Karnataka High Court
N.K. Shah vs M/S Engineering General Workers Union, ... on 19 February, 1997
Equivalent citations: ILR1997KAR2612, 1997(3)KARLJ655
Author: M.P. Chinnappa
Bench: M.P. Chinnappa
ORDER
1. The brief facts leading to this petition are that on 24-7-1985 there was a settlement, between Mysore Wire and Metal Industries and also the registered Union represented by its President. Cl. 5 of the Memorandum of Settlement reads as follows :
"The workmen of M/s. Cumet Pvt. Ltd., listed in Annexure 'A' shall be provided with employment on or before the expiry of 12 months from the date of this settlement. However, for the first twelve months, those workmen to whom work in Mysore Wire and Metal Industries and or Insucon is not provided shall not be entitled to any compensation or wages. After 12 months and upto completion of the 18th month from the date of this settlement those workmen in Annexure 'A' to whom work is still not provided in Mysore Wire and Metal Industries or Insucon shall be paid 50% of the wages, Beyond 18 months, if work is still not provided to any of the workmen shown in Annexure 'A' full wages shall be paid till the date they are provided work or till the date they are offered employment in Mysore Wire and Metal Industries or Insucon Pvt. Ltd."
Though this settlement was arrived at, the receipt was driven to make an application under Section 33(c)(ii) for recovering the amount. However, other settlements were not implemented, notwithstanding the fact that the respondent has waited for over 3 years. Thereafter, despite statutory notice being given, the petitioner failed and neglected to implement the settlement. Hence, the respondent Union approached the Labour Commissioner for necessary sanction and after obtaining the sanction filed the complaint under Section 34 for the offences punishable under Section 29 of the Industrial Disputes Act (for short 'the Act'), before the 6th Metropolitan Magistrate, III Court, Bangalore, and the learned Magistrate registered the case in C.C. No. 1334/88 and after recording sworn statement took cognizance of the offence and directed to issue process to the petitioner. The said order is questioned in this petition.
2. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent.
3. The learned counsel appearing for the petitioner at the very outset submitted that the learned Magistrate ought not to have issued summons to the petitioner on the ground that the respondent has not enclosed list of witnesses as provided under sub-section (2) of Section 204, Cr.P.C.
4. It is no doubt held by this Court in a decision reported in ILR 1987 Kant 2285 holding that the compliance of sub-section (2) of Section 204, Cr.P.C. is a mandatory requirement of law and if the complainant does not enclose the list of witnesses or a statement to the effect that he does not have any other witness except the complainant himself, the proceedings will have to be quashed. However, though not direct on this point. Their Lordships of the Supreme Court in a decision State of H.P. v. Pirthi Chand held that non-compliance of the mandatory requirement of law is not a ground for this Court to interfere under Section 482, Cr.P.C. Even otherwise this complaint is only field for non-implementation of the settlement arrived at between the parties. Therefore, it is only the interpretation of the settlement which is required to be done by the learned trial court to find out as to whether the offence has been committed or not. Under these circumstances, if the witness list is not enclosed, the petitioner is in no way prejudiced or it does not in any way affect the defence to be taken by the petitioner. Therefore, this contention is rejected.
5. The learned counsel for the petitioner further argued that the offence alleged against the petitioner is punishable under Section 29 of the Act and the punishment prescribed under the said section is only 6 months, but the complaint came to be filed after 2 1/2 years. Therefore, under Section 468(1), Cr.P.C. the complaint is barred by time. Therefore, the learned Magistrate ought to have rejected the complaint.
6. Repelling this argument, the learned counsel for the respondent however submitted that the offence alleged against the petitioner is a continuing offence. Therefore, the question of limitation does not arise. He also further submitted that the respondent could not file the complaint without prior sanction of the authority and immediately after obtaining the sanction, he has field the complaint. On that ground also, the complaint is within time. However, the learned counsel for the petitioner has taken me through Section 34 of the Act and he contended that no sanction is necessary for the respondent to prosecute the petitioner. Section 34 of the Act came to be interpreted by the Full Bench of this Court in a decision reported in ILR 1987 Kant 3762 : (1989 Lab IC 165). S. N. Hada v. The Binny Limited Staff Association wherein it is held (paras 11, 13 and 16) :
"Analysis of provisions of Section 34, shows that it confers two powers on the appropriate Government - Firstly, to make a complaint itself and secondly, to authorise the making of complaint. Section 34 as the language shows is only a mandate to the Government and confers no power on the Government. It only prohibits the Court from taking cognizance of any offence punishable under the Act unless complaint is made to it by or under the authority of the appropriate Govt.
