MONORAMA SAHA Vs. STATE

JUDGEMENT

(1.) This is an application under Sections 397 and 401 of the Code of Criminal procedure taken by Sm. Monorama Saha and Pintu Saha alias Sukhendu Saha, being aggrieved by an Order, dated the 26th May, 1987 passed by the learned Metropolitan Magistrate, 17th Court, Calcutta, dismissing their two applications filed on the question of maintainability of the Prosecution on the ground of limitation in Case No. C/2828 of 1985.

(2.) One Sm. Namita Roy is a piece-rated worker in the firm of M/s. Monorama Hosiery of 68B, Mondal Street, Calcutta-6 in the year 1979. In view of some dispute, the matter was referred to the 4th Industrial Tribunal who held by an order, dated the 30th September, 1981 that the termination of service of Sm. Namita Roy was unjustified. As a result, she was entitled to reinstatement with back wages at the rate of Rs. 300 per month. Apart from contending on merits that the said award was passed ex parte and the petitioners were not aware of the pendency of such proceedings before the tribunal, it was contended that the petitioner No.2 was the sole proprietor of the firm of M/s. Monorama Hosiery and the petitioner No.1 was the mother of the petitioner No.2 in no way connected and/or concerned with the said business.

(3.) On 6th August, 1985 one K. C. Chowdhury, the Assistant Labour Commissioner, West Bengal filed a petition of complaint in the Court of the Chief Metropolitan Magistrate, Calcutta against the petitioners and against the firm for committing a breach of the term of the award, dated the 30th September, 1981 of the 4th Industrial Tribunal, West Bengal published in the Government of West Bengal, Labour Department, Order, No. 4365-IR, dated the 13th November, 1981. On that complaint the learned Chief Metropolitan Magistrate, Calcutta took cognizance and transferred the case to the file of the Metropolitan Magistrate, 17th Court, Calcutta for disposal. Two applications were filed for and on behalf of the (petitioners challenging maintainability of the prosecution on the ground of limitation. But because of the Order, dated 26th May, 1987 rejecting the prayers made in those two applications the present application has been taken out for necessary relief. The main ground of contention of the petitioner before this Court was that the proceedings before the court below was not maintainable in law as it was barred by the law of Limitation. Section 19(3) of the Industrial Disputes Act provides that an award shall, subject to the provisions of Section 19, remain in operation for a period of one year from the date on which the award becomes enforceable under Section 17A. Section 17A of the said Act provides that an award (including an arbitration award) shall become enforceable on the expiry of 30 days from the date of its publication under Section 17. Section 17 of the said Act provides that every report of a Board of Court together with any minute of dissent recorded therewith., every arbitration award and every award of a Labour Court, Tribunal or National Tribunal shall, within a period of thirty days from the date of its receipt by the appropriate Government, be published in such manner as the appropriate Government thinks fit. Under the circumstances, it was the case of the petitioners that the award was to remain valid for a period of one year from the date it became enforceable under Section 17 A of the Act, and as such the petitioners were under no obligation to implement the award thereafter and as a result, they were not liable for prosecution for its non-implementation after the expiry of the said period. Section 19 sub-section (6) of the Act provides that notwithstanding the expiry of the period of operation under sub-section ( 3) the award shall continue to be binding of the parties until a period of two months has lapsed 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. On the basis of such provision Monoj Kumar Mukherjee, J. in the case of M/s. Guha & Company and Anr. vs. R. N. Misra and State, reported in 1984 (1) CHN 391 was of the view that in a proceeding against employers for non-implementation of an award for reinstatement of their employees, an application was filed before the Magistrate challenging the maintainability of the prosecution on the ground of limitation. It was submitted that under Section 19 (3) of the Act, an award remaining valid for one year, from the date it becomes enforceable under Section 17 A of the Act, and that, after the said period, the petitioners were under no obligation to implement the award and the prosecution in that case, having been initiated after one year from when the award became enforceable, the prosecution was barred by limitation. When such contention was rejected the petitioners therein came by way of revision. After considering the various Sections including Section 19(3), and 19(6) of the said Act, Monoj Kumar Mukherjee, J. was of the view that there could not be any manner of doubt that the obligation of the petitioners to implement the award continued so long as the award was not terminated in accordance with Section 19(6) of the Act. Hence the petitioners' liability for prosecution under Section 29 or the Act for non-implementation continued. But from perusal of the said judgment passed by Monoj Kumar Mukherjee, J. it appears that the attention of the learned Judge was not drawn to sub-section (5) of Section 19 of the Act which provides that nothing contained in sub-section (3) of Section 19 shall apply to any award which by its nature, term or other circumstances does not impose after it has been given effect to, in continuing the obligation on the parties bound by the award. Section 29 of the said Act provides for penalty for breach of settlement or award in the manner following. 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 Rs. 200 for every day during which the breach continues after the conviction in 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. From the language used by the 1egislature in this particular section indicates that a distinction has been made between a simple breach and a continuing breach. In the case reported in 1986 Lab. I.C. 1123 (M/s. Swaranjit Singh & Ors. vs. State and another) a distinction has been made between an award which decides question under reference once for all. Such an award for reinstatement and payment of back wages by virtue of Section 19(5), the provision of Section 19 (3) has no application to such an award, which is not continuing award.. There are also awards involving personal rights directing payment of money or upholding the discharge or dismissal of workmen or directing reinstatement of a discharged or a dismissed workmen. But there are second type of awards which cast continuing obligation on the parties bound by the awards, such as awards dealing with wage structure, paid holidays, dearness allowance, gratuity and other allowances and benefits. In the instant case the award is of the first category. The dispute by and between the parties has been decided once for all under the circumstances, it appears that the cognizance of the offence under Section 29 read with Section 19 Sub-section (5) of the Industrial Disputes Act and also Section 468 sub-section 2(b) of the Criminal Procedure Code as having been filed long after one year from the date of the enforceability of the award, appears to be barred by the law of limitation. Section 468(2b) of the Code of Criminal Procedure is a clear bar of initiation of such prosecution. In that view of the matter, as discussed above, this Court disposes of the reference by passing an order in favour of the petitioners.