BHASKAR BHATTACHARYA, J.

(1.) In this writ application the writ petitioners have challenged a notice being No. 41. T-ll-14(5035)/77 legal, dated 31/07/1981 and the complaint lodged before the Chief Metropolitan Magistrate, Calcutta which is Annexures- C and E respectively to this petition.

(2.) This writ application was entertained by a learned single Judge of this Court in the year 1982 and at that point of time an interim order granting stay of all further proceedings of the criminal case was also passed. The said stay order is still continuing.

(3.) Mr. Talukder learned Advocate appearing on behalf of the petitioners draws attention of this Court to the complaint lodged before the Chief Metropolitan Magistrate, Calcutta and points out that in the said complaint, the petitioner Nos. 2 to 5 have been described as Directors of the Company. But apart from the fact that they are mere Directors of the Company, no other allegations have been made stating that those petitioners were either in charge of the business of the Company or responsible to the Company for the conduct of the business of the said Company. Mr. Talukder thus contends that fact that those petitioners are Directors of the Company, will not make them liable for the offence alleged to have been committed by the Company under Section 85 (g) of the Employees State Insurance Act, 1948. In this connection Mr.Talukder relied upon two decisions of the Apex Court one in the case of Employees State Insurance Corporation v. S. K. Agarwal and Ors. AIR 1998 SC 2676 [LQ/SC/1998/721] : 1998 (6) SCC 288 [LQ/SC/1998/721] : 1998-II-LLJ-794, and the other in the case of Municipal Corporation of Delhi v. Ramkishan Rohtagi and Ors., AIR 1983 SC 67 [LQ/SC/1982/187] : 1983 (1) SCC 1 [LQ/SC/1982/187] . Mr. Talukder thus submits that the criminal proceeding initiated on the basis of such a complaint, should be quashed so far the petitioner Nos. 2 to 5 are concerned.

(4.) Mr. Moitra learned Advocate appearing on behalf of the Employees State Insurance Corporation has on the other hand, contended that whether those petitioners have violated the aforesaid provisions of the Act, can be adjudicated only in the criminal proceeding initiated at the instance of the Corporation and the present petitioners will get ample opportunities to produce materials in support of their defence. Mr. Moitra submits that the cognizance having been taken by the learned Magistrate, this Court at this stage should not interfere with the criminal proceeding in this jurisdiction under Article 226 of the Constitution of India.

(5.) After hearing the learned counsel appearing for the parties and after going through the material on record including the complaint lodged by the Corporation itself, I am at one with Mr. Talukder that the complaint does not disclose commission of any offence at the instance of petitioner Nos. 2 to 5. Simply because the petitioner Nos. 2 to 5 are the Directors of the Company, that fact will not make them liable for the offence alleged unless it is further shown that they were incharge of or were responsible to the Company for the conduct of the business of the Company as provided in Section 86-A of the Act. I have already pointed out that there is no averment alleging such fact in the petition of complaint. In view of such fact, this Court is left with no other alternative but to quash the proceeding so far the petitioner Nos. 2 to 5 are concerned. In my view, the principles laid down by the Apex Court in the case of State of Haryana and Ors. v. Bhajanlal and Ors., AIR 1992 SC 604 [LQ/SC/1990/744] : 1992 Supp (1) SCC 335, squarely applies to the fact of the present case.

(6.) I am also not impressed by the submissions of Mr. Moitra that this Court should leave the matter to be decided by the criminal Court when this matter was entertained by this Court 18 years ago and the criminal proceeding is stayed for the last 18 years.

(7.) Thus, in view of what have been stated above, this writ application succeeds in part. The criminal proceeding initiated on the basis of complaint being Annexure-E to the instant writ application, is quashed so far petitioner Nos. 2 to 5 are concerned. The said proceeding, however, may continue in accordance with law against others.

(8.) The writ application is thus disposed of in the light of the observations made above.

(9.) There will be no order as to costs.

(10.) Affidavit-in-opposition filed in Court today, be kept with the records.

(11.) Xerox certified copy of this order, if applied for, will be delivered within a week from application.