Orissa High Court
Management Of Peerless General Finance ... vs Jugal Kishore Rath And Anr. on 18 March, 2002
Equivalent citations: [2002(95)FLR939]
Author: L. Mohapatra
Bench: L. Mohapatra
JUDGMENT L. Mohapatra, J.
This application under Section 482 Cr.P.C. has been filed for quashing criminal proceeding in 2(c) C.C. No. 126 of 1996 pending in the Court of the learned S.D.J.M. (Sadar), Cuttack as well as the order taking cognizance dated 30.4.96 for the offence under Section 29 of the Industrial Disputes Act, 1947.
2. Facts giving rise to the case are that one Priya Ranjan Mishra working as a Sub-staff in the Cuttack Branch Office of M/s. Peerless General Finance and Investment Company Ltd. (petitioner) was terminated from service with effect from 1.12.81 and dispute with regard to termination was referred to Industrial Tribunal Orissa for adjudication vide Industrial Dispute Case No. 46 of 1983. In the said Industrial Dispute case the award was passed on 30.5.1988 holding the termination to be illegal and unjustified and the Tribunal in the said award directed the following :
"The refusal of employment to the third-party workman which amounted to termination of his service by the First-party Management, with effect from 1.12.1981 is neither legal nor justified. He is entitled to reinstatement in his post. He will be entitled to back wages only until 29.12.1981 from the date of termination of his services."
It is alleged in the complaint that in spite of the award being passed in favour of the said workman the management issued an order of appointment on 19.9.1988 which was not in terms of the award and there was non-compliance of the direction of the Tribunal. It is further alleged that though some letters were written by the Labour authorities for enforcement of the award in full the same was not enforced, as a result of which complaint was filed for non-compliance of the award alleging offence under Section 29 of the Industrial Disputes Act and on the basis of such complaint learned Magistrate took cognizance on 30.4.96 which is the subject matter of challenge in this application.
3. Shri Jagannath Patnaik, learned Senior Advocate appearing for the petitioners challenged the order taking cognizance basically on the ground that in view of the bar under Section 468 of the Criminal Procedure Code the learned Magistrate could not have taken cognizance of the offence eight years after the same was committed. As an alternative argument also Shri Patnaik submitted that direction of the Tribunal has been complied with. To substantiate the first submission raised Shri Patnaik invited attention of the Court to Section 468 of the Cr.P.C. It was contended that since imprisonment prescribed under Section 29 of the I.D. Act is for a maximum period of six months, limitation for taking cognizance is one year from the date of occurrence/non-compliance and the complaint having been filed after eight years of alleged non-compliance the learned Magistrate has no jurisdiction to take cognizance without taking recourse to Section 473 of the Cr.P.C. According to Sri Patnaik non-compliance even if accepted cannot be said to be continuing offence and therefore limitation prescribed in Section 468 Cr.P.C. shall have application. To support this contention reliance is placed on a decision of the Calcutta High Court reported in 1986 LIC 1123, decision of the Bombay High Court reported in 1979 LIC 59 (The State of Maharashtra v. Ajit Maneklal Choksi) and decision of the Delhi High Court reported in AIR 1976 Delhi 168 (Coz & Kings (Agents) Ltd. v. Their workmen and Ors.).
On the other hand, Sri Sahoo, learned counsel appearing for the opposite party submitted that non-compliance of a direction to reinstate is a continuing offence and therefore limitation as prescribed under Section 468 Cr.P.C. has no application. He relied upon a decision of the Karnataka High Court reported in 1999 LIC 2364 (Management of M/s Naga Theatre, Bangalore V. R. Raja), and another decision of Kerala High Court reported in 1987(2) LLJ 38 (Trichur Urban Co-op. Bank Ltd. v. District Labour Officer) and decision of the Apex Court reported in AIR 1964 SC 1522 (South Indian Bank Ltd. v. R. Chandra). Reliance is also placed on a decision of the Apex Court reported in 1999(1) LLJ 849 (Management of Karnataka State Road Transport Corporation v. KSRTC Staff and Workers' Federation and Anr.).
