Judgment:
ORDER
Jayasimha Babu, J.
1. For W.P. No. 8555/1994
The Three petitioner companies who have described themselves in the petition as group companies of H.C. Kothari Group with common address have sought a writ of Certiorari to call for the records comprised in the proceedings of the first respondent, State of Tamil Nadu represented by its Secretary to Government Labour and Employment Department in G.O.(D) No. 320 dated April 18, 1994 and to quash the same. By that order, the first respondent having considered that the refusal of the management of the petitioner companies to hold bilateral talks with the general Secretary of the third respondent, Kothari Group Employees union constitutes an unfair labour practice falling under S.No. 15 under Part I of V Schedule of the Industrial Disputes Act and exercising the powers vested in the Government under Section 34(1) of the said Act, directed the Inspector of Labour Madras II Circle to take steps to file a complaint against the Management of H.C. Kothari Group of Companies, Madras before the Metropolitan Magistrate Madras for an offence under Section 25-I of the said Act.
2. It is not in dispute that before the impugned order came to be made the petitioner companies through their common chairman were given an opportunity to set out and to state their case before the first respondent on April 15, 1994 and they were also heard on that day. In the impugned order it is also stated that the Government carefully examined the case based on the statement both oral and written presented by the Management of the petitioner companies and the union. The impugned order of the Government was made on the representation given on March 26, 1994 by the General Secretary of the third respondent union, Kothari Group Employees Union Mr. G. Velayutham in which inter alia it was represented that the management of the petitioner companies had committed unfair labour practices by declining to negotiate with the said Velayutham in view of the fact that the said Velayutham was the General Secretary of the Union which was also a recognised union. It is not in dispute that the management on March 15, 1994 had issued a circular which reads thus:
Circular
We have reasons to believe that the General Secretary of Kothari Group Employees Union, Mr. G. Velayutham is acting at the behest of persons who are not interested in the well being of this organisation. We have reason to believe that at the instance of vested interests, the said General Secretary of the Union Mr. G.Ve-layutham is leading our staff members to a path of confrontation and is unnecessarily precipitating trivial issues disrupting the normal functioning of the office.
In the circumstances, it has been decided not to have any direct negotiations with the representatives of the Union when they are led by the said General Secretary Mr. G Velayutham. It is for the staff members to make such arrangements as are necessary to ensure smooth functioning of the establishment.'
3. After that circular was issued, it was clarified by the petitioners, by a letter addressed to the workmen, that the petitioners did not have any objection to the employees being the members of that union nor was the petitioners objecting to the exercise of their right to elect their own office bearers and that they were willing to discuss all the outstanding issues with the other office bearers and the representatives of the union. It is the petitioners stand that they had further clarified in the written letters to the president of the Union April 8, 1994 and in the letter written by the Chairman of the petitioner companies to the first respondent on April 15, 1994, that the petitioners objections are only to negotiate with the said G. Velayutham, who according to the petitioners, was acting in a manner detrimental to the interests of the petitioners at the instance of the Chairman's cousin one P.O. Kothari who leads a trivial group of companies and which companies are involved in extensive litigation with the petitioners.
4. The fact that Mr. G.Velayutham is the public relation officer of Kothari Industrial Corporation Limited, a company which is under the control of P.D. Kothari is not in dispute. According to the petitioners, the petitioner companies as also Kothari Industrial Corporation Limited and other companies belonged originally to the same group which was controlled by two brothers D.C. Kothari and H.C. Kothari and on a division being effected between the two brothers, the petitioners companies came under the exclusive control of H.C. Kothari while Kothari(Madras) Limited Kothari and Sons and Kothari Industrial Corporation Limited and other companies came under the control of D.C. Kothari. The Chairman of the petitioner company B.H. Kothari is the son of late H.C. Kothari and P.D. Kothari is the son of D.C. Kothari. It is averred in the petition that there has been proceedings before the Company Law Board and also before the original as well appellate side of this court with regard to certain disputes between the two groups of companies controlled by the cousins. The petitioner companies as also the companies controlled by P.D.Kothari are functioning in the same building Kothari Buildings which is said to be under the joint ownership and control.
