Dr. Vijay Kumar Kejriwal @ Vijay ... vs The State Of West Bengal & Anr
2023 Latest Caselaw 1838 Cal

20.03.2023 Sl. No.34.

D/L.

Mithun.

Ct.No.42.

CRR/765/2023

Dr. Vijay Kumar Kejriwal @ Vijay Kejriwal Vs.

The State of West Bengal & Anr.

Mr. Ayan Bhattacharjee, Adv.

Ms. Sreeparna Das , Adv.

Mr. Pradip Kumar Sarawagi, Adv.

...for the petitioner.

The issue involved in the instant revision is as to whether

directors are made liable for committing offence under Sections

406/409 of the Indian Penal Code for non-payment of provident

fund dues.

It is held by a Coordinate Bench in the case of Malhati Tea

& Industries Ltd. & Ors. Vs. State of West Bengal & Anr.

reported in (2019)4 CAL LT 481(HC) as hereunder:-

"20. After going through the several judgments as referred by the Learned Advocates for both sides, I am of the view that Law on this point is quite explicit. Our Apex Court in the case of Employees' State Insurance Corporation v. S.K. Aggarwal and Others specifically opined that the term 'employer' does not include the Director of the company. It is the company which is the employer and not it's Directors either singly or collectively. It has been specifically mentioned in both the explanations 1 and 2 to section 405 that the employer who has the responsibility to deduct employees' contribution is only liable for commission of the offence of criminal breach of trust if the share of provident fund of the employees after deduction is not deposited with the statutory Authority. It can be safely held that the Director is not the employer within the meaning of Explanations 1 or 2 to section 405 of the Penal Code. Directors of a company can never be regarded as principal employer as to rope in connection with the offences under sections 405/406/409 of the Indian Penal Code for non-deposit of statutory

contribution of the provident fund of the employees' share or the share of the employer with the appropriate Authority."

In view of such circumstances, the instant revision is

admitted.

Petitioner is directed to serve notice upon the private

opposite party under registered speed post with acknowledgment

due and file affidavit of service within three weeks from the date of

this order.

The State of West Bengal be served through the learned

Public Prosecutor, High Court, Calcutta.

In the meantime, further proceeding in respect of Special

Case No.20 of 2020 pending before the Court of the learned Special

Judge, Howrah be stayed for a period of six weeks.

Liberty to mention.

( Bibek Chaudhuri, J. )