State of Haryana vs A.K.Jain, Partner, M/s.Ajay Udyog (P) Ltd.

S. K. Jain, J.

Identical questions of law and fact are involved in these 26 criminal revisions. These are proposed to be disposed of by this common judgment.

Facts first.

26 workmen, private respondents herein were employed with M/s. Ajay Udyog (P) Ltd., MIE, Bahadurgarh (Rohtak). They were retrenched by the employer under Section 25F of the Industrial Disputes Act (hereinafter referred to as "the Act"). Each one of them raised an industrial dispute. Government of Haryana being of the opinion that an industrial dispute existed, referred the dispute in each case to the Labour Court, Rohtak under Section 10(1)(c) of the Act. The said Court gave awards which were published in the Govt. Gazettee on different dates.

Despite best efforts of the Labour Inspector the awards were not implemented by the employer. The management having committed breach of the award binding them under the Act, the State of Haryana through Labour Inspector, Bahadurgarh filed 26 complaints under Section 29 read with Sections 32 and 34 of the Act. All these complaints were dismissed by Sub Divisional Judicial Magistrate, Bahadurgarh on the point of limitation vide his order dated 9.10.1992 passed in each of the said complaints independently.

It is that identical order of the Sub Divisional Judicial Magistrate, Bahadurgarh which has been challenged before this Court under Section 401 Cr.P.C. in each of these 26 Revision Petitions and which requires examination by this Court of its sustainability.

Now the main point for consideration in each of these cases is :

Whether the noncompliance of the award by the management amounts to a continuing offence or is just an offence committed once and for all ?

Section 19 of the Industrial Disputes Act (hereinafter referred to as "the Act") relates to the period of operation of settlements and awards Section 19(3) relates to the period of operation of an award and it is this section which is relevant herein. It reads as under :

"19. Period of operation of settlements and awards.

(1) xxx xxx xxx xxx

(2) xxx xxx xxx xxx

(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 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."

Section 19(3) makes a reference to Section 17A reads.

"(1) An award (including an arbitration award) shall become enforceable on the expiry of thirty days from the date of its publication under Section 17:

Provided that ...................."

Therefore, Section 17A makes an award enforceable only on the expiry of thirty days from the date of its publication under Section 17, Section 17 requires that the award should be published in a Government Gazette. Therefore, if Sections 17 and 17A are read together the award in question becomes enforceable only after the publication of the same in the Government Gazette and it becomes enforceable only on the expiry of thirty days from the date of its publication in the Government Gazette. If Section 17, Section 17A and Section 19(3) are read together it follows that an award shall remain in force for a period of one year from the date on which an award is enforceable under Section 17A, i.e. the date of publication of the same in the Gazette.

Learned counsel for the State has drawn my attention to Section 19(5) which reads as under :

"(5) Nothing contained in subSection (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."

Section 19(5) would come into play only if the enforceable award has been given effect to and if thereafter no continuing obligation is cast on the parties. Therefore, Section 19(5) clearly does not relate to the present case.

The question whether a particular offence is a continuing offence or an offence committed once and for all necessarily depends on the language of the statute which governs the offence, the nature of the offence and above all the purpose which was intended to be achieved by constituting the particular act as an offence. The words "continuing offence" is not defined anywhere in the Code. The phrase, "continuing offence" has been left to the wisdom of the Court for interpretation. The expression "continuing offence", though it appears to be a very vague expression, has acquired a well recognised meaning in law. If the act committed by accused constitutes an offence and if that continues from day to day and if that act covers a lapse on the part of the accused to comply with any statutory direction, a fresh offence is committed by the accused every day so long as the lapse continues. Normally and in the ordinary course, the offence is committed only once and for all. But, there are offences which continue to be committed day to day and such offences are continuing offences. In every case of a continuing offence, it might be an omission or a positive act on the part of the defaulter. In State of Bihar v. Deokaran, AIR 1973 SC 908 and Bhagirath Kanoria v. State of Madhya Pradesh, (1986) 68 FJR 98, it has been held that continuing offence is one which is susceptible of 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 involves 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 noncompliance 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 or 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 act or omission is committed once and for all.