4-A. The fact that the three petitioner companies are commonly referred to as group companies under the control of H.C.Kothari is admitted. In this petition itself the three companies have described themselves as Group of Companies of H.C.Kothari. The letter dt April 15, 1994 addressed by the Chairman of the petitioner companies to the first respondent is signedby him in his capacity as the Chairman of H.C.Kothari Group of Companies. The subject in that letter reads thus 'Labour Dispute-Management of H.C.Kothari Group of Companies viz., Kothari Sugars and Chemicals Limited, Investment Trust of India Limited, Madras Safe Deposit Co. Ltd Corporate Office Madras Complaint of unfair labour practice against the Management Regarding. The impugned order refers to the circular issued by the Chairman ofH.C.Kothari Group on April 15, 1994 as also the representations made by the Union on March 26, 1994.
5. After the circular extracted above was issued on March 15, 1994, the third respondent union had filed W.P.No. 5244 of 1994 in which this Court made an order on April 7, 1994 directing the first respondent herein to consider the representation made by the Union on March 26, 1994 and take a decision with regard to the circular dated March 15, 1994, after giving noticeto the petitioners. The third respondent was directed to take a decision on or before April 22, 1994. In the said petition, the circular issued by the management of petitioner companies on March 15, 1994 had been challenged and this court, as stated in para 3 of the said order directed the petitioner therein to move the State Government as also the Commissioner of Labour with regard to that circular and the letter of the Union dated March 26, 1994 said to have been given to the Government, during the pendency of that writ petition. It must be noted there that the order of the court was made without giving any notice to or hearing the petitioners herein, although the first respondent in that writ petition was the H.C. Kothari Group of Companies represented by its Chairman and Managing Director, B.C. Kothari.
6. After the impugned order was made, a complaint had been lodged against the directions of these companies before II Metropolitan Magistrate. Madras and that a case has been registered as C.C. No. 3026 of 1994. The Complaint was registered in the court on April 25, 1994. The complainant is the Labour Inspector, II Circle Madras 35. During the course of hearing of this petition it was stated at the Board that the petitioners have filed a Original petition in this court for quashing the complaint and the same is pending. Though at the time of hearing before the first respondent or at any time prior to the impugned order being made, the petitioners had not questioned the fact that the third respondent union was recognised and was competent to represent its employees at the time of hearing of this petition, an affidavit was filed on behalf of the petitioners in which it is stated that out of 39 employees working at the head office of the company of Kothari Sugars and Chemical Ltd. only three employees are the members of the third respondent Union, that out of 17 employees working in Madras Safe Deposit Company Limited, no one is the member of the said union and that out of all employees working in the Investment Trust of India Limited only 10 employees are the members of the third respondent Union. A number of letters given by the employees of the three companies resigning their membership in the third respondent Union have also been filed. The assertion made by the petition as regards the shifting of the third respondent Union has been decided by the union without furnishing any figures as to the current strength of its members from among the employees of the petitioner companes. It may be mentioned here that it is common case of the parties that the third respondent union as among its members, not only the employees of the petitioner companies but also the employees of the companies controlled by P.D.Kothari. The Union itself had been treated at the time when all the companies were under a common management.
9. In the affidavit filed on behalf of the third respondent, in support of the application for vacating the interim stay granted in this petition, there is no specific denial of Mr. G. Velayutham having acted in a manner which was inimical to the interests of the persons controlling the petitioners companies. It is stated in the affidavit of Mr. G. Velayutham as follows..... 'I submit that I am personally employed in Kothari Industrial Corporation which company falls within the group controlled by Mr.P.D. Kothari Mr. B.H. Kothari seems to have had some differences with Mr. P.D.Kothari in regard to purchase of shares in Kothari Industrial Corporation which resulted in a company petition before the company Law Board. As an employee of the Kothari Industrial Corporation, I was asked to do certain functions in my capacity as an employee by Mr. P.D. Kothari and this seems to have created some misapprehension in the mind of Mr. B.H. Kothan. But normally such misapprehension ought not to stand in the way of day to day transactions and especially in matters of negotiations of Labour issues'. It is in this factual background that the issues arising in this petition will have to be considered.
