1 S.B.CIVIL WRIT PETITION NO.5751/2006 Mohd. Ayub v. State of Rajasthan & Ors. Date of Order :: 4th November, 2008 HON'BLE MR.JUSTICE GOVIND MATHUR Mr. Vijay Mehta, for the petitioner. Mr. Anil Lohiya, for the respondents. .... The Labour Court, Jodhpur, after adjudicating a reference made to it, declared retrenchment of the petitioner bad and, therefore, directed the employer to reinstate him in service with 50% of back wages. The award was subsequently published as per the provisions of Section 17 of the Industrial Disputes Act, 1947 (hereinafter referred to as “the Act of 1947”), however, compliance of the same was not made, thus, an application under Section 29 of the Act of 1947 was preferred before the appropriate government. The appropriate government by its order dated 7.9.2006 rejected the application aforesaid, hence this petition for writ is preferred. The appropriate government rejected the application on the grounds that (1)the application was preferred at a belated stage; and (2)no malice appears on part of the employer in not making compliance of the award in view of the fact that the industry 2 concerned stood closed. The appropriate government by the same order also advised the petitioner to get his dues determined by the Labour Court as per the provisions of Section 33C(2) of the Act of 1947. As per counsel for the petitioner the order dated 7.9.2006 is bad on the count that non compliance of an award is a continuous wrong, therefore, delay in making an application for prosecuting the employer cannot be a reason to reject an application under Section 29 of the Act of 1947. It is also stated that non compliance of the directions given by the Labour Court under an award itself establishes malice on part of the employer and, therefore, the Labour Court should have granted sanction for prosecuting the employer. Per contra, as per the respondents No.1 and 2 the appropriate government exercised a broad discretion vested with it while passing the order Anx.7 and as such no interference of this Court is warranted. Heard counsel for the parties. Section 29 of the Act of 1947 provides that any person who commits a breach of any term of any settlement or award which is binding on him under the Act of 1947 shall be punishable with imprisonment with 3 a term which may extend to six months or with fine or with both, and where the breach is continuing one with a further fine which may extend to Rs.200/- for every day during which the breach continues after the conviction for the first. The appropriate government while considering a complaint regarding breach of an award or settlement is required to see that there was a valid award or settlement in operation at the time of breach and the award or settlement was binding on the accused. It is pertinent to note that Section 29 of the Act of 1947 specifically uses the term “person” and not the “employer” or “employee”. This clearly establishes that the prosecution is required to be made of the person who was responsible for giving effect to the award or settlement. The closure of industry as such cannot be a reason for not granting permission to prosecute the person responsible who has broken the settlement or award, may that be ultimately found to be a reason for not punishing him. It is also pertinent to note that whether the industry has been closed or not and if closed then what are its effect those are the questions required to be examined by the court prosecuting the person against whom allegation of breach of award is made and not by the appropriate government. The question of malice in breach or non compliance of the award is also required to be adjudicated by the trial court and not by the appropriate government while exercising administrative powers under Section 29 of the Act of 1947. The ground 4 of delay in submitting a complaint under Section 29 of the Act of 1947 also cannot be a reason for rejecting the same if breach of settlement or award is continuous. In the instant matter the award was passed on 19.12.1996 and subsequently it was published by the appropriate government. The employer was under obligation for making compliance of the same. As stated above, the appropriate government exercises administrative powers and, therefore, the effect of delay could have not been examined by it but by the trial court only. In view of whatever said above, I am of the view that the appropriate government erroneously rejected the complaint preferred by the workman under Section 29 of the Act of 1947. Accordingly, this petition for writ is allowed. The order impugned dated 7.9.2006 is hereby quashed. The appropriate government is directed to reconsider the complaint afresh within a period of three months from today. No order to costs. ( GOVIND MATHUR ),J. kkm/ps.