Karnataka High Court
Cinema Workers' Union vs Gopal Naidu And Anr. on 30 January, 1988
Equivalent citations: (1994)IIILLJ193KANT
JUDGMENT P.A. Kulkarni, J.
1. This is a revision by the President, Cinema Workers' Union, against the order, dated 3rd June, 1983, passed by the II Additional Chief Metropolitan Magistrate, Bangalore, in C.C. No. 2303 of 1980, dismissing the complaint as barred by limitation.
2. The material allegations leading to the complaint are:
The workmen of Sujatha Theatre, of which A-1 is the proprietor and A-2 was the Manager (now submitted by learned counsel, Venkataramanaiah, that he has passed away), were not paid as per the provisions of the Minimum Wages Act. The workmen were forced to work for more than eight hours without being given any overtime wages. Their service conditions were very poor and they had no security of service. In order to improve their service conditions and to have security of service, the workers joined the Cinema Workers' Union, i.e., the complainant union. On behalf of the workmen, the complainant union placed a charter of demands, demanding more wages and better service conditions. The management did not savour it. Ultimately, the management terminated the services of two persons, namely, Abdul Hameed and Ramu. An industrial dispute was raised for the reinstatement of these workers with back wages. The conciliation efforts ended in failure and the matter was referred by the Government for adjudication to the Labour Court. The Labour Court passed an award in Reference No. 162 of 1976 directing the management to reinstate the two workmen with continuity of service and back wages. The said award was published in the Karnataka Gazette, dated 30th March, 1978. The management, notwithstanding the said award, did not reinstate the two workmen. The complainant requested the Labour Commissioner, Karnataka, Bangalore, to authorise the complainant to file a complaint in the appropriate court for non-implementation of the award. Accordingly, the Labour Commissioner passed an order authorising the complainant to prosecute the management for the breach or non-implementation of the award. That order passed by the Labour Commissioner is dated 6th September, 1979. Hence, the complaint was filed against the proprietor and manager of the theatre under Section 29 of the Industrial Disputes Act, 1947.
3. An application was filed for and on behalf of accused Nos. 1 and 2 that the complaint was barred by limitation as per Section 468, Criminal Procedure Code and that the court could not have taken cognizance of the offence and requested the trial court to dismiss the complaint as time-barred.
4. On behalf of the complainant it was contended that the offence in question was a continuing offence and it was not an offence committed once and for all. Therefore, Section 468, Criminal Procedure Code, did not apply to the facts of the case and it is only Section 472, Criminal Procedure Code that governs the case.
5. It is not in dispute that the said two workmen were working as gatekeepers in Sujatha Talkies. It is also not in dispute that their services were terminated by the Sujatha Theatre. It is also not in dispute that a reference was made by the Government in Reference No. 162 of 1976 to the Labour Court. It is also not in dispute that an award was passed by the Labour Court and the same was published in the Karnataka Gazette, dated 30th March, 1978. That publication is produced as per annexure-A along with the complaint.
6. The material portion of the award, as can be seen from para 9, reads:
"9. In the result, the reference is answered as follows:- The management of Sujatha Theatre, Ramachandrapuram, Bangalore-1, were not justified in refusing work to the following workmen with effect from the dates mentioned against them:
1. Sri Abdul Hameed with effect from 17th March, 1976.
2. Sri N. Ramu with effect from 10th March, 1976.
The two I-party workmen mentioned above, are entitled to the reliefs of reinstatement in their former posts with continuity of service and back wages. No costs".
7. The management of Sujatha Theatre did not give effect to the said award and so the complainant approached the Labour Commissioner seeking permission to prosecute the management of Sujatha Theatre. The Labour Commissioner, by his order, dated 6th September, 1979, in Case No. IDA/CR. 17/79-80, accorded sanction for the prosecution of the management of Sujatha Theatre. That order has been produced as per annexure-F. Pursuant to the said sanction, the complainant filed the complaint on 19th September, 1980, under Section 34 read with Section 29 of the Industrial Disputes Act against the respondents herein. The said complaint came to be dismissed by the II Additional C.M.M., Bangalore. Hence, this revision by the complainant union.
8. Now, the main point for consideration in this case is:
Whether the non-compliance of the award by the management of Sujatha Theatre amounts to a continuing offence or is just an offence committed once and for all ?