10. Mr. Mohan Parasaran, learned counsel appearing for the petitioners submitted that the impugned order has been made without application of mind on the part of the first respondent to the material facts which were required to be considered while deciding to exercise its powers of authorizing a complaint to be made under Sec. 34 of the Industrial Disputes Act. In as much as the impugned order has been made against a group of companies without specifying the companies comprising in that group and disregard-ing the fact that for the purpose of Industrial Disputes Act, only Distinct legal entities, are required to be considered and that there is no provision which would permit the prosecution being launched against 'Group' that the first respondent has failed to advert to the important ingredients of the alleged unfair labour practice namely want of good faith: that, the persons against whom prosecution has to be launched also not having been set out in the impugned order, the impugned order cannot be regarded as a valid order made in exercise of powers conferred under Section 34 of the Industrial Disputes Act.
11. Further submission of the learned counsel was that the order made under Section 34 of the I.D.Act, is one which can be judicially reviewed, even at this stage although reported cases have only dealt with the validity of the sanctions for prosecution proceedings which arose from the prosecution launched pursuant to such sanction either by way of appeals or revisions, or petitions under relevant provisions of the Criminal Procedure Code, Counsel also submitted that the impugned order suffers from errors on the face of the records and is therefore liable to be quashed.
12. Mr. P. Chandrasekaran, Addl. Govt. Pleader appearing for the first respondent submitted that the impugned order has been made after due notice to the parties and after giving them sufficient opportunity to state their case in writing and also after giving them a personal hearing. Parties were in fact heard and the impugned order was made after considering the materials placed before the authority by the concerned parties. It was also submitted that there was no doubt at any point of time as to the companies comprised in the group, as is evident from representations made by the union as also the reply submitted by the common Chairman of the petitioner companies on April 15, 1994 which sets out the names of the companies which forms part of that group. In any event, it was submitted no prejudice was caused as there was no doubt in the mind of any of the parties nor was there any room in entertaining a reasonable doubt as to the companies comprised in the group. The Union which has limited its membership to the employees who are the employees of the group of companies which were initially under a common management, and after the division between two brothers H.C. Kothari and D.C. Kothari the groups are clearly identified with reference to the names of the one or the other brother in whose branch the control, of the companies is vested.
13. Mr. V. Prakash learned counsel for the third respondent union submitted that the petition itself is not maintainable as the order of the Government sanctioning prosecution was the decision of the executive which was not a judicial or quasi judicial decision, that in any event, the petitioners have other adequate remedies to challenge the validity and the legality of the complaint and can raise all the defences open to the accused before the Magistrate or in any other appropriate forum under the Criminal Procedure Code. It was also submitted that even if there be any apparent lacuna in the impugned order, it is always open to the respondents to adduce evidence before the Magistrate's Court to show that all the relevant materials had in fact been considered by the first respondent before sanction was accorded and it is therefore impermissible to hold at this stage that the impugned order is one made without reference to relevant materials.
14. As regards the companies, it was submitted that at no time was there any doubt as to the three companies being part of the H.C. Kothari Group and that is how the petitioners companies have described themselves in this writ petition that is also the manner in which they were referred to by the common Chairman of the three companies who represented all the three companies before the first respondent to whom he addressed a letter dated April 15, 1994 which forms part of the records of the first respondent.
15. It was also submitted that the impugned order has in fact been made after considering all the relevant materials that were placed before it by the concerned authorities and it was not the stand of the petitioners at that time, that the respondent No. 3 union was not competent to represent the employees of the petitioners companies. Subsequent claims made by the petitioners regarding the alleged minuscule strength of the third respondent union in the three petitioner companies was not admitted that the petitioners action in declining to negotiate with Mr. G. Velayutham was prima facie denial of the trade union rights of the employees and would amount to unfair labour practice. The prosecution directed by the impugned order, it was submitted, was in accordance with the requirements of law and that in any event, there was no error on the face of the records warranting any interference even if it could be held that the petition is maintainable.
16. The impugned order is one which has been made by the Government in exercise of its powers under the provisions of the Industrial Disputes Act. Section 34 which occurs in Chapter VII as part of group of provisions under the heading Miscellaneous reads thus:-
34. Cognizance of Offence: (1) No courtshall take cognizance of any offence punishable under this Act or of the abetment of anysuch offence save on complaint made by orunder the authority of the appropriate Government.
(2) No court inferior to that of a MetropolitanMagistrate or a Judicial Magistrate of thefirst class shall try any offence punishableunder this Act.
