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2004 DIGILAW 436 (ORI)

BHARAMARBAR DAS v. STATE OF ORISSA

2004-10-04

A.K.PARICHHA

body2004
JUDGMENT : A.K. Parichha, J. - The present revision is directed against the judgment of the learned Second Additional Sessions Judge, Puri in Criminal Appeal No. 1/75 of 2000/1995 setting aside the conviction and sentence passed by the learned J.M.F.C., Puri 2 (C) CC No. 14 of 1994 against the present opp. party No. 2 u/s 29 of the Industrial Disputes Act (hereinafter referred to as 'the Act') 2. The fact leading to the present revision is that the Petitioner was serving as an employee in M/s. Nilachal Service Station, Grand Road, Puri of which opp. party No. 2 is the owner and employer. Opp. party No. 2 terminated the services of the Petitioner whereupon the Petitioner raised industrial dispute under the provisions of the Act. The dispute was conciliated by the Labour Officer, but was subsequently referred to the Labour Court, Bhubaneswar by the Government for adjudication as to whether the termination of the Petitioner was legal and just. The Presiding Officer, Labour Court, Bhubaneswar registered I.O. Case No. 16 of 1985 and disposed of the same on 19.8.1985 answering the reference in favour of the Petitioner by passing an award indicating that his termination from service by opp. party No. 2 is not legal and that the Petitioner should be reinstated in service with full back wages. This award of the learned Labour Court was notified by the Govt. of Orissa on dt. 26.8.1985. The award was also communicated to the Petitioner as well as opp. party No. 2. The Petitioner reported to his duty, but opp. party No. 2 did not accept his joining report and did not allow him to continue in service. The Petitioner approached the Labour Commissioner, Orissa and the District Labour officer, Puri who, after making proper enquiry directed opp. party No. 2 to implement the award. Since opp. party No. 2 did not implement the award in spite of such direction, prosecution was launched against him u/s 29 of the Act. Learned J.M.F.C., Puri after hearing the matter passed judgment on dt. 29.7.1995 holding opp. party No. 2 guilty u/s 29 of the Act and sentencing him to pay a fine of Rs. 2,000/- in default S.I. for one month. It was also ordered that opp. party No. 2 would pay a fine of Rs. 50/- per day from the date of pronouncement of the judgment in I.O. Case No. 16/85. Opp. 29.7.1995 holding opp. party No. 2 guilty u/s 29 of the Act and sentencing him to pay a fine of Rs. 2,000/- in default S.I. for one month. It was also ordered that opp. party No. 2 would pay a fine of Rs. 50/- per day from the date of pronouncement of the judgment in I.O. Case No. 16/85. Opp. Party No. 2 preferred appeal against that judgment before the learned Sessions Judge, Puri, vide Criminal Appeal No. 1/1975 of 2000/1995. The appeal was transferred to the Court of Second Addl. Sessions Judge, Puri, who, after hearing the parties, passed the impugned order by setting aside the conviction and sentence passed by the learned J.M.F.C., Puri. Aggrieved by the said judgment of the learned Second Addl. Sessions Judge, Puri the Petitioner has preferred the present revision. 3. Mr. Satyabadi Das, Learned Counsel for the Petitioner submits that the appellate Court set aside the order of conviction passed by the learned J.M.F.C., Puri only on the ground that the award has not been published in official Gazette of the Govt. of Orissa, even though there is no specific provision u/s 17 of the Act that the award needs to be published in the official Gazette of the Government. 4. Mr. Satyabarata Mohanty, Learned Counsel appearing on behalf of opp. party No. 2, on the other hand, submits that Section 17 of the Act clearly contemplates that the award has to be published by the State Government and when publication has to be made by the State Government, it has to be made in official Gazette and not other wise. According to him, non-publication of the award in official gazette would be fatal to a prosecution u/s 29 of the Act. 5. The sole point for consideration in the present revision is therefore, whether the publication of the award as contemplated u/s 17 of the Act means publication in official Gazette and not other wise. Section 17 of the Act reads thus: 17. Publication of reports and awards - (1) Every report of a Board or 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. (2) Subject to the provisions of Section 17 -A, the award published under Sub-section (1) shall be final and shall not be called in question by any Court in any manner whatsoever. 6. Section 17 does not speak in directs terms that the award is to be published in the official Gazette only. It simply says that within a period of 30 days from the date of receipt of the award the appropriate Government shall publish the award in such manner as the said Government thinks fit. So, it is left to the discretion of the appropriate Government to choose the mode of publication. It may decide to publish the award in official gazette or by any other mode, it thinks fit. On query as to whether the State Government has prescribed any manner of publication of the award passed by the Labour Court, Tribunal or National Tribunal, the Learned Counsel for the Petitioner, opp. party No. 2 and the learned Addl. Govt. Advocate submits that they have not been able to find any order/notification of the State Government in this regard. On perusal of the Orissa Industrial Disputes Rules, 1959 also it is found that the State Government has not specifically prescribed the manner of publication of the award passed by the Labour Court, Tribunal, etc. In such a situation, it will be far fetched to observe that the 'publication' mentioned in Section 17 of the Act would mean publication in official gazette. Learned Addl. Sessions Judge observed that there being no evidence from the side of the prosecution to show that the award passed in I.O. Case No. 16/85 has been published in official gazette, there is non-compliance of Section 17(1) of the Act and as such the award in question has lost its enforceability. For no-compliance of the provisions of Section 17(1) and 17-A(1) of the Act the award would also not be binding on the employer opp. party No. 2. He accordingly, set aside the conviction and sentence passed against opp. party No. 2 u/s 29 of the Act. Section 17-A (1) of the Act provides that any award shall be enforceable on expiry of 30 days from the date of publication u/s 17. 7. party No. 2. He accordingly, set aside the conviction and sentence passed against opp. party No. 2 u/s 29 of the Act. Section 17-A (1) of the Act provides that any award shall be enforceable on expiry of 30 days from the date of publication u/s 17. 7. Section 17(1) says that every award of the Labour Court, Tribunal or National Tribunal shall within a period of 30 days from the date of receipt by the appropriate Government be published in such manner as the appropriate Government thinks fit. There is no specific indication in the aforesaid provision that the award has to be published in official gazette and the Orissa Industrial Disputes Rules do not contain any specific provision that the awards of the Labour Court, Tribunal or National Tribunal shall be published in official gazette. Therefore, the observation of the appellate Court that the award becomes un-enforceable in the absence of publication in the official gazette is neither legal nor sustainable. It appears that the learned J.M.F.C. had passed the judgment in 2(c) No. 14/ 1994 after taking into consideration the fact, circumstance and evidence of the case. The said judgment was set aside by the appellate Court only on the ground that the award was not published by the State Government in official gazette. Since there is no specific provision in the Act or Rules that the award must be published in official gazette only, the order of the appellate Court setting aside the judgment of the J.M.F.C. in 2(C) 14/94 is legally unsustainable. It need to be indicated that the appellate Court neither discussed the facts and evidence nor did it give any finding on the factual aspect. It simply set aside the judgment of the trial Court on a technical ground that the award has not been published in official gazette. In that situation the best course is no remand the matter to the said appellate Court with a direction to rehear the matter on merit and to pass a fresh order. 8. The appeal is accordingly allowed. The judgment passed by the learned 2nd Addl. Sessions Judge, Puri in Criminal Appeal No. 1/75 of 2000/95 is set aside and the matter is remitted back to the appellate Court for fresh disposal according to law keeping in view the observation made supra. Final Result : Allowed