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2008 DIGILAW 306 (ORI)

Bharamarbar Das v. State of Orissa

2008-04-09

PRADIP MOHANTY

body2008
JUDGMENT PRADIP MOHANTY, J. — This revision is directed against the judgment of the learned Second Addl. 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 in 2 (C) C.C. No.14 of 1994 against the present opposite party No.2 under Section 29 of the Industrial Disputes Act. 2. Brief facts of the case are that petitioner was serving as an employee in M/s. Nilachal Service Station, Grand Road, Puri, of which opposite party No.2 is the owner and employer. Opposite Party No.2 terminated the service of the petitioner. Thereafter, petitioner raised an industrial dispute under the provisions of the Industrial Disputes Act. The dispute was conciliated by the Labour Officer but was subsequently referred to the Labour Court by the Government for adjudication as to whether the termination of the petitioner was legal and just. The Presiding Officer, Labour Court registered I.D. Case No.16 of 1995 and disposed of the same on 19.02.1985 answering the reference in favour of the petitioner by passing an award indicating that his termination from service by opposite party No.2 is not legal and directed opposite party No.2 reinstate the petitioner in service with fullback wages. The award was communicated to the petitioner as well as to opposite party No.2, and the Government of Orissa notified it on 26.08.1985. The petitioner reported to his duty but opposite party No.2 did not accept his joining and did not allow him to continue in service. The petitioner approached the Labour Commissioner, Orissa and the District Labour Officer, Puri, after making proper inquiry directed opposite party No.2 to implement the award. Since opposite party No.2 did not implement the award in spite of such direction, prosecution was launched against him under Section 29 of the Act. The learned J.M.F.C. on 29.07.1995 convicted opposite party No.2 under Section 29 of the Act and sentenced him to pay a fine of Rs.2000/- in default to undergo S.I. for one month. It was also ordered that opposite party No.2 would pay a fine of Rs.50/- per day from the date of pronouncement of the judgment in I.D. Case No.16 of 1985. Against that judgment of conviction and sentence, the petitioner pre¬ferred an appeal to the Sessions Judge, Puri which was eventually transferred to the Court of learned 2nd Addl.Sessions Judge, Puri and registered as Crl. Against that judgment of conviction and sentence, the petitioner pre¬ferred an appeal to the Sessions Judge, Puri which was eventually transferred to the Court of learned 2nd Addl.Sessions Judge, Puri and registered as Crl. Appeal No.1/75 of 2000/1995 and the learned 2nd Addl. Sessions Judge after hearing the parties set aside the judgment and order of conviction passed by the J.M.F.C. Aggrieved by the said judgment, the petitioner has preferred the present revision. 3. Mr. Das, learned counsel for the petitioner submitted that the appellate Court set aside the order of conviction passed by the learned J.M.F.C. only on the ground that the award has not been published in the gazette of the Government of Orissa even though there is no specific provision under Section 17 of the Act that the award needs to be published in the official gazette. Mr. Mishra, learned counsel appearing on behalf of opposite party No.2 submitted that Section 17 of the Act clearly contem¬plates that the award has to be published by the State Govern¬ment. When publication has to be made by the State Government, it has to be made only in the official gazette and not otherwise. Counsel for the parties in support of their respective contentions relied upon the decisions in The Management Hotel Imperial, New Delhi and others v. Hotel Worker’s Union, AIR 1959 SC 1342 , Sirsilk Ltd. etc. v. Government of Andhra Pradesh and another, AIR 1964 SC 160 , Kapra Mazdoor Ekta Union v. Management of M/s. Birla Cotton Spinning and Weaving Mills Ltd. and others, 2005 SCW 1561, The Workmen under the Director of Health Services, Orissa v. The Director of Health Services, Orissa and others, 1973 (I) LLJ 512 and a recent judgment dated 10.09.2007 delivered by a Bench of this Court in W.A. No.95 of 2005 (M/s. Nilachal Service Station v. The Presiding Officer, Labour Court). 4. In face of the above submissions made by the counsel for the parties, the sole point for consideration is whether the publication of the award contemplated under Section 17 of the Act means publication in the official gazette and not otherwise. 5. Section 17 of the Industrial Disputes Act provides as follows: “17. 4. In face of the above submissions made by the counsel for the parties, the sole point for consideration is whether the publication of the award contemplated under Section 17 of the Act means publication in the official gazette and not otherwise. 5. Section 17 of the Industrial Disputes Act provides as follows: “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 Gov¬ernment 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.” Section 17 in direct term does not speak that the award is to be published in the official gazette only. It says that an award of a Labour Court 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. So, it is left to the discretion of the appropriate Government to choose the mode of publication. In other words, it is the State Government to decide whether the award should be published in an official gazette or by any other mode. Learned counsel for the petitioner, learned Addl. Govt. Advocate and learned counsel for opposite party No.2 were not able to produce any order/notification of the State Government in this respect. Under Industrial Disputes Rules, 1959 also the State Government has not specifically prescribed the manner of publication of the award passed by the Labour Court. Section 17A provides for com¬mencement of the award. It appears from Sub-section (1) of Sec¬tion 17-A that the award shall be enforceable on the expiry of thirty days from the date of its publication under Section 17. 6. After considering all the judgments cited by the par¬ties, this Court has delivered a judgment between the same par¬ties on 10.09.2007, which covers the present case. It appears that the learned JMFC had passed the impugned judgment after taking into consideration the facts and circumstances and the evidence of the case. 6. After considering all the judgments cited by the par¬ties, this Court has delivered a judgment between the same par¬ties on 10.09.2007, which covers the present case. It appears that the learned JMFC had passed the impugned judgment after taking into consideration the facts and circumstances and the evidence of the case. But the said judgment was set aside by the appellate Court only on the ground that the State Government in official gazette did not publish the award. There is no specific provision in the Act that the award must be published in the official gazette only. After perusal of all the case records, it is clear that the judgment and order passed by the appellate Court setting aside the judgment and order of conviction and sentence passed by the JMFC in 2(c) C.C. No.14 of 1994 is legally unsustainable. It appears that the trial Court has committed no illegality or infirmity both in fact and law and in appreciating the evidence. Therefore, this Court sets aside the judgment of the appellate Court and confirms the judgment and order passed by the trial Court in 2(c) C.C. No.14 of 1994. The revision is allowed. Revision allowed.