Raj
Kumar Gupta Vs. Lt. Governor, Delhi & Ors [1996] INSC 1396 (5 November 1996)
J.S.
Verma, K. Ramaswamy, S.P. Bharucha Bharucha. J.
ACT:
HEAD NOTE:
On 16th April, 1991, the first respondent passed the
following order, acting under the provisions of Section 34 of the Industrial
Disputes Act, 1947 (hereinafter referred to as "the said Act"):
"Whereas
it has been made to appear to the Lt. Governor of the Union Territory of Delhi
that the management of M/s. Garden Silk Mills Ltd. Bella Mill Compound, Outside
Seharagate, Surat (ii) M/s. Garden Silk Mills Ltd.,
4959-Kucha Rehman, Chandni Chowk, Delhi-6 have indulged in unfair labour
practices as enumerated in the Fifth Schedule of the Industrial Disputes Act,
1947 and thereby contravened section 25-T of the aforesaid Act which is an
offence punishable under section 25-D of the Act ibid.
2.
Now, therefore, in exercise of the powers conferred under section 34 of the
said Act read with the Government of India, Ministry of Home Affairs
Notification No.2/2/61-Judl.I dated the 24th March 1961 and after having
considered the matter carefully, the Lt. Governor of the Union Territory of
Delhi, is pleased to authorise Shri Raj Kumar Gupta, Patron, Garden Silk Mills,
Karamchari Sangh (Regd), 5239- Ajmeri Gate, Delhi to file a complaint in the
Court of Competent jurisdiction, against the above said establishment and the
following of its Officers, Which is punishable under section 25-U of the
Industrial Disputes Act, 1947, as amended up-to date.
i)Sh.Praful
A. Shah Managing Director, Garden Silk Mills Ltd., Bella Mill Compound, Outside
Seharagate,Surat.
ii)Sh.
S.J. Bhesania Whole-time Director, Garden Silk Mills Ltd., Bella Mill Compound,
Outside Seharagate,Surat.
iii) Sh.
I.P. Singh Regional Manager, Delhi Garden Silk Mills Ltd., 4959-kucha Rehman,Chandni
Chowk, Delhi-6." The order was challenged by the employer (the third
respondent) in a writ petition filled in the High Court of Delhi. The writ
petition was allowed by the order under appeal, which reads thus:
"In
view of our judgment in C.W.P. No. 1715 of 1991 (M/s. Tobu Enterprises Limited
and others vs. The Lt. Governor, Delhi, and others) the impugned order is bad in law and is set aside. There
will be no order as to costs. Rule is made absolute." This appeal by special
leave is filled by the person to whom the authorisation under Section 34 was
given.
Section
34 reads thus:
"34.
Cognizance of offences.-(i) No Court shall take cognizance of any offence
punishable under this Act or of the abetment of any such offences, save on
complaint made by or under the authority of the appropriate Government.
(2) No
Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of
the first class shall try any offence punishable under this Act." In the
case of M/s. Tobu Enterprises Limited, the only question which arose for
consideration was whether a private person could be authorised under Section 34
to file a complaint for an offence under Section 25-U of the said Act.
[Section
25-U prescribes the penalty for committing an unfair labour practice. The Delhi
High Court came to the conclusion that under the provisions of Section of
Section 34, the appropriate Government could file the complaint itself or the
complaint could be filed under its authority, but there could not be two
extremes, that is either the appropriate Government itself filed the complaint
or it could authorise any private party to do so. The complaint had to be filed
either by the appropriate Government or its functionaries. If the authority to
file a complaint was given to a private person it was likely to be abused.
There would be no check on the complainant to prosecute the complaint with due
diligence. He would not be interested in a fair trial and might be actuated by
personal vendetta against the accused, frustrating a fair and speedy trial.
The
appropriate Government had to have control over the whole of the prosecution.
The
Delhi High Court found itself unable to agree with the view taken to the
contrary by a Full Bench of the Karnataka High Court in S.N. Hada vs. The Binny
Ltd Staff Association LAB. I.C. 165 165. The identical question had been raised
before the Full Bench of the Karnataka High Court and the Full Bench held that
if the view was taken that only the Government or its agent could file the
complaint, then the provisions of Section 30 providing for the filling of the
complaint by or on behalf of a trade union or a business which was affected,
would become redundant. This could not have been the intention of the
Legislature. Viewed from any angle, the Full Bench found it difficult to hold
that under Section 34 a private body or a person other than an agent of the
Government could not be authorised by the Government to file a complaint.
Section
30 reads thus:
"30.
Penalty for disclosing confidential information.- Any person who willfully
discloses any such information as is referred to in section 21 in contravention
of the provisions of that section shall, on complaint made by or on behalf of
the trade union or Individual business affected, be punishable with
imprisonment for a term which may extend to six months or with fine which may
extend to one thousand rupees, or with both." Learned counsel for the
appellant relied upon the decision of the Full Bench of the Karnataka High Court
and submitted that there was no justification for reading Section 34 on a
restricted manner, as had been done by the Delhi High Court in the case of M/s.
Tobu Enterprises Ltd.
Learned
counsel for the employer submitted that the words "under the authority of
the appropriate Government" in Section 34 were only clarificatory and an
amplification of the provisions of Section 39.
Section
39 reads thus:
"39.
