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2002 DIGILAW 226 (CAL)

Calcutta Taxi Association v. D. K. Banerjee

2002-04-04

AMIT TALUKDAR

body2002
JUDGMENT The judgment of the Court was as follows:–– "27. Law, especially industrial law, which regulates the rights and remedies of the working class, unfamiliar with the sophistications of definitions and shower of decisions, unable to secure expert legal opinion, what with poverty princing them out of the Justice market and denying them the staying power to withstand the multi-decked litigative process, de facto denies social Justice if legal drafting is vagarious, definitions indefinite and Court rulings contradictory. Is it possible, that the legislative chambers which too pre-occupied with other ........... to listen to Court signals calling for clarification and of ambiguous clauses? A careful, prompt amendment of Section 2 (j) would have pre-empted this docket explosion before tribunals and Courts. This Court, perhaps more than the legislative and executive branches, is deeply concerned with law's delays and to device a prompt delivery system of social justice." The anguish of the Constitution Bench voiced by Krishna Iyer, J. perhaps has haunted the spectre of the proceedings under the Industrial law and it is high time to put an interdict to :–– "Legalese and logomachy have the genius to inject mystique into common words, alienating the laity in effect from the rule of law." as held in the celebrated decision of the Supreme Court in (1) Bangalore Water Supply Sewerage Board v. A. Rajappa and Others, AIR 1978 SC 548 . 2. I am reminded of the hallowed observation of the Constitution Bench in the said case while adjudicating a perfectly justified and correct order of Shri Pranab Kumar Deb the learned Chief Judicial Magistrate, Alipore, 24-Parganas (s) in Case No. C-938/93 on 06.07.96. 3. Such order of the learned Chief Judicial Magistrate, Alipore has been sought to be countenanced on behalf of the petitioner on the basis of the proposition that the offence punishable under Section 29 read with Section 32 of the Industrial Disputes Act (here-in-after referred to 'as the said Act') is not a continuing offence and the petition of complaint having been filed beyond the logistic time schedule was liable to be discarded and the learned Chief Judicial Magistrate grossly erred by allowing the condonation of delay and fixing the date for appearance of the accused. 4. The learned Advocate for the petitioner has referred to a Division Bench decision of this Court reported in (2) 1988 (I) CHN 321 (Sm. 4. The learned Advocate for the petitioner has referred to a Division Bench decision of this Court reported in (2) 1988 (I) CHN 321 (Sm. Monorama Saha and Another v. The State) in support of his proposition that the offence punishable under Section 29 of the said Act is not a continuing offence. He has also referred to a decision reported in (3) 1985 (II) CHN 179 (M/s. Swaranjit Singh and Others v. State and Another) on similar proposition and has submitted that it is settled that the offence not being a continuing one the cognizance taken by the learned Chief Judicial Magistrate and refusal to drop the proceeding was totally bad in law and has to be set aside. 5. Since none appeared on behalf of the State this Court requested the services of Shri Dutta Gupta – a panel lawyer of the Former to assist the Court in this matter which he has done with sufficient expertise. 6. He has submitted that the provisions of Section 19 sub-clause (3) and sub-clause (5) should be read in conjunction with each other and the result of conjoint reading would show that it is a continuing obligation on the parties bound by the award; as such, the argument that it is not a continuing offence does not have any value. 7. He next referred to the provisions of Section 29 of the said Act and extensively read out the same and invited the attention of this Court to the legislative intent behind the same and submitted that a non-compliance of an award would amount to a breach of the award and every moment of its noncompliance thereof amounted to an offence as to be a continuing one. Relying on the said position he further submitted that as it is a social welfare legislation and falling within the Constitutional empathy of Article 43 and Article 46, a broad meaning should be given to the same and he did not find any fault to the impugned order passed by Shri Deb, learned Chief Judicial Magistrate, Alipore. 8. Relying on the said position he further submitted that as it is a social welfare legislation and falling within the Constitutional empathy of Article 43 and Article 46, a broad meaning should be given to the same and he did not find any fault to the impugned order passed by Shri Deb, learned Chief Judicial Magistrate, Alipore. 