1. Heard Sri S.N. Choubey, learned counsel for the petitioner, Sri Devi Kant Jha, learned counsel for the Opposite Party no. 3 and Sri Atul Chandra, Additional Public Prosecutor for the State. None appeared specifically on behalf of opposite party no. 2.
2. This is an application under section 482 of the Criminal Procedure Code seeking quashing of the order dated 26.05.2003 passed by Chief Judicial Magistrate, Patna, in Complaint Case No. 1152(M)/2003, taking cognizance against the petitioner for the offence under section 29 of the Industrial Dispute Act (hereinafter referred to as the Act).
3. The relevant admitted fact is that there is an award dated 5th September 2001 passed by Industrial Tribunal, Patna, in Reference Case No. 181/1999/6C/2001 published vide Notification dated 12.09.2001 and as per award, the management of UCO Bank was directed to (1) absorb Sri Shyam Kishore Pandey (opposite party no.3 here) in the permanent post of sub staff with other empanelled casual workers with the restriction of fresh recruitment is lifted by Reserve Bank of India and when vacancy will available for such absorption; (2) until the services of the workmen is regularized, he be paid the wages equivalent to minimum salary plus allowances payable to a regular peon in Banks subordinate cadre from the date when he will actually be taken back in service. He will be entitled for payment of back wages only at the old rate.
4. Averting non-implementation of the award complaint was filed by opposite party no.2 who was authorized to do so on 29.05.2003, whereupon court below immediately took cognizance for the offence under 29 of the Act, and transfer the case for disposal to the court of Sri R.P. Tiwary, Judicial Magistrate, Patna, whereupon the petitioner has filed the instant application mainly on two counts.
5. It is submitted on behalf of petitioner that award has partially been implemented by absorbing opposite party no.3 as casual labour but on the point of regularization, he is silent and order taking cognizance is barred under law as punishment prescribed for such offence is only six months. Thus, as per Section 468(2) (h) of the Code of Criminal Procedure. It could have been taken at least 1 1/2 years before. The learned counsel placed reliance upon a few unreported decisions of this court. It is also contented on behalf of petitioner that at the relevant time he was not posted at Patna, so he is not liable to be prosecuted for non-implementation of award, if any.
6. On the other hand, learned counsel representing opposite party no.3 submitted that the award cannot be said even partially implemented as opposite party no.3 was not only to be absorbed, but was to be paid remuneration at a particular rate, but he was offered payment much less than that. Further question of limitation as prescribed under section 468 Criminal Procedure Code does not arise in this case since it is continuing offence. The unreported decisions of this court in few cases have no bearing on the matter since before them. The decision of the Apex Court and other Honble Courts on the point were not placed for consideration. It is further contended that it is immaterial whether petitioner was posted or not posted at the relevant time, rather the authorities present at the time raising grievance by filing complaint are liable to be prosecuted.
7. Undoubtedly, there is an award in favour of opposite party no.3 which became enforceable in the terms of section 17A of the Industrial Disputes Act on expiry of 30 days from the date of its publication under section 17 of the Act and such publication was made on 12.09.2001, thus became enforceable from 12.10.2001.
8. Section 19 of the Act provides the period of operation of such settlements and awards which reads as such:
19. Period of operation of settlements and awards (1) A settlement shall come into operation on such date as is agreed upon by the parties to the dispute, and if no date is agreed upon, on the date on which the memorandum of the settlement is signed by the parties to the dispute.
(2) Such Settlement shall be binding for such period as is agreed upon by the parties, and if no such period is agreed upon, for a period of six months [from the date on which the memorandum of settlement is signed by the parties to the dispute], and shall continue to be binding on the parties after the expiry of the period aforesaid, until the expiry of two months from the date on which a notice in writing of an intention to terminate the settlement is given by one of the parties to the other party or parties to the settlement. [(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 17A]. Provided that the appropriate Government may reduce the staid period and fix such period as it thinks fit:
Provided further that the appropriate Government may, before the expiry of the sand 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.
(4) Where the appropriate Government, whether of its own motion or on the application of any party bound by the award, considers that since the award was made, there has been a material change in the circumstances on which it was based, the appropriate Government may refer the award or a part of it [to a Labour Court, if the award was that of a Labour Court or to a Tribunal, if the award was that of a Tribunal or of a National Tribunal], for decision whether the period of operation should not, by reason of such change, be shortened and the decision of [Labour Court or the Tribunal, as the case may be] on such reference shall be final.
(5) Nothing contained in sub-section (3) shall apply to any award which by its nature, terms of other circumstances does not impose, after it has been given effect to, any continuing obligation on the parties bound by the award.
(6) 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. [(7) No notice given under sub-section (2) or sub-section (6) shall have effect, unless it is given by a party representing the majority of persons bound by the settlement or award, as the case may be.]
9. The Calcutta High Court in a case M/s Guha & Co. and another vs. R.N. Misra and another reported in 1984 LAB. I.C. 1318; in para 3 of this case has held as such: "3. Section 19(3) has to be read with Section 19(6) of the Act and once so read, there cannot be any manner of doubt that the obligation of the petitioners to implement the award continues so long as the award is not terminated in accordance with Section 19(6) of the Act; and in the complaint it has been specifically stated that the award has not been terminated. 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. The learned Magistrate was therefore fully justified in rejecting the application of the petitioners."