Delegation of powers.- The appropriate Government may, by notification in the
Official Gazette, direct that any power exercisable by it under this Act or
rules made thereunder shall, in relation to such matters and subject to such
conditions, if any, as may be specified in the direction, be exercisable also.-
(a) Where the appropriate Government is the Central Government, by such officer
or authority subordinate to the Central Government or by the State Government,
or by such officer or authority subordinate to the State Government, as may be
specified in the notification; and (b) Where the appropriate Government is a
State Government by such officer or authority subordinate to the State
Government as may be specified in the notification." In learned counsel's
submission, only a delegate of the appropriate Government appointed under the
provisions of Section 39 could be authorised by the appropriate Government to
file a complaint under Section 34. There was, in any event, an implied
limitation in Section 34 having regard to the nature of a criminal prosecution
and the general policy that a prosecution could only be at the instance of the
Government. Learned counsel cited the judgment of this Court in Ishwar Singh Bagga
and Ors. vs. State of Rajasthan, 1987 (1) S.C.C. 101, upon which the Delhi High
Court had relied in the case of M/s. Tobu Enterprises Ltd.
Ishwar
Singh Bagga's case related to the provisions of Section 129-A of the Motor
Vehicles Act, 1939, which dealt with the power to detain vehicles used without
certificate of registration or permit. Section 129-A provided, "Any police
officer authorized in this behalf or other person authorized in this behalf by
the State Government may.......... seize and detain the vehicle....." It
was held by this Court that the expression "other person" in Section
129-A had to be read ejusdem generis with the expression "any police
office" which preceded it. The expression could refer only to an officer
of the Government and not to an officer or employee of a statutory corporation
or any other private person. Having regard to the nature of the power conferred
by Section 129-A, it could not have been the intention of the Legislature to
confer such power on persons who were not officers of the Government. if had
been so intended, the provision would have so stated. Ordinarily, whenever a
statute empowered the Government to appoint persons to administer any of the
provisions of a statute the persons who could be so appointed by the Government
could only be persons appointed in connection with the affairs of the State. In
other words, they would be employee s or officers of the Government who were
directly subject to its administrative and disciplinary control. The powers of
search seizure and detention of vehicles belonging to private parties under
Section 129-A and of launching prosecutions in that regard were incidental to the
sovereign powers of the State and they could not ordinarily be entrusted to
private persons unless the statute concerned made express provision in that
behalf. It was a different matter if a private person, on his own, filed a
complaint before a Magistrate and wised to establish a criminal charge. In such
a case the private person would not be investigating in to the crime with the
aid of the statutory powers of search , seizure or detention.
In our
view, the judgment in Ishwar Singh Bagga's case is clearly distinguishable. The
provisions of Section 129-A of the Motor Vehicles Act deal with the power to
seize and detain vehicles. This is the police power of the state. It was in the
context of this power that it was held by this Court that the "other person"
would be exercising the sovereign powers of the state and therefore, should be
an employee of the state. This view was reinforced by reading the words
"other person" ejusdem generis with the words "any police
officer" used in the provision just earlier. This Court noted that a
private person could file the complaint but he would not be entitled to the
powers of search, seizure and detention conferred by Section 129-A, It was, therfore,
the nature of the power conferred by Section 129-A which led this Court to hold
that "other person" in Section 129-A meant an employee of the
Government.
Penalties
under the said Act are prescribed for the officers of illegal strikes and
lock-outs (Sections 26, 27 and 28), of breach of a settlement or award (Section
29), of disclosing confidential information (Section 30) of closure without
notice (Section 30A), and of altering conditions of service pending proceedings
(Section 31 read with Section 33). These offences most closely concern workmen,
the representative trade unions and employers.
The
provisions of Section of Section 34 require that no Court shall take cognizance
of any offence punishable under the said Act is of the abetment of such offence
save on a complaint made by the appropriate Government or under the authority
of the appropriate Government. There is no limitation therein in regard to the
party to whom the authorisation may be given. It is the workman, the trade
union and the employer who are most concerned with offences under the said Act
and neither the terms of Section 34 nor public policy require that they should
be exclude from making such complaints.
At the
same time, the provisions of Section 34 are in the nature of a limitation on
the entitlement of a workman or a trade union or an employer to complain of
offences under the said Act. They should not, in the public interest be
permitted to make frivolous, vexatious or otherwise patently untenable
complaints, and to this end Section 34 requires that no complaint shall be
taken cognizance of unless it is made with the authorisation of the appropriate
Government.
The
argument that the words "or under the authority of" in Section 34 (1)
are only clarificatory and an amplification of the provisions of Section 34
must be rejected. Section 39 empowers the appropriate Government to delegate
the powers exercisable by it under the said Act.
This
is altogether different from the concept of authorisation to file a complaint
under Section 34. If the powers under Section 34 have ben delegated under
Section 39, the delegate can file the complaint himself or authorise someone
else to file it. Learned counsel's argument, if accepted, would render the
words "or under the authority of" in Section 34 otiose and that is
impermissible. These words necessarily must be given due meaning and the
meaning is that the appropriate Government may authorise someone other than
itself, even a non-Government servant, to file a complaint under Section 34.
Learned
counsel submitted that , in any event, the writ petition should be remitted to
the Delhi High Court because contentions had been taken therein which had not
been dealt with in the order under appeal. We see no good reason to do so, but
we make it clear that it shall be open to those against whom the complaint is
filed to take all available deferences before the criminal court.
In the
result, the appeal is allowed. The order under appeal is set aside. The writ
petition filed before the Delhi High Court is dismissed. shall be no order as
to costs.
Back
Pages: 1 2