8. The arguments made at the Bar, the decisions cited therein and the legal position emerging therefrom poses a single question before this Court : What is the role of a Court entrusted with deciding a hair-splitting argument as to whether the offence alleged is of a continuing or a non-continuing nature in connection with a social welfare legislation? 9. Perhaps the said answer is not far to seek which if one refers to (4) Bhagirath Kanoria v. State of M.P., AIR 1984 SC 1688 wherein Their Lordships of the Apex Court had held:–– "Which is intended to be achieved by constituting the particular act as an offence." the object and purpose of the Act should be looked into and cognizance can be well taken even after the period of limitation for the interest of justice. 10. The Supreme Court in (5) People's Union for Democratic Rights and Others v. Union of India and Others, AIR 1982 SC 1473 had held that the labour laws were beneficial statutes. P.N. Bhagwati, J. (as His Lordship then was) speaking for the Division Bench in the said decision held that the labour laws fell under the "beneficent statutes" and as has been set out in the epilogue of this order by quoting from the Constitution Bench decision of the Supreme Court Industrial Law is Social Welfare Legislation applying the ratio of Bhagirath Kanoria v. State of M.P. (supra) the Court should always give a purposive construction of a beneficial legislation which goes to advance the cause, the object and purpose of the Act instead being bound by trappings of narrow conspectus which militates against the very sublime intention of the Legislature. 11. 11. This view is also fortified by the ratio of another decision of the Supreme Court reported in (6) AIR 1988 SC 1325 , All India Reporter Karmachari Sangh and Others v. All India Reporter Ltd. and Others wherein Venkataramiah, J. speaking for the Division Bench of the Apex Court held: "The Act in question (working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act (45 of 1955) is a beneficial legislation which is enacted for the purpose of improving the conditions of service of the employees of the newspaper establishments and hence even if it is possible to have two opinions on the construction of the provisions of the Act the one which advances the object of the Act and is in favour of the employees for whose benefit the Act is passed has to be accepted." 12. Industrial Disputes Act is also an Act being primarily for amelioration of the plight of the workers and falls within the ratio of the said decision. To wind up may I again revert to a passage from Bangalore Water Supply Sewerage Board v. A. Rajappa and Others (supra) :–– "Yet a third signpost. The functional focus of this industrial legislation and the social perspective of Part-IV of the paramount Law drive us to hold that the dual goals of the Act are contentment of workers and peace in the industry and judicial interpretation should be geared to their fulfilment, not their frustration. A worker oriented statute must receive a construction where, conceptually, the keynote thought must be the worker and the community, as the Constitution has shown concern for them inter alia in Articles 38, 39 and 43." 13. If such is the Constitutional empathy : so are the galaxy of decisions of the Summit Court including that of the Privy Council could it be said that a worker should always fight an unequal battle against his employer having won the war (read : an award) will lose the battle in the dreary sand of dry reasons and rituals (read : limitation)? 14. 14. If the Courts are made to suffer the pain of being consecrated as mute spectators to such scheme of affairs then it is not the award which is frustrated it is not the worker which suffers––it the dreams of the Founding Fathers of the Constitution which they had cherished on the eve of the Republic would be shattered and in the process Justice would be sacrificed at the Altar of dry reasoning and mechanical trappings of hibernated, hypersensitive and hypertensive notions which if liberated from this archaic notions would give a gush of fresh air to the apparent cloister and would revive fine tune of the dreams nourished by our Founding Fathers. 15. That apart, as has been rightly contended by the learned Advocate for the State the provisions for safeguarding the interests of the workers fall within the Constitutional empathy of Article 43 and Article 46 of the Constitution of India and the Court should fulfil the cause of action in giving it a wide interpretation without losing sight of the purpose it seeks to achieve being marionetted by the Constitutional empathy. 