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Jharkhand High Court · body

2008 DIGILAW 371 (JHR)

Kedar Nath Mukhopadhyay v. State Of Jharkhand

2008-03-28

R.R.PRASAD

body2008
ORDER R.R. Prasad, J. 1. This application has been filed under Section 482 of the Code of Criminal Procedure for quashing the entire criminal proceedings of I.D. Case No. 169 of 2003 initiated against the petitioners including the order dated 25.2.2003 whereby and whereunder cognizance of the offences under Section 29 of the Industrial Disputes Act, 1947 has been taken against the petitioners and some others. 2. As per the case of the complainant [a Labour Enforcement Officer (Central) Katrasgarh, Dhanbad an award was passed on 19.2.2001 by the Central Industrial Tribunal, Dhanbad in reference No. 26 of 1993 whereby Management of M/s. Bharat Coking Coal Limited was directed to regularize the services of Lal Babu Singh and 17 others within 30 days from the date of publication of the award. But the petitioner No. 1 being Company Secretary and the petitioner No. 2 being the Director (P&P) nominated owner of M/s. Bharat Coking Coal Limited and other persons responsible in terms of Section 32 of the Industrial Disputes Act for the implementation of the award, did not implement the award and thereby they violated the provision of Section 18 read with Section 32 of the Industrial Disputes Act and hence committed offence under Section 29 of the Industrial Disputes Act, 1947. On the said complaint, cognizance of the offence under Section 29 of the Industrial Disputes Act was taken against the petitioners and others. 3. Being aggrieved with that, the petitioners have challenged the order taking cognizance of the offence on the ground that the company had already nominated the authorities to act as employer in terms of Section 2(g) of the Industrial Disputes Act and as such any other officers of the company than the authority nominated to act as employer are not liable to be prosecuted under Section 29 of the Industrial Disputes Act. 4. In this regard learned Counsel appearing for the petitioners submitted that earlier also when notice was issued to the authorities other than those who were nominated to act as employer to show cause as to why not they be prosecuted under Section 29 of the Industrial Disputes Act, the same was challenged before this Court taking the same plea on which cognizance order has been sought to be quashed. This Court after taking into consideration the fact that M/s. Bharat Coking Coal Limited by letter dated 4.11.1998 had already informed the Regional Labour Commissioner (C), Government of India, Ministry of Labour, Dhanbad about the authorities of different units of the company who shall be competent to sign settlement, written statement, rejoinder etc. and also shall be responsible for implementation of the award given by the Industrial Dispute Tribunal, this Court did hold in W.P. (L) No. 802 of 2002 that the officers, other than those who have been specified and prescribed by the company, are not liable to be prosecuted under Section 29 of the Industrial Disputes Act. 5. In this regard learned Counsel appearing for the petitioners submitted that Chief General Manager/General Manager have been prescribed by the company to be the officer responsible for implementation of the award so far Colliery Project Area is concerned and in that view of the matter, the petitioners who happened to be the company Secretary and Director (P&P) nominated owner of the company have nothing to do with the implementation of the award and as such any prosecution under the Industrial Disputes Act for non-implementation of the award is fit to be quashed. 6. It is well-known that the provisions of the Industrial Disputes Act including Section 29 of the Act have been enacted to safeguard the interest of the persons engaged in the industry and also for the purpose of maintaining industrial peace and for achieving this purposes Labour Court and the Industrial Tribunal have been constituted and have been vested with the power to adjudicate dispute and to make award and if these awards or the settlements are not implemented by the Management, the officers of the Management responsible for implementation of the settlement or award are liable to be prosecuted. 7. So far this case is concerned perhaps the complainant being guided by the provisions of Section 32 of the Industrial Disputes Act has initiated prosecution of the petitioners and other persons on account of being part of the Management of the company and, therefore, at this stage provisions as contained in Section 32 of the Industrial Disputes Act needs to be taken notice of which reads as under: 32. Offence of companies, etc. Offence of companies, etc. - Where a person committing an offence under this Act is a company, or other body corporate, or an association of persons (whether incorporated or not), every director, manager, secretary, agent or other officer or person concerned with the management thereof shall, unless he proves that the offence was committed without his knowledge or consent, be deemed to be guilty of such offence. 8. From bare perusal of Section 32 of the Act, it is manifest that if the company commits a breach of any terms of any settlement or award then every Director, Manager, Secretary, Agent or other officer of person concerned with the Management shall be deemed to be guilty of such offence unless it is proved that the offence was committed with his knowledge or consent. 9. This provision then leads us to take notice of the provisions as contained in Section 29 of the Industrial Disputes Act, 1947 prescribing the penalty for breach of settlement or award and the same reads as follows: Penalty for breach of settlement or award. Any person who commits a breach of any terms 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 realized from him shall be paid, by way of compensation, to any persons who, in its opinion, has been injured by such breach. 10. Therefore, if we read both the provisions as contained in Section 32 and Section 29 of the Act together it would be evidently clear that only those persons who are responsible for the implementation of the settlement or the award are liable to be prosecuted. 11. Obviously, the question would be as to who are the persons responsible for implementation of the award. 11. Obviously, the question would be as to who are the persons responsible for implementation of the award. In order to seek answer, reference of the order passed in W.P. (L) No. 802 of 2002 be made where it has been put before the Court by M/s. Bharat Coking Coal Limited that for different unit, different authorities have been prescribed for signing settlement, written statement and for implementation of the award in respect of Industrial dispute and for the project area Chief General Manager/General Manager of the concerned area has been made responsible for implementation of the award and also for other matters. 12. In that view of the matter any prosecution launched against these petitioners who are the Company Secretary and Director (P&P) nominated owner of M/s. Bharat Coking Coal Limited is bad in law and therefore, entire criminal proceeding of I.D. Case No. 169 of 2003 pending in the Court of Shri R.B. Paul, Judicial Magistrate, Dhanbad or his successor including the order dated 25.2.2003 taking cognizance of the offence is quashed so far these petitioners are concerned. 13. In the result, this application is allowed.