9. Section 19 of the Industrial Disputes Act (hereinafter referred to as "the Act") relates to the period of operation of settlements and awards. Section 19(3) relates to the period of operation of an award and it is this Section which is relevant for the purposes of this case. It reads:
"19. Period of operation of settlements and awards.....
(3) An award shall, subject to the provisions of this section, remain in operation for a period of one year from the date on which the award becomes enforceable under Section 17-A:
Provided that the appropriate Government may reduce the said period and fix such period as it thinks tit: Provided further that the appropriate Government may, before the expiry of the said period, extend the period of operation by any period not exceeding one year at a time as it thinks fit, so, however, that the total period of operation of any award does not exceed three years from the date on which it came into operation."
Section 19(3) makes a reference to Section 17-A. Section 17-A reads:
"(1) An award (including an arbitration award) shall become enforceable on the expiry of thirty days from the date of its publication under Section 17:
Provided that-......,"
Therefore, Section 17-A makes an award enforceable only on the expiry of thirty days from the date of its publication under Section 17. Section 17 requires that the award should be published in a Government Gazette. Therefore, if Sections 17 and 17-A are read together the award in question becomes enforceable only after the publication of the same in the Government Gazette and it becomes enforceable only on the expiry of 30 days from the date of its publication in the Government Gazette. If Section 17, Section 17-A and Section 19(3) are read together it follows that an award snail remain in force for a period of one year from the date on which an award is enforceable under Section 17-A i.e., the date of publication of the same in the Gazette (sic).
10. Learned counsel, Shri Krishnaiah, drew my attention to Section 19(5) which reads:
"(5) Nothing contained in Sub-section (3) shall apply to any award which by its nature, terms or other circumstances does not impose, after it has been given effect to any continuing obligation on the parties bound by the award."
Section 19(5) would come into play only if the enforceable award has been given effect to and if thereafter no continuing obligation is cast on the parties. Therefore, Section 19(5) clearly does not relate to the present case. Then he made a reference to Sections 22 and 23. They relate to prohibition of strikes and lock-outs. We are not concerned with any of those in this case. Then he drew my attention to Section 33-C of the Act. Section 33-C relates to recovery of money due from an employer.
11. The question whether a particular offence is a continuing offence or an offence committed once and for all necessarily depends on the language of the statute which governs the offence, the nature of the offence and above all the purpose which was intended to be achieved by constituting the particular act as an offence. The words "continuing offence' is not defined anywhere in the Code. The phrase, "continuing offence" has been left to the wisdom of the court for interpretation. The expression "continuing offence", though it appears to be a very vague expression, has acquired a well recognised meaning in law. If the act committed by accused constitutes an offence and if that continues from day to day and if that act covers a lapse on the part of the accused to comply with any statutory direction, a fresh offence is committed by the accused every day so long as the lapse continues. Normally and in the ordinary course, the offence is committed only once and for all. But, there are offences which continue to be committed day to day and such offences are continuing offences. In every case of a continuing offence, it might be an omission or a positive act on the part of the defaulter. Sri Krishnaiah referred me to State of Bihar v. Deokaran . In para 5 of the said judgment it has been observed as (at page 909):
"Continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It is one of those offences which arises out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience or non-compliance occurs and recurs, there is the offence committed. The distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues and, therefore, constitutes a fresh offence every time or occasion on which it continues. In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all."
Similar is the principle laid down in Bhagirath Kanorai v. State of Madhya Pradesh (1986) 68 FJR. 98. In Paras 12 to 14, the Supreme Court has laid down as (at pages 103 and 104):
"In Best v. Butler & Fitzgibbon 1932 2 KB 108, the English Trade Union Act, 1871, made it penal for an officer or a member of a trade union to wilfully withhold any money, books, etc., of the trade union. It was held in that case that the offence of withholding the money was a continuing offence, the basis of the decision evidently being that every day that the moneys were wilfully withheld, the offence was committed.
In Verney v. Mark Fletcher & Sons Ltd. 1909-1 KB 444, Section 10(1) of the Factory and Workshops Act, 1901, provided that every flywheel directly connected with steam, water or other mechanical power must be securely fenced. Section 135 provided the penalty for non-compliance with Section 10(1), while Section 146 provided that information of the offence shall be laid within three months after the date on which the offence comes to the knowledge of the Inspector. It was held that the breach of Section 10(1) was a continuing breach and, therefore, the information was in time. Every day that the fly-wheel remained unfenced, the factory was run otherwise than in conformity with the Act of 1901 and, therefore, the offence defined in Section 10 was a continuing offence.
