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TMI Blog1984 (8) TMI 351X X X X Extracts X X X X X X X X Extracts X X X X ..... Fund Inspector, Indore, Madhya Pradesh, filed six complaints against the appellants and respondent 2, charging them with non-payment of employers contribution under the Employees Provident Fund and Family Pension Fund Act 19 of 1952, (referred to herein as the Act ). Respondent 2 is a Company called M/s Burhanpur Tapti Mills Limited, of which appellants 1 to 3 were Directors and appellant 4 the Factory Manager. Under section 17 of the Act, the Company was granted exemption from the operation of the Employees Provident Fund Scheme, 1952 which is framed under the Act. That exemption was granted on the condition that the Company will transfer monthly collections of the Provident Fund of workers, inclusive of the employers contribution, to the Board of Trustees of the Fund within 15 days of the close of each month. The allegation against the accused, about which there is no factual dispute, is that they did not pay the employers contribution to the fund from February 1970 to June 1971. At the commencement of the trial, the accused filed applications contending that since the limitation prescribed by section 468 of the Code of Criminal Procedure, 1973 (referred to herein as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lishment has its own scheme of Provident Fund, of which the rules are not less favourable than the rules of the scheme framed under the Act. The Company, in the instant case, was granted exemption under section 17 on the condition that it shall pay the employer s contribution within fifteen days of the close of each month. This condition is the same as the one contained in paragraph 38 (1) of the Employees Provident Funds Scheme, 1952. Paragraph 38 (1) reads as follows, in so far as is relevant; 38. Mode of payment of contribution- (1) The employer shall, before paying the member his wages in respect of any period or part of period for which contributions are payable, deduct the employee s contribution from his wages which together with his own contribution.... he shall, within fifteen days of the close of every month, pay.... to the Fund. The question as to whether the offence of non-payment of the employer s contribution of the Provident Fund is a continuing offence, arises because of the provisions contained in Chapter XXXVI of the Code which is entitled Limitation for taking cognizance of certain offences. Sections 468, 472 and 473 which occur in that Chapter and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as required is punishable with fine under section 66 of the Mines Act, 1952. The respondents having failed to furnish the returns by the due date, which was January 21, 1960 a complaint was filed against them in a Court at Dhanbad on April 12, 1961. One of the contentions of the respondents was that the complaint was barred by limitation under section 79 of the Mines Act which provided that no Court shall take cognizance of an offence under that Act unless the complaint was filed within six months of the date of the offence. The Explanation to section 79 provided that if the offence in question was a continuing offence, the period of limitation shall be computed with reference to every part of the time during which the said offence continued. It was held by this Court that the infringement which occurred on January 21 of the relevant year was complete when the owner failed to furnish the annual returns on that date. Since, the Regulation did not lay down that the owner would be guilty of an offence if he continued to work the mine without furnishing the returns, the offence was non-continuing and, therefore, the complaint was time barred. While discussing the question as to when an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date on which the offence comes to the knowledge of the Inspector. It was held that the breach of section 10 (1) was a continuing breach and therefore the information was in time. Every day that the fly-wheel remained unfenced, the factory was run otherwise than in conformity with the Act of 1901 and, therefore, the offence defined in section 10 was a continuing offence. The third English case referred to is The London County Council v. Worley, in which section 85 of the Metropolis Management Amendment Act, 1852 prohibited the erection of a building on the side of a new street in certain circumstances, without the consent of the London County Council. The Court construed section 85 as creating two offences: building to a prohibited height and, continuing such a structure already built after receiving a notice from the County Council. The Court held that the latter offence was a continuing offence. In Emperor v. Karandas, section 390 (1) of the Bombay City Municipal Act, 1888 provided that no person shall newly establish in any premises any factory of a certain description without the previous permission of the Commissioner nor shall any person work or allow to be worked a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rn for the welfare of workers to hold that the employer who has not paid contribution or the contribution of the employes to the Provident Fund can successfully evade the penal consequences of his act by pleading the law of limitation. Such offences must be regarded as continuing offences, to which the law of limitation cannot apply. our attention has been drawn to a judgment of the Bombay High Court in Criminal Revision Applications 337 and 338 of 1976, which were decided by a learned single Judge on November 7,1977. It was held in that Judgment that the failure to pay the employer s share of contribution to the Provident Fund is not a continuing offence. For reasons which we have mentioned above, we dissent from that judgment. With respect, we are unable to appreciate the reasoning of that judgment that if the failure to pay the employer s contribution is regarded as a continuing offence, it would be open to the employer to pay the contribution even after the due date has expired, in order to escape punishment. The concept of continuing offence does not wipe out the original guilt. It keeps the contravention alive, day by day. For these reasons, we are of the opinion that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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