17. The alleged offence for which prosecution has been directed is the unfair labour practice set out in item 15 of Section 1 of V Schedule to the Industrial Disputes Act which reads thus:-
To refuse to bargain collectively, in good faith with the recognised trade unions.
Section 25-T and 25-U in Chapter V-C of the Act deal with unfair labour practices. Section 25-T reads thus:
Prohibition of Unfair Labour Practice; no employer or workman or a trade union, whether registered under the Trade Unions Act, 1926 (18 of 1926) or not, shall commit any Unfair Labour Practice.
Section 25-U reads thus: Penalty for committing Unfair Labour Practice.
Any person who commits any unfair labour practice shall 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.
18. The fact that prohibition imposed against Commission of Unfair Labour Practice a list of which is given under V Schedule, does not mean that whenever unfair labour practice is alleged or committed, the only thing that can be done by the affected party or the State is to prosecute the persons concerned. The object of prosecution can only be deterrent as the result of verdict of quality can only lead to the imposition of fine or sentence of imprisonment and no relief can be given to the person affected by the unfair labour practice, as a result of the prosecution.
19. The object of Industrial Disputes Act is not the imposition of penalties through the process of criminal courts. The object is to provide a framework within which the disputes arising between management and labour are resolved peacefully in a just and equitable manner so that production of goods and services for which the industry was established can continue uninterrupted notwithstanding the existence of industrial disputes. It has therefore been provided in Section 34 of the Act that prosecution is not to be resorted to by any one reeling aggrieved by the acts of commission or omission of the employer or the workmen. The prosecution can only be at the instance of the State. Although offences are enumerated and the penalties therefor are prescribed in the Act, the Courts which are competent to try the offences under the Act will acquire jurisdiction to do so only when the complaint is filed by or under the authority of the Government.
20. The object of Section 34 of the Industrial Disputes Act is thus clearly to limit theprosecution to such cases as the Governmentafter due consideration of all relevant aspects,considers it necessary to initiate prosecutionas a measure of deterrence. It would thereforefollow that this power is not to be exercised ina mechanical or routine manner but only afterdue application of mind to all the relevant circumstances.
21. It is incumbent on the part of the Government to satisfy itself with reference to all the materials available to it that such prima facie materials establish the commission of the offence by the persons against whom complaint is to be filed. The satisfaction of the Government in this regard cannot be merely subjective. It has to be based upon the objective assessment of the relevant materials. Materials which are relevant ought not to be committed nor irrelevant materials be made the basis of granting of such sanction.
22. A decision on the part of the Government not to initiate prosecution, however stands on a different footing as the object of the enactment is not to institute prosecutions. A large measure of discretion is vested in the Government in deciding whether or not to launch a prosecution. Consideration of policy are relevant and it is open to the Government not to prosecute in any given case, prosecution being the exception and not the rule. A decision of the Government not to prosecute for any offence under the Act will not normally be subject to judicial review.
23. The question still remains as to whether the remedy chosen by the petitioners herein to question the validity of the impugned order directing lodging of a complaint against the petitioners is the appropriate remedy and as to whether this court should exercise its jurisdiction under Article 226 when an adequate alternative remedy is available to the petitioners before the Magistrate and before this court under the provisions of the Code of Criminal Procedure. All the submissions made by the learned counsel for the petitioners with regard to the alleged invalidity of the order made by the first respondent can be urged by the petitioners before the Magistrate while questioning the validity of the complaint as the jurisdiction of the Magistrate to entertain the complaint, would depend upon the complaint being a valid one and such complaint disclosing an offence under the Act. It is also open to the petitioners to question the validity of the complaint and as to whether the offence under the provision of the Act can be said to have been made out by appropriate proceedings under the provisions of the Criminal Procedure Code. As noticed earlier, the petitioners have in factinitiated such proceedings which are said to be pending.
24. Learned counsel for the third respondent Union, while questioning the right of the petitioners to any relief in this petitions, submitted that no one has a legal right to claim immunity from prosecution unless the statute specifically confers such a right. A decision to prosecute, it was submitted, does not take away any right of the accused as the accused has all the protection afforded to him under the provisions of the Constitution and the relevant statutes and no sentence can be imposed upon an accused unless he is found guilty of the offence at the trial held in accordance with the provisions of the law. A decision to launch a prosecution, it was therefore, submitted ought not to be judicially reviewed at this stage.