4. In the light of the argument advanced and the decisions cited I proceed to examine the case. Section 17-A of the Industrial Disputes Act (hereinafter called as 'the Act'( prescribes time when the award commences. Said provision prescribes that an award shall become enforceable on the expiry of thirty days from the date of its publication under Section 17. Section 19 of the Act prescribes the period of operation of the award. It is provided in the said Section that an award shall, subject to 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, subject to the provisos as mentioned in Sub-section (3) of Section 19. In the proviso also it is prescribed that appropriate Govt. may reduce the said period and fix such period as it thinks fit and may before the expiry of the said period, extend the period of operation by any period not exceeding one year at a time and the total period of operation of any award shall not exceed three years. Section 17-A read with Section 19(3) would indicate that the award which becomes enforceable on the expiry of 30 days from the date of its publication" in terms of Section 17 shall remain in operation for a period of one year. It is open for the appropriate Government to extend the period of operation not exceeding one year at a time subject to maximum period of three years, Sub-section (5) of Section 19 prescribes that 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. Sub-section (6) of Section 19 prescribes that notwithstanding the expiry of the period of operation under Sub-section (3), 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 party or parties intimating its intention to terminate the award.
5. Calcutta High Court in the judgment reported in 1986 LIC 1123 (Swaranjit Singh and Ors. v. State and Anr.) referring to the aforesaid provisions of Section 19 held as follows :
"There are two types of awards. The awards of the first type decide the questions under reference once and for all. These awards are awards involving personal rights, such as awards directing payment of money or upholding the discharge or dismissal of workmen or directing reinstatement of discharged or a dismissed workman. The awards of second type are awards which cast a continuing obligation on the parties bound by the awards, such as awards dealing with wage structure, paid holidays, dearness allowance, gratuity and other allowances and benefits."
Relying on the said decision Sri Patnaik, learned Senior counsel submitted that since reinstatement comes within the first category of awards non-compliance of the same is made once or for all and it cannot be construed as a continuing offence.
Bombay High Court in the judgment reported in 1979 LIC 59 observed that if reinstatement was not made by the employer in terms of the award then offence must be deemed to have been committed on that particular day. The period of limitation of one year prescribed under Sub-section (3) of Section 19 has to start from that day.
Delhi High Court in the case reported in AIR 1976 Delhi 168 observed as follows :
"3-A. Sub-section (5) begins with the words 'nothing contained in Sub-section (3) shall apply' etc. It is common to use these words to preface a proviso or an exception to a statutory provision. But a careful reading of Subsections (5) and (3) together would show that Sub-section (5) is more by way of explanation to Sub-section (3) rather than by way of an exception to it. Sub-section (3) applies only when an award remains operative after becoming enforceable under Section 17-A. This does not mean that Sub-section (3) by itself makes every award operative after becoming enforceable. As justice Frankfurter once observed, statutes must be read with the gloss of the experience of those who framed them (United States v. Rabinowits, (1950) 339 US 56 at P. 70). Similarly the Rule in Heydon's case tells us that a statute is to be understood in the light of the mischief which it was intended to cure."
Calcutta High Court decision also indicates that since reinstatement comes under the first category of award and is not a continuing offence before taking cognizance the Magistrate has to satisfy himself that the complaint is within the period of limitation prescribed under Section 468 Cr.P.C.
