- (1.) THE accused in S.T.C.No. 58 of 1992 on the file of the Judicial Magistrate, Vandivash, has filed this petition under Sec. 482 of the Criminal Procedure Code, to call for the records in the above case and quash the same.
(2.) THE short facts are: THE respondent has filed the complaint against the petitioner for an offence under Sec. 29 of the Industrial Disputes Act, 1947, which I shall hereinafter referred 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. Janakiraman, should be reinstated in service. But the accused has not complied with the said award and consequently, he is liable to be punished under Sec. 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 8.1.1988 and the Labour Department had issued notification on 18.2.1988 whereunder it has stated that the said award has been received by the Government on 5.2.1988 and that in exercise of the powers conferred under Sec. 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 24.2.1988 when the last-date for publication was 2.3.1988. On the above facts, Mr.V. Sairam, learned counsel would submit that as per Sec. 29 of the Act, the punishment is imprisonment for a term which may extend to six months, orwith fine, orwith both and that if the date of the Notification, namely 18.2.1988 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 6 months would expire by 18.8.1988 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 whether the breach is a continuing one, the accused is liable to be punished 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, 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 inasmuch as there is no first conviction at all. He would add that in view of the above, the latter portion of continuing offence in Sec. 29 of the Act cannot be taken advantage of by, 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 counsels. To appreciate the contention Sec. 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 a further fine 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 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.'(Italics supplied).
(3.) 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 v. State of Madhya Pradesh, A.I.R. 1984 S.C. 1688: 1984 Lab.I.C. 1578: 1984 S.C.C.(Crl.) 590: (1984) 4 S.C.C. 222: (1984) 3 Comp.L.J. 49, 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 Sec. 468 cannot have any application. On the above ratio, I am also fortified in holding that Sec. 29 of the Act is a 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 a sine qua non. Otherwise the offence would retain the character of a continuing offence. In State of Maharashtra v. Ajit Maneklal Chokri, (1979) 39 F.L.R. 4, 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 Sec.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 from a continuing offence was not considered. ;