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Monday, March 14, 2016

The object of creating offence and penalty under the Employees’ State Insurance Act, 1948 is clearly to create deterrence against violation of provisions of the Act which are beneficial for the employees. Non-payment of contributions is an economic offence and therefore the Legislature has not only fixed a minimum term of imprisonment but also a fixed amount of fine of five thousand rupees under Section 85(a)(i)(b) of the Act. There is no discretion of awarding less than the specified fee, under the main provision. It is only the proviso which is in the nature of an exception whereunder the court is vested with discretion limited to imposition of imprisonment for a lesser term. Conspicuously, no words are found in the proviso for imposing a lesser fine than that of five thousand rupees. In such a situation the intention of the Legislature is clear and brooks no interpretation. The law is well settled that when the wordings of the Stature are clear, no interpretation is required unless there is a requirement of saving the provisions from vice of unconstitutionality or absurdity. Neither of the twin situations is attracted herein. Hence the question is answered in favour of the appellant and it is held that the amount of fine has to be Rupees five thousand and the courts have no discretion to reduce the same once the offence has been established. The discretion as per proviso is confined only in respect of term of imprisonment. Accordingly the appeals are allowed. The respondents shall now be required to pay a fine of Rupees five thousand. If they have already paid the earlier imposed fine of Rs.1000/-, they shall pay the balance or otherwise the entire fine of Rs.5000/- within six weeks and in default the fine shall be realised expeditiously in accordance with law by taking recourse to all the available machinery.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                    CRIMINAL APPEAL NOS.1065-1066 OF 2005

Employees State Insurance Corporation              …..Appellant

      Versus

A.K. Abdul Samad & Anr.                            …..Respondents



                               J U D G M E N T


SHIVA KIRTI SINGH, J.

The question of law deserving adjudication in these appeals  arises  out  of
Section 85(a)(i)(b) of the Employees’ State Insurance Corporation  Act  (for
brevity,  ‘the  Act’).   The  aforesaid   statutory   provision   prescribes
punishment for a particular offence as imprisonment which shall not be  less
than six months and the convict  shall  also  be  liable  to  fine  of  five
thousand rupees.  The proviso however empowers the court that it  may,  “for
any adequate and special reasons to be recorded in the  judgment,  impose  a
sentence of imprisonment for a lesser term;”.  The question to  be  answered
is whether the court has been given judicial discretion only to  reduce  the
sentence of imprisonment for any term lesser than six months or  whether  it
also has discretion to levy no fine or a fine of  less  than  five  thousand
rupees.
The facts of the case lie in a very narrow compass.  The case arises out  of
criminal proceedings initiated by the appellant – Employees State  Insurance
Corporation – under Section 85 of the Act for conviction and  punishment  of
the respondents for failure to pay contributions required by the Act.   Both
the respondents faced trial before the Special Court for Economic  Offences,
Bangalore and were found guilty and were inflicted  with  imprisonment  till
rising of the Court and fine of  Rs.1000/-.   According  to  appellant,  the
fine amount could not have been reduced and ought to have been Rs.5000/-  as
per mandate of law.  Hence  the  Corporation  preferred  Revision  Petitions
before the High Court of Karnataka at Bangalore.  By the  impugned  judgment
and order under appeal dated 09th January 2004, the Division  Bench  of  the
High Court dismissed Criminal Revision Petition Nos.1326 and  1327  of  2002
by placing reliance on judgments of Kerala High Court and Patna  High  Court
respectively in the case of Sebastian @ Kunju v. State 1992 Cri LJ 3642  and
Tetar Gope v. Ganauri Gope AIR 1968 Pat 287 as well  as  two  Supreme  Court
judgments in the case of Surinder Kumar  v.  State  (1987)  1  SCC  467  and
Palaniappa Gounder v. State of Tamil Nadu (1977) 2 SCC 634.
Before adverting to the submissions and the case  law  cited  by  the  rival
parties, it would be useful to notice relevant part of Section 85  which  is
as under :

“85. Punishment for failure to pay contributions, etc. – If any person –

fails to pay any contribution which under this Act he is liable to pay, or
…. …. ….
…. …. ….
…. …. ….
…. …. ….
…. …. ….
…. …. ….

he shall be punishable

(i) where he commits an offence under clause (a), with  imprisonment  for  a
term which may extend to three years but-

which shall not be less than one  year,  in  case  of  failure  to  pay  the
employee’s contribution which has been deducted by him from  the  employee’s
wages and shall also be liable to fine of ten thousand rupees;

which shall not be less than six months, in any other case  and  shall  also
be liable to fine of five thousand rupees:

      Provided that the court may, for any adequate and  special  reason  to
be recorded in the judgment, impose a sentence of imprisonment for a  lesser
term;

(ii) …. …. ….”