25. Learned counsel for the petitioners relied on a number of decisions in support of his submission that the order of sanction to prosecute the petitioners should be the result of due application of mind to the relevant materials and such sanction can only be given after it has been established to the satisfaction of the sanctioning authority that a prima facie case against the person is made out and that it is otherwise a fit case for launching of prosecution.
26. The authorities relied on by the learned counsel for the parties may now be noticed. The decision of the Privy Counsel; in the case of Gokulchand Dwarkadas Moratka v. The King was rendered in an appeal against the judgment of the Bombay High court convicting the appellant therein for an offence under Clause 23 of the Cotton Cloth and Yarn (Control) order 1943. Clause 23 of that order provided as follows:
No prosecution for the contravention of any of the provisions of this order shall be instituted without the previous sanction of the Provincial Government (or of such officer of the Provincial Government not below the rank of District Magistrate as the Provincial Government may by general, or special order in writing authorise in this behalf). The Privy Council held that in order to comply with thatprovisions it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is plainly desirable that the facts should be referred to on the face of the sanction, but this is not essential since Clause 23 does not require the sanction to be in any particular form nor even to be in writing. But if the facts constituting the offence charged are not shown on the face of the sanction, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority. The saction to prosecute is an important matter; it constitutes a condition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold sanction. They are not concerned merely to see that the evidence discloses a prima facie case against the person sought to be prosecuted. They can refuse sanction on any ground which commends itself to them for example, that on political or economic grounds they regard the prosecution as inexpedient.
27. It was further observed that 'The giving of sanction confers jurisdiction on the Court to try the case and the Judge or Magistrate, having jurisdiction must try the case in the manner prescribed under the Code of Criminal Procedure. The charge need not follow the exact terms of the sanction, though it must not relate to an offence essentially different from that to which sanction relates'.
28. In the case of Madan Mohan Sing v. State of Uttar Pradesh : AIR1954SC637 which was a case arising by way of an appeal from the order of the High Court acquitting the appellant on charges framed under the Prevention of Corruption Act, the Court while considering the validity of the sanction given by the appointing authority under Section 61(1) of the said Act, held
Where the facts constituting the offence do not appear on the face of the letter sanctioning prosecution it is incumbent upon the prosecution to prove by other evidence that the material facts constituting the offence were placed before the sanctioning authority. Where this is not done the sanction must be held to be defective and an invalid sanction cannot confer jurisdiction upon the court to try the case.
29. In the case of Jaswant Singh v. State of Punjab (1958-II-LLJ-269) : : 1958CriLJ265 which was also an appeal against the order of conviction/order of sanction the court held; The sanction under the Act is not intended to be nor it is an automatic formality and it is essential that the provisions in regard to sanction should be observed with complete strictness. The object of the provisions for sanctions is that the authority giving the sanction should be able to consider for itself the evidence before it comes to a conclusion that the prosecution in the circumstances be sanctioned or forbidden.
30. In the case of Feros Din and Ors. v. State of West Bengal (1960-I-LLJ-244) : : (1960)ILLJ244SC which came up before the court by way of appeal from the Judgment of the High Court rejecting the revision petitions for setting aside convictions for offences under Section 27 of the Act, the Supreme Court while considering the propriety of the sanction given by the Government under Section 34(1) of the Act, and after referring to Section 34(3) of the Act and the Judgment of Privy Council in 1948 PC 82 observed:
It is true that sanction does not on the face of it refer to the facts constituting the offence. There is however, ample evidence in this case which we did not understand the learned advocate for the appellants to challenge and which clearly establishes that the entire facts connected with the offence had been placed before the sanctioning authority and the sanction had been granted on a consideration of them.'
It is to be noticed here that the court referred to Section 34(1) of the Industrial Disputes Act, as being somewhat similar to Clause 23 of the Cotton Cloth and Yarn (control) Order 1943 and referred to the decision of the Government to file a complaint as the Sanction granted for prosecution.