16. More than half a Century ago when we were still in the Colonial Era the Privy Council in (7) Thakur Raghuraj Singh v. Lala Hari Kishan Das and Another, AIR 1944 Privy Council 35 had perhaps set at naught the controversy which has sought to be churned out in this Application when Lord Atkin speaking for Lord Porter and Sir George Rankin held :–– "Words of a remedial statute must be construed so far as they reasonably admit so as to secure that the relief contemplated by the statute shall not be denied to the class intended to be relieved." 17. Krishna Iyer, J. in (8) Moti Ram and Others v. State of Madhya Pradesh, AIR 1978 SC 1594 held :–– "Social Justice is a signature tune of our constitution and the little man in peril of losing his liberty is the consumer of Social Justice." 18. Krishna Iyer, J. in (8) Moti Ram and Others v. State of Madhya Pradesh, AIR 1978 SC 1594 held :–– "Social Justice is a signature tune of our constitution and the little man in peril of losing his liberty is the consumer of Social Justice." 18. By way of a deductive analogy it is now well-established that the Courts while catering to the needs of a Consumer of Justice who falls under the canopy of Social Justice cannot turn a Nelson's eye to the plight of such Consumers of Justice particularly Social Justice who belongs to the weaker sections of the Society and falls under the Majestic Sweep of Articles 43 and 46 and the participants in the Justice Delivery System are duty bound to give an interpretative and purposive orientation of a Social Welfare Legislation which goes to fulfil the spirit of the Act for which it was enacted rather than to give such an interpretation which should militate against its spirit, itself. 19. Perhaps, Krishna Iyer, J. again Moti Ram and Others v. State of Madhya Pradesh (supra) has foreseen such a situation – "Law, at the service of life, must respond interpretatively to raw realities and make for liberties." His Lordship in the said judgment further quoted and held :–– "Whenever you are in doubt ................... apply the following test. Recall the face of the poorest and the weakest man whom you may have seen and ask yourself, if the step you contemplated is going to be of any use to him." 20. It is in the light of the aforesaid position the order impugned passed by Shri P.K. Deb, learned Chief Judicial Magistrate, Alipore has to be seen. It appears by the impugned Order the learned Chief Judicial Magistrate had on the basis of a petition for dropping the proceedings of Case No. C-938 of 1993 refused such prayer and fixed 02.9.96 for appearance. Shri Deb the learned Chief Judicial Magistrate had found :–– "The prayer of behalf of the prosecution for condonation of the delay, as such, has been allowed. In view of such aforesaid facts and circumstances, it cannot be said that the present prosecution is barred by limitation. Industrial Disputes Act is a beneficial Act meant for the protection of the rights of the workers. In view of such aforesaid facts and circumstances, it cannot be said that the present prosecution is barred by limitation. Industrial Disputes Act is a beneficial Act meant for the protection of the rights of the workers. As per Section 17(b) of the Industrial Disputes Act, in the event of any worker and the employer preferring any proceedings against such award in the High Court or Supreme Court, the employer shall be liable to pay such workman during the pendency of such proceedings in the High Court or Supreme Court the full wages last drawn by the said worker provided that the worker had not been employed in any establishment during such period. The record does not indicate that the beneficial provision as contained in Section 17(8) of the Industrial Disputes Act, was even implemented at any stage. The matter, as the record indicates, has been pursued with diligence by the prosecution side. The delay, if there be any, has been satisfactorily explained." 21. The learned Chief Judicial Magistrate had also found that :–– ".......... the Labour Department sought for sanction from the appropriate Government. On obtaining the sanction from the appropriate Government the prosecution was launched. It has been specially mentioned in Section 470 Cr. P.C. that in computing the period of limitation, the time during which any person has been prosecuting with due diligence, another prosecution, whether in a Court of first instance or in a Court of appeal or revision against the offender shall be excluded." 22. The learned Chief Judicial Magistrate has given his anxious consideration to the entire aspect of the matter and came to his finding that the prayer for dropping the proceeding cannot be entertained in view of such position. 