Learned counsel for the appellant has relied upon judgment of this Court  in
the case of Zunjarrao Bhikaji Nagarkar v. Union of India (1999) 7  SCC  409.
In that case not imposing appropriate penalty as required by law was one  of
the charges against the delinquent employee in  a  departmental  proceeding.
In the context of the charge, in paragraphs 37, 38 and  39  of  the  Report,
the judgment of a Single Judge of Patna High Court  in  the  case  of  Tetar
Gope (supra) was noticed along with its view that expression “shall also  be
liable to fine” in Section 325 of the Indian Penal Code does not  mean  that
a sentence of fine must be imposed in every  case  of  conviction  for  that
offence.  That view of Patna High Court was  noticed  and  then  this  Court
over-ruled it as incorrect by holding that the language of the Section  made
the sentence of both, imprisonment and fine imperative and only  the  extent
of fine has been left to the  discretion  of  the  Court.   For  this  view,
strength was derived from judgment in the case of  Rajasthan  Pharmaceutical
Laboratory v. State  of  Karnataka  (1981)  1  SCC  645  wherein  a  similar
expression – “shall also be liable to fine” used under  Section  34  of  the
Drugs & Cosmetics Act, 1940 was analysed in the light of Section 27  of  the
said Act, in paragraph 38 of the Report which is as follows :

"38.  We do not think that the view expressed by the  Patna  High  Court  is
correct as it would appear from the language of the section  that  sentences
of both imprisonment and fine are imperative.  It  is  the  extent  of  fine
which  has  been  left  to  the  discretion  of  the  court.  In   Rajasthan
Pharmaceutical Laboratory v. State of Karnataka, (1981) 1  SCC  645  :  1981
SCC (Cri) 244 this Court has taken the view that imprisonment and fine  both
are imperative when the expression “shall also be liable to fine”  was  used
under Section 34 of the Drugs and Cosmetics Act, 1940. In  that  case,  this
Court was considering Section 27 of  the  Drugs  and  Cosmetics  Act,  1940,
which enumerates the penalities for  illegal  manufacture,  sale,  etc.,  of
drugs and is as under:

‘27.  Whoever himself or by any other person on his behalf manufactures  for
sale, sells, stocks or exhibits for sale or distributes--

      (a) any drug –

(i) *            *                *
(ii) without a valid licence as required under clause (c) of Section 18,

shall be punishable with imprisonment for a term which  shall  not  be  less
than one year but which may extend to ten years and shall also be liable  to
fine:

      Provided that the court may, for any special reasons  to  be  recorded
in writing, impose a sentence of imprisonment of less than one year;
                       *                *                *”


