This Criminal Miscellaneous Case is filed by the petitioners, who are accused 1 to 3 in S.T.No.1184/2012 pending before Judicial First Class Magistrate Court-I, Kannur to issue a direction to that court to keep the proceedings in abeyance till the matter pending before Employees State Insurance Court is disposed of under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code'). 2. It is alleged in the petition that the petitioners herein are accused 1 to 3 in S.T.No.1184/2012 on the file of Judicial First Class Magistrate Court-I, Kannur. The case was taken on file on the basis of a complaint filed by the first respondent alleging that the petitioners have committed the offences punishable under Section 85(a), 85(i) and 85(i)(b) of the Employees State Insurance Act, 1948 (hereinafter referred to as 'the ESI Act') on the allegation that the petitioners have violated the provisions of Sections 39, 40 and 45 A of the above said Act and also Regulations 29, 31 and 31 A of Employees State Insurance (General) Regulations 1950.
3. The gist of the allegation was that the petitioners in the capacity as Manager and Joint Secretary of Bright English School, Cherukunnu Thara, Kannur district have not remitted the amount of Rs.36,346/- being the employers' and employees' contribution under the E.S.I Act for the period 7.1.2008 to 30.09.2009. The petitioners have filed a petition before the Employees State Insurance Court, Kozhikode as E.I.C.No.25/2012 for a declaration that their establishment is not an establishment coming under the purview of the Act and further declaration that they are not liable to pay the amount and they filed C.M.P.No.59/2012 for interim order of injunction and as per Annexure A3 order, the E.S.I Court restrained the respondents from initiating revenue recovery proceedings and also against criminal prosecution on condition of deposit of Rs.5,000/- and the same has been complied with evidenced by Annexure A4. The competent court which has to decide the question as to whether they are liable to pay the contribution as claimed by the Corporation is the Employees State Insurance Court constituted under the above Act. If the criminal proceeding is allowed to proceed before the disposal of the case pending before the E.S.I court, then hardship will be caused to them. So they have no other remedy except to approach this Court seeking the following relief:
i. To pass an order staying all further proceedings in S.T. 1184/2012 on the file of the court of judicial magistrate of First Class -1, Kannur till a decision is taken by the E.S.I. court, Kozhikode in E.I.C. No. 25/2012.
ii. Any other reliefs which may be prayed for from time to time.
4. The first respondent appeared and filed a statement which reads as follows:
“1. The above Crl.M.C. is filed to keep it in abeyance the criminal case filed against the petitioner for non payment of contribution till the disposal of I.C. case filed by the petitioner.
2. It is submitted that the criminal prosecution initiated against the petitioner for non payment of contribution and it is filed under the statutory provisions of the Act.
3. The I.C. case is filed long after the filing of the criminal case with an intention to defeat the prosecution steps taken without any bonafides.
4. It is submitted that the prosecution steps initiated by this respondent is also an enabling provision for realising the contribution and it is not a bar under the Act due to pendency of a dispute which has been filed under Section 75 of the ESI Act. It is submitted that the prosecution steps under section 85 of the ESI Act is a distinct and different and parallel proceedings under the ESI Act.
5. Therefore it is humbly prayed Hon'ble High Court may be pleased to dismiss Crl.M.C. by accepting the above statement with costs to this respondents'.
5. On the basis of the allegations, this Court has called for a report from the Employees State Insurance Court regarding the stage of the case pending before that court and the learned Presiding Officer has sent a report which reads as follows:
“On 13.09.2012 Sri. K.V. Haris , s/o . Abdul Salam, General Manager of Bright English School, Cherukunnu, Kannur filed an application under section 75 of the ESI Act, 1948. The Corporation, represented by its Regional Director, was shown as respondent in the cause title. This was taken on the file and registered as EIC. 25/12 and notice was issued to the respondents for appearance. Respondent entered appearance through their counsel and filed written objection on 12.04.2013. Later the applicant in EIC. 25/12 filed a petition to implead Safeeda. K and Bindu.K.G. as Supplemental Respondents. That petition was allowed. Supplemental respondents entered appearance and filed written statement.
