CR.MA/2821/2004 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 2821 of 2004 For Approval and Signature: HONOURABLE MS.JUSTICE H.N.DEVANI ========================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= = ASHWINBHAI G.DAVE - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================= = Appearance : MR YN RAVANI for Applicant(s) : 1, MR MUKESH PATEL, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1, MR HARSHAD K PATEL for Respondent(s) : 2, ========================================= = CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 14/10/2008 ORAL JUDGMENT 1. By way of this application under Section 482 of the Code CR.MA/2821/2004 2/7 JUDGMENT of Criminal Procedure, 1973 (the Code), the applicant has prayed to quash the complaint lodged by the opponent No.2 herein being Criminal Application No.1 of 1999, before the Labour Court, at Amreli. 2. The facts of the case stated briefly are that the respondent No.2 has lodged a complaint against the present applicant for the offences under Sections 106 and 107 of the Bombay Industrial Relations Act, 1946 (the Act) before the learned Labour Judge, Labour Court, Amreli, which came to be registered as Criminal Case No.1 of 1999. The allegations in the complaint are to the effect that the services of the complainant had been orally terminated on 11th August, 1994. According to the complainant, while terminating the services of the complainant, due procedure had not been followed. The seniority list had not been published or maintained. His juniors had been continued, whereas his services had been terminated and in his place, new persons had been appointed. That prior to termination of his services, notice, notice pay or retrenchment compensation had not been paid. The other allegations are to the effect that there is a breach of provisions of the Standing Order and that, there is unlawful change in the conditions of his service. 3. Pursuant to the said complaint, the learned Judge, Labour Court, Amreli examined the complainant on oath and by order dated 21st July, 1999, directed issuance of summons against the present applicant. It is this complaint of which quashment is sought by way of the present CR.MA/2821/2004 3/7 JUDGMENT application. 4. Heard Mr.Y.N.Ravani, learned advocate for the applicant, Mr.Mukesh Patel, learned Additional Government Pleader for respondent No.1 – State of Gujarat and Mr.H.K.Patel, learned advocate for respondent No.2 – original complainant. 5. Mr.Y.N.Ravani, learned advocate for the applicant has submitted that the complaint in question is hopelessly time barred. Attention of the Court is drawn to the provisions of Section 106 of the Act, which provides that the maximum period of punishment for contravention of the provisions of Section 47 of the Act, is three months. Insofar as Section 107 of the Act is concerned, it is pointed out that the same only provides for payment of fine. It is submitted that in the circumstances, in view of the provisions of Section 468 of the Code, insofar as contravention of Section 107 of the Act is concerned, the period of limitation would be six months, and in case of contravention of Section 106 of the Act, the period of limitation would be one year. It is submitted that a perusal of the complaint shows that no offence is made out under Section 106 of the Act. It is submitted that even otherwise, assuming that an offence is made out under Section 106 of the Act, even then, the complaint is filed much beyond the period of limitation. It is pointed out that it is alleged in the complaint that the services of the respondent No.2 – original complainant had been terminated with effect from 11th August, 1994, whereas the complaint in question has been lodged after a period CR.MA/2821/2004 4/7 JUDGMENT of more than four years on 21st July, 1999, which is much beyond the statutory period of limitation. In support of his submissions, the learned advocate for the applicant has placed reliance upon the following decisions: [a] The decision of this Court in the case of Raiben Shiviben v. Rameshchandra Bhaiyaji, 2004(2) GLR 1225. [b] The decision of the Supreme Court in the case of Ramesh Chandra Sinha v. State of Bihar, (2003)7 SCC 254. [c] The decision of the Supreme Court in the case of State of Punjab v. Sarwan Singh, AIR 1981 SC 1054. [d] The decision of the Supreme Court in the case of Srinivas Pal v. Union Territory of Arunachal Pradesh, AIR 1988 SC 1729. [e] The decision of the Supreme Court in the case of M/s Ghaziabad Engineering Co. Pvt. Ltd. v. The Certifying Officer, AIR 1978 SC 769. 6. On the other hand, Mr.H.K.Patel, learned advocate for the respondent No.2 – original complainant has opposed the application. It is submitted that after the services of the respondent No.2 were terminated, he had been making oral representation and was assured that he would be reinstated in a short while, hence, time had been consumed in this manner. However, such unlawful CR.MA/2821/2004 5/7 JUDGMENT change continued till the date of filing of the complaint, and therefore, the complaint was within the period of limitation. 7. This Court has considered the submissions advanced by the learned advocates for the parties and has perused the record of the case. 8. As is apparent from the facts noted above, the services of the respondent No.2 – complainant were terminated on 11th August, 1994. The complaint in question is lodged on 21st July, 1999. Hence, the question that arises for consideration is, whether the said complaint can be said to have been filed within the statutory period of limitation which, as pointed out by the learned advocate for the applicant, is one year from the date of the offence. 9. Though the learned advocate for the applicant has referred to various decisions of the Apex Court as well as this Court, it is not necessary to refer to the same in detail, inasmuch as the decision of this Court in the case of Raiben Shiviben v. Rameshchandra Bhaiyaji, 2004(2) GLR 1225 is squarely applicable to the facts of the present case. In the facts of the said case, the Court held that limitation starts running the moment the order of termination has been effected or passed, and thereafter, the petitioner has not resumed or gone to the Mill Company for reporting duty. It was held that, therefore, the offence was not a continuing offence committed by the employer, and therefore, the complaint ought to been filed within a period of six months. The CR.MA/2821/2004 6/7 JUDGMENT Court endorsed the view taken by the Industrial Court that the Labour Court has no power to condone the delay as it is a creation of a special statute and that the Labour Court is not competent to exercise powers to condone delay in filing the complaint, in exercise of powers under Section 473 of the Code. 10.In the facts of the present case, the offences alleged are under Sections 106 and 107 of the Act. Hence, the maximum period of limitation available to the complainant was a period of one year from the date of the offence. According to the complainant, his services had been terminated on 11th August, 1994, hence, that would be the date of the offence alleged against the present applicant. In the circumstances, the period of limitation shall have to be calculated from that date. Considering the period of limitation from 11th August, 1994, the present complaint which is lodged on 21st July, 1999 is hopelessly time-barred as having been filed beyond a period of four years from the date of the offence. In the circumstances, this is a fit case for exercise of powers under Section 482 of the Code to prevent abuse of the process of court. 11.For the foregoing reasons, the application succeeds and is, accordingly, allowed. Criminal Application No.1 of 1999, pending before the Labour Court, at Amreli, is hereby quashed. Rule is made absolute accordingly. [HARSHA DEVANI, J.] CR.MA/2821/2004 7/7 JUDGMENT parmar*