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2012 DIGILAW 597 (JHR)

Ashok Mehta @ A. K. Mehta v. State of Jharkhand

2012-04-19

R.R.PRASAD

body2012
JUDGMENT BY COURT-Heard the parties. 2. This application has been filed for quashing of the entire criminal proceeding of I.D. Case No. 4 of 2001 including the order dated 4.1.2001 passed by the then Chief Judicial Magistrate, Dhanbad whereby and whereunder, cognizance of the offence punishable under Section 29 of the Industrial Disputes' Act, 1947 has been taken against the petitioners. 3. The facts giving rise to this application are that when Jagdish Bhuiya, Trammer, Gondudih Coliary, was made to superannuate on 3.3.1987, Bihar Colliery Mazdoor Sabha, a Trade Union, raised an industrial dispute against the management. The said dispute was referred to the Central Government Industrial Tribunal No.1, Dhanbad for adjudication, which was registered as Ref. No. 14 of 1989. The terms of reference was as follows:- "Whether the action of the management of Gondudih Colliery of Kusunda Area of M/s Bharat Coking Coal Limited, Dhanbad, in superannuating Shri Jagdish Bhuiya, Trammer of Gondudih Colliery with effect from 3.3.1987 is justified? If not, to what relief is the workman entitled?" While reference was pending for decision, settlement arrived at in between the parties on the following terms:- "(a) That the concerned workman Sri Jagdish Bhuiya, Trammer will be referred, to Apex Medical Board of the Management for assessment of his age. The age assessed by the Apex Medical Board will be accepted by the concerned, workman, the Union and the Management without any challenge for the purpose of his superannuation. (b) That the concerned workman will be reinstated on his job if he will be found less than 60 years of age. In case, it will be found that he had completed 60 years of age on the date of his superannuation, he will not be entitled to any relief. (c) That in case the age is assessed to be less than 60 years of age on the date of his superannuation, the concerned workman will be paid 50% (fifty per cent) of his back wage from the date of his superannuation till he attained 60 years of age or till the date of the resumption of his duty, as the case may be. (d) That the concerned workman will report to the Management within three months from the date of the settlement for referring him to the Apex Medical Board." 4. On such settlement, an award was passed on 14.3.1991. (d) That the concerned workman will report to the Management within three months from the date of the settlement for referring him to the Apex Medical Board." 4. On such settlement, an award was passed on 14.3.1991. In terms of the settlement, the employee-Jagdish Bhuiya was supposed to make himself present before the Apex Medical Board for assessment of age. Accordingly, he appeared before the Medical Board on 11.3.1994 and the Board found his age on 11.3.1994 as 58 years. Under the situation, as per terms of settlement, he was to be given 50% back wages till he assumes his duty. 5. However, it is the case of the petitioner, that the employee-Jagdish Bhuiya never resumed his duty till 10.3.1996, when he superannuated on attainment of age of 60 years but before his superannuation, several notices were given reminding him to resume his duty n terms of settlement but he never cared for it and ultimately on 23.2.1998 a notice was given in terms of the provisions as contained in Section 19(3) read with Section 19(6) of the Industrial Disputes Act whereby the award was terminated. most after three years, a complaint was lodged under Sections 18 and 32 of the Industrial Disputes Act by the Labour Enforcement Officer (Central) for non-implementation of the award dated 14.3.1991 of the Central Government Industrial Tribunal No.1, Dhanbad passed between the Management of Gondudih Colliery, B.C.C.L. and the workman in Ref. No. 14 of 1989 and thereby it was alleged that the failure on their part to implement the abovementioned award within the stipulated period, the Authorities-accused, named above, contravened the provision of Section 18 read with Section 32 of the Industrial Disputes Act and have rendered themselves liable for legal action under Section 29 of the said Act. On such complaint, cognizance of the offence punishable under Section 29 of the Industrial Disputes Act was taken against the petitioner on 4.1.2011 which is under challenge. 6. Learned counsel for the petitioner submits that in terms of the award/settlement, the petitioner in the event of being found less than 60 years by the Medical Board was to be given back wages of 50% from 3.3.1987 till he resumes his duty, but he even on being found less than 60 years by the Medical Board did not resume his duty and thereby nothing was there for the employer to implement the award. 7. 7. It was further pointed out that when the employee did not resume his duty, several notices were given reminding him to report but he did not care of it and ultimately a notice was given under Section 19(6) of the I.D. Act on 23.2.1998 whereby the award/settlement was cancelled and once that was cancelled, one cannot be the liable for prosecution under Section 29 of the I.D. Act as on the date of filing of the complaint, nothing was there to implement and on this ground, entire criminal prosecution is fit to be set aside. 8. Having heard learned counsel for the parties and on perusal of the record. I do find that when the dispute was referred to the Tribunal, the parties got their dispute settled and on that basis an award was passed on 14.3.1991. The conjoint effect of clause (b) read with clause (c) of the terms of settlement is that if employee is foundless than 60 years on the date of the examination. he would be paid 50% of the back wages with effect from 3.3.1987 (the date on which the employee was made to superannuate) till he resumes his duty and the term of the settlement was binding upon the employee in view of Section 18 of the Industrial Disputes Act. In spite of non-observance of the terms of settlement by the employee a complaint was lodged by the complainant for non-implementation of award after the award has been terminated intimation of which was given on 23.2.1998 in terms of the provision as contained in Section 19(6) of the Industrial Disputes Act, which reads as follows: "19(6) Notwithstanding the expiry of the period of operation under subsection (3), the award shall continue to be binding on the parties until a period of two months has elapsed from the date on which notice is given by any party bound by the award to the other party or parties intimating its intention to terminate the award.” 9. In spite of that the prosecution has been brought against the petitioners alleging therein that the petitioners by not observing the terms of the settlement have committed offence under Sections 18 and 32 of the Industrial Disputes Act upon which cognizance of the offence punishable under Section 29 of the I.D. Act has been taken against the petitioners which in the facts and circumstances appear to be quite bad. 10. Accordingly, the entire criminal proceeding, including the order dated 4.1.2001, passed by the then Chief Judicial Magistrate, Dhanbad in I.D. Case No.4 of 2001 under which cognizance of the offence has been taken against the petitioners under Section 29 of the Industrial Disputes Act, is hereby quashed. 11. In the result, this application is allowed.