John Zachariah v. Union of India & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **TUESDAY, THE 19[TH] DAY OF SEPTEMBER 2023 / 28TH BHADRA, 1945** ## **WP(C) NO. 9903 OF 2015** ## **PETITIONER:** **JOHN ZACHARIAH AGED 48 YEARS S/O.LATE M.K.JOHN, MARIKUDIYIL HOUSE, PAZHANGANADU KARA, KIZHAKAMBALAM P.O., KIZHAKAMBALAM VILLAGE, ERNAKULAM DISTRICT-683562.** **BY ADV SRI.G.SREEKUMAR (CHELUR)** ## **RESPONDENTS:** - **1 THE UNION OF INDIA REPRESENTED BY THE MINISTRY OF LABOUR, GOVERNMENT OF INDIA, NEW DELHI-110001.** - **2 THE EMPLOYEES PROVIDENT FUND ORGANISATION REPRESENTED BY ITS ENFORCEMENT OFFICER, KOTTAYAM-685001.** - **3 THE SUB INSPECTOR OF POLICE VANDIPERIYAR POLICE STATION, IDUKKI-673001.** - **4 THE ASSISTANT PROVIDENT FUND COMMISSIONER ADHITYA SABARI TOWER, POST OFFICE ROAD, THIRUNNAKKARA, KOTTAYAM-1.** - **5 KORA JOHN S/O.LATE M.K.JOHN, MARIKUDY, VALAYIL HOUSE, KIZHAKKAMBALAM P.O., ERNAKULAM DISTRICT-683562.** W.P.(C.) No. 9903/2015 2 **R1 BY SMT.MAHESWARY.G., CGC R2 & R4 BY SRI.JOY THATTIL ITOOP, SC, EPF ORGANISATION R3 BY SRI.ARUN AJAY SHANKAR, GOVERNMENT PLEADER R5 BY SRI.B.ASHOK SHENOY** **BY ADVS. SRI.K.V.GEORGE SRI.P.S.GIREESH SRI.P.N.RAJAGOPALAN NAIR SRI.RIYAL DEVASSY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C.) No. 9903/2015 3 ## JUDGMENT 1. Ext.P2 complaint on behalf of the Enforcement Officer/Provident Fund Inspector, Employees' Provident Fund Organisation, addressed to the Sub Inspector of Police, Vandiperiyar Police Station, Idukki, dated 18.02.2015, against the petitioner - Receiver of Mlamala Tea Estate Limited, also known as M/s.Milgram Plantations, for commission of offence under Sections 405 and 406 of Indian Penal Code is under challenge in the present writ petition. There was a civil dispute amongst the family of the petitioner and the fifth respondent, being brothers, which ultimately reached this Court in O.P.(C.) Nos.3167 and 3440 of 2013. This Court, vide judgment dated 27.11.2013 appointed the petitioner as the Receiver to hold, possess, maintain the Estate, take the income therefrom, submit a report regarding the assumption of charge as party Receiver and periodical reports before the trial court. 2. Since the aforementioned Estate was covered by the provisions of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, (hereinafter referred to as, the 'Act, 1952') allotted W.P.(C.) No. 9903/2015 4 bearing PF Code No. KR/KTM/292, the Enforcement Officer on verification of the records of the establishment for the period 04/2013 to 11/2014 found that there was no contribution to the Employees Provident Fund and besides, liability with interest under Section 7A also amounts to a criminal breach of trust, for, an employer, as per Paragraph 30 of the Employees' Provident Fund Scheme, 1952 is required both for contribution payable by himself and also from the member employed by him directly or by or through a contractor, and non-compliance creates liability of penalty and prosecution under Section 14A of the Act, 1952. The long and short of the contention of the petitioner is that the Enforcement Officer is empowered to adhere to the procedure prescribed under Section 7A of the Act, 1952, but cannot be permitted to lodge a criminal complaint to the police as it is yet to be ascertained whether there was any breach of trust or any default by the employer – Receiver. For the purpose of an enquiry, the petitioner received Ext. P3 summons dated 20.03.2015, to bring the following documents, with the indication that in case the documents are not produced, it will entail into imposition of fine, attachment and sale of property, issuance of warrant of arrest etc. :- W.P.(C.) No. 9903/2015 5 - 1) Attendance Register. - 2) Cash Book and Vouchers - 3) Payment Register/Pay Bills - 4) General Ledger - 5) Trading and Profit & Loss account and Balance Sheets - 6) Any other documents necessary for ascertaining the amount due - 7) Copy of Statutory return/returns in Form 12A for the above said period. Until and unless enquiries are completed, there was no occasion for the Enforcement Officer to lodge a complaint to the police vide Ext.P2 dated 18.02.2015, a month before summoning the petitioner. 3. On the other hand, the learned Standing Counsel for the Employees' Provident Fund Organisation appearing on behalf of respondents 2 and 4, raised objection qua maintainability of the writ petition, as complaint to the police is a criminal offence and cannot be quashed while exercising power under Article 226 of the Constitution of India, in view of the law laid down by the Hon'ble Supreme Court. The remedy, if any, for defending on merit or otherwise was under Section 482 of Code of Criminal Procedure. 4. Even otherwise, as per Sub-section (2) of Section 7A of the Act, 1952, the Enforcement Officer has the power for perusing the attendance of any person or examining him on oath; requiring the W.P.(C.) No. 9903/2015 6 discovery and production of documents; receiving evidence on affidavit and issuing commissions for the examination of witnesses and criminal prosecution is also provided as per Section 14A of the Act, 1952. Proceeding under Section 7A of the Act, 1952 is only for the determination of the outstanding dues and if found against the establishment, will entail into interest as per Section 7Q and damages under Section 14B of the said Act. There cannot be any bar for initiation of a parallel criminal proceedings and prayed for dismissal of the writ petition. 5. I have heard the learned counsel appearing for the parties and appraised the paper book and of the view that the writ petition for quashing of the complaint made to the police under Article 226 of the Constitution of India is not maintainable, as per the ratio decidendi culled out in the law laid down by the Hon'ble Supreme Court in **Kapil** **Agarwal v. Sanjay Sharma** , (2021 SCC OnLine SC 154). Moreover, no plausible explanation has come forth for production of the documents as sought for vide Ext.P3, much less, the outcome of the proceeding under Section 7A of the Act, 1952. I would not be delving on whether the Enforcement Officer had any jurisdiction or power to lodge a W.P.(C.) No. 9903/2015 7 complaint under Section 405 of the Indian Penal Code, when a procedure for prosecution under Section 14A of the Act, 1952 has been provided. In view of the above, writ petition is dismissed. Sd/- AMIT RAWAL JUDGE DCS/09.10.2023 W.P.(C.) No. 9903/2015 8 ## **APPENDIX** ## **PETITIONER EXHIBITS** **P1:A TRUE COPY OF THE COMMON ORDER PASSED IN O.P. NO. 3167 OF 2013 DATED 27.11.2013 AND CONNECTED CASES BY THIS HON'BLE COURT** **P2: A TRUE COPY OF THE COMPLAINT OF THE SECOND RESPONDENT DATED 18.02.2015** **P3: A TRUE COPY OF THE SUMMONS TO APPEAR IN PERSON SERVED ON THE PETITIONER DATED 20.03.2015** ## **RESPONDENTS EXHIBITS** **R2(a):TRUE COPY OF THE SUMMONS DATED 13.11.2014 WITH ACKNOWLEDGMENT CARD** **R2(b):TRUE COPY OF THE SUMMONS DATED 12.12.2014 WITH ACKNOWLEDGMENT CARD**