, passes an order allowing Annexure C application filed by the petitioner, Annexure A complaint filed by the 1st respondent loses its legal sanctity. In other words, the prosecution proceedings initiated against the petitioner in C.C.No.1705 of 2013 on the files of the Judicial First Class Magistrate Court - III, Thiruvananthapuram, would be rendered nugatory, if the Employees’ Insurance Court, Kollam, decides Annexure C application in favour of the petitioner, and declares Annexure B order as null and void, as prayed for by the petitioner. That being so, the request of the petitioner that the proceedings before the Judicial First Class Magistrate Court-III, Thiruvananthapuram, in C.C.No.1705 of 2013, initiated pursuant to Annexure A complaint, are to be kept in abeyance pending decision of the Employees’ Insurance Court, Kollam, in Annexure C application, is perfectly justified. Therefore, the relief sought for by the petitioner in the present petition has to be allowed to meet the ends of justice. However, taking into account the fact that the case pending before the learned Magistrate is of the year 2013, I deem it appropriate to issue directions to the learned Magistrate as well as to the Employees’ Insurance Court, Kollam, so that the matter could be disposed of expeditiously. Crl.M.C No.2451/2020 7 In the result, the petition stands allowed as follows : (i) The Judicial First Class Magistrate Court-III, Thiruvananthapuram, is directed to keep in abeyance proceedings in C.C.No.1705 of 2013 till the disposal of I.C.No.20 of 2010, on the files of the Employees’ Insurance Court, Kollam. (ii) The Presiding Officer of the Employees’ Insurance Court, Kollam, is directed to expedite the proceedings in I.C.No.20 of 2010 (Annexure C), and to dispose of the case as early as possible, at any rate, within a period of three months from the date of receipt of a copy of this order. (iii) The Presiding Officer of Employees’ Insurance Court, Kollam, shall intimate the disposal of IC No.20/2010, and forward a copy of the judgment rendered in I.C No.20 of 2010 to the Judicial First Class Magistrate Court - III, Thiruvananthapuram, immediately after the disposal of the said case. (iv) The Presiding Officer of Employees’ Insurance Court, Kollam, shall also forward a report to this Court about the disposal of I.C.No.20 of 2010 in compliance with the aforesaid Crl.M.C No.2451/2020 8 direction, and also about the intimation given to the Judicial First Class Magistrate Court-III, Thiruvananthapuram, in the above regard. (v) The Judicial First Class Magistrate Court-III, Thiruvananthapuram, shall ascertain the status of I.C. No.20 of 2010, pending before the Employees’ Insurance Court, Kollam, if no intimation is received about the disposal of the said case within a period of three months from the date of receipt of a copy of this order. The Registry shall forward copies of this order to the Employees’ Insurance Court, Kollam, and to the Judicial First Class Magistrate Court - III, Thiruvannathapuram, with a direction to ensure strict compliance. IAP Sd/- G.GIRISH JUDGE Crl.M.C No.2451/2020 9 APPENDIX OF CRL.MC 2451/2020 PETITIONER’S ANNEXURES: ANNEXURE A ANNEXURE B ANNEXURE C ANNEXURE D ANNEXURE E TRUE COPY OF THE COMPLAINT CC NO.1705/2013 FILED BY THE 1ST RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE-III, THIRUVANANTHAPURAM. THE TRUE COPY OF ORDER DATED 11/06/2009 PASSED BY THE 2ND RESPONDENT UNDER SECTION 45(A) OF THE STATE EMPLOYEES INSURANCE ACT. THE TRUE COPY OF IC NO.20/2010 BEFORE THE EMPLOYEES STATE INSURANCE COURT, KOLLAM. TRUE COPY OF THE JUDGMENT DATED 11/10/2011 PASSED IN IC 20/2010 BEFORE THE EMPLOYEES STATE INSURANCE COURT, KOLLAM. TRUE COPY OF THE JUDGMENT DATED 07/06/2017 IN INSURANCE APPEAL NO.3/2013 BY THIS HON'BLE COURT. ANNEXURE F TRUE COPY OF THE CRL.MP NO.4954/2019 IN ANNEXURE A COMPLAINT.