In view of  language  of  Section  27(a)(ii)  it  was  held  that  award  of
imprisonment and fine,  both  are  imperative.   The  proviso  to  aforesaid
Section 27 is similar in tone and tenor as the proviso to  Section  85(i)(b)
of the Act.  In both the provisos there  is  no  discretion  vested  in  the
Court to do away with the fine.  Additionally,  under  the  Act,  a  minimum
fine is mandated by an explicit and specific provision.
In the case of Chern Taong Shang v. S.D. Baijal (1988) 1 SCC 507 this  Court
had the occasion to consider the meaning  and  implication  of  a  clause  –
“shall  also  be  liable  to  confiscation”,  occurring  in  Section  13  of
Maritime Zones of India (Regulation of  Fishing  by  Foreign  Vessels)  Act,
1981.  Looking at the legislative intent  to  provide  deterrent  punishment
with a view of prohibit illegal  fishing  in  exclusive  economic  zones  of
India, Section 13 was held to be mandatory and therefore conviction  had  to
follow penalty of confiscation once the offence was established.
Per contra, learned counsel for the respondents has supported  the  impugned
judgment which has held in favour of availability of judicial discretion  to
impose a fine of even less than Rupees five  thousand  in  view  of  several
judgments dealing with cases under the Indian Penal Code  wherein  the  word
“shall” has been interpreted as  an  equivalent  of  the  word  “may”.   The
submission is that if “shall” is read as “may” then the  clause  “and  shall
also be liable to fine of five thousand rupees” will evidently be  directory
in nature and shall vest judicial discretion in the court to levy or not  to
levy fine which at the maximum can be Rupees five thousand.  In  support  of
this stand reliance has  been  placed  upon  two  judgments  of  this  Court
arising out of convictions under Section 302 of the IPC.   In  the  case  of
Palaniappa Gounder   (supra)  the  Court  was  called  upon  to  decide  the
propriety of a  particular  quantum  of  fine  in  the  context  of  Section
357(1)(c) of the Code of Criminal Procedure providing  for  compensation  to
the victim of a crime.  In the case of Surinder  Kumar  (supra)  this  Court
again had the occasion to consider the propriety of imposition of fine in  a
case of conviction under Section 302 of the IPC.  In the facts of that  case
the Court affirmed the conviction and imprisonment for life  but  set  aside
the fine of Rs.500/-.
As noticed earlier, the interpretation given by  Patna  High  Court  in  the
case of Tetar Gope (supra), on which learned  counsel  for  the  respondents
has placed reliance has already been over-ruled by this Court  in  the  case
of Zunjarrao Bhikaji Nagarkar (supra).  The remaining judgment in  the  case
of Sebastian @ Kunju (supra) also arose out of conviction under Section  302
of the IPC.  In paragraph 11 of that judgment, the  Kerala  High  Court  has
placed reliance upon judgment of Patna High Court in the case of Tetar  Gope
(supra).
In our considered view, the clause “shall also be liable to  fine”,  in  the
context of Indian Penal Code may be capable of being  treated  as  directory
and thus conferring on the court a discretion to  impose  sentence  of  fine
also in addition to imprisonment although such  discretion  stands  somewhat
impaired as per the view taken by  this  Court  in  the  case  of  Zunjarrao
Bhikaji Nagarkar (supra).  But clearly no minimum  fine  is  prescribed  for
the offences under the IPC  nor  that  Act  was  enacted  with  the  special
purpose of preventing economic offences as  was  the  case  in  Chern  Taong
Shang (supra).  The  object  of  creating  offence  and  penalty  under  the
Employees’ State  Insurance  Act,  1948  is  clearly  to  create  deterrence
against violation of provisions of the Act  which  are  beneficial  for  the
employees.   Non-payment  of  contributions  is  an  economic  offence   and
therefore the Legislature has not only fixed a minimum term of  imprisonment
but also a fixed amount of  fine  of  five  thousand  rupees  under  Section
85(a)(i)(b) of the Act.  There is no discretion of awarding  less  than  the
specified fee, under the main provision.  It is only the  proviso  which  is
in  the  nature  of  an  exception  whereunder  the  court  is  vested  with
discretion  limited  to  imposition  of  imprisonment  for  a  lesser  term.
Conspicuously, no words are found in the proviso for imposing a lesser  fine
than that of five thousand rupees.  In such a  situation  the  intention  of
the Legislature is clear and brooks no  interpretation.   The  law  is  well
settled that when the wordings of the Stature are clear,  no  interpretation
is required unless there is a requirement  of  saving  the  provisions  from
vice of unconstitutionality or absurdity.  Neither of  the  twin  situations
is attracted herein.
Hence the question is answered in favour of the appellant  and  it  is  held
that the amount of fine has to be Rupees five thousand and the  courts  have
no discretion to reduce the same once  the  offence  has  been  established.
The discretion as per proviso  is  confined  only  in  respect  of  term  of
imprisonment.
Accordingly the appeals are allowed.  The respondents shall now be  required
to pay a fine of Rupees five  thousand.   If  they  have  already  paid  the
earlier imposed fine of Rs.1000/-, they shall pay the balance  or  otherwise
the entire fine of Rs.5000/- within six weeks and in default the fine  shall
be realised expeditiously in accordance with law by taking recourse  to  all
the available machinery.
                       .…………………………………….J.
                             [DIPAK MISRA]


                       ……………………………………..J.
                       [SHIVA KIRTI SINGH]
New Delhi.
March 10, 2016.
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