10. The Apex Court in a case of State of Madras vs. C.P. Sarathy reported in A.I.R. 1953 SC 53; while dealing with the provisions of Section 29 of the Act prevailing on the date in para 10 has clearly held that
"The first respondent is prosecuted for an offence made punishable under S.29 of the Act which is a permanent statute and when he committed the alleged breach of some of the terms of the award, which was in force at the time, he incurred the liability to be prosecuted under the Act. The fact that the award subsequently expired cannot affect that liability."
11. Section 29 of the Act as substituted by Act 36 of 1956 and after certain omission by Act 46 of 1982 and addition by Act 35 of 1965 existing today reads as such: "[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 realized from him shall be paid, by way of compensation, to any person who, in its opinion has been injured by such breach.]"
(The underline portion was inserted by Act 35 of 1965 w.e.f. 01.12.1965).
12. The Apex Court in a case of Bhagirath Kanoria v. State of M.P. reported in A.I.R. 1984 SC 1688 with other two cases; on the question of continuing offence and application under section 468 of Criminal Procedure Code, of course, in relation with the matter of provident fund in para 21 has held that non-payment of the employers contribution to the Provident Fund before the due date is a continuing offence and, therefore, the period of limitation prescribed by Section 468 of the Code cannot have any application.
13. It would not be out of place to refer decision of Madras High Court directly on the provision as contemplated under Section 29 of the Act, wherein reliance has been placed upon the decision of Apex Court in case of Bhagirath Kanoria case (supra).
"8. On the above ratio, I am also fortified in holding that Section 29 of the Act is continuing offence, for the purpose of computing limitation. It cannot be restricted to only one part of the Section. Not implementing the award and thereby not reinstating the employee, is certainly a continuing offence and it cannot be restricted only to the first six months, in view of the punishment for the offence. If the prosecution is resorted to for enhanced punishment only in such a contingency, the first conviction is sine qua non. Otherwise the offence would retain the character of a continuing offence."
14. In view of the above analogy and law, if short facts of the case in hand is taken into consideration, undoubtedly on publication of the award, the Bank authorities vide letter dated 16.11.2001 (Annexure 3) noticed opposite party no.3, accepting to comply terms of the award and subsequently after his absorption as casual labour, they have offered to pay Rs. 35/- per day only, whereas as per terms of the award, he was to be paid till regularization. The minimum salary plus allowance payable to a regular peon in Bank subordinate cadre from the date when he will actually taken back in service and in the very complaint petition, complainant has averted that the offer is much less than the payment being made to the employees under the cadre in violation of the award. Petitioner is conspicuously silent as regard to this allegation made in the complaint which stands further clarified by counter affidavit filed on behalf of opposite party no.3, wherein it is clearly stated that the daily wages of the employees under cadre was Rs. 136/- per day, thus, it becomes Rs. 101/- per day less than the amount for which he is entitled to and in consonance with the terms of the award even thereafter on behalf of the petitioner complete silence has been maintained nothing is said during argument also. Thus, above facts now remains uncontroverted.
15. Admittedly, services of opposite party no.3 is yet not regularized, so other direction as contemplated in the award is also yet to be complied with.
16. So far unreported decisions of this court delivered by Hon'ble Navin Sinha, J. in Cr. Misc. No. 23063 of 2003 dated 22.06.2004 in case of Jyotirmay Roy v. State of Bihar and another is concerned, none of the decisions of any court aforementioned was place for consideration before his Lordship. Similar was the position in decision of the Bench presided over my me in Cr. Misc. No. 20462/2004 and 32504 /2004 dated 28th July 2010, neither any such point was placed nor referred to rather in fact, in case decided by me none appeared on behalf of opposite party nos. 2 and 3. Other two decisions of Honble Navin Sinha, J. in case of Jagdish Prasad Singh v. State of Bihar in Cr. Misc. No. 29259/2003 dated 09.12.2005 and Cr. Misc. No. 33446/2002 again Jagdish Prasad Singh v. State of Bihar and Others dated 16.05.2006. Thus, aforesaid decisions including decision of mine (supra) does not come in the way of any otherwise finding in the case in hand.
17. The award in question now undisputedly remains unimplemented and the offence apparently being continuing one, the period of limitation as prescribed under section 468 of the Criminal Procedure Code for taking cognizance also does not come in to play in view of the decision of Apex Court in Bhagirath Kanoria case (supra) wherein para 22 it has been held:
"22. 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."
18. Now, comes last but not least, the submissions made by learned counsel for the petitioner that at the time of award he was not posted at Patna. It is not his case that subsequent to the award being enforceable. He was not there at Patna rather undisputedly, he was posted at the place of post competent to get the award implemented and further contended that whatever implementation was done, it was done by petitioner who also recommended for implementation for remaining part. Thus, the submissions made on the ground of non-posting at the time of award not making liable for prosecution is not available to the petitioner. Furthermore, Section 32 of the Act reads as such:
"32. Offence by companies, etc. Where a person committing an offence under this Act is a company, or other body corporate, or an association of persons (whether incorporated or not), every director, manager, secretary, agent or other officer or person concerned with the management thereof shall, unless he proves that the offence was committed without his knowledge or consent, be deemed to be guilty of such offence."
And there is nothing averted or argued in the light of above provision by learned counsel for the petitioner.
19. It is further made clear that any observation as regard to facts of the case made here shall not affect the merit of the case and independent appreciation by the court below at appropriate stage.
20. Considering the facts and circumstances of this case, this court does not find any reason to interfere with the impugned order and further proceeding of complaint case no. 1152(M)/2003 pending in the court of Chief Judicial Magistrate, Patna. Accordingly, it is hereby dismissed.