R.M. Subramaniam and S. Ramamoorthi vs Inspector of Labour, Tiruchirapalli

V. Bakthavatsalu, J.—The revision is preferred by accused 1 and 2 against the conviction and sentence imposed by the Judicial magistrate, No. 1. Pudukkottai in C.C.No. 88/96. The appellate Court in C.A.No.27/96 confirmed the conviction under Sec. 25FFA read with Sec. 61AA of the Industrial Disputes Act and modified the sentence to that of fine already imposed.

The Revision petitioners were convicted and sentenced to undergo simple imprisonment for three months and to pay a fine of Rs.5,000/- u/s 25FFA read with 61AA of the Industrial Disputes Act by the learned Judicial Magistrate.''

The case of the complainant/respondent is as follows:-

The Inspector of Labour. Trichy is the complainant. The revision petitioners are Directors of the Company M/s. Techno Alloys Private Limited. The complainant received a petition from Pudukottai District Engineering Workers union complaining about the closure of the company on 4.7.97 without prior notice as contemplated u/s 25FFA of the Industrial Disputes Act (Hereinafter referred to as the Act). On the basis of the above complaint, a show cause notice under Ex.P-2 was issued to the accused calling for the explanation. The accused gave an explanation under Ex.P-3 to P-5. As the complaint was not satisfied with the above explanation, the Government u/s 34(1) of the Act directed the complainant to file chargesheet against the accused.

On the side of the complainant. P.Ws. 1 and 2 were examined and Exs.P-1 to P-6 were marked. On the side of the accused, the report of the Tahsildar dated 20.8.92 was marked as Ex.D-1.

On a consideration of oral and documentary evidence, the trial court has held that the accused contravened the provisions of Section 25FFA of the Act and that therefore, they are liable to be punished under the provisions of the Act. Though, the conviction of the trial court was confirmed by the Appellate court, the appellate court has set aside the sentence of three months and modified the sentence into that of fine already imposed. Aggrieved, by the judgment of the appellate court, this revision is filed by the accused 1 and 2.

The revision petitioner inter alia contended that their company will not come u/s 25FFA of the Act, since less than 50 workmen were employed. It is no doubt true that Section 25FFA of the Act will not apply to Industrial premises if workmen less than 50 were employed. Both Courts below did not accept the above ''contention of the revision petitioners. The appellate Court relying upon the G.Os. produced by the prosecution has held that more than 50 workmen were employed in the premises and that therefore, the provisions of ID Act would apply to this case. I see no error or infirmity in the above finding of the Courts below. Therefore, I hold that the petitioner''s company will come under the provisions of Industrial Disputes Act.

The main contention of the revision petitioners is that the complaint is barred by limitation. Learned counsel for the revision petitioners contended that the trial court has not properly appreciated the question of limitation involved in this case. I see there is considerable force in the above contention of the revision petitioners. u/s 30a of the Act, the maximum punishment that can be awarded on the Accused is 6 months or with fine, it is clear from Section 468 Cr.P.C. that the period of limitation shall be one year, if the offence is punishable with imprisonment for a term not exceeding one year. Therefore, it is clear that the complaint ought to have been filed within one year from the date of the offence.

But the complainant has come forward with a novel plea on the question of limitation. It was contended by the complainant that even though the Industry was closed on 4.7.92 they sent proposal to Government and that they also issued show cause notice and that the accused gave explanation and that the complainant received order of me Government to institute prosecution only on 18.10.95 and that thereafter. the chargesheet was filed on 12.12.95 and that therefore, the complaint is not barred by limitation The appellate court has held that the prosecution does not claim time extension for filing charge sheet and that Section 25FFA of the Act is a benevolent provision imposing a duty upon the employee to inform the appropriate Government about the closure of undertaking and that the violation of the above section is a continuing one and that therefore, the limitation contemplated u/s 468 Cr.P.C. will not apply to this case. The appellate court has not properly understood the scope of limitation contemplated u/s 468 Cr.P.C.