31. In the case of In re R.B.S.S.N. Lakshman Chettiar and Others : AIR1950Mad835 a Division Bench of this Court while considering the validity of an order made by the Government under Section 34 of the Industrial Disputes Act, also referred to the decision of the Privy Council (1948 PC 82) and held that the order of the Government disclosed that the Government did not consider the facts which entitled the Government to file the complaint against the management. The Court observed:
Indeed, in express words, they leave that very question to be decided by the Magistrate and therefore the complaint filed by the District Magistrate on the basis of the order of the Government was incomplete and the Court could not assume the jurisdiction to deal with the alleged evidence.
That case arose by way of revision against the order of the Magistrate before whom the Criminal case was pending and by which order the learned Magistrate over ruled the objections that had been raised by the petitioner.
32. In the case of Public Prosecutor v. Jabbar (SA) (1966-II-LLJ- 888) : : (1966)IILLJ888Mad a learned single Judge of this court held that it was permissible for the Collector who was authorised by the Government to take further steps pursuant to the order deciding to invoke its power under Section 34(1) of the Act and that the delegation made by the collector to the Asst. Public Prosecutor who filed the complaint was valid. That case came up before the court by way of appeal against the order of acquittal passed by the Magistrate before whom the prosecution had been launched.
33. Reference was also made to an unreported decision of a learned Single Judge of this Court in the case of Workmen of Sundaram Industries (TVS) Ltd. by Sundaram Industries Employees Union, Madurai through its Secretary v. Management and Ors. W.P.No.s 15506 and 16222/1989 dated February 22, 1990. In those writ petitions the petitioner had sought a writ of mandamus to direct the second respondent therein to prosecute the first respondent therein pursuant to the complaints of the petitioner for an alleged unfair labour practice on the part of the employer. The court after referring to the decisions of the Privy Council and the Supreme Court, held that the petitioner union did not have a right to insist upon the Government to prosecute the management.
34. In the case of Ramadass and Ors. v. K.M. Sen (1956-II-LLJ-473) : : (1956)IILLJ473Cal a Division Bench of the Calcutta High Court made a distinction between 'Sanction' and filing of a complaint', while considering Section 34 of the Industrial Disputes Act and held that the law laid down in 1948 PC 82 regarding the order of sanction was not applicable to the complaint which the State was required to file under Section 34 of the Act. However this decision does not seem to have been followed by the Calcutta High Court itself in subsequent decisions. In the case Jiwan Das v. Rabin Sen and Ors. (1956-II-LLJ-323) : : (1956)IILLJ323Cal another Bench of the same High Court held that if the order directing the making of the complaint under Section 34 of the I.D. Act did not indicate, as to when and where the offence was committed, it could not be considered to be valid and sufficient.
35. In the case of State of Kerala v. Mary C. Nidhi Checko (1961-II-LLJ-569) : : (1961)IILLJ569Ker a learned single Judge of the High Court of Kerala after referring to the decision of the Privy Council in 1948 PC 82, and the decision of the Supreme Court in (1960-I-LLJ-244) : : (1960)ILLJ244SC , held that object of Section 34(l) of the I.D. Act and that of Clause 23 of the Cotton Cloth & Yarn (Control) Order was similar namely the prevention of frivolous or harassing prosecution or of prosecutions which on grounds of policy should not be instituted and that what the provisions say, despite the difference in the wording, is much the same. Where the complaint authority itself makes a complaint, it has necessarily to set out in the complaint the facts of the case and state what offence had been committed so that the very act or presenting a complaint is some guarantee that the authority, has after applying its mind to the facts of the case decided that a prosecution should be launched. That case came up before the High Court by way of a criminal appeal against a conviction by a Magistrate.
36. In the case of Desphande (PM) and Anr. v. Ferro Alloys Corporation and Ors. (1964-I-LLJ-613) : : (1964)ILLJ613AP (A.P) it was held that grantingof sanction cannot be an automatic formality and that it must be established that the authority had satisfied itself by applying its mind to all the relevant factors before it granted the sanction to prosecute. It was further held that whether the authority had satisfied it self is always question of fact which can be proved either by direct or other evidence and that it was not necessary to insist that it should be established in a particular manner. That case arose before the Court by way of Criminal revision petition against the order of conviction.
