D.G.R. Patnaik, J.In the instant application, the petitioners have prayed for quashing the entire criminal proceedings pending against the petitioner vide ID No. 296 of 1999 before the Chief Judicial Magistrate, Dhanbad as well as the order of cognizance dated 20.7.1999 passed by the learned court below taking cognizance of the offence u/s 29 of the Industrial Disputes Act, 1947.

The main ground taken by the petitioners in support of the prayer is that the order of cognizance is hopelessly barred by limitation and therefore, the continuance of the criminal proceedings against the petitioners is bad in law and is an abuse of the process of the court. Another ground equally emphasized is that the impugned order of cognizance as passed by the learned court below pursuant to which the petitioners have been called upon to face the trial in the proceedings, is bad on account of the fact that the learned Magistrate has foiled to apply his judicial mind to the allegations made in the complaint filed by the opposite party No. 2 and even on the basis of the entire allegations, no offence u/s 29 of the Industrial Disputes Act, 1947 could be made out against the petitioners at all. Further ground is that the complaint has been filed by the opposite party No. 2 by suppressing material facts which otherwise would have clearly established that the Award was rendered infructuous and terminated on account of the fact that it was made un-implementable.

2. Heard the learned Counsel for the petitioners and counsel for the State.

3. For better appreciation of the grounds advanced by the learned Counsel for the petitioners, brief reference to the facts of the case may be made

The case against the petitioners was registered on the basis of a complaint dated 20.7.1999 filed by the opposite party No. 2, the Labour Enforcement Officer, (Central), Dhanbad, alleging therein that the petitioners had failed to implement the Award dated 17.2.1992 passed by the Central Government Industrial Tribunal No. 2, Dhanbad, in Reference Case No. 309 of 1986 and therefore the petitioners are liable for punishment u/s 29 of the Industrial Disputes Act.

4. The Award was notified on 27.2.1992 and as per law, it was to be implemented within 30 days from the date of its notification. The petitioners, according to the complaint, were made liable on account of the fact that they happen to constitute the management of the Bharat Coking Coal Limited (BCCL) within whose management and jurisdiction comes Gopalichack Colliery in respect of which the dispute between the management and the workers arose. On receipt of complaint, the learned court below by the impugned order dated 20.7.1999, took cognizance of the offence against the petitioners.

5. Elaborating the grounds advanced by the petitioners, the learned Counsel refers to the background of the dispute leading to the passing of the Award and explains that the alleged industrial dispute demanding departmentalization of thirteen mazdoors of Co-operative Contractors Workers of Gopalichack colliery of Bhagaband Area in Putki Balihari Area, was raised before the Assistant Labour Commissioner (C) Dhanbad by the Bihar Mines Lal Jhanda Mazdoor Union on 4.5.1982. On the basis of the aforesaid demand, the Assistant Labour Commissioner (C) Dhanbad issued a notice intimating the Agent of the Gopalichack colliery about the dispute and inviting him for discussion on the issue. Comments were received from the Agent of the Colliery in response to the notice issued by the Assistant Labour Commissioner (C) Dhanbad. The negotiation having failed, the Assistant Labour Commissioner (C) Dhanbad vide his report dated 22.10.1982 addressed to the Ministry of Labour & Rehabilitation requested to resolve the dispute. After having received the comments from the management of the said colliery, the Central Government in exercise of its powers u/s 10 of the Industrial Disputes Act, 1947, referred the dispute for adjudication to the Industrial Tribunal No. 2 vide Reference dated 14.7.1983. Learned Counsel explains that the dispute referred to for adjudication was in respect of the workmen of Gopalichack colliery. The Tribunal thereafter issued notice in the corresponding Reference Case No. 54 of 1983, to the General Manager of the Area namely Putki Balihari Area. During the pendency of the proceedings before the Tribunal, a settlement was arrived at between the management of the colliery concerned and the Union on 12.2.1997 for providing employment to seven workers of the original list. Accordingly, seven persons shortlisted were departmentalized and the remaining six continued to contest the dispute before the Tribunal. The Reference before the Tribunal was re-numbered as Ref No. 309 of 1986 and was transferred to Tribunal No. 2 for adjudication and ultimately, the transferee Tribunal passed its Award dated 17.2.1982 with the direction that the six concerned workmen should be engaged as Badli miners/loaders and after completion of 190/240 days of attendance their case for regularization will be considered by the management. The Award was published by notification dated 27.2.1992 by the Central Government and copy of the notification along with the Award was forwarded to the General Manager of the Area concerned. Learned Counsel explains that the dispute was concerned with a particular colliery, namely Gopalichack Colliery and it is the General Manager of Area and the Agent who are authorized and duly appointed for the purpose of managing the colliery and also as appointing authority in respect of the workmen employed in the colliery besides undertaking all liabilities related to dispute with the workers of the colliery. Learned Counsel explains that it is in the light of this fact that all the notices issued bv the Assistant Labour Commissioner (Central) Dhanbad and the notice issued by the Tribunal, were directed to the General Manager of the Area in charge of the colliery and none of the notices were ever addressed to the petitioners, nor were the petitioners ever called upon to attend any conciliation proceedings before the Tribunal. Learned Counsel further adds that the Management had challenged the said Award before this Court in CWJC No. 569 of 1993 (R) but the same was disposed of by order of this court dated 12.2.1993. Thereafter, a SLP was preferred before the Supreme Court, which was also dismissed. By letter dated 29.5.1993, the General Manager of the Area was directed to implement the Award. However, in respect of the implementation of the Award, a dispute cropped up concerning the identification of the concerned workmen and therefore under an agreement with the Union it was agreed that in respect of four of the concerned workmen only, a settlement should be arrived at. Thus, pursuant to the settlement, only four persons had submitted relevant documents in respect of whom the Award could be implemented. The remaining two did not submit their respective documents within the stipulated period till 17.5.1994. However, the implementation of the Award in respect of four persons could not be made on count of a dispute, which was subsequently raised by the Secretary of the Union on the question of the genuineness of the identification of the workmen who had submitted their documents. Since the Award in respect of the remaining six persons could not be implemented on account of the dispute with respect to their identification, notice u/s 19(6) of the Industrial Disputes Act was issued by the management on 14.5.1996 to the Secretary of the Union and also to the Assistant Labour Commissioner intimating that the award was terminated on account of the fact that it could not possibly be implemented. Learned Counsel contends that the petitioners have been made accused merely on account of their designations and as senior officers of the Bharat Coking Coal Limited, although none of them come within the definition of "employer" of the colliery ( Gopalichack colliery). Learned Counsel adds that in the entire complaint petition the petitioners have not been attributed with any specific role to saddle them with vicarious liabilities for their criminal prosecution.

