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Judgment
S.K. Awasthi, J.
By this petition under Article 227 of the Constitution of India the petitioners is praying for quashment of order dated 04/10/2016 passed by the
Industrial Court, Indore in Criminal Appeal No. 1/MPIR/15.
The facts of the case are that the respondent was employee in the petitioners company, who was terminated from the service in the month of
December, 1999. Then respondent filed an application before the Labour Court seeking relief of reinstatement with back wages, which was allowed
vide order dated 14/06/2006. The aforesaid order was challenged before the Industrial Court, Indore in appeal No. 390/MPIR/2006. The said appeal
was partly allowed by order dated 03/08/2007 and it was directed that the respondent be resinstated without giving any back wages. It is alleged that
Factory Manager, Ruchi Strips & Alloys Ltd. Village Sejwai Ghata Billod District-Dhar by its letters dated 18/07/2006 and 26/07/2006 had directed
the respondent to report for duty. However, he did appear for duty and after serving for few days, he had vanished and never come.
After, 2006, for the first time the petitioners received a notice dated 27/09/2011, wherein the respondent claimed that depite the order passed by the
Industrial Court, he has not been reinstated and on the strength of that notice a complaint was submitted before the Labour Court, District-Dhar on
14/08/2012. The labour Court taking cognizance on the complaint, issued process against the petitioners. Then petitioners appeared before the labour
Court and raise an objection alleging that the complaint filed by the respondent is barred by limitation, however, the labour Court rejected his
application vide order dated 19/11/2013 and on appeal, Industrial Court, directed the court below to consider and decide the objection raise by the
petitioners by giving opportunity of adducing evidence to both the parties.
In compliance with the order of Industrial Court the petitioners appeared before the labour Court, Dhar and the said Court by its order dated
16/03/2015 had dismissed the complaint by holding that the respondent was taken on duty and he worked from 18/07/2006 to 26/07/2006 and
thereafter he did not report for duty. It is also held that first cause of action arose on 14/06/2006 and thereafter on 17/06/2006, when he submitted his
joining report. If the petitioners did not comply with the directions, he should have filed complaint within one year, however, complaint has been filed in
the year 2012 and since the complaint has been filed after 5 years, therefore, it cannot be entertained .
Being aggrieved by the aforesaid order, respondent preferred a leave to appeal under Section 378(4) of the Cr.P.C. before the Industrial Court,
which was opposed by the petitioners, however, leave was granted and thereafter the impugned order dated 04/10/2016 has been passed observing
that the order passed by the Industdrial Court on 31/10/2013 was not correct and there is no provision of recording evidence before trial and therefore,
the trial should have started as per provisions prescribed under Sections 251 to 259 of Cr.P.C. It is further held that till the order is not complied with,
the offence is committed and therefore, the order passed by Judicial Magistrate First Class, Pitampur is illegal and improper. This order is subject
matter of challenge in the present writ petition.
Learned Senior Counsel for the petitioners submitted that the petitioners have challenged the very initiation of proceedings by filing an application
for dismissal of complaint on the ground that the complaint is time barred, which was rejected by the Labour Court and therefore, the petitioners were
compelled to invoke jurisdiction of Industrial Court to entertain the prayer made under Section 482 of the Cr.P.C., which was allowed by the Industrial
Court on 31/10/2013. The respondent did not challenge that order by filing any writ petition before this Court, therefore, it attains finality.
It is further submitted that the Industrial Court had failed to see that for showing any non-compliance there will be a minimum requirement for
demonstrating before the Court below that the respondent approached the petitioners for reinstatement and that joining report has not been accepted
by the petitioners. Even on refusal of reinstatement will be breach, which will commited on the first day, when was not taken on duty, therefore, it
cannot be said to be continuing offence. The judgments relied upon by the learned Industrial Court are not in respect of reinstatement case. The
respondent filed the complaint under Section 35/91 of M.P. Industrial Relations Act, 1960 after 5 years, therefore, the complaint was barred by
limitation as per the provision of prescribed under Section 468(2)(b) of the Cr.P.C. The Industrial Court has by its own decision dated 31/10/2013,
directed the Judicial Magistrate First Class (labour Court), Pithampur to consider and decide the application of petitioners on merit by giving
opportunity to both the parties to adduce evidence and pass reasoned order giving clear findings. Under these circumstances, he prayed for quashment
of the impugned order dated 04/10/2016.
Learned counsel for the respondent supported the impugned order and prayed for rejection of the petition.
We have considered the rival contentions of the learned counsel for the parties and perused the record.
It is not disputed that respondent was employee in the petitioners company, who was terminated from the service in the month of December, 1999.