The prayer of the applicant in EIC. 25/12 is that the applicant establishment is to be declared as not an establishment coming with in the purview of ESI Act that he is not liable to pay any contribution to the Respondent Corporations as demanded by them in notices dated 20.10.2010 and 29.10.2010 that those notice should be declared as null and void and etc.etc. This case now stands posted to 09.05.2014 for evidence and it will take at least three month for disposal”
6. Heard both sides.
7. Counsel for the petitioners submitted that since the question of liability to pay the amount which is being claimed by the Corporation has to be decided by the Employees State Insurance Court, Kozhikode where the dispute is pending and the criminal court cannot go into those questions as well. So, it is necessary in the interest of justice to stay the proceedings till the disposal of the case pending before the Employees State Insurance Court.
8. On the other hand, the learned Standing Counsel appearing for the first respondent submitted that since as per the notification issued by the Government, this institution will come under the purview of the Act and it is on that basis that the notice has been issued to them before launching the prosecution, but they did not pay the amount and so they were compelled to file prosecution under Section 85 A of the Act and if this Court feels that proceedings will have to be stayed pending disposal of the case pending before the insurance court, petitioners may be directed to deposit certain amount as a condition for the same.
9. It is an admitted fact that the first respondent had issued a notice to the school by name Bright English School, Cherukunnu Thara, Kannur District alleging that it is an establishment coming under the purview of the Employees State Insurance Act and demanding to pay an amount of Rs.36,436/- being the amount assessed as employers' and employees' contribution under that Act for the period from 7.1.2008 to 31.9.2009 and since they did not pay the amount, they filed Annexure A1 complaint before the Judicial First Class Magistrate Court-I, Kannur and it was taken on file as S.T.No.1184/2012 and it is now pending before that court. It is also an admitted fact that the petitioners have challenged the liability to pay the amount before the Employees State Insurance Court, Kozhikode by filing a petition and that is pending as E.I.C.No.25/2012. The question regarding their liability to pay contribution as claimed by the first respondent is a matter that can be decided only by the Employees State Insurance Court constituted under the provisions of the Employees State Insurance Act. The criminal court cannot go into that question.
10. Further, it is also an admitted fact that the petitioners filed CMP.No.59/2012 in EIC.No.215/2012 before the Employees State Insurance Court, Kozhikode for an injunction restraining the first respondent Corporation from proceeding against the petitioners for recovering the amount by initiating revenue recovery proceedings and also launching prosecution against the petitioners and the presiding officer of that court has granted interim order of injunction as prayed for on condition that the petitioners shall deposit Rs.5,000/- with the first respondent Corporation on or before 12.10.2012 and as directed in CMP.No.59/2012, they have deposited the amount which is evidenced by Annexure A4 receipt. If the first respondent Corporation has got any grievance regarding that order, it is for them to challenge the same before the appropriate court as the competent court constituted under the Act has considered the application and passed the order. So there is no question of further direction to pay amount arise.
11. In the report called for from the Employees Insurance Court, Kozhikode, the presiding officer has stated that if three months time is granted, he will dispose of the case itself. So considering the circumstances, this Court feels that since the question to pay the amount itself is in dispute and that is being pending adjudication before appropriate forum constituted under the Employees State Insurance Act which is having some bearing on the criminal prosecution launched by the first respondent Corporation and pending as ST.1184/2012, this Court feels that it is necessary in the interest of justice to direct the Magistrate court where the case is pending to keep the proceedings in abeyance till the disposal of the case pending before the Employees State Insurance Court. This Court is fortified on this aspect by the decision reported in Laya v. Sumesh (2006 (4) KLT 517) and in V.C. Madhavan Nambiar & others v. Bharathan & Others (1995 (1) KLJ 465) wherein this Court has held that in appropriate cases where the dispute has to be settled by a competent court, till the question is decided by that court, stay of further proceedings in the criminal prosecution can be granted by invoking the power under Section 482 of the Code. So this Court feels that it is a fit case to invoke the power under Section 482 of the Code to grant the relief claimed in the petition. So the petition is disposed of as follows:
i. Employees State Insurance Court, Kozhikode is directed to dispose of EIC.No.25/2012 pending before that court which has been filed by the petitioners herein challenging their liability to pay the amount claimed by the first respondent Corporation and seeking consequential reliefs as expeditiously as possible at any rate within three months from the date of receipt of a copy of this order.
ii. In the mean time, the Judicial First Class Magistrate Court-I, Kannur is directed to keep further proceedings in ST.No.1184/2012 pending before that court in abeyance for a period of three months from today.
Office is directed to communicate this order to the concerned courts, namely Employees State Insurance Court, Kozhikode as well as Judicial First Class Magistrate Court-I, Kannur immediately. Sd/-
K.RAMAKRISHNAN, JUDGE.
Cl /true copy/ P. S to Judge