The Third English case referred to is London County Council v. Worley, 1984-2 QB 826, in which Section 85 of the Metropolis Management Amendment Act, 1852 prohibited the erection of a building on the side of a new street in certain circumstances, without the consent of the London County Council. The Court construed Section 85 as creating two offences: building to a prohibited height and, continuing such a structure already built after receiving a notice from the County Council. The Court held that the latter offence was a continuing offence".
In para 15 of the said case, the Supreme Court has stated as (at page 104):
"In Emperor v. Karsandas, AIR 1942 Bom. 326, Section 390(1) of the Bombay City Municipal Act, 1888, provided that no person shall newly establish in any premises any factory of a certain description without the previous permission of the Commissioner nor shall any person work or allow to be worked any such factory without such permission. It was held by the High Court that establishing a new factory was an offence committed once and for all but, working it without permission, was a continuing offence".
In para 16, the Supreme Court has stated as (at page 104):
" In State of Bombay v. Bhiwandiwala, , it was held that the offence of using the premises as a factory without a licence is a continuing offence".
In para 17, the Supreme Court has stated as (at page 104):
" In State of Bihar v. J.P. Singh 1963 BLJR 782, the High Court of Patna held that conducting a restaurant without having it registered and without maintaining proper registers were continuing offences."
12. Learned counsel, Shri Krishnaiah, referred me to LIC of India v. D.J. Bahadur : 1981 (1) LLJ 1 the said judgment has been delivered by Krishna lyer, J., on behalf of himself and R.S. Pathak, J. At page 70 it has been stated as:
"The core question that first falls for consideration is as to whether the settlements of 1974 are still in force. There are three stages or phases with different legal effects in the life of an award or settlement. There is a specific period contractually or statutorily fixed as the period of operation. Thereafter, the award or settlement does not become non est but continues to be binding. This is the second chapter of legal efficacy but qualitatively different as we will presently show. Then comes the last phase. If notice of intention to terminate is given under Section 19(2) or 19(6) then the third stage opens where the award or the settlement does survive and is in force between the parties as a contract which has superseded the earlier contract and subsists until a new award or negotiated settlement takes its place. Like Nature, Law abhors a vacuum and even on the notice of termination under Section 19(2) or 19(6) the sequence and consequence cannot be just void but a continuance of the earlier terms, but with liberty to both sides to raise disputes, negotiated settlements or seek a reference and award. Until such a new contract or award replaces the previous one the former settlement or award will regulate the relations between the parties. Such is the understanding of industrial law at least for 30 years as precedents of this Court and of the High Courts bear testimony. To hold to the contrary is to invite industrial chaos by an interpretation of the Industrial Disputes Act whose primary purpose is to obviate such a situation and to provide for industrial peace. To distil from the provisions of Section 19A conclusion diametrically opposite of the objectives, intendment and effect of the Section is an interpretative stultification of the statutory ethos and purpose. Industrial law frowns upon a lawless, void and under general law the contract of service created by an award or settlement lives so long as a new lawful contract is brought into being. To argue otherwise is to frustrate the rule of law. If law is a means to an end-order in society can it commit functional harakiri by leaving a conflict situation to lawless void?"
In the abovesaid case, the point involved was, as can be seen from paragraph 12, the current bonus. Therefore, the three stages laid down in para 33 of the said case are in relation to the question of bonus. The question of termination of service and the question of the award being passed reinstating the employees was not at all the subject-matter of investigation in the said case. Therefore, the said decision does not throw much light on the question involved in this case.
13. Learned counsel, Shri Krishnaiah, then referred me to Mohd. Siddiq v. Raghnath Singh 1979 Lab.I.C.876, and learned counsel, Venkataramanaiah, relied on State of Maharashtra v. Ajit Maneklal Choksi, 1979 Lab. I.C. 59. The view expressed by the Rajasthan High Court appears to be supporting the view of learned counsel, Shri Krishnaiah, while the Bombay High Court judgment supports the view expressed by Shri Venkataramanaiah.