Respondent filed an application before the Labour Court, Dhar seeking relief of reinstatement with back wages, which was allowed vide order dated
14/06/2006. This order was challenged before the Industrial Court, Indore in Cr.A. No. 390/MPIR/2006, which was partly allowed on 03/08/2007 and
it was directed that the respondent be reinstated without giving any back wages.
The petitioners received a notice dated 27/09/2011, wherein the respondent claimed that despite the order passed by the Industrial Court, he has
not been reinstated and thereafter he filed a complaint against the petitioners before the Labour Court, Dhar on 14/08/2012. The labour Court after
taking cognizance on the complaint, issued process against the petitioners. After received the notice the petitioners marked their presence before the
labour Court and raised an objection alleging that complaint filed in time barred by limitation, however, the aforesaid application was rejected by the
labour Court, by its order dated 19/11/2013. This order was challenged before the Industrial Court. Industrial Court remitted back the matter to the
labour Court directing to consider and decide the objection raised by the petitioners by giving opportunity of adducing evidence to both the parties.
After conducting the enquiry, the labour Court (Judicial Magistrate First Class), Pithampur, District-Dhar found that the cause of action arose on
14/06/2006, when the reinstatement of the respondent was ordered. Although the respondent claims that he had submitted his joining on 17/06/2006
but the petitioners did not accept his joining report; whereas the petitioners claimed that Factory Manager, Ruchi Strips & Alloys Ltd., by its letter
dated 18/07/2006 had directed the respondent to report for duty and he had appeared for duty till 26/07/2006. After serving for few days, he had
vanished and then never came back. The labour Court was in opinion that if the directions regarding reinstatement of the respondent has not been
complied by the petitioners, then he should have to file the complaint within 1 year, however, the complaint has been filed by the respondent in the year
2012, after almost 5 years of the non-compliance of the order and therefore, it cannot be maintainable.
Being aggrieved with the aforesaid order of labour Court the respondent preferred an leave to appeal under Section 378(4) of the Cr.P.C., before
the Industrial Court and vide order dated 04/10/2016, the Industrial Court has held that the order passed by the labour Court as well as by the
Industrial Court has not been complied with till today, therefore, the offence is continuing offence, thus, it was directed to initiate the complaint against
the petitioners.
To resolve the controversy it appears necessary first of all to have a look on the provisions of Section 469 of the Cr.P.C., which reads as under:-
“period of limitation in relation to an offender shall commence on the date of offence; or where the commission of the offence was not known to
the person aggrieved by the offence or to any Police Officer, the first day on which such offence comes to the knowledge of such person or to any
police officer, whichever is earlier and where it is not known by whom the offence was committed, the first day on which the identity of the offender
is known to the person aggrieved by the offence or to the police officer making investigation into the offence, whichever if earlier.â€
In the present case the cause of action first arose on 17/06/2006, when the respondent had submitted his joining in pursuance of the order of
reinstatement passed by the labour Court on 14/06/2006 but the petitioners did not accept his joining report. After this the respondent could file the
complaint within a period of 1 year from the date of the order (03/08/2007) passed by the Industrial Court, when the appeal preferred by the
petitioners has been partly allowed and that order has also not been complied by the petitioners. However, the complaint has been filed by the
respondent in the year 2012, which clearly barred by limitation. In this regard the case of Raja Ram Maize Products Vs. Industrial Court of M.P. And
Others, (2001) 4 SCC 492 is relevant, in which the the Hon'ble apex Court has observed as under:
“7. In our view, the Labour Court, the Industrial Court and the High Court have proceeded on a misapprehension of facts. As noticed earlier, the
whole case put forth on behalf of the workmen before the courts below is that the appellant is not taking the workmen to duty though they have been
reporting for duty. The action of the appellant in not allowing the workmen to resume their duty gives rise to the dispute in respect of which application
before the Labour Court is filed. It is to redress this grievance the workmen had approached the Labour Court. Even as noticed by the Labour Court,
the dispute in this regard between the parties started from the time when the charge sheet was issued on 12.2.1986 to Dushyant Kumar as to why he
should not be suspended at 8 a.m. and from 12.2.1986 when he was prevented from entering the factory under the oral orders of the Factory
Manager while the workmen asserted that they along with Dushyant Kumar should have been permitted to join duty. This aspect was commented
upon by the Industrial Court as not amounting to any willingness on the part of the workmen to do their work. There is some dispute as to whether the
order made by the Labour Court on 1.3.1986 is binding on all the parties, as to that application only 29 persons had been impleaded as parties though
the words all other workmen were also added. In the relief portion also, the prayer is confined only to 29 workmen. However that aspect of the matter
need not detain us because even according to the workmen, as indicated in their application filed by them, it is clear that they understood the order of
the Labour Court to be one made in respect of all the workmen. It appears that thereafter they started demanding that they should be given work.
