Kerala High Court
Trichur Urban Co-Op Bank Ltd. vs District Labour Officer on 9 October, 1986
Equivalent citations: (1987)IILLJ38KER
ORDER Thomas, J.
1. The question mooted in this revision is whether the offence under Section 29 of the Industrial Disputes Act, 1947 (for short the Act) is a 'continuing offence' as envisaged in Section 472 of the Code of Criminal Procedure (for short the Code). If it is a continuing offence, then the bar under Section 468 of the Code will not operate in this case. If it is not a continuing offence, a few other questions may also arise for consideration.
2. The District Labour Officer, Trichur filed a criminal complaint before the Chief Judicial Magistrate's Court, Trichur against the Trichur Urban Co-operative Bank Ltd. (for short the Bank) and some of its office bearers as the accused alleging that those accused have contravened Section 17A of the Act by not implementing the terms of an award passed by the Labour Court, Ernakularm. The said award was published in the Kerala Gazette on 2nd March 1982 as provided in Section 17A of the Act. As per the award, the Bank was directed to reinstate one of its employees who was dismissed from service. The award will become enforceable under law on the expiry of 30 days from the date of its publication in the Gazette and hence, the award in this case became enforceable on 2nd April 1982. There is no dispute on this point. The allegation is that the Bank did not carry out the direction contained in the award. The District Labour Officer filed the above said complaint on 4th June 1984. Other facts are unnecessary for the disposal of this revision.
3. The offence under Section 29 of the Act is punishable with imprisonment for a term which may extend to six months or with fine. Chapter XXXVI of the Code deals with "Limitation for taking cognizance of certain offences". Section 468 of the Code is under the said Chapter and it prohibits taking cognizance of an offence after the expiry of a period of one year it the offence is punishable with imprisonment for a term not exceeding one year, except as otherwise provided elsewhere in the Code. Section 472 of the Code says that "in the case of a continuing offence, a fresh period of limitation shall begin to run at every moment of the time during which the offence continues". When the accused entered appearance in the Chief Judicial Magistrate's Court, they filed a petition praying that the complaint may be dismissed as it was filed after the period of limitation. The Chief Judicial Magistrate dismissed the said petition on the ground that the offence under Section 29 of the Act is a continuing offence and hence, there is no bar of limitation. That order of the learned Chief Judicial Magistrate is under challenge in this revision.
4. The material portion of Section 29 of the Act reads:
...Any person who commits a breach of any term of any settlement or award, which is binding on him under this Act, shall be punishable with imprisonment for a term which may extend to six months or with fine, or with both and where the breach is a continuing one, with a further fine which may extend to two hundred rupees for every day during which the breach continues after the conviction for the first....
The offence is thus 'the breach' of the term of an award. On the expiry of 30 days from the date of publication of the award in the Gazette as provided in Section 17A of the Act, the award became enforceable and thus on the next day the person bound by the award is obliged to comply with the terms of the award and his failure to do so would amount to his committing a breach of the term of the award. But if he does not comply with the terms of the award on the next day of the expiry of thirty days of the said publication, does it mean that his obligation to comply with the direction in the award would cease at the end of that day? Section 19(3) of the Act says that "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 17A." This sub-section shows that the persons bound by the award are obliged to comply with the terms therein and that the obligation continues during the terms therein and that the obligation continues during the entire period of one year when the award remains in operation. It would be preposterous to suggest that on the second day after the expiry of the said period of thirty days, the persons bound by the award are free to ignore it. Unless he complies with the direction contained in the award, his obligation continues until the termination of the period during which the award remains in operation. The commission of a breach of the term of the award on the first day of its operation does not absolve him from his obligation. If that obligation survives during the successive days, and if he does not comply with the term during those successive days also, the commission of the breach continues. The breach continues so long as the obligation. In that view, the offence also continues as a consequence. It is not a case where he can commit the breach only on the next date of expiry of the period of thirty days after publication of the award. "Continuing offence is one which is susceptible of continuance" as observed by Shelat, J., in State of Bihar v. Deekaran . The Supreme-Court drew a distinction between continuing offences and other offences on the premise that the latter class of offences includes an offence which is committed once and for all. "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." The aforesaid principle was followed by the Supreme Court in a later decision in Bagirath Kanoria v. State of M.P. . The observation of Chandrachud, C.J. is helpful in understanding the real nature of the distinction between the two types of offences. It reads thus: "A continuing offence is one which continues and a non-continuing offence is one which is committed once and for all.... The question whether a particular offence is continuing offence must necessarily depend upon the statute which created that offence, the nature of the offence, and above all, the purpose which is intended to be achieved by constituting the particular act as an offence." The learned Counsel contended that Section 19(3) does not apply to an award which contains only a direction for the reinstatement of a workman and it does not impose any further obligation on the parties. To support this contention, he made reference to Sub-section (5) of Section 19 which reads thus:
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.
