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State of Kerala Vs. P.M. Joseph - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial;Criminal
CourtKerala High Court
Decided On
Case NumberCriminal Appeal No. 70 of 1957
Judge
Reported inAIR1958Ker152; 1958CriLJ759; (1958)IILLJ223Ker
ActsIndustrial Disputes (Appellate Tribunal) Act, 1950 - Sections 16 and 29; Industrial Disputes Act, 1947 - Sections 17A, 18, 29 and 34
AppellantState of Kerala
RespondentP.M. Joseph
Appellant Advocate M.U. Issac, Public Prosecutor
Respondent Advocate S. Narayanan Potti,; P. Karunakaran Nayar and; N.K. Vark
DispositionAppeal allowed
Excerpt:
.....decision of an industrial tribunal, the appellate tribunal modifies in any manner whatsoever that award or decision, the decision of the appellate tribunal shall, when it becomes enforceable under section be deemed to be substituted for that award or decision of the industrial tribunal and shall have effect for all purposes in same manner and in accordance with the same law under which the award or decision of the industrial tribunal was made as if the industrial tribunal made the award or decision as modified by the decision of the appellate tribunal'.it seems to us that the section, does little more than set out the ordinary well-accepted principle regarding the effect of a modification in appeal. the words 'as if the industrial tribunal made the award or decision as modified by the..........16 of act xlviii of 1950, was to substitute the decision of the appellate tribunal for that of the original tribunal with retrospective effect so that the position was as if original award were never made.therefore the breach committed by the accused must be deemed to be a breach of the decision of the appellate tribunal and not of ext. p-1. in other words, the learned judge took the view that the conviction was for the breach of an award which, by reason of the modification by the appellate tribunal, must be deemed to have never existed. against this acquittal the state has appealed.2. we do not agree with the view taken by the learned sessions judge. in the first place it is to be observed that the original award was not a joint award in favour of the three employees but was really.....
Judgment:

Raman Nayar, J.

1. By the award, Ext. P-1 duly made under Section 15, and duly published on 30-3-1954, under Section 17 of the Industrial Disputes Act, 1947 (Act XIV of 1947), and which by reason of Section 17-A read with Section 18(3) became binding on him thirty days thereafter, the accused in this case was directed to pay three separate sums of money as compensation to three of his discharged employees within one month from the date of publication.

The accused did not, and to this day has not, made the payments; but he filed an appeal under 3. 12 of, the Industrial Disputes (Appellate Tribunal) Act, (XLVIII of 1950), and, on 30-8-1955, the appellate tribunal made an order setting aside the award in favour of one of the employees and confirming the awards in favour of the remaining two.

Meanwhile, on complaint made by the Assistant Labour Commissioner, Trivandrum, under the authority of the State Government granted under Section 34 of Act XIV of 1947, the accused was tried by the Sub-Divisional Magistrate, Trivandrum, for an offence under Section 29 of the Act, for breach of the award, Ext. P-l, and, on 31-8-1956, he was convicted under that section and sentenced to pay a fine of Rs. 75/, (The learned magistrate also imposed a default sentence of two months' simple imprisonment which we observe exceeds the limit set by Section 65 of the Indian Penal Code, the maximum term of imprisonment for the offence being six months).

The accused appealed, and in appeal the learned Sessions Judge acquitted him taking the view that the original order having been modi-fed by the appellate tribunal, the effect of Section 16 of Act XLVIII of 1950, was to substitute the decision of the appellate tribunal for that of the original tribunal with retrospective effect so that the position was as if original award were never made.

Therefore the breach committed by the accused must be deemed to be a breach of the decision of the appellate tribunal and not of Ext. P-1. In other words, the learned Judge took the view that the conviction was for the breach of an award which, by reason of the modification by the appellate tribunal, must be deemed to have never existed. Against this acquittal the State has appealed.

2. We do not agree with the view taken by the learned Sessions Judge. In the first place it is to be observed that the original award was not a joint award in favour of the three employees but was really three separate awards made by a common order. The cancellation of the award in favour of one of the employees did not in any manner affect the awards in favour of the remaining two which were confirmed.

These latter awards were not modified, and so there can be no question of applying Section 16 of Act, XLVIII of 1950, to them. Secondly, we do not read Section 16 of Act XLVIII, as having the effect which the learned Sessions Judge has given to it. That section runs as follows :

'Where on appeal from any award or decision of an industrial tribunal, the Appellate Tribunal modifies in any manner whatsoever that award or decision, the decision of the Appellate Tribunal shall, when it becomes enforceable under section be deemed to be substituted for that award or decision of the industrial tribunal and shall have effect for all purposes in same manner and in accordance with the same law under which the award or decision of the industrial tribunal was made as if the industrial tribunal made the award or decision as modified by the decision of the Appellate Tribunal'.

It seems to us that the section, does little more than set out the ordinary well-accepted principle regarding the effect of a modification in appeal. It is as if the decision of the appellate authority were substituted for the decision of the original authority, and ther-3 is nothing in the section to suggest that the substitution is a retrospective substitution with effect from the date of the original order so as to make that order altogether non-existent.

The words 'as if the industrial tribunal made the award or decision as modified by the decision of the Appellate Tribunal' do not have this effect, for the tense used is not the past perfect 'had made' and there is no indication that the industrial tribunal must be deemed to have made the award as modified by the decision of the appellate tribunal on the date of its original award.

The original award, Ext. P-1, in its original form was in force until its modification by the decision of the appellate tribunal, and the accused's offence was complete when he broke, that award which had become binding on him, the breach having been long before the modification by the appellate tribunal. The liability for the breach of an injunction or a prohibitory order which is not void ab initio is not affected by its being subsequently set aside in appeal, and it seems to us that the position is no different here.

3. Many other contentions were taken be-fore the learned Sessions Judge. They were repelled by him and they are not pressed before us.

4. It is however said that, while under Section 17-A read with Section 18 of Act, XIV of 1947, an award becomes enforceable and binding only on the expiry of thirty days from the date of its publication under Section 17, the award in this case required the accused to make the payments within one month from the date of its publication, in other words, before the award had become enforceable and binding. His breach was there-fore of an award which had 'Ot yet become binding on him, and since under Section 29 it is only the breach of an award that is binding that is made punishable, he cannot be convicted under that section. We do not agree.

The award required the accused to make the payments within one month from the date of its publication, namely, within one month from 30-3-1954 and it became enforceable and binding on the expiry of thirty days from 30-3-1954, that is, one day before the actual breach occurred. Even, if the breach had occurred before the award became binding, he was still in breads when it became binding and would then be-come liable to punishment under Section 29 of the Act.

5. We allow the appeal, set aside the order of acquittal passed against the accused, and convict him under Section 29 of the Industrial Disputes Act, 1947. We sentence him to pay a fine of Rs. 75/-, in default, to suffer simple imprisonment for one month.


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