Otherwise, the period when the workmen had been refused work goes back to the date when they deemed to resume work with Dushyant Kumar
who was prevented from resuming work. It is only thereafter they were also not allowed to join duty. When the workmen themselves understood the
order of the Labour Court dated 1.3.1986 as directing them to resume their duties and thereafter though they have reported for duty, they have not
been allowed to join their duty, the application filed in each of these cases is beyond the period of two years mentioned in Section 62 of the Act from
1.3.1986.
The aspects considered by the courts below whether there was abandonment of work by the workmen or termination of the services of the
workmen are not all germane to the main issue at all. The courts have unnecessarily travelled at a tangent missing the essence of the matter.
Now we have to see as to whether the case put forth before the courts falls under which of the clauses provided under Section 62 of the Act. The
largest period of limitation prescribed therein is two years and in cases of termination of services and other incidental matters lesser period of limitation
has been prescribed. Therefore, even taking that two years period from the date of the dispute either taking the date on which when they were
refused work when they made a demand that they should be allowed to do work with Dushyant Kumar or when they made a demand after the order
made by the Labour Court on an interim application directing them to resume work or calling off the strike, the applications filed are beyond the period
of limitation prescribed under Section 62 of the Act.
The concept of recurring cause of action arising in a matter of this nature is difficult to comprehend. In Balakrishna Savalram Pujari Waghmare &
Ors. vs. Shree Dhyaneshwar Maharaj Sansthan & Ors., AIR 1959 SC 798, it was noticed that a cause of action which is complete cannot be
recurring cause of action as in the present case. When the workers demanded that they should be allowed to resume work and they were not allowed
to resume work, the cause of action was complete. In such a case the workers going on demanding each day to resume work would not arise at all.
The question of demanding to allow to do work even on refusal does not stand to reason.
In that view of the matter, we think that the High Court and the Labour Court fell into an error in analyzing and understanding the matter. In this
view, we think the view taken by the Industrial Court to the extent that the cause of action had commenced at any rate on 1.3.1986 is correct.
Reckoning from that date, the period of limitation of two years had been over by the time the applications were filed.â€
In the context of law laid down by the apex Court in the case of Raja Ram Maize (supra), it is clear that the offence committed by the petitioners
is not continuing offence and therefore, the complaint filed by the respondent against them after a period of 5 years on the alleged non-compliance of
the aforesaid order, which is apparently time barred because the limitation as prescribed under Section 468(2)(b) of the CrP.C.. Section 468(2)(b) of
the Cr.P.C. Reads as under:
“468. Bar to taking cognizance after lapse of the period of limitation-(1) Except as otherwise provided elsewhere in this Code, no Court, shall taken
cognizance of aan offence of the category specified in sub-section (2), after the expiry of the period of limitation.
(2) The period of limitation shall be-
(a) six months, if the offence is punishable with fine only;
(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;
(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.â€
It is pertinent to note that the Industrial Court, vide order dated 31/10/2013, directed the labour Court (Judicial Magistrate First Class), Pithampur,
District-Dhar to consider and decide the application of petitioners regarding maintainability of the application and discharge of the petitioners by giving
an opportunity of adducing evidence to both the parties and after hearing the arguments decide the objection raised by the petitioners and this order
has not been challenged by the respondent by filing any writ petiton before this Court, therefore, the aforesaid order passed by the Industrial Court has
attained finality. Therefore, the Industrial Court cannot take a contrary view, which has already been attained finality. Under these circumstances the
Industrial Court has committed an error in allowing the petition filed by the respondent and setting aside the order passed by the labour Court (Judicial
Magistrate First Class) Pithampur on 31/10/2013, where by the application filed by the petitioners is dismissed as time barred on account of limitation.
For the reasons stated above, this writ petition is allowed and order dated 14/10/2016 passed by the Industrial Court, Indore in Criminal Appeal No.
1/MPIR/2015 is hereby set aside and consequently, the proceedings pending before the labour Court (Judicial Magistrate First Class), Pithampur,
District-Dhar for the offence 34(B)(D) of the Industrial Disputes Act against the petitioners is also hereby quashed.
Let a copy of this order be sent to the Industrial Court, Indore and Labour Court (Judicial Magistrate First Class), Pithampur, District-Dhar for
information and necessary compliance.
Certified copy as per rules.