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High Court Of Rajasthan
Judgename : V.S. Dave
Subrato Roy - Appellant
Versus
State of Rajasthan - Respondent
S.B. Criminal Miscellaneous Petition No. 638 of 1988
Decided On : 11/08/1988
INDUSTRIAL DISPUTES ACT, 1947 - SECTION 29 - SECTION 468(2)(B), CRPC - SECTION 472, CRPC - SECTION 473, CRPC - SECTION 34, INDUSTRIAL DISPUTES ACT, 1947 - Continuing Offence - Limitation for Prosecution - Delay in Filing Complaint - Condonation of Delay - Interest of Justice - Applicability of Section 472, CrPC - Applicability of Section 34, Industrial Disputes Act, 1947.
Fact of the Case:
Petitioners challenged the cognizance taken by the Magistrate for an offence under Section 29 of the Industrial Disputes Act, 1947, alleging that the complaint was filed beyond the limitation period. The petitioners argued that the offence was punishable with imprisonment for a term not exceeding one year and hence, the complaint could not be filed after one year from the date of the offence as per Section 468(2)(b), CrPC. The petitioners also contended that the complaint was filed in violation of Section 34 of the Industrial Disputes Act, 1947.
Finding of the Court:
The court held that the provisions of Section 468(2)(b), CrPC were not applicable in this case as the offence under Section 29 of the Industrial Disputes Act, 1947 was a continuing offence. The court relied on the Supreme Court judgment in Bhagirath Singh vs. State of M.P., which held that the offence of failure to pay employer's contribution to the Provident Fund before the due date was a continuing offence. The court also held that the delay in filing the complaint could be condoned in the interest of justice under Section 473, CrPC, considering the circumstances of the case, including the fact that the delay was caused by the petitioners' own actions.
Issues: 1. Whether the offence under Section 29 of the Industrial Disputes Act, 1947 was a continuing offence? 2. Whether the complaint was filed beyond the limitation period? 3. Whether the delay in filing the complaint could be condoned? 4. Whether the complaint was filed in violation of Section 34 of the Industrial Disputes Act, 1947?
Ratio Decidendi: 1. The court held that the offence under Section 29 of the Industrial Disputes Act, 1947 was a continuing offence, as the breach of the award was a continuing one and there was a provision for recurring fine for each day of non-compliance. 2. The court held that the complaint was not filed beyond the limitation period, as the provisions of Section 468(2)(b), CrPC were not applicable to continuing offences. The court relied on Section 472, CrPC, which provides that in the case of continuing offences, the court may take cognizance of the offence after the expiry of the period of limitation if it is necessary to do so in the interest of justice. 3. The court held that the delay in filing the complaint could be condoned in the interest of justice under Section 473, CrPC, considering the circumstances of the case, including the fact that the delay was caused by the petitioners' own actions. 4. The court held that the complaint was not filed in violation of Section 34 of the Industrial Disputes Act, 1947, as the petitioners had obtained the necessary sanction from the Secretary and Labour Commissioner before filing the complaint.
Final Decision: The court dismissed the petitions, upholding the cognizance taken by the Magistrate for the offence under Section 29 of the Industrial Disputes Act, 1947.
V.S. Dave, J.-All the aforesaid cases are being disposed of by this common order as they arise out of non-implementation of the Award dated May 15, 1986 published on July 30, 1986 by the employer-petitioner.
2. Petitionershave filed this petition under Section 482, CrPC assailing the order dated July 16, 1988 whereby the learned Magistrate has taken cognizance for offence under Section 29 of the Industrial Disputes Act, 1947 against the petitioners on a complaint filed by non-petitioner No. 2 in each case. The basis of the complaint filed was that the services of the non-petitioner No. 2 were illegally terminated by the petitioners and they raised an Industrial Dispute. The matter was referred to the Labour Court and an award was passed in favour of the workman on May 15, 1986. This award came to be published on July 30, 1986 and as such it became enforceable under Section 17-A of the Industrial Disputes Act, 1947 (hereinafter referred to as ‘the Act, 1947’) with effect from August 30, 1986. Despite the fact that the award became enforceable, the petitioners though duty bound yet failed to comply with the directions contained in the award and as such the complainant non-petitioner No. 2 filed a complaint against the petitioners for offence under Section 29 of the Act, 1947. The learned Magistrate took cognizance and issued process against which the petitioner has approached this Court by way of a petition under Section 482, CrPC on the ground that the complaint was filed beyond the period of limitation and as such the Court could not take cognizance.
3. Mr. Dhanker, appearing on behalf of the petitioners in all the cases, submitted that offence under Section 29 of the Act, 1947. is punishable with imprisonment for a term which may extend to six months or with fine or with both and no Court can take cognizance of an offence after a period of expiry of one year under Section 468(2) (b), CrPC if the said offence is punished with imprisonment for a term not exceeding one year. It is submitted that since provisions of Section 468(2)(b), CrPC are also applicable to offences under Section 29 of the Act 1947, the Court could not proceed on a complaint which has been filed after a period of 2l months. It is further submitted that the complaint has been prefered in violation to the provisions of Section 34 of the Act, 1947.
4. Mr. Ajit Bhandari, appearing on behalf of the non- petitioner, submitted that for applying Section 468(2)(b) of the Code of Criminal Procedure, the Court must look to the totality of circumstances and should also take into consideration the provisions of Section 472, CrPC which is a special provision in respect of continuing offences. It is submitted that in the present case Section 468(2)(b), CrPC is not applicable but the case is covered by Section 472, Cr. PC. It is further submitted that otherwise also this is a fit case where the period of limitation should be extended as complaint could not have been filed without obtaining the sanction of the Secretary and Labour Commissioner and such a sanction has been granted after a period of 20 months hence, there is no delay on the part of the complainant.
5. I have given my thoughtful consideration to the rival contentions.
6. Before applying the relevant provisions of law it would be essential to give a calendar of dates in the instant case which is as follows:Award passed by Labour 15-5-1986 Court-five workmen ordered to be reinstated with full back wages and consequential benefits Award published 30-7-1986 Workman approached the petitioners with an application for joining the services 18-8-1986 Yet another application for the aforesaid purpose 26- 8-1986 Workman moved Secretary and 28-8-1986 Labour Commissioner for granting sanction to prosecute the employers as contemplated by Section 29 of the Act, 1947 Sanction accorded 21-5-1988 Complaint filed 24-5-1988 Cognizance taken 16-7-1988
7. It is pertinent to mention here that after the application was filed
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