37. In the case of S.N. Hada and Ors. v. The Binny Ltd. Staff Association (1988-I-LLJ-405) : : (1988)ILLJ405Kant a Full Bench of the Karnataka High Court considered the question as to who could file a complaint under Section 34 of the Act and whether a private individual securing permission from the Government can file a complaint. The Court therein held that the Government can authorise a private person also to file a complaint and such a complaint shall be regarded as valid complaint under Section 34 of the Industrial Disputes Act on which court can take cognizance of any of the offence punishable under the Act. The Court further held that Section 69 of the Act authorises the appropriate Government to delegate any power exercisable by it under the Act and Section 4(1) of the act empowers the Government to make a complaint by itself or have such a complaint of Section 34 of the Act. It was observed that
The intent of the legislature in enacting the provision like Section 34 is to save the party against whom the complaint is to be filed from harassment and that it is for that reason the Government is required to apply its mind and determine the propriety of filing of the complaint.
38. In the case of P.N. Duda v. P. Shiva Shankar and Ors. : 1988CriLJ1745 one of the two learned Judges constituting the Bench, S. Mukherjee, J: as he then was, held that the discretion of Attorney General with regard to grant of his consent to a member of the public for initiating criminal contempt proceedings under Section 151(1) of the Contempt of Courts Act (70 of 1971) was justifiable. However this view was expressly dissented from by S. Renganathan, J. who was the other member of the Bench.
39. In the case of Satyanarayanan Lakshmi Narayanan Hegde and Ors. v. Mallikarjun Bhavanappa Triumale : [1960]1SCR890 while considering the scope of the High Courts jurisdiction under Article 227 the Court held that the High Court in exercise of its powers under Article 27 cannot assume appellate powers to correct mistake of law and that where there is no question of assumption of excessive jurisdiction or refusal to exercise jurisdiction or any irregularity or illegality in procedure or any breach of any rule of natural justice but merely an erroneous not being apparent on the face of the record, cannot be corrected by the High Court in revision under Section 115 of the Code of Civil Procedure or under Article 227 of the Constitution. The Court also observed that
an error which has to be established by a long drawn out process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record.
40. A Divisional Court of the Queens's Bench Division of the High Court of Justice in England, in the case of R. V. Inland Revenue Commissioners, Exparte Mead and another 1993 (1) ALL ER 773considered the question as to whether a decision to prosecute was judicially reviewable. One of the two learned judges who constituted the Division Court Stuart Smith L.H. held that a decision to prosecute an adult taken by the Commissioner for an alleged criminal offence in connection with tax evasion, was judicially reviewable although it would be in a very rare case that the court would direct discontinuance of the criminal proceedings. The other learned Judge in the Bench did not concur with the view that such a decision was judicially reviewable.
41. On a careful consideration of the object to be sub-served by Section 34 of the Act and the law laid down in the decided cases, the following propositions in relation to exercise of the power conferred under Section 34 may be formulated.
(1) The decisions of the appropriate Government to make or authorise the making up a complaint in respect of an offence under mat Act is analogous to sanction to prosecute under statutory orders or statutes such as Cotton Cloth and Yarn (Control) Order, 1943 and the prevention of Corruption Act. 14 1993(1) ALL ER 773.
(2) Making a complaint under Section 34 is not automatic. The Government is not obliged to lodge a complaint in all cases where prima facie the commission of an offence under the Act is made out. The decision not to prosecute is a subjective decision can be based on policy considerations and the Government has an absolute discretion to withhold sanction.
(3) The decision to lodge a complaint cannot be made mechanically. The Government must apply its mind to all relevant materials circumstances and come to a prima facie conclusion that an offence under the Act is made out. As a rule of prudence opportunity should be provided to the affected parties to state their respective cases before arriving at the decision to prosecute.
(4) It is desirable that on the relevant facts which constitute the basis of the complaint are set out in the order of the Government. The facts so set out should prima facie disclose the commission of the offence with which the person is charged.
(5) If the facts constituting the offence, charged are not adequately disclosed in the order of sanction, evidence may be led by the prosecution to show that those facts had been placed before and was considered by the Government, before the sanction was given.
(6) The order so made by the Government is open to scrutiny by the Criminal Court trying the case as also by the appellate and revesional Courts under the Criminal Procedure Code, as the Court competent to try the offence acquires jurisdiction only when there is a valid sanction.
