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2017 DIGILAW 1226 (RAJ)

M. L. JANGID v. STATE OF RAJASTHAN

2017-05-12

PANKAJ BHANDARI

body2017
JUDGMENT : Pankaj Bhandari, J. Petitioners have preferred these misc. petitions aggrieved by order dated 28.05.2004, whereby the Court below has dismissed the application filed by the petitioners for dropping the proceedings. 2. Briefly stated the facts of the case are that the respondent, Mahaveer Prasad Jain, moved the Industrial Tribunal for setting aside the orders dated 30.01.1986 and 07.05.1986 and for considering him as Junior Assistant from 20.03.1979 and for awarding the benefits thereof. The Industrial Tribunal passed the award on 31.01.1994 which was published in the official gazette on 14.04.1994. 3. Respondent, Mahaveer Prasad Jain, applied to the Labour Commissioner for granting permission to prosecute the Secretary of Rajasthan Housing Board, which sanction was granted on 20.12.2000. Thereafter, respondent filed the complaint under Section 29, 34 (I) of the Industrial Disputes Act, 1947 before the Court below on 07.07.2001. The Court below took cognizance. 4. An application was filed by the petitioners seeking dropping of proceedings which application was dismissed by the impugned order, aggrieved which the present misc. petitions have been preferred. 5. It is contended by counsel for the petitioners that the award was complied with. The award directed that the respondent be considered as Junior Assistant and he be paid salary of Junior Assistant from 20.03.1979 to 19.07.1979, which part of the award was complied. The orders passed by Housing Board dated 30.01.1986 and 07.05.1986 were declared as illegal and were quashed by the Labour Court. Further direction was given that the respondent, Mahaveer Prasad Jain, be considered to be in service from 20.03.1979 and he be awarded benefits and salary within a period of three months. 6. It is further contended by counsel for the petitioner that the award was to be complied with within a period of three months and on non-compliance, cognizance under Section 29 of the Industrial Disputes Act can be taken within a period of one year as per section 468 of Cr.P.C., 1973 7. It is also contended that the Sanction Order permitted the respondent to file complaint against Secretary, Rajasthan Housing Board which sanction according to the counsel for the petitioner is not proper in eyes of law as the sanction has not been granted with respect to particular officers who were holding the post of Secretary, Rajasthan Housing Board. 8. Counsel for the petitioner has placed reliance on 1986 LAB. 8. Counsel for the petitioner has placed reliance on 1986 LAB. I.C. 1123 M/S "Swaranjit Singh and Others v. State and another." 9. Counsel for the respondent has opposed the misc. petitions. His contentions is that the award passed by the Industrial Tribunal has not been complied by the petitioners till date and the writ petitions filed by the Housing Board stands dismissed by the High Court 10. It is contended that non-compliance of the award passed by Industrial Tribunal is a continuing offence and, therefore, provisions of Section 468 Cr.P.C., 1973 would not apply. It is also contended that the provisions of section 482 of Cr.P.C., 1973 should be exercised to prevent abuse of process of Court, it should not be exercised to stifle legitimate prosecution and High Court should not assume the role of the trial Court and embark upon an enquiry as to reliability of the evidence and sustainability of the accusation. Reliance in this respect has been placed on "State of Karnataka v. M. Devendrappa & Anr." 2002 (3) SCC 89 . 11. It is contended by counsel for the respondent that offence under Section 29 of the Industrial Tribunal Act is continuing offence. Reliance in this regard has been placed on "Subrato Roy & Anr. v. State of Rajasthan & Anr." R.L.R. 1989 (1) 665. 12. With regard to prosecution sanction. It is argued by counsel that prosecution sanction is not required as the officers were on deputation with the Housing Board and sanction to file complaint as per provisions of Industrial Tribunal Acts, was obtained by the respondent before launching criminal prosecution. It is contended that only authorisation is required for launching criminal prosecution which authorisation was obtained by the respondent. 13. Counsel for the respondent has placed reliance on 2011 (1) WLC 45, "Krishi Upaj Mandi Samiti, Dholpur Through Its Secretary v. Bangali Mal Sharma & Anr." wherein the Court while interpreting the award has directed the employer to pay the benefit of selection scale and benefit of revised pay scale. 14. It is contended by counsel for the respondent that Housing Board has already preferred a writ petition which was dismissed by the Rajasthan High Court holding that if sanction has been granted for prosecuting the petitioner (Rajasthan Housing Board through its Secretary), it is difficult to find fault with this action. 