Thus the offence would amount to a continuous offence, if noncompliance with the same amounts to a breach of that award every moment till that is complied with. In none of these cases, the award has been placed on the record but from the written arguments filed before the learned Magistrate on behalf of the management in complaint No. 473 of 1992 " State v. Rajinder Pal Gupta etc.," (case No. 303/92 instituted on 9.10.1922) and few others it is evident that in this bunch of cases the award was passed ordering reinstatement etc. So long as that award is not complied with, its noncompliance would amount to an offence every moment so long as it has not been given effect to. Therefore, in the ordinary course noncomplying with the order of reinstatement would amount to a continuous offence. It ceases to be an offence, once it is complied with. So long as it is not complied with, noncompliance thereof would amount to an offence being committed continuously. Therefore, I have no hesitation in mind to hold that the noncompliance with the award of reinstatement is a continuous offence and not an offence committed once and for all. Hence, noncompliance of the award within time can still be regarded as an offence.

But there is still a greater hurdle to get through in the present bunch of cases. Even continuous offences if regulated by any enactment or statute, will have to be governed by that enactment or statute. Section 17 of the Act requires the publication of the award in a Government Gazette. Section 17A of the Act says that an award shall become enforceable on the expiry of thirty days from the date of its publication under Section 17. Therefore, it makes clear that the award of reinstatement passed in these cases became enforceable only on the expiry of 30 days from the date of publication under Section 17. Section 19(3) of the Act reads that an award shall subject to the provisions of this section remain in force for one year from the date on which the award becomes enforceable, which is thirty days from the date of publication under Section 17. Therefore, the enforceability of the award is restricted to one year by Section 19(3). If the award ceases to be enforceable after one year, noncompliance thereafter ceases to be an offence. If it ceases to be enforceable, it is not required to be complied with in law at all. The concept of enforceability and compliance thereof go hand in hand. If the law lays down that a particular award ceases to be enforceable after a particular period, no party would have a right to enforce the same thereafter and no party can be accused of noncompliance after the expiry of that period. Therefore, even though the noncompliance of the award of reinstatement might amount to a continuous offence, still the statute contained in Section 19(3) places an embargo or restriction that it will be enforceable or it would remain enforceable only for one year. When the law itself restricts the operation of the award for one year, it would be wrong to urge that even after the expiry of one year, it would remain enforceable and noncompliance therewith even after the expiry of one year would be punishable under law. Therefore, the restriction of one year placed by Section 19(3) makes the present continuous offence in question, continuous only for one year and not thereafter. Any noncompliance during the period of enforceability for one year is made punishable every moment of the one year during which it remains in force. But, once the period of one year is over, it becomes no longer enforceable in law and it cannot be made punishable. Therefore, though it was open to the complainant to prosecute the accused for noncompliance at any time during the period of one year, the right to prosecute is lost after the expiry of one year as laid down by Section 19(3). In holding the above view I am fortified by the ratio laid down in Cinema Workers'' Union, Bangalore v. Gopal Naidu and another, (1988) 72 FJR 202.

The dates of publication of the award, its enforceability, expiry of the prescribed period of one year and that of institution of these 26 cases are mentioned below :

No. of cases Date of publication Date of enforceability Date of expiry Instt..

6 9.4.1985 9.5.1985 9.5.1986 13.3.1987.

15 7.5.1985 7.6.1985 7.6.1986 6.11.1986.

1 17.5.1985 17.6.1985 17.6.1986 6.11.1986.

2 4.6.1985 4.7.1986 4.7.1986 6.11.1986.

1 11.6.1985 11.7.1985 11.7.1986 6.11.1986.

1 8.10.1985 8.11.1985 8.11.1986 16.8.1988.

From the above chart, it is evident that the complainant had approached the Court after the expiry of the prescribed period of one year in each of these 26 cases.

Section 29 of the Industrial Disputes Act has prescribed an imprisonment which may extend to six months or fine or both. Section 468(2)(b) of the Criminal Procedure Code, prescribes a period of limitation of one year, if the imprisonment does not exceed a period of one year. In each of these cases, one year had already lapsed before filing the complaints. As is manifest from the above noticed facts, the Labour Inspector, Bahadurgarh, did not make any application for condonation of delay nor mention any such fact in the complaint to bring the delay or its explanation to the notices of the Magistrate. Learned counsel for the petitioner, therefore, cannot crave for the benefit of Section 473 of the Code for explaining the delay.

In view of the above discussion, all these Criminal Revision Petitions are dismissed.