23. A plain reading of the petition of complaint shows that the accused persons by refusing to reinstate the workman with full back wages in terms of the Award dated 22.9.85 of the Industrial Tribunal published by the Government on 14.11.86 committed the breach of the terms of the Award. The petition of Complaint was tiled along with a supporting Application under Section 473, Cr. P.C. which has been allowed as indicated earlier by the learned Chief Judicial Magistrate. 24. The petition of Complaint was tiled along with a supporting Application under Section 473, Cr. P.C. which has been allowed as indicated earlier by the learned Chief Judicial Magistrate. 24. Taking stock of the entire situation as is forthcoming from the submissions made by the learned Advocates for the petitioners and the State it is found that there was violation of Section 29 of the said Act read with Section 32 of the said Act. Section 29 of the said Act reads as follows :–– 29. 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 reaslied from him shall be paid, by way of compensation who, in its opinion has been injured by such breach." 25. Section 32 deals with offences by companies. 26. In order to properly construe the argument of the learned Advocate for the petitioner it is necessary to refer to the provisions of Section 19 subsections (3) and (5) of the said Act; while sub-section (3) speaks of an award remaining in operation for a period of one year, sub-section (5) states that the provisions of sub-section (3) shall not apply to any award which by it nature, terms or other circumstances does not impose, after it has been giving effect to any continuing obligation on the parties bound by the award. 27. In the instant case I find that the award after its publication was not honoured and pursuant thereof the petition of Complaint was tiled for violation of Section 29 of the said Act. Apart from, any other aspect of the matter as already the provisions of Section 473, Cr. 27. In the instant case I find that the award after its publication was not honoured and pursuant thereof the petition of Complaint was tiled for violation of Section 29 of the said Act. Apart from, any other aspect of the matter as already the provisions of Section 473, Cr. P.C. has been taken into consideration the question the award being hit by limitation is not tenable; leave alone, the question of Constitutional Empathy and the view of the Hon'ble Apex Court that a Labour Statute being a piece of social welfare legislation it has to be given a broad effect. The Order impugned passed by the learned Chief Judicial Magistrate, in my view, cannot be interfered with. I also refer to the decision of (9) State of Madras v. C. P. Surathy & Anr., AIR 1953 SC 53 wherein Chief Justice Shastri speaking for the five Judges Bench held : "The Court should not be astute to discover formal defects and technical flaws to overthrow such settlements." 28. The decision of a learned Single Judge of this Court in M/s. Swaranjit Singh and Others v. State and Another (supra), in my humble view, although has taken into account the ratio of the decision of Bhagirath Kanoria v. State of M. P. (supra) but the same did not taken into consideration the constitutional Empathy as discussed hereinabove; and the spirit of the decision of the Supreme Court in Bangalore Water Supply Sewerage Board v. A. Rajappa and Others (supra). Similarly, the Division Bench Judgment of our Court in Sm. Monorama Saha v. The State (supra) also was in oblivion to the aforesaid position. Such being the situation. Both the two decisions were sub silentio in nature and cannot have any binding effect in view of the ratio of the decision of (10) State of U.P. v. Synthetics & Chemicals Ltd. and Another, (1991) 4 SCC 139 ; apart from the fact that both the said two decisions were quite distinguishable in the facts and circumstances of the present case on account of the fact that the delay herein stood condoned. 29. Accordingly, from a wide conspectus of the discussion held hereinabove it is found that there is no merit in the Revisional Application and accordingly the same has to fail as all the answer that has cropped up having been found in the negative. Accordingly, the Revisional Application is dismissed. 29. Accordingly, from a wide conspectus of the discussion held hereinabove it is found that there is no merit in the Revisional Application and accordingly the same has to fail as all the answer that has cropped up having been found in the negative. Accordingly, the Revisional Application is dismissed. No order as to costs.