6. In this connection, it is worthwhile to refer to a decision of the Apex Court reported in AIR 1964 SC 1522. The Apex Court taking into consideration Section 17-A and Section 19 of the I.D. Act held as follows :
"It is said that the non-obstante clause 'Notwithstanding anything contained in the Industrial Disputes Act, 1947' makes the provisions of Section 19(6) inapplicable to the Sastry. Award and so the provision there that the award shall continue to be binding on the parties until a period of two months had elapsed from the date on which notice is given by any party bound by the award to the other party or parties intimating, its intention to terminate the, award, does not come into operation. To this objection, two answers are available. The first is that there is difference between an award binding on the parties. The different provisions made by the Legislature in Section 19(3) and Section 19(6) illustrative this distinction. Under Section 19(3) the award remains in operation for a period of one year. (The words "from the date on which the award becomes enforceable under Section 17A" were inserted after the words "period of one year" by the amending Act of 1956). Section 19(6) is in these words ;
'Notwithstanding the expiry of the period of operation under Sub-section (3), 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 party or parties intimating its intention to terminate the award.' This, makes it clear that after the period of operation of an award has expired, the award does not cease to be effective. For, it continues to be binding thereafter on the parties until notice has been given by one of the parties of the intention of terminate it and two months have elapsed from the date of such notice. The effect of Section 4 of the Industrial Disputes (Banking Companies). Decision Act is that the award ceased to be in force after March 31, 1959. That, however, has nothing to do with the question as to the period for which it will remain binding on the parties thereafter. The provision in Section 19(6) as regards the period for which the award shall continue to be binding on the parties is not in any way affected by Section 4 of the Industrial Disputes (Banking Companies) Decision Act, 1955.
Quite apart from this, however, it appears to us that even if an award has ceased to be in operation or in force and has ceased to be binding on the parties under provisions of Section 19(6) it will continue to have its effect as a contract between the parties that has been made by industrial adjudication in place of the old contract. So long as the award remains in operation under Section 19(3). Section 23(c) stands in the way of any strike by the workmen and lock out by the employer in respect of any matter covered by the award. Again, so long as the award is binding on a party, breach of any of its terms will make the party liable to penalty under Section 29 of the Act to imprisonment which may extend to six months or with fine or with both. After the period of its operation and also period for which the award is binding have elapsed Section 23 and Section 29 can have no operation. We can, however, see nothing in justify a conclusion that merely because these special provision as regards prohibition of strikes and lock outs and of penalties for breach of award cease to be effective the new contract as embodied in the award should also cease to be effective on the contrary, the very purpose for which industrial adjudication has been, given the peculiar authority and right of making new contracts between employees and workmen makes it reasonable to think that even though the period of operation of the award and the period for which it remains binding on the parties may elapse - in respect of both of which special provisions have been made under Section 23 and 29 respectively - may expire the new contract would continue to govern the relations between the parties, till it is displaced by another contract. The objection that no such benefit as claimed could accrue to the respondent after March 31,1959 must therefore be rejected."
It is very clear from the said judgment that even if the period of operation of award has expired the award does not cease to be effective and it continuous to be binding thereafter on the parties until notice has been given by one of the parties of the intention to terminate it and two months have elapsed from the date of such notice.
7. In the present case in the complaint itself it is stated that the petitioner was requested vide letter No. 5768 dated 20.3.95 and letter No. 9985 dated 9.5.95 of the Labour Commissioner, Orissa to implement the award in full but of no avail. The petitioner was also requested on 20.9.95 to implement the award in full and report compliance. In response to the said letter the petitioner in his reply dated 19.10.95 intimated that it has nothing more to implement since it has already implemented the award. Complaint appears to have been filed on 30.4.1996. Since the last letter written by the petitioner was 19.10.95 intimating that the award has been complied, the complaint has to be accepted to have been filed within the period of limitation as prescribed under Section 468 of Cr.P.C. Alternatively also Karnataka High Court in the decision reported in 1999 LIC 2364 has also taken note of the Calcutta decision and referring to the decision of the Apex Court held that in the matter of reinstatement non-compliance is a continuous offence and embargo placed under Section 468 Cr.P.C. with regard to limitation is not applicable. It further held that even otherwise in the case of social beneficial legislation and offence arising under the same, the Court can and should take note of provisions of Section 473 Cr.P.C. which empowers the Court to extend the period of limitation in certain circumstances. I am persuaded to accept the reasons given by Karnataka High Court in the aforesaid decision. I, therefore, hold that non-compliance of the award in the matter of reinstatement also is a continuing offence and embargo as placed under Section 468 Cr.P.C. in the matter of limitation is not applicable to the case.
Accordingly, I do not find any merit in the application and the same is dismissed.