The enforceability of the award is alive for a period of one year unless the award by its nature or obligation, imposes a continuing obligation. In this context Sub-section (6) of Section 19 is also to be looked into. That sub-section provides a further period for the enforcement of the award. It says that the award shall continue to be binding on the parties until a period of two months has elapsed from the date, on which notice is given by any party bound by the award to the other parties intimating its intention to terminate the award. A reading of Sub-section (3) and Sub-section (5) would show that Sub-section (5) does not make any exception to Sub-section (3), for, the former is only intended to be a clanficatory provision. In some awards, the implementation of the terms thereof will put an end to all further obligations: e.g. if the award directs only reinstatement of a dismissed workman, the compliance with that direction will put an end to the continuation of the period of enforceability of the terms of that award. The words "after it has been given effect to" in Sub-section (5) would make the position clear that if an award, by its nature or terms or other circumstances, does not impose "any continuance of the obligation on the party," then the period of one year described in Sub-section (3) has no practical consequence. This is how Sub-section (5) vis-a-vis Sub-section (3) is understood by a Division Bench of the Delhi High Court. (Coz & Kings (Agent) v. Their Workmen . In that case Deshpande, J. (as he then was) observed thus: "Sub-section (5) of Section 19 is more by way of explanation to Sub-section (3) of Section 19 rather than by way of an exception to it. Sub-section (3) applies only when an award remains operative after becoming enforceable under Section 17A." I am in respectful agreement with the aforesaid observations. I therefore do not find any difficulty in holding that the obligation under the award continues for a period of one year, and continues for a further period of two months, if in the meanwhile, a notice1 under Sub-section (6) is given by one party to the other. The breach of the terms of the award continues during that period until the terms are complied with, in Cuha & Co. v. R.N. Misra 1984 Lab. I.C. 1318 a single Judge of the Calcutta High Court (M.K. Mukherjee. J.) held that:
there cannot be any manner of doubt that the obligation of the petitioner to implement the award continues so long as the award is not terminated in accordance with Section 19(6) of the Act;.... It necessarily follows that so long as the award remains valid and operative, the petitioners are bound to implement it and their liability for prosecution under Section 29 of the Act for non-implementation continues.
That was a case where an employer was directed to reinstate one of his employees as per an award passed by the Labour Court and when the employer did not implement the award, a complaint was filed against him for the offence under Section 29 of the Act. The question of limitation was raised in that case as the complaint was filed only two and a half years after the publication of the award in the Gazette.
5. Learned Counsel for the petitioners drew my attention to two decisions, one by a single Judge of the Calcutta High Court and the other by a single Judge of the Bombay High Court, taking a different view. The decision of the Calcutta High Court is reported in Swaranjit Singh v. State 1985 LLN. 458, which was the decision rendered by S.P. Das Ghosh J. On going through the decision it is seen that the learned Judge had no occasion to consider the earlier decision of the same court in Guha & Co. v. R.N. Misra (supra). According to Ghosh, J., there are two types of awards and awards of the first type involve personal rights and awards of the seond type are those which cast a continuing obligation on the parties, such as awards dealing with wage structure, paid holidays, dearness allowance, etc. Ghosh, J, has put the award involved in that case in the first type and held that there is no question of any period of operation to such awards as provided in Section 19 (5) of the Act. I have dealt with the implications of Section 19 (5) and Section 19 (3) of the Act and I find it difficult to agree with the conclusions in Swaranjit Singh's case. In the other case, State of Maharashtra v. Ajit Maneklal Choksi 1979 I LLJ 423 Jahagirdar, J. of the Bombay High Court has held that the reinstatement as directed by the award should have been made on the 31st day after publication of the award in the Gazette and that if such reinstatement is not made by the employer, then the offence must be deemed to have been committed on that particular date and hence, a complaint filed beyond the period of one year from that date is barred by limitation. The learned Judge did not consider the scope of "continuing offence" as mentioned in Section 472 of the Code. With respect I express my inability to agree with the reasoning of the learned Judge in the aforesaid decision. In paragraph 5 of the said decision the learned Judge has stated that the act of reinstatement is to be made at one time and it is not a liability imposed upon the employer which is to be carried on his shoulder from day-to-day. An example is cited in the decision that a workman who is directed to be reinstated on a particular day is reinstated on that day and thereafter the workman is again discharged or dismissed. The learned Judge has rightly observed that there is no breach of the direction of reinstatement involved in the said example. But the issue which arose in that example is quite alien to the one involved in this case. The said decisions thus do not persuade me to differ from the view which I have expatiated above.
6. I therefore hold that the offence under Section 29 of the Act is a continuing offence and as such, the complaint filed against the petitioners before the Chief Judicial Magistrate's Court is not barred by limitation.
In the result, this criminal revision petition is dismissed.