14. As already stated above, the offence would amount to a continuous offence, if non-compliance with the same amounts to a breach of that award every moment till that is complied with. In this case, the award is passed ordering reinstatement with back wages. So long as that award is not complied with, its non-compliance would amount to an offence every moment so long as it has not been given effect to. Therefore, in the ordinary course, non-complying with the order of reinstatement would amount to a continuous offence. It ceases to be an offence, once it is complied with. So long as it is not complied with, non-compliance thereof would amount to an offence being committed continuously. Therefore, I have no hesitation in mind to hold that the non-compliance with the award of reinstatement is a continuous offence and not an offence committed once and for all. It was sought to be argued by Shri Venkataramanaiah that once the award is complied with, there is no question of enforcing the same. Thus, according to him, it is an offence committed only once. The compliance of the award at a later stage would not wipe out the -original guilt. Hence, non-compliance with the award within time can still be regarded as an offence, though it might have been complied with at a later stage.
15. But, we have got still a greater hurdle to get through in the present case. As stated above, even continuous offences if regulated by any enactment or statute, will have to be governed by the enactment or statute. Section 17 of the Act requires the publication of the award in a Government Gazette. Section 17-A of the Act says that an award shall become enforceable on the expiry of thirty days from the date of its publication under Section 17. Therefore, it makes clear that the award of reinstatement passed in this case becomes enforceable only on the expiry of 30 days from the date of publication under Section 17. It was published in the Karnataka Government Gazette on 30th March, 1978. Therefore, it becomes enforceable only from 30th April, 1978. Section 19(3) of the Act reads that an award shall subject to that provisions of this section remain in force for one year from the date on which the award becomes enforceable, which is thirty days from the date of publication under Section 17. Therefore, the enforceability of the award is restricted to one year by Section 19(3). If the award ceases to be enforceable after one year, non-compliance thereafter ceases to be an offence. If it ceases to be enforceable, it is not required to be complied with in law at all. The concept of enforceability and compliance thereof go hand in hand. If the law lays down that a particular award ceases to be enforceable after a particular period, no. party would have a right to enforce the same thereafter and no party can be accused of non-compliance after the expiry of that period. Therefore, even though the non-compliance of the award of reinstatement might amount to a continuous offence, still the statute contained in Section 19(3) places an embargo or restriction that it will be enforceable or it would remain enforceable only for one year. When the law itself restricts the operation of the award for one year, it would be wrong to urge that even after the expiry of one year, it would remain enforceable and non-compliance therewith even after the expiry of one year would be punishable under law. Therefore, the restriction of one year placed by Section 19(3) makes the present continuous offence in question, continuous only for one year and not thereafter. Any non-compliance during the period of enforceability for one year is made punishable every moment of the one year during which it remains in force. But, once the period of one year is over, it becomes no longer enforceable in law and it cannot be made punishable. Therefore, though it was open to the complainant to prosecute the accused for non-compliance at any time during the period of one year, the right to prosecute is lost after the expiry of one year as laid down by Section 19(3). In this case, the award has been passed on 23rd February, 1978. It is published on 30th March, 1978, in the Karnataka Government Gazette. Therefore, it became enforceable from 30th April, 1978. The period of one year prescribed by Section 19(3) would be over by 30th April, 1979. The complainant, trade union, has approached the Labour Commissioner on 3rd August, 1979. They have thus approached the Labour Commissioner only after the expiry of the prescribed period of one year. The Labour Commissioner passed an order, dated 6th September, 1979, according sanction to prosecute. It was also after the expiry of the prescribed period of one year. By the grant of sanction, the period of limitation would not revive at all. If the matter is barred by limitation, the according of sanction would not revive the cause of action at all. The complaint has been filed on 19th September, 1980, i.e., after the expiry of one year from the date of order passed by the Labour Commissioner, according sanction. Section 29 of the Industrial Disputes Act has prescribed an imprisonment which may extend to six months or fine or both. Section 468(2)(b) prescribes a period of one year, if the imprisonment does not exceed a period of one year. In this case one year has already lapsed. Even if the date of offence is taken to be the date on which sanction was accorded by the Commissioner, still the complaint is barred by time because it was filed more than one year after the day when the Labour Commissioner had passed the order according sanction. Therefore, in the result, the Magistrate was right in holding that the complaint was barred by time. The said order needs no interference.
16. The revision is dismissed.