Sankara Doss vs State by Labour Inspector, Thiruvannamalai

The accused in S.T.C. No. 58 of 1992 on the file of the Judicial Magistrate, Vandivash, has filed this petition u/s 482 of the Criminal Procedure

Code, to call for the records in the above case and quash the same.

The short facts are :- The respondent has filed the complaint against the petitioner for an offence u/s 29 of the Industrial Disputes Act, 1947,

which I shall hereinafter refer to as ""the Act"". The allegations in it are briefly as follows :- The II Additional Labour Court, Madras, under the

provisions of the Act, in I.D. No. 569 of 1984, has passed an award that T. Janikaraman, should be reinstated in service. But the accused has not

complied with the said award and consequently, he is liable to he punished u/s 29 of the said Act.

Mr. V. Sairam, learned counsel appearing for the petitioner would submit that the award of the Presiding Officer of the II Additional Labour

Court, Madras, was passed on January 8, 1988 and the Labour Department had issued Notification on February 18, 1988 whereunder it has

stated that the said award has been received by the Government on February 5, 1988 and that in exercise of the powers conferred u/s 17(1) of the

Industrial Disputes Act, 1947 (Central Act XIV of 1947), the Government of Tamil Nadu directed the said award to be published in the Tamil

Nadu Government Gazette. The date of publication of the said award in the Gazette is given as February 24, 1988, when the last date for

publication was March 2, 1988. On the above facts, Mr. V. Sairam, learned counsel would submit that as per section 29 of the Act, the

punishment is imprisonment for a term which may extend to six months, or with fine, or with both and that if the date of the notification viz., July 18,

1988 is taken as the date on which the petitioner has to implement the order and for non-implementation of the same he would be liable to be

punished, period of six months would expire by August 18, 1988 whereas this prosecution was launched only in 1992 and hence it is time barred.

He would further submit that the above section reads further that where the breach is a continuing one, the accused is liable to be punished with a

further fine which may extend to Rs. 200 for every day, during which the breach continues after the conviction for the first, and as such the

prosecution for a continuing offence could be launched only if there was a prior conviction and so the clause relating to continuing offence cannot

be applied to the facts of this case, in as much as there is no first conviction at all. He would add that in view of the above, the latter portion of

continuing offence in Section 29 of the Act cannot be taken advantage of by the prosecution, in launching the prosecution.

Per contra, Mr. Raja, learned Government Advocate, would submit that the clause regarding offence pertains only the punishment with

imprisonment for a term which may extend to six months, 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.

I have carefully considered the submissions of the learned counsel.

To appreciate the contention, Section 29 of the Industrial Disputes Act needs extraction and it reads as follows :

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 further time 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 finds 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.

The Clause regarding further fine for a continuing offence would come into play. Where there was a first conviction and again the same accused

was prosecuted for the continuing offence. I am clear that this enabling clause to impose the higher fine would not deprive the character of the

offence, being the continuing one. In Bhagirath Kanoria and Others Vs. State of M. P., , the Apex Court has held that non payment of the

employer''s contribution to the Provident Fund before the due date, is a continuing offence, and therefore the period of limitation prescribed by

Section 468 cannot have any application.

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.

In State of Maharashtra Vs. Ajit Maneklal Choksey, , the single learned Judge of the Bombay High Court has held that since the punishment is

six months, the period of limitation as prescribed in Section 468 of the Criminal Procedure Code would come into play and any prosecution

beyond that period is barred by time. In that ruling, the period of limitation for a continuing offence was not considered.

Mr. V. Sairam, learned counsel, would submit that reinstatement was ordered by the Labour Court and if it was not complied with, it is an offence

committed once for all and that it is not a continuing offence, so long as reinstatement was made pursuant to the order of the Labour Court. Now,

the question that falls for consideration is whether in a case a reinstatement was ordered by the Labour Court or by any other authority, would it be

a continuing offence, so long reinstatement was made. In Bhagirath Kanoria v. State of M. P. (supra) the Apex Court had an occasion to consider

what is ""continuing offence"". The Apex Court had referred to another ruling of the Apex Court in State of Bihar Vs. Deokaran Nenshi and

Another, and had extracted the observations made in the said ruling which is as follows :-

A continuing offence is one which is susceptible for continuance and is distinguishable from the one which is committed once and for all. It is one

of those offences which arises out of a failure to obey or comply with a rule or its requirement and which involved a penalty, the liability, for which

continues until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience or non compliance occurs and

recurs, there is the offence committed. The distinction between the two kinds of offences is between an act or omission which constitutes an

offence once and for all and an act of omission which continues and, therefore, constitutes a fresh offence every time or occasion on which it

continues. In the case of continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which

takes place when an act of omission is committed once and for all.

In Kannan Chettiar v. Tiruchirapalli Market Committee 1988 L.W. (Cri.) 92, Padmini Jesudurai, J. had taken a similar view. In Ghanshyan

Chaturbhuj v. M/s. Industrial Ceramica Private Limited 1988 L.W. (Cri.) 97. Padmini Jesudurai, J. again had an occasion to consider a similar

offence. In that learned Judge had held that failure to issue share certificates to a company is a continuing offence.

In the instant case, reinstatement had been ordered. So long as reinstatement is ordered and so long as the order of reinstatement had not been

complied with, there is a clear disobedience of the order and hence, the offence is clearly a continuing one. Simply because, enhanced punishment

is provided, in case, there is an earlier conviction, it does not mean that if no earlier conviction was obtained, the offence would not assume the

character of a continuing offence. The character of the offence as a ""continuing offence"" continues. Only with regard to the punishment there is a

distinction. If already a conviction was obtained, then again he was prosecuted for the very same continuing offence, the accused is punishable with

enhanced sentence. If for the continuing offence, the offender was proceeded with for the first time, then the clause relating to enhanced sentence

would not come into play and the first part of conviction alone can be inflicted. Thus, the distinction is with regard to the punishment and not with

regard to the nature of continuing offence.

Taking this view of the matter, I am unable to accept the submission made by Mr. Sairam, learned Counsel. I am clear that failure to give effect

to an order of reinstatement is a continuing offence, till reinstatement is actually made. In view of the above, this petition fails and it shall stand

dismissed.