Management, Madurai North Sarvodaya Sangh and Others vs S. Syed Batcha

B. Akbar Basha Khadiri, J.—This criminal original petition is to quash the proceedings in S.T.C. No. 1194 of 2000 pending on the file of

the Judicial Magistrate, Palani.

This criminal original petition has arisen in this way:

One K. Subramanian, who was employed under the first petitioner, was dismissed from service, regarding which he raised a dispute in I.D. No.

104 of 1985. The Presiding Officer, Additional Labour Court, Madurai, passed an award in favour of Subramanian on October 27, 1988

directing his continuation in service with back-wages and other benefits. Aggrieved by that order, the first petitioner herein preferred writ petition in

Writ Petition No. 477 of 1989. The writ petition was finally dismissed on February 17, 1998. There afterwards, the first petitioner preferred a writ

appeal in Writ Appeal No. 966 of 2000, which is yet to be admitted. Meanwhile, the respondent herein launched prosecution against the

petitioners on the ground that the award has not been implemented and therefore, the petitioners are punishable u/s 29 of the Industrial Disputes

Act. According to the petitioners, by virtue of provision of Section 468(2)(b) of the Code of Criminal Procedure, the award ought to have been

enforced within one year and after one year, the award becomes unenforceable and therefore, the prosecution launched after one year is barred by

limitation.

Heard both the sides. It is not in dispute that Subramanian was dismissed from service and the learned Labour Court passed an award in his

favour. The portion to be implemented in the award passed by the learned Labour Court runs as under:

In the result, an award is passed declaring the non-employment of the petitioner is not justified and that the petitioner is entitled to reinstatement

with continuity of service, back-wages and attendant benefits. No costs.

The award has been passed on October 27, 1988. As per the provisions of Section 17-A of the Industrial Disputes Act, the award is enforceable

within one year from thirty days after the date of publication in Official Gazette. Subsequent to the publication, the first petitioner has preferred Writ

Petition No. 477 of 1989 questioning the award and finality has reached in that writ petition on February 17, 1998. Therefore, the award becomes

enforceable within thirty days after the final award, i.e., on February 19, 1998. The award was passed on October 27, 1988 and the same was

published in the Gazette on December 21, 1988. Therefore, it becomes enforceable on January 21, 1989, after expiry of thirty days from the date

of publication. By virtue of institution of writ petition and finality of the writ petition has arrived at on February 17, 1998, it can be said that the

award would become enforceable on February 17, 1999. The award becomes enforceable after thirty days, i.e., on February 18 or 19, 1999.

The complaint has been filed on October 13, 1999, after expiry of the period of one year. The question is whether the prosecution is barred?

Section 468(2)(b) of the Code of Criminal Procedure recites as under:

(b)one year, if the offence is punishable with imprisonment for a term not exceeding one year.

The punishment provided u/s 29 of the Industrial Disputes Act is, imprisonment for a term which may extend to six months. Therefore, the

prosecution has to be launched within one year from the date of cause of action.

After expiry of thirty days, whether the award could be enforced? The learned counsel for the respondent vehemently argued that the non-

enforcement of award is a continuing offence and it does not attract any specific period of limitation to launch the prosecution. Section 29 of the

Industrial Disputes Act recites as under:

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.

In an identical circumstance in Cinema Workers Union v. Gopal Naidu, 1994 III LLJ (Suppl) 193 a single Judge of the Karnataka High Court

has held as under:

So long as an award ordering the reinstatement of a workman with back wages is not complied with, the: non-compliance would be an offence

every moment as long as it has not been given effect to. Therefore, non-compliance with such an award would be a continuous offence from day to

day and not an offence committed once and for all. The compliance with the award at a later stage would not wipe out the original offence of non-

compliance within time.

Similar arguments were advanced before the learned single Judge that the offence in question was a continuing offence and it was not an offence

committed once for all. That has been considered. But reference to Section 19 of the Industrial Disputes Act would make it clear that the award

was to remain in operation for a period of one year and there afterwards, it will cease to have force.

Section 19 of the Industrial Disputes. Act recites as under:

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 u/s 17-A:

Provided that the appropriate Government may reduce the said period and fix such period as it thinks fit:

Provided further that the appropriate Government may, before the expiry of the said 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 or 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 (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.

Of course, if no period is fixed, then it would appear that non-enforcement of the award would be a continuing offence. But, by virtue of the

provisions of Section 19 of the Industrial Disputes Act, even regarding a continuing offence, if the statute fixes a period of limitation for

enforceability of the award, then contingency would cease on the date when the award becomes unenforceable. A clear reading of Section 29 of

the Industrial Disputes Act would go to show that the award being a continuing offence has to be enforced within one year. If it is not enforced,

within one year, a prosecution would lie and in spite of conviction, the offender continues to breach the award, then it would be a continuing

question attracting the matter to the provisions of Section 29 of the Industrial Disputes Act. If no prosecution is instituted within one year, it cannot

be said that the award would still be enforceable. I am in entire agreement with the decision rendered by the learned single Judge of the Karnataka

High Court in Cinema Workers'' Union (supra), and hold that the prosecution has not been launched within one year from the date of enforceability

of the award and the instant prosecution is barred by limitation. Therefore, this criminal original petition is allowed. The further proceedings in

S.T.C. No. 1194 of 2000 is quashed. Consequently, Cri.M.P. Nos. 3537 and 3538 of 2000 are closed as unnecessary.