The interpretation of Section 34 would be easier if the scheme of the Act especially penalty provisions are kept in mind as cognizance of a complaint under Section 34 is taken by a Magistrate only with regard to the offences specified therein. Under the Act, two persons between whom lis exists are the Employer and the Employees. An offence of which complaint can be made would be committed either by the Employer of the Employee. By enacting penal provisions the aim of the Legislature is to ensure compliance of the orders of the Tribunal and also to ensure obedience and compliance of the provisions of the statute. By non compliance or disobedience of any provisions of the Act, it is an individual right - either of the Employer or of the Employee - which is affected. The intent of the Legislature in enacting a provision like Section 34 is to save the party against whom the complaint is to be field, from harassment, and it is for that reason that the Government is required to apply its mind and determine the propriety of filing a complaint. The phrase 'under the authority of the appropriate Government' implies a sanction by the Government after it has considered the desirability of prosecution. If such a provision had not been enacted there could be every likelihood of filing of frivolous complaints indiscriminately. Moreover, there are certain offences which have importance either to the Employer or the Employee only. In such matters why should the Government at all involve its officers in filing the complaint and allow the real aggrieved party to prosecute the complaint properly and diligently.
Authorisation is a pre-requisite essential for taking cognizance of an under this Section. The appropriate Government, therefore, is required to apply its mind and satisfy itself before it grants the authority. It is this satisfaction which material and sufficient for the purpose. Once on consideration of the relevant material the State Government finds it to be a fit case for prosecution then who should file the complaint is not of such importance .... The intent of the Legislature is only to ensure the non-filing of frivolous complaints and nothing more.
Opinion :
The Government can authorise a private person also to file a complaint and such a complaint shall be regarded as a valid complaint under Section 34 of the Industrial Disputes Act on which Court can take cognizance of any offence punishable under the Act."
With these observations Their Lordships have clearly clarified any doubt in regard to the necessity of obtaining sanction.
7. In this case, no doubt the sanction was obtained and the same was field before the learned Magistrate. As far as the validity and the authority of the sanction granted by the Labour Commr. is not in dispute. Therefore, it is clear that the respondent has made out that he could not file the complaint only because he was waiting for the order according sanction to prosecute the petitioner. Notwithstanding the fact that sanction was granted, the question is whether the complaint is barred by time ?
8. The learned counsel for the respondent strenuously argued that it is a continuing offence and therefore, the question of limitation does not arise and it is not covered under Section 462, Cr.P.C. In support of his argument, he placed reliance on a decision , Bhagirath Kanoria v. State of M.P. wherein Their Lordships have held that non-payment of the employer's contribution to the Provident Fund before the due date, is a continuing offence and, therefore, the period of limitation prescribed by Section 468 cannot have any application. The offence will be governed by Section 472 according to which, a fresh period of limitation begins to run at every moment of the during which the offence continues. It is further observed that the question whether a particular offence is a continuing offence must necessarily depend upon the language of the statute which creates 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. From this it is clear to adjudicate as to whether the offence is a continuing offence or not, we have to look into the nature of the offence and also the language used in the statute and the object with which the same was employed.
9. In this case, as stated earlier, non-implementation of Clause 5 of the settlement led to the filing of the complaint. It is an admitted fact that the said settlement, was not substituted by another settlement. Therefore, this settlement continues to exist as held by Their Lordships in the decision wherein it is held :
"After expiry of the specific period contractually or statutorily fixed as the period of operation of an award or settlement, the same does not become non est but continues to be binding. Law abhors vaccum. Until a new contract or award replaces the previous one, the former settlement or award will regulate the relations between the parties. The precedents on the point, the principles of industrial law, the constitutional sympathy of Part IV and the sound rules of statutory construction converge to the same conclusion."
10. It is not disputed that the said settlement was not substituted by any other settlement. Therefore, the settlement in question continues to be in force,. Therefore, it is a continuing offence and it is not covered under Section 462, Cr.P.C. Further, it was argued before the Hon'ble Supreme Court in a decision The State of Madras v. C. P. Sarathy that the prosecution of the 1st respondent for the alleged breach of some of the terms of the Tribunal's award is unsustainable inasmuch as it was instituted after the expiry of the award. While answering that argument, Their Lordships have held that the 1st respondent is prosecuted or an offence made punishable or Section 29 of the Act which is a permanent statue and when he committed the alleged breach of some of the terms of the award, it was in force at the time he incurred the liability to be prosecuted under the Act. The fact that the award subsequently expired can not affect that liability.
11. It is also necessary to refer to the decision rendered in State of Bihar v. Deokaran Nenshi wherein it is held (at p 348 of Cri LJ) :
"A continuing offence is one which is susceptible of continuance and is distinguishable from the one which in 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 in 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."
12. It is also not in dispute and is also held by this Court in a decision reported in (ILR 1974 (1) Kar 85) (sic) that the Labour Commissioner is the delegated authority to accord sanction to prosecute the offender for the offences coming under Section 29 of the Act. From the above discussion, it is abundantly clear that the non-implementation of the settlement or award is a continuing offence and is not controlled by Section 468, Cr.P.C. Under those circumstances, the contention of the learned counsel for the petitioner that the complaint is barred by limitation also is liable to be rejected.
13. For the foregoing reasons, I do not find any reason to interfere with the order passed by the learned Magistrate. Accordingly, the petition is dismissed.
14. Petition dismissed.