As regards the ground relating to the limitation, learned Counsel explains that the date of offence is deemed to be the date calculated thirty days after the notification of the Award on 27.2.1992 and since the offence u/s 29 of the Industrial Disputes Act prescribes punishment which may extend to six months or fine or both, the case ought to have been filed within one year from the date of the alleged offence whereas in the instant case the complaint was filed on 20.7.1999 and cognizance was taken on the aforesaid date.

6. Two grounds advanced by the learned Counsel for the petitioners stand out prominently. Firstly, the ground of limitation raised on the argument that admittedly, the Award was passed by the Tribunal on 17.2.1992 and was notified on 27.2.1992, it was to be implemented within thirty days from the date of its publication and failure to implement the Award within the stipulated period is deemed to be the date of the offence.

7. The provisions of Section 29 of the Industrial Disputes Act, 1947 reads as follows:

Section 29: "Any person who commits a breach of any terms 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 and the Court trying the offence, if it fines the offender, may direct that the whole or any part of the fine realised from him shall be paid by way of compensation to any person who, in its opinion, has been injured by such breach.

8. In the instant case, as mentioned above, the date of the notification of the award was 27.2.1992 and it was to be complied within 30 days from the notification of the Award. Failure to comply within the statutory period is an offence punishable u/s 29 of the. However, the contention of the learned Counsel for the petitioners that the date of the offence should be deemed to he the date immediately after lapse of the period of thirty days from the notification of the Award and that the cognizance of the offence should have been taken within one year from the aforesaid date of the offence and, therefore, the impugned order of cognizance is bad since it was passed in the present case much beyond the period of limitation as prescribed u/s 468(2) of the Code of Criminal Procedure., does not appear to be persuasive or convincing. The Award passed by the Tribunal is binding on the parties and even after expiry of statutory period of 30 days for compliance, the liability continues to exist till the Award is finally implemented. The limitation prescribed u/s 468 Cr.P.C cannot therefore be attracted to a case of continuing offence. In the case of a continuing offence, the provisions of Section 472 Cr.P.C. are applicable and the first period of limitation shall begin to run at every time during which the offence continues. The ground of limitation is, therefore, not acceptable.

9. As regards the second ground that the petitioners cannot be saddled with any vicarious criminal liability for the acts and omissions of the colliery Manager and the petitioners cannot be prosecuted merely on the basis of their designations as senior employees of the BCCL, the argument of the learned Counsel for the petitioners is not acceptable. It is not disputed that the colliery under reference in this case belongs to the Bharat Coking Coal Limited and it is under the over all control and management of the BCCL. The BCCL is a body corporate represented by the present petitioners in their capacity of Managing Directors constituting the Management body of the company. Even if the person specifically pointed out as the Project Manager of the concerned colliery is held responsible, the petitioners cannot absolve themselves from the liability of the company, which they represent for the non-implementation of the Award. The complainant has cited the present petitioners as being liable for the offence under the provisions of Section 32 of the Industrial Disputes Act, 1947. Furthermore, the challenge against the award before this court vide the writ application being CWJC No. 569 of 1993(R) was made by and on behalf of the Bharat Coking Coal Limited. In view of the aforesaid facts and circumstances, this ground of the petitioners is not acceptable.

10. On the third ground, the contention of the learned Counsel for the petitioners that the Award even though intended to be complied with and sincere efforts were made for implementation, but it could not be implementable in spite of the best efforts on the part of the colliery manager and intimation to this effect having been conveyed to the Assistant Labour Commissioner, Dhanbad, no offence u/s 29 of the for non-implementation of the Award could be made out against the petitioners and the institution of the present case six years after the notification of the Award even after the Award having become non-implementable, is totally without jurisdiction on the part of the complainant/Assistant Labour Commissioner (Central) Dhanbad, is not without basis.

The dispute referred to the Industrial Tribunal for adjudication was concerning the demand of 13 named workmen for their departmentalization in the Gopalichack Colliery of M/s Bharat Coking Coal Limited. The demand was contested by the representatives of the Management of the colliery. Finally, the Award, however, directed the Management that six out of 13 should be engaged as badli miners as loaders and after completion of their 190/240 days attendance in a year, their case for regularization will be considered by the Management. The direction was to be complied within one month from the date of publication of the Award it also appears that the Award was challenged by the. Management upto the Supreme Court, but it was sustained even upto the apex court. Thereafter, according to the direction of the Apex Court, the process of implementation of the Award was undertaken by the Management. From the annexures filed by the petitioners to the instant application, a dispute arose while implementing the Award by the Area Manager of the concerned colliery regarding the identification of the concerned workmen to whom the Award was related. The recognized Union had intervened for settlement on the dispute which cropped up in the process of the implementation of the Award and according to the settlement arrived at with the Union, the Award was to be implemented in the first phase in respect of four out of six workmen mentioned in the Award, since only four persons had submitted their relevant documents. It also appears from the annexures that for two remaining workmen under the terms of the settlement between the Management and the Union, 15 days time i.e. upto 17.5.2004 was given to the two workmen to submit their documents and other details pertaining to their case. When the process of implementation of the Award in respect of the previous four workmen was taken up by the Management, another dispute was raised by one Ganesh Ram by his written complaint dated 6 7 1994 regarding the genuineness of the identification of the four workmen whose cases were placed before the Management for consideration. Considering the stalemate and the dispute over the genuineness of the identity of the workmen in respect of whom the Award was to be complied with, the management issued a notice on 14.5. 1996 u/s 19(6) of the Industrial Disputes Act terminating the Award and assigning reasons for such termination. the notice was addressed to the Secretary of the Union and to the Assistant Labour Commissioner (Central)/Regional Labour Commissioner (Central) namely the complainant of the present case. Without considering the above developments and the genuine cause on account of which the Award could not be complied with and by omitting to mention the material facts in the complaint petition, the complainant has tiled the present case against the petitioners persuading the learned court below to take cognizance of the offence against the petitioners. It is apparent from the facts and circumstances of the case, as revealed from various Annexures to the instant application that while the complainant was aware of the fact that the Award had become incapable of implementing due to want of genuine beneficiaries of the Award, yet he has sought to impose penal liabilities upon the petitioners for non implementation of the Award by virtue of the complaint petition filed by him on 20 7 1999, almost two years later The complainant having failed to reveal the entire facts and circumstances in his compliant, has obviously mislead the learned court below to record its finding of a prima facie case against the petitioners on the basis of the limited information relating to the facts of the case. In this view of the matter, the impugned order of cognizance cannot be sustained.

11. In view of the aforementioned discussions, I find merit in this application. Accordingly, this application is allowed and the entire criminal proceedings against the petitioners in ID No. 296 of 1999, pending before the learned Chief judicial Magistrate, Dhanbad, including the order of cognizance dated 20.7.1999 as passed by the Chief Judicial Magistrate, Dhanbad, is hereby set aside.