Full Judgment
V.S. Dave, J.
1. All the aforesaid cases are being disposed of by this common order as they arise out of non-implementation of the Award dated May 15, 1986 published on July 30, 1986 by the employer-petitioner.
2. Petitioners have filed this petition under Section 482, Cr.P.C. assailing the order dated July 16, 1988 whereby the learned Magistrate has taken cognizance for offence under Section 29 of the Industrial Disputes Act, 1947 against the petitioners on a complaint filed by non-petitioner No. 2 in each case. The basis of the complaint filed was that the services of the non-petitioner No. 2 were illegally terminated by the petitioners and they raised an Industrial Dispute. The matter was referred to the Labour Court and an award was passed in favour of the workman on May 15, 1986. This award came to be published on July 30, 1986 and as such it became enforceable under Section 17A of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act, 1947') with effect from August 30, 1986. Despite the fact that the award became enforceable, the petitioners though duty bound yet failed to comply with the directions contained in the award and as such the complainant non-petitioner No. 2 filed a complaint against the petitioners for offence under Section 29 of the Act, 1947. The learned Magistrate took cognizance and issued process against which the petitioner has approached this Court by way of a petition under Section 482, Cr.P. C. on the ground that the complaint was filed beyond the period of limitation and as such the Court could not take cognizance.
3. Mr. Dhanker, appearing on behalf of the petitioners in all the cases, submitted that offence under Section 29 of the Act, 1947. is punishable with imprisonment for a term which may extend to six months or with fine or with both and no Court can take cognizance of an offence after a period of expiry of one year under Section 468(2)(b), Cr.P.C. if the said offence is punished with imprisonment for a term not exceeding one year. It is submitted that since provisions of Section 468(2)(b), Cr.P.C. are also applicable to offences under Section 29 of the Act 1947, the Court could not proceed on a complaint which has been filed after a period of 21 months. It is further submitted that the complaint has been prefered in violation to the provisions of Section 34 of the Act,1947.
4. Mr. Ajit Bhandari, appearing on behalf of the non- petitioner, submitted that for applying Section 468(2)(b) of the Code of Criminal Procedure, the Court must look to the totality of circumstances and should also take into consideration the provisions of Section 472, Cr.P.C. which is a special provision in respect of continuing offences. It is submitted that in the present case Section 468(2)(b), Cr.P.C. is not applicable but the case is covered by Section 472, Cr. PC. It is further submitted that otherwise also this is a fit case where the period of limitation should be extended as complaint could not have been filed without obtaining the sanction of the Secretary and Labour Commissioner and such a sanction has been granted after a period of 20 months hence, there is no delay on the part of the complainant.
5. I have given my thoughtful consideration to the rival contentions.
6. Before applying the relevant provisions of law it would be essential to give a calendar of dates in the instant case which is as follows:-
Award passed by Labour Court-five workmen ordered to be reinstated with full back wages andconsequential benefits
15-5-1986
Award published
30-7-1986
Workman approached the petitioners with anapplication for joining the services
18-8-1986
Yet anotherapplication for the aforesaid purpose
26- 8-1986
Workman moved Secretary and Labour Commissionerfor granting sanction to prosecute the employers as contemplated by Section 29 of the Act, 1947
28-8-1986
Sanction accorded
21-5-1988
Complaint filed
24-5-1988
Cognizance taken
16-7-1988
7. It is pertinent to mention here that after the application was filed by the workman before according sanction on May 21, 1988, notice had been given to the petitioners by the Labour Commissioner on September 18, 1986 and several adjournments were prayed for by the petitioners for tiling the reply.
8. A perusal of the aforesaid calendar shows that delay has been caused not because of the complainant non-petitioners but because of the State Government in according the sanction and which delay was caused because of the several adjournments taken by the petitioners to file reply to the notice issued by the Labour Secretary. Thus, the petitioners have contributed themselves for causing the delay in filing the complaint and it is a fit case where the delay could even be condoned for the aforesaid circumstances in the interest of justice under the provisions of Section 473, Cr. P. C. In a progressive legislation like the one where the employer makes defaults and contributes to the delay by his own action, it is essential to give effect to the provisions of law that the provisions about condonation of delay/extension of period of limitation be excercised with reasonable liberality as any sharp and intelligent employer may defeat the provisions of law and escape the prosecution. Even this case is fully covered under Section 472, Cr. P.C. Section 29 of the Act, 1947 runs as under:-
'29. Penalty for breach of settlement or award.- 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 and the Court trying the offence, if it fines the offender, may direct that the whole or any part of the fine realised from him shall be paid, by way of compensation, to any person who in its opinion has been injured by such breach.'
A perusal of the aforesaid Section makes it clear that where the breach is continuing one, there is a provision for recurring fine for each day of non-compliance. Their Lordships of the Supreme Court in Bhagirath Singh v. State of M.P. 1984 (49) F.L.R. 382 (S.C.) held as under:-
'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 offender and, above all, the purpose which is intended to be achieved by constituting the particular act as an offence. Turning to the matters before us, the offence of which the appellants are charged is the failure to pay the employer's contribution before the due date. Considering the object and purpose, of this provision, which is to ensure the welfare of workers, we find it impossible to hold that the offence is not of a continuing nature. The appellants were unquestionably liable to pay their contribution to the Provident Fund before the due date and it was within their power to pay it, as soon after the due date had expired as they willed. The late payment could not have absolved them of their original guilt but it could have snapped the recurrence. Each day that they failed to comply with the obligation to pay their contribution to the Fund, they committed a fresh offence. It is putting an incredible premium on lack of concern for the welfare of workers to hold that the employer who has not paid his contribution or the contribution of the employees to the Provident Fund can successfully evade the penal consequences of his act by pleading the law of limitation. Such offences must be regarded as continuing offences, to which the law of limitation cannot apply.'
Their Lorships further observed in the aforesaid case as under:
'Before we close, we consider it necessary to draw attention to the provisions of Section 473 of the Code which we have extracted above. The section is in the nature of an overriding provision according to which, notwithstanding anything contained in the provisions of Chapter XXXVI of the Code, any Court may take cognizance of an offence after the expiry of the period of limitation if, infer alia, it is satisfied that it is necessary to do so in the interest of justice. The hair splitting argument as to whether the offence alleged against the appellants is of a continuing or non-continuing nature, could have been averted by holding that, considering the object and purpose of the Act, the learned Magistrate ought to take cognizance of the offence after the expiry of the period of limitation if any such period is applicable, because the interest of justice so requires. We believe that in cases of this nature, Courts which are confronted with provisions which lay down a rule of limitation, governing prosecutions, will give due weight and consideration to the provisions contained in Section 473 of the Code.'
Similar view has been taken in The Trichur Urban Co-operative Bank Ltd. and Ors. v. District Labour Officer and Ors. (1987-11-LU-38).
9. Thus, I have no hesitation in holding that the provisions of Section 468(2)(b), Cr. P. C. are not applicable and the case is fully covered by Section 472, Cr. P.C. as well. Regarding the contention raised about Section 34 of the I.D. Act, 1947, the same has been raised to be rejected as it is concluded by several decisions including the one in Feroz Din and Ors. v. State of West Bengal (1960-I-LU-244) and S.N. Hada v. Binny Ltd. Staff Association (1988-I-LLJ-405).
10. I find no force in these cases and the same are dismissed.