Admittedly, the complaint was taken on file only on 11.3.96. There are no provisions in the Industrial Disputes Act for according sanction by the Government to launch prosecution. Section 34 of the Act States thus:-

Cognizance of offence:

No court shall take cognizance of any offence punishable under this Act or of the abetment of any such offence, save on complaint made by or under the authority of the appropriate Government.

It is, this, clear from me above provision that the complaint can be straight away filed by or under the authority of the Government.

The revision petitioners relies upon a decision of the Bombay High Court reported in H.H. Wagh Vs. The State of Maharashtra and another, In the above decision, the Bombay High Court has held mat what is contemplated by Section 34(1) of me Act is that the complaint must be made by the appropriate Government or by some one under the authority of the appropriate Government and that it does not amount to a sanction or consent for the prosecution. In me above decision, the Court has held that neither sanction nor consent of the Government was required for launching prosecution. Further, the prosecution cannot take shelter u/s 470(3) Cr.P.C. It is seen from me above provision that where notice of me prosecution for an offence has been given and where previous sanction of the Government is required, then the period of such notice and time spent for obtaining sanction has to be excluded in computing the period of limitation. As already stated, in this case, the question of obtaining consent or sanction is not necessary. Hence I am in respectful agreement with the decision of the Bombay High Court with regard to the above aspect of the case. A plain reading of Section 34 of the Act will clearly show that no previous sanction or consent of the Government is necessary for launching prosecution for violation of Section 25FFA of the Act. Therefore, the findings of the appellate Court at that Section 25FFA of the Act it is continuing offence and that the accused cannot take advantage of technicalities cannot be sustained.

Admittedly, the company was closed on 4.7.92. It is admitted by the prosecution that the company was taken over by SIPCOT on 2.9.92. Therefore, on the date of closure, the company was taken over by SIPCOT. The offence was complete on 4.7.92 and 2.9.92. If that is so, it cannot be contended that the offence is a continuing one. Even, if the period spent for issue of notice and receipt of reply notice is excluded, the complaint filed by the complainant in the year 1995-96 is hopelessly barred by limitation. Thus, looked at from any angle, the contention of the complainant that the period spent by the complainant in obtaining the order from the Government has to be excluded from the period of limitation cannot be accepted.

It is, further, contended by the learned counsel for the revision petitioners that the company was not closed by the revision petitioners and that the admitted materials will show that the company was taken over by SIPCOT. The accused have marked Ex.D-1, the report of the Tahsildar. It is contended by the revision petitioners that they were forced to close the unit on 2.9.92.due to the decision of the SIPCOT to take over the undertaking. The appellate Court has also held that SIPCOT has issued notice well in advance on 20.8.92, about its proposal to take possession and that even prior to taking to possession, the order was issued by SIPCOT. But the appellate Court has held that even before receipt of foreclosure order, the accused ought to have been aware about the proposal made by SIPCOT.

The appellate court has not properly understood the wordings contained in Section 25FFA of the Act. Section 25FFA of the Act will apply only if the employer intends to close down the undertaking. In this case, it is admitted that salary was paid till the month of August 1992. It is proved that the Unit was closed only by SIPCOT when they took possession of the unit. It is thus, seen from the above facts that the accused had no intention to close the unit. Hence, I fail to understand as to how the accused could have given statutory notice required u/s 25FFA of the Act. The trial court and appellate Court seem to have relied upon the complaint of the Engineering Workers Union. The above complaint has not been marked by the complainant. The fact whether the accused took steps to close down the unit can be gathered only from the above complaint given by the Union. In the absence of the above document, it is not open to the Courts below to come to a conclusion that the accused already anticipated the closure of the Unit and that therefore, they ought to have given notice to the Government. As the company was taken over by SIPCOT with effect from a particular date, it cannot be said that the accused intended to close the unit. If that is so, the accused cannot be convicted for violation of Section 25FFA of the Act. As the company was not closed by the accused on their own accord, it is not incumbent on them to comply with the provisions of Section 25FFA of the Act. For the above reasons, I hold that the reasons assigned by the appellate Court for convicting the accused cannot be sustained.

In the result, the criminal revision case is allowed. The conviction and sentence imposed on the accused/revision petitioners are set aside. The fine amount if paid shall be refunded to the revision petitioners.