(7) Even if on the basis of the evidence adduced at the trial conviction is warranted nevertheless if the order of sanction is found to be defective, such conviction is liable to be quashed on the ground that the Court which tried the cases had no jurisdiction to try the case.
(8) The Government can authorise any of its officials or any other person to lodge the complaint and to prosecute the alleged offender.
42. The impugned order of the Government shows that the Union as also the petitioner companies were given opportunity to present their respective cases in writing and were also given personal hearing. The petitioners regarded themselves as constituting a group and addressed their reply to the Government through their common Chairman. The identity of the companies constituting the group was never in doubt and is also not disputed now.
43. The offence alleged to have been committed is refusal to bargain collectively in good faith with the recognised trade union. The fact that the petitioners had declined to bargain with Velayutham, the General Secretary of the Union is not in dispute. The petitioners however contend that such refusal to bargain with him did not amount to refusal to bargain collectively with the union as the petitioners had intimated the union of its readiness to bargain collectively with all other office bearers and members of the Union. It is also the case of the petitioners that their refusal to bargain with the said Velayutham was in good faith as in their view, Velayutham being the public Relation Officer in charge of Kothari Industrial Corporation Limited, had been actively engaged in promoting the cause of the head of that company P.D. Kothari with whom the petitioner companies had many differences and were engaged in extensive litigation.
44. If those contention of the petitioners are upheld the petitioners are entitled to be acquitted. It is for the court trying the offence to consider these aspects and the prosecution cannot be side stepped by taking this court at the thresh-old to deny jurisdiction to the competent court to try the offence. It is true that the impugned order does not record that the petitioner's refusal to bargain with Velayutham was in bad faith. As to whether the Government had considered that question is a matter of evidence as the prosecution has the right to lead evidence before the Magistrate to show that all relevant materials had been considered by the Government before according sanction for prosecution.
45. If the petitioners are able to show that no offence is made out on the facts set out in the complaint then they have adequate remedies under the Criminal Procedure Code to have the proceedings quashed. If the trial is to proceed they will have all the safeguards provided to an accused under that Code.
46. Though the powers of this court are wide there are also wise self imposed restraints on the exercise of the powers of Judicial review under Article 226. When the duly constituted Courts of the land competent to try the offence are seized of the same, there is no justification for invoking this Court's extraordinary jurisdiction to prevent the prosecution.
This writ petition is dismissed.
For W.P. No. 11513/1994
1. The Kothari Group Employees Union has in this petition sought a writ of mandamus directing the first respondent the Government of Tamil Nadu to, prosecute the management of H.C. Kothari Group of Companies, consisting of (1) Kothari Sugars and Chemicals Limited (2) The Madras Safe Deposit Company Limited (3) The Investment Trust of India Limited as also the directors of these three companies who have been now impleaded as respondents 3 to 27 for the alleged unfair labour practice enumerated in the petitioner's complaint dated March 26, 1994 and in respect of which it is alleged no action has been taken.
2. The petitioner's allegation is that certain employees were given higher emoluments with a view to disrupt the activities of the Union and that in respect.of another employee she has been retained in temporary service for a long period and these acts of the second respondent management amount to unfair labour practice within the meaning of item 1(c); 4(c); 5(a) and (b) and 10 of the V Schedule to the Industrial Disputes Act. These allegations have been denied by the respondents.
3. Mr. P. Chandrasekaran Government Advocate for the first respondent placed before this Court the relevant files which show that the complaint made by the petitioner was in fact examined by the Commissioner of Labour who has opined that there was no case of prosecuting the respondent companies in respect of these matters. The first respondent after considering that recommendation of the commissioner of Labour, has sanctioned prosecution only in respect of the circular that had been issued by the respondent companies on March 15, 1994. The order of the Government so made has thus impliedly rejected the petitioner's request of prosecution of the second respondent with regard to other matters.
4. The nature and scope of Government's power under Section 34 of the Act have been adverted to in the order made in W.P. 8555/1994. They apply with equal force to this case as well. The power to prosecute is a power to be exercised with care and caution and scheme of the Act does not require that whenever a complaint of contravention of the provisions of the Act is made the Government should direct prosecution. It was well within the competence of the Government not to prosecute. Petitioner has no right to compel the Government to launch a prosecution against the respondents.
5. I do not see any merit in this petition and the same is dismissed.