14. It is contended by counsel for the respondent that Housing Board has already preferred a writ petition which was dismissed by the Rajasthan High Court holding that if sanction has been granted for prosecuting the petitioner (Rajasthan Housing Board through its Secretary), it is difficult to find fault with this action. The contention of counsel for the respondent is that once this Court has held that the sanction was properly granted, this Court exercising inherent powers under section 482 of Cr.P.C., 1973 could not reopen the same issue. 15. It is also contended that the Court vide order dated 04.08.2012, directed the Secretary, Rajasthan Housing Board to file affidavit as to why compliance of award has not been made when the award attained finality. 16. I have considered the contentions raised by the counsel for the parties. 17. The offence under Section 29 of Industrial Tribunal Acts is punishable for imprisonment which may extend to six months or with fine or with both. As per section 468 of Cr.P.C., 1973 no Court can take cognizance of an offence after the expiry of the period of limitation. The limitation provided for offences punishable with imprisonment up to one year is one year. 18. As to whether, the non-compliance of the award would constitute a continuing offence for the purpose of computing limitation, I have carefully perused the award. The award specifically directs the Housing Board to comply with the award within a period of three months. This award dated 31.01.1994 was published in the Official Gazette on 14.04.1994. Section 17(A) of the Industrial Disputes Act provides that "An award shall become enforceable on the expiry of thirty days from the date of its publication" meaning thereby that this award was enforceable from 14.05.1994 i.e. after expiry of thirty days from the date of publication. 19. As per Section 19 of the Industrial Disputes Act "An award shall, subject to the provisions of this section, remain in operation for a period of one year from the date on which the award becomes enforceable under section 17A and the appropriate government is embarked to extend the period of operation of the award". 20. Sub Section (6) of Section 19 of the Industrial Disputes Act, however, provides that the award shall continue to be binding on the parties if notice intimating intention to terminate the award is not given. 21. 20. Sub Section (6) of Section 19 of the Industrial Disputes Act, however, provides that the award shall continue to be binding on the parties if notice intimating intention to terminate the award is not given. 21. It is true that no notice of terminating was given to the fact intending to terminate the award but equally it is true that the award directed the Housing Board to comply with the award within a period of three months. 22. As per Section 29 of the Industrial Disputes Act, Any person who commits a breach of any term 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. 23. The award in the present case specifically fixed for three months time for compliance of the award, the award was notified in the official gazette on 14.04.1994, meaning thereby that the award was to be complied by 14.07.1994. The offence being punishable with sentence of six months, Court could not have taken cognizance of the offence after 14.07.1995 i.e. a period of one year after the date on which the cause of action arose. 24. The contention of counsel for the respondent that the offence is a continuing offence cannot be accepted for the simple reason that three months for compliance, was specified, in the award itself. 25. The contention of counsel for the respondent that the implication of the award is that respondent was entitled to promotion and selection scale cannot be accepted for the simple reason that the selection scales can only be given on future date similarly promotion could also be given on future dates, meaning thereby, the same could not have been given within a period of three months from the date of the award. 26. The grant of selection scale and promotion was therefore, not a part of the award and the same cannot be interpreted to cover grant of selection scale and promotions on the basis of judgment delivered by the High Court in "Krishi Upaj Mandi Samiti, Dholpur Through Its Secretary v. Bangali Mal Sharma & Anr." (supra). 27. 26. The grant of selection scale and promotion was therefore, not a part of the award and the same cannot be interpreted to cover grant of selection scale and promotions on the basis of judgment delivered by the High Court in "Krishi Upaj Mandi Samiti, Dholpur Through Its Secretary v. Bangali Mal Sharma & Anr." (supra). 27. The award has been passed on 31.01.1994 and the same has been published on 14.04.1994. Initiation of proceedings after a lapse of six years and taking of cognizance after a period of one years could not be sustained. 28. Now prosecuting the petitioners after a lapse of 23 years for an offence wherein maximum sentence provided is six months would tantamount to abuse of process of Court, therefore, to secure the ends of justice, I deem it proper to allow these misc. petitions. 29. The misc. petitions are allowed. The proceedings pending before the Court below are quashed and set aside.