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Jharkhand High Court · body

2007 DIGILAW 423 (JHR)

A. K. Gupta v. State of Bihar (now Jharkhand)

2007-05-14

D.G.R.PATNAIK

body2007
JUDGMENT By. Court.-Petitioners have challenged the order dated 11.1 .1999 passed by the learned Chief Judicial Magistrate, Dhanbad in I. D. Case No. 6 of 1999, whereby cognizance for the offence under section 29 of the Industrial Disputes Act, 1947 was taken against them. 2. Case against the petitioners was registered on the basis of the complaint filed by the complainant/opposite party no. 2 namely, Labour Enforcement Officer (Central), Dhanbad on 11.1.1999 alleging inter alia that the petitioners who constitute the part of the management of the Bharat Coking Coal Ltd. (B.C.C.L.), have failed to implement the Award dated 27.8.1997 passed by the Central Government Industrial Tribunal in Reference Case No. 45 of 1993 and, therefore, liable to be punished for the offence under section 29 of the Industrial Disputes Act. 3. Heard learned counsel for the petitioners and learned counsel for the State as also learned counsel for the opposite party no. 2. 4. Learned counsel for the petitioners submits that the impugned order is bad both on the points of facts as well as on the point of law and has been passed without application of judicial mind. Learned counsel explains that the learned court below has failed 10 consider the fact that the present petitioners who have been cited as accused, cannot be thrust with vicarious liability by virtue of their office as Director (Personnel), General Manager (Personnel), General Manager, West Jharia Area, Moondih and Company Secretary respectively of the B.C.C.L. as they could not be held directly responsible for the implementation of the Award. Learned counsel explains that the Industrial Dispute under reference in the Award was concerned with a particular colliery namely, Moonidih Colliery where Agent/Project Officer/Manager is already appointed and is vested with the authority of appointment and dismissal of the workmen of the colliery and by virtue of his office, he has been vested with the authority to manage the colliery, to own responsibility for the management of the Colliery. It is the responsibility of the Agent/Project Manager of the concerned Colliery to implement the Award. It is the responsibility of the Agent/Project Manager of the concerned Colliery to implement the Award. Learned counsel further submits that even otherwise, cognizance is thoroughly bad in law on account of the fact that the order was passed beyond the period of one year from the date of the alleged offence, although, considering the period of maximum punishment prescribed for the offence under section 29 of the Industrial Act, cognizance ought to have been taken within a period of one year from the date of the alleged offence. Learned counsel explains that the Award is dated 27.8.1997 which was notified on 5.9.1997 and was implementable immediately after lapse of one month from the date of its notification and computed from the aforesaid date, cognizance ought to have been taken within the month of October 1998, whereas the instant complaint case was filed on 11.1.1999 and on the same day, the impugned order of cognizance was passed by the learned court below without extending the period of limitation. It is further submitted that the Award for non-implementation of which the instant complaint was filed, has itself been set aside by the order of this court dated 20.4.2004 passed in C.W.J.C. No. 290 of 1998(R) and, therefore, continuation of the criminal proceeding against the petitioners for non-implementation of the Award which is non-existing, is totally illegal. 5. Learned counsel for the opposite party no. 2 as also learned counsel for the State submits that the ground relating to the non-liability of the petitioners on account of their holding managerial post of B.C.C.L., is not tenable as because the petitioners constitute the part of the management of the B.C.C.L. and colliery in respect of which Award was passed, is within the control and management of the B.C.C.L., and as such, the petitioners who represent the B.C.C.L. in their managerial capacity, cannot escape from their liability for non-implementation of the Award passed by the Central Government Industrial Tribunal. Learned counsel further point out that the offence being a continuing offence, the period of limitation does not take effect till the Award is implemented. Learned counsel however concede that the Award under reference was subsequently set aside by the order of this court. 5A. Learned counsel further point out that the offence being a continuing offence, the period of limitation does not take effect till the Award is implemented. Learned counsel however concede that the Award under reference was subsequently set aside by the order of this court. 5A. It appears from the statement as also from the annexures to the present application, filed by the petitioners, that the Award under reference in this case, was delivered by the Tribunal on 27.8.1997 and it was notified by the Ministry of Labour, Government of India vide Gazette notification dated 5.9.1997. Therefore the Award had to be implemented within 30 days from the date of its notification. On failure of the management to implement the Award, a show-cause notice dated 1.5.1998 was issued by the opposite party no. 2 to the management and about eight months later, the instant complaint was filed by the opp-site party no. 2 against the present petitioners for non-implementation of the Award. The plea of the learned counsel for the petitioners that the order of cognizance is barred by limitation, cannot be accepted for the reason that the offence of non-implementation of the Award is deemed to be continuing offence, until final implementation of the Award is made. It is not denied by the petitioners that prior to the date of filing of the complaint, Award was implementable. 6. The next ground that the petitioners cannot be saddled with vicarious liability for non-implementation of the Award, since it was exclusive responsibility of the Project Manager of the concerned colliery to implement the Award, is also not tenable. Admittedly, the colliery under reference was part of the BCCL and it was under overall management and control of the B.C.C.L., a company and corporate body which is represented by the present petitioners in their manageriat capacity. It was therefore, the obligation of the management of the BCCL to implement the Award and, therefore, the petitioners cannot disown their liability on the ground that they were not directly responsible for the management of the affairs of the colliery or for implementation of the Award. This ground, does not therefore appeal reason and, therefore, is not accepted. It appears therefore that on the date when the complaint was filed by the opposite party no. This ground, does not therefore appeal reason and, therefore, is not accepted. It appears therefore that on the date when the complaint was filed by the opposite party no. 2, the Award remained unimplemented and in this view of the matter, a prima facie case for the offence under section 29 of the Industrial Disputes Act was certainly made out against the accused person. The impugned order of cognizance, as passed by the learned court below, is based on the facts and circumstances of the case as appearing in the complaint petition and it cannot therefore be said that the learned court below had not applied its judicial mind to the facts of the case before passing the impugned order of cognizance against the petitioners. The impugned order therefore, does not suffer from any infirmity or illegality. 7. Further, facts and circumstances of the case do indicate on the other hand that the Award was challenged by the management before this court vide CWJC No. 290 of 1998(R) and an interim order was passed by this court on 17.3.1999 staying the operation of the Award. Apparently, this order of stay was passed more than two months after filing of the complaint petition and the passing of the impugned order of cognizance. It further appears that the writ application was finally disposed of by this court vide order dated 29.4.2006, whereby the Award of the Tribunal was set aside. Thus, the very foundation on the basis of which the case was instituted, has been quashed by the order of this court in the writ application. The continuance of the criminal proceeding against the petitioners for non-implementation of the Award which in itself does not exist any more, would be an abuse of the process of the Court and, therefore, cannot be allowed to continue. 8. Considering the above facts and circumstances, this application is allowed. The entire criminal proceeding against the petitioners pending in the Court of Chief Judicial Magistrate, Dhanbad vide I.O. Case No.6 of 1999, is hereby quashed. Let the lower court records be transmitted forthwith to the court below.