Criminal Miscellaneous No.25895 of 1999 -------- In the matter of an application under section 482 of the Code of Criminal Procedure ---------- SRI KUMAR ARUN CHANDRA SINGH, SON OF LATE BHAGWATI PRASAD SINGH, RESIDENT OF LAL KOTHI LAL DARWAZA, P.S.- KOTWALI, TOWN & DISTRICT MUNGER .....................PETITIONER Versus 1. THE STATE OF BIHAR 2. ASSISTANT LABOUR COMMISSIONER, MUNGER DISTRICT MUNGER .....................OPP. PARTIES ----------- For the petitioner: Mr. Mrigank Mauli, Advocate Mr. Vinay Mistri, Advocate Mr. Kundan Mishra, Advocate For the State: Lala Kailash Bihari Prasad, Sr. Advocate -------------- P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH Shiva Kirti Singh, J. Heard learned counsel for the petitioner and learned counsel for the State. The prayer made in this application preferred under section 482 of the Code of Criminal Procedure is for quashing of complaint case no. 56- (C )/96 and the order of cognizance dated 20-12-96 passed by learned Judicial Magistrate, 1st class, Munger for offence under section 29 of Industrial Disputes Act (hereinafter referred to as the Act). According to the petitioners the State Government referred the Industrial Dispute relating to lay off of 38 workmen by the management of one firm styled as “ M/s Ferry Farmer, Lal Darwaza, Munger” to the Labour Court, Bhagalpur under the 2 provisions of Section 10 (1)(c) of the Act. The reference proceedings were preceded with efforts for conciliation which failed. The reference proceeding was ex parte as the management did not appear. According to the petitioner the description of the management as M/s Ferry Farmer, Lal Darwaja, Munger was incorrect and no such firm existed at the address given. The petitioner claimed to be the management but having its name as “Northern India River Transport Service Company”. It has been shown on the basis of annexures-2 and 2/A that a petition was filed by one Suresh Prasad before the Labour Court for impleading correct firm as a party so that the reference proceeding may be decided in presence of the firm representing the management after recalling ex parte proceeding. Such prayer was rejected by the Labour Court on the ground that it had no power to vary the terms of reference made by the government. The orders of the Labour Court rejecting the prayer are annexed as annexure-4 series. The ex parte award dated 27-3-1989 has been annexed as annexure-5. Learned counsel for the petitioner has advanced three arguments to seek quashing of the criminal case. (i) The award being against non-existent management cannot be held binding against the petitioner, (ii) the sanction for prosecution has been given without due application of mind that the reference was against a non-existent firm representing the management and (iii) the order of cognizance is barred by limitation as provided under section 468 of the Code of Criminal Procedure. 3 No doubt the identity of the firm representing the management in the reference case was challenged and attempt was made by another firm to intervene and claim to be the real management and such prayer was rejected, but the arguments no.1 and 2 cannot be decided in this proceeding under section 482 of the Code of Criminal Procedure because they involve questions of fact also. Such defence, if raised, must be considered by the court below on the basis of evidence adduced by the parties and in accordance with law. So far as 3rd submission relating to limitation is concerned, it needs to be examined in the light of provisions under the Act and section 468 and 469 of the Code of Criminal Procedure. According to learned counsel for the petitioner an award under the Act comes into force after 30 days of the award in view of provisions in section 17 A of the Act. The relevant section clearly provides that an award becomes enforceable on the expiry of 30 days from the date of its publication under section 17 of the Act. In the present case the award dated 27-3-1989 became enforceable w.e.f. 27-4-1989. The next submission is that once the award became enforceable, the cause of action for breach of the award arose on 27-4-1989 and according to section 468 of the Code of Criminal Procedure the period of limitation in relation to offence under section 29 of the Act would be one year because the offence is punishable with imprisonment for a term of six months only. So far as commencement of the period of limitation is 4 concerned, reliance was placed upon provisions of section 469 of the Code of Criminal Procedure according to which the period of limitation commences on the date of the offence when the commission of offence is known to the person aggrieved like in the present case. According to case of the petitioner, period of limitation commenced on 27-4-1989 and limitation set in after expiry of one year, that is, 27-4-1990. It was pointed out that complaint in question was filed on 8-10-1996, that is, after a delay of six years and the impugned order of cognizance was passed on 20-12-1996 without any application of mind to the issue of limitation. Learned counsel for the State has submitted that section 29 of the Act no doubt provides punishment of imprisonment for a term which may extend to six months but it further provides that where the breach is continuing one further fine may be imposed. According to learned counsel for the State an award giving the monetary benefits to the workmen having not been obeyed, the offence should be treated as a continuing offence and hence, there can be no period of limitation for such offence. In reply learned counsel for the petitioner has placed reliance upon a judgement of the Bombay High Court in the case of the State of Maharashtra Vs. Ajit Maneklal Choksi reported in 1979 LAB. I.C. 59. In that case the award was for reinstatement of workmen which was not obeyed. The court considered the issue whether the liability of reinstatement was a continuing one or it 5 was to be carried out by a particular date and in paragraph 5 it was held that the act of reinstatement had to be performed once only and not to be repeated from date to date and this required to be performed by the employer as soon as the award becomes enforceable after expiry of 30 days and that would be the date of commencement of limitation which would expire after one year. According to learned counsel for the petitioner the award for payment of monetary benefits is also to be performed only once and the same principle of limitation will arise as in the case of the State of Maharashtra vs. Ajit Maneklal Choksi. The submission is found to have merit. Following the principle laid in the aforesaid judgement of Bombay High Court, it is held that the order of cognizance has been passed in this case much after lapse of period of limitation which in this case was only of one year from the date when the breach was committed. Hence, the order of cognizance is quashed on that ground alone. Accordingly this application stands allowed. Patna High Court The 4th May, 2010 NAFR/